LLM in Commercial Law

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End date: 2019

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    INVESTOR-STATE ARBITRATION UNDER ETHIOPIAN BILATERAL INVESTMENT TREATIES
    (2018-06) GIDEY BELAY ASSEFA
    Investor-state arbitration is quasi-judicial means of settling investment disputes which was considered as neutral, flexible, cost effective and specialized form of dispute settlement. Currently, however, the overall system of investor-state arbitration is criticized for it gives protection to investors while undermining host state’s interests. Almost all Ethiopian BITs contain investor- state arbitration. It is not known, however, if investor-state arbitration under these BITs balances the interests of investors and host states. Hence, the objective of this study is to examine whether investor-state arbitration provisions of Ethiopian BITs balance the interests of the country and investors. In doing so, text analysis of 28 Ethiopian BITs is made. A semi-structured interview with purposively selected individuals, who are academicians, practitioners and government officials, is also employed. Literatures and reports are also used. Consequently, it has been found that most investor-state arbitration provisions are framed broadly and leave many procedural issues to external rules of arbitration thereby give unfettered discretion to tribunals. They are inconsistent and open to abuse of MFN. Host states are not guaranteed to submit claims or counter claims and the types of relief that the tribunal may render is not addressed within the BITs. These findings take us to the conclusion that investor-state arbitration under Ethiopian BITs guarantee the rights of investor, and not the host state. These provisions can have a devastating effect on the host country once a case arises. An analysis on the compatibility of the recent global developments of rectifying the problems have been conducted that revealed that abandoning investor-state arbitration is not a good choice for Ethiopia. The study finally recommended that investor-state arbitration must continue to exist in the Ethiopian BITs but with major reform.
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    Analyzing the Legal and Institutional Functions of Copyright Collective Management Society in Ethiopia: A Comparative Analysis.
    (2019-03) Berhanu Mulugeta
    Copyright collective management society is very important for managing copyright since individual management is impossible for right holders to exercise their rights by dealing with all potential users. Accordingly, the objective of this thesis is to examine the adequacy of the legal and institutional function of collective management society in Ethiopia and go through the legal loopholes of the new amended copyright law and difficulties of Ethiopian collective management society. The research is predominantly doctrinal and qualitative data is used to test the validity of the research .Also, Comparative study was conducted with foreign laws of other countries namely Canada, Germany, India and Nigeria since these countries have a sound copyright policy, well developed collective management society, and comprehensive copyright law. The researcher found that certain ambiguities on the legal provisions on the formation of collective management society are obstacles for the formation of collective management society. The provisions of Ethiopian collective management society are not compatible with digital technology. Also, the study found out in addition to the legal gaps, there are other challenges that affect the establishment of a strong and functional collective management society in Ethiopia; for instance, lack of trust of copyright owners on collective management society, lack of unity among the copyright owners and cooperation between the government agencies. Therefore, it is concluded that collective management society has not been effectively functioning in Ethiopia due to loopholes of the provisions of copyright law and unable to keep the interest of copyright owners. Accordingly, the researcher recommends amendments in the provisions of the copyright and neighboring right law to make it comprehensive law and to provide viable solutions for the legal gaps and problems that affect the formation of vibrant collective management society. Moreover, Ethiopia should adopt the experiences of the countries like German, Canada, India and Nigeria in managing copyright in protecting the rights of copyright owners and users and set up a well-developed collective management society.
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    The Legal and Institutional Framework of Public Construction Works Procurement in Ethiopia
    (2019-04) Yohanan Yokamo
    Ethiopia has adopted its own legal and institutional framework of public procurements consisting of modern public procurement rules, principles and regulatory set ups so as to overhaul the weak and corrupt public procurement systems. Although there are changes in the Ethiopian legal and institutional framework following the enactment of the 2009 Public procurement proclamation, it is argued with regard to its application to different type of public procurements. Accordingly, this paper particularly deals the legal and institutional framework of public construction works procurement in Ethiopia. Crucially, the public procurement regime in a market economy is, inter alia, determined by the quality of the consistency and inclusion of the modern guiding principles for public procurement laws. In this respect, the Public procurement regime has markedly developed considerable guiding principles of public procurement. Accordingly, this work assessed those principles in legal and institutional framework of public construction works procurement in Ethiopia and through discussion; it has found contravening the guiding principles. Accordingly, based on the legal research qualitative methodology and primary data, cases and looking into the existing literature, the paper basically identified that inadequate emphasis given to the methods and procedures of public construction works procurement and lack of specific regulatory framework that adopt e-procurement methods of procurement and Performance- Based Contracting (PBC) in government construction works procurement, and nonetheless, the failure of regulatory framework to effectively address procurement made between two and more public bodies and the fragmented nature of public construction works procurement regulatory framework are crucially affecting the effectiveness of the public construction works procurement in Ethiopia. In addition, the thesis further argues, absence of comprehensive regulatory framework that allows public bodies to check the reasonable performance, require regulatory reforms in Ethiopia to introduce new approach and tools like Performance Based Contracting (PBC) that enable public bodies to reasonably check „cost of procurements effectiveness‟. As regards institutional setups for the competitive public construction works in Ethiopia, the study identified the absence of coordination and overlap of mandates among government organs charged to check and balance the activity of procuring organs in public construction works in Ethiopia.
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    BALANCING RIGHTS AND OBLIGATIONS IN ETHIO-CHINA BIT
    (2019-06) HASHIM TUNA
    Thank you Lord ,you are Unmoved mover of globe, for making this possible and for all the blessings. May your name always be praised because it is only through you Lord that your creation can live a more fulfilled and purposeful life. This thesis would have remained an idea without the constant encouragement, unwavering dedication and outstanding supervision from my supervisor ,Associate Professor Daniel Behailu. At a personal level, he is generous, friendly and easily gets along. At a professional level, he creates the perfect environment for personal growth, reflection, focused research and offers meticulously insightful comments. I am deeply indebted for the invaluable time we spent discussing numerous general international laws during investment course and while conducting my thesis. Thank you so much for your patience and for your intellectual curiosity. I would like to thank my parents ,especially my Mom, who always encouraged me to seek new challenges and opportunities for my personal development. Additional thanks are due to my colleagues in Justice Office, thank you for the steadfast friendship and the moral support above all for the, constant inspiration. All of you , thank you for the friendship and for the motivation. I would like to thank my son, Singtan, who provided me with a very peaceful pregnancy, which made it possible that I continued to pursue my Master’s degree and write my thesis while working full time. Lastly, Special thanks are due to my wife ,Emu, for all the love and support, constant encouragement, generosity and for keeping me grounded and who followed with a lot of enthusiasm the development of this thesis. Thank you very much for your love, understanding and for enduring little bear’s kicks during my absence. I hope when little bear ,Singtan, is of age the thesis will inspire her to pursue an education beyond this level. I would never be able to make this dream come true without your support and assistance. From preparing our meals and organizing the house, to listening to all my ideas for the thesis, my wife was undoubtedly the strongest boost that I had to make this thesis a reality.
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    COMMERCIAL AGENT IN ETHIOPIA: A COMPARATIVE STUDY
    (2019-02) MULUGETA TEKLEHAYMANOT
    This is a comparative research work on the legal frame work of “Commercial Agent” in Ethiopia with an objective of exploring the various available legal frameworks there for and the associated problems therein. In this LLM thesis, it has been tried to overview the various legal protections on Commercial Agent in different jurisdictions and to also compare and contrast these ‘Commercial Agent’ frameworks with that “Commercial Agent” Legal frame work in Ethiopia. The paper finally comes up with some conclusions drawn from the legal loopholes and problems observed in the Laws which bestowed protection to Commercial Agent and the findings of the research show that there are inadequate legal frameworks to regulate the Commercial agency, part icularly Commercial Agent in Ethiopia. As a result under the Commercial Code of Ethiopia regarding the scope of a commercial agent’s activities , the exclusionary rule from Commercial agent businesses , the effect of Continued performance after the ex piry of fixed period, the consequences of non - observance of mandatory notice for termination, duty to cooperation of the commercial agent and principal, issue of remuneration post termination, the entitlement of Commercial Agent up on termination for de finite period of time, the entitlement of Compensation/indemnity if the agency relation is terminated due to death, illness, age and infirmity of the agent ,obligation not to compete post termination and the time - barred(period of limitation) for entitleme nt of compensation up on termination of the agency agreement are not properly addressed in a manner that attracts Commercial agency business investment.
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    POLITICAL UPRISING AND FOREIGN DIRECT INVESTMENT IN ETHIOPIA: LEGAL PROTECTION AND COMPENSATION
    (2019-06) BEHAILU BERGENA WADA
    n the current globalized world, where every single action of one country or any international organization directly or indirectly; positively or negatively affects another country, FDI is considered to be one of engines of boosting economic development of both developed and developing countries in which Ethiopia is not an exception. There are different theories for and against the flow of FDI into the territory of the host country. Those which analyze in favor of it try to mention the positive effects of FDI while the opposite side criticizes the same on the ground that FDI doesn‘t play positive role in the affairs of the host country or it takes the minimal part. Sooner or later it is positively considered by the majority of academic persons and politicians. FDI is not indifferent to the domestic situations of the host country. There are different determinants which play either positively or negatively in the inflow of FDI. One of the determinants is the political environment of the recipient country. The more stable is the political situation of the host country the more likelihood of inflow of FDI will be. The holding of massive political demonstration, political violence and armed conflicts are some of features of political instability in the host country which put the host country in disadvantageous part regarding the inflow of FDI. The study is mainly devoted to be conducted due to the current political uprising which has begun mainly three years ago. Following the political uprising, several FDIs have suffered from damage. Though the response of the government, to repair the damage, is quicker, investors have welcomed it in hesitation alleging its insufficiency. There are also investors who have refused to receive the government‘s ‗financial support because of its disproportionality to their damage. The general objective sought to be achieved, in the study, is checking whether the country has tried its best to prevent or mitigate the occurrence of the damage and the response of investors on the ‗financial support‘ made by the government. To do so, the qualitative and non-doctrinal research methodology has been employed. The legal documents and other literature have been reviewed. Interview has also been conducted with the Ethiopian Investment Commission and three investors which have been selected from among the injured investments following the political uprising. The study has revealed that Ethiopian government has shown reluctance in implementing the country‘s obligation of according full protection and security. Therefore, it has come up with the recommendation that the Ethiopian government should give equal endeavor for putting the obligation into practice as that of its diligence to attract FDI.