IDLO – ACCESSING JUSTICE: SOMALIA’S ALTERNATIVE DISPUTE RESOLUTION CENTERS
3% No
2% Other
No Other Yes
95% Yes
Figure 23: User views on whether the ADR process was objective and unbiased
COMPARATIVE PERSPECTIVES | Impartiality The Alternative Dispute Resolution Act (2010) in Ghana provides the possibility for a party to challenge a customary arbitrator if: “(a) circumstances exist that give rise to reasonable cause to doubt as to the arbitrator’s independence or impartiality; or (b) the arbitrator does not possess a qualification agreed on by the parties”. This provision applies only where the party has not participated in the appointment of the arbitrator or the party has become aware of the circumstances justifying the challenge after the appointment has been made. The challenged customary arbitrator shall “step down and the party who appointed the challenged arbitrator shall appoint another arbitrator to replace the challenged arbitrator”.122 Further, parties have the possibility of jointly revoking the appointment of a customary arbitrator in the event that: “(a) there is sufficient reason to doubt the impartiality of the arbitrator; (b) the arbitrator is physically or mentally incapable of conducting the proceedings or there is reasonable cause to doubt as to the arbitrator’s capability to conduct the proceedings; or (c) the arbitrator has refused or failed to conduct the arbitral proceedings properly; or use reasonable dispatch in conducting the proceedings or making the award”. Section 10 of the Act also allows parties to agree beforehand on the circumstances that would determine revocation of the customary arbitrator appointed.123 NORMATIVE DIMENSION This section assesses strengths and limitations of ADR Centers in relation to protections for the vulnerable through laws applied, remedies granted and adherence to human rights protection.
F. PROTECTIONS FOR THE VULNERABLE Application of law Typical normative frameworks employed
Section 6, SOPs
Centers may apply sharia law and principles, to the extent that they do not conflict with nationally applicable international human rights treaties and standards, and customary law (Xeer) practices and business norms that are not in conflict with national law or nationally applicable international human rights treaties and standards or sharia law and principles.
122 Ghana, Alternative Dispute Resolution Act (2010), section 99. 123 Ibid., section 100.
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