LAW AND COURTS
Sierra Leone has a two-tiered legal system based on the English common law model. Outside of Freetown and the Western Area, local customary law also applies. The court system comprises of two levels, the Superior Courts (High Court, Court of Appeal and Supreme Court) and the Lower Courts Magistrates Court and Local Courts. The High Court houses a number of different divisions, including the FTCC. The Court of Appeal deals with appeals from the High Court. The Supreme Court is the country’s final appeal court.
Civil proceedings are normally commenced by a writ of summons or originating summons filed together with a statement of claim at the High Court or District Registry. The length of time between issuance of a writ of summons and the start of a trial can take up to three months and the length of time from trial to final judgment can extend to over a year. Proceedings often advance at a slow pace due to frequent adjournments and procedural issues. The Ebola outbreak caused further delays within the machinery of justice, leading to an increase in the already substantial backlog of cases.
The FTCC was established in 2010 with the aim of reducing the time taken to resolve commercial disputes. The efficiency of the new Court has also been impeded by the Ebola crisis. Two full-time judges have been appointed to the FTCC. Judges from other divisions of the High Court and Court of Appeal split their time between those courts and the FTCC.
Foreign investors can access the court system, although it has also been criticised as potentially subject to financial and political influence. The GoSL’s JSRSIP III sets out various planned system reforms to increase the efficiency of the court system. The EU, UNDP, Ireland, Japan and the UK are also supporting judicial reform projects in Sierra Leone with a similar objective.
The judiciary is headed by the Chief Justice, who, along with other judges of the Superior Courts, is appointed by the President on the advice of the Judicial and Legal Services Commission. Each appointment is subject to Parliamentary approval. Before appointment, judges must have been entitled to practise as counsel in Sierra Leone (or a country with an analogous legal system) for 10, 15 or 20 years for the High Court, Court of Appeal and Supreme Court respectively.
FOREIGN JUDGMENTS AND FOREIGN LAW
The Sierra Leonean courts recognise foreign judgments emanating from a jurisdiction which shares a bilateral or reciprocal enforcement treaty with Sierra Leone. In order to enforce a foreign judgment in Sierra Leone, a party must apply (with supporting evidence) to the High Court for registration of the judgment. Judgment debtors are entitled to apply to set aside the registration.
Generally, as a matter of practice, Sierra Leonean courts do not apply foreign law. The courts may intervene in the proof of foreign law but are not obliged to do so. If the application of foreign law cannot be proven by the party concerned, the Sierra Leonean courts will decide the case according to the Sierra Leonean lex fori.
Sierra Leone has a dualist system and as such international law is not directly applicable domestically. It must first be translated into national legislation before it can be applied by the national courts.
In Sierra Leone, arbitration is still governed by the Arbitration Act, Chapter 25 of the Laws of Sierra Leone 1960 (Cap 25).
Under the Arbitration Act, the High Court of Sierra Leone will stay proceedings where there is a valid arbitration submission/clause providing for arbitration with a seat in Sierra Leone, provided it is satisfied that there is no sufficient reason why the matter should not be referred to arbitration, and that the party applying for the stay was and remains ready and willing to do all acts necessary for settlement of the matter through arbitration.
Sierra Leone is currently not a party to the New York Convention. However, acceding to the New York Convention has been identified as a national priority under the JSRSIP III and the GoSL is conducting a review of its position. The Law Reform Commission has drafted an Arbitration Bill, based largely on the UNCITRAL Model Law, and the English Arbitration Act 1996. It is thought that the Convention will be acceded to, and implemented into domestic law, in the near future.
Awards in arbitrations situated outside of Sierra Leone can be registered with the High Court and may then be enforced as if they were judgments of the High Court of Sierra Leone, subject to the permission of the Court. Investors should note that the Court may refuse to register arbitral awards in circumstances such as fraud, insufficient notice, or where enforcement would be contrary to public policy. The experience of the Sierra Leone courts with enforcement of foreign awards is limited and enforcement may not therefore be straightforward.