Journal of Private International Law

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The Ethiopian federation and private international

law: the contours of the federal and the state
governments’ jurisdictions

Mekuria Tsegaye Setegn

To cite this article: Mekuria Tsegaye Setegn (2019) The Ethiopian federation and private
international law: the contours of the federal and the state governments’ jurisdictions, Journal of
Private International Law, 15:2, 418-443, DOI: 10.1080/17441048.2019.1645976

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Journal of Private International Law, 2019
Vol. 15, No. 2, 418–443, https://doi.org/10.1080/17441048.2019.1645976

The Ethiopian federation and private international law: the

contours of the federal and the state governments’ jurisdictions
Mekuria Tsegaye Setegn*

The Ethiopian Constitution divides the power to enact private laws between
the federal government and the states. This entails certain inexorable private
international law disputes which are concomitant of state private laws. The
federal arrangement confers upon the states an inherent jurisdiction to wield
disputes connected with their private laws. Nevertheless, the Federal Courts
Proclamation and a precedent set by the Federal Supreme Court’s Cassation
Division render the Federal High Court the wielder of an inherent
jurisdiction over disputes connected with state laws. Superciliously, the
federal government has aggrandised its jurisdiction by extending it to
disputes connected with state private laws. This paper addresses the
question whether the power of the states to enact private laws subsumes
a jurisdiction to wield private international law disputes. To this end, it
analyses the relevant provisions of the Constitution, statutes and a case
law. It also draws on the experiences of other federations. The paper will
argue that the Constitution confers upon the states an inherent
jurisdiction to wield disputes connected with their private laws. It
concludes that the states should have their own private international
law rules and courts designated to adjudicate private international law
disputes.
Keywords: Federal Democratic Republic of Ethiopia; private international
law; private law; jurisdiction; federal government; state government;
cassation; constitution

A. Introduction
Technological advancement and the elimination of exorbitant legal barriers expe-
dited painless international and intranational transactions. This resulted in an
unprecedented global and regional interconnectedness; international as well as
intranational movement of people and the flow of capital have become almost
commonplaces. This poses certain challenges as it presents opportunities. The dis-
parity of private laws and the consequent inconsistent treatment of disputes is one
of the challenges. Private international law works to remedy this discrepancy and

*Mekuria Tsegaye Setegn, Lecturer in Law, University of Gondar, School of Law, Gondar,
Ethiopia. Email: [email protected]

© 2019 Informa UK Limited, trading as Taylor & Francis Group

 Journal of Private International Law 419
ensure a uniform settlement of disputes connected with two or more legal
systems.1
Private international law disputes could be international or intranational.
International disputes involve elements connected with the legal systems of
two or more independent sovereigns. On the other hand, intranational cases
are domestic disputes with no connection to the legal systems of other
nations. The latter cases are frequent in federations where the non-central gov-
ernments maintain their own legal systems and private laws. These classes of
cases owe their existence to the disparities of the private laws of sub-national
entities.2
The Constitution of the Federal Democratic Republic of Ethiopia establishes a
federal nation comprised of the federal government and nine autonomous states.3
The Constitutional architecture engendered discrete federal and state legal
systems. Based on the area in question, the Constitution divides the power to
enact private laws between the federal government and the states. Accordingly,
the federal government may enact a labour code, a commercial code, and intellec-
tual property laws.4 The states have a residual power to legislate on the remaining
areas of private law.5 The Constitution also states that both entities shall have their
own legislative, executive and judicial organs.6
As the Constitution divides the power to enact private laws between the
federal government and the states, private international law disputes may
spring in relation to the federal as well as the state private laws. These disputes
could be international or interstate. International cases come into the picture
where there is a dispute connected with a foreign sovereign on one hand
and the federal or the state laws on the other. On the other hand, the
heterogeneity of state private laws and the establishment of separate state
court systems offer a fertile ground for interstate private international law
disputes.

1
S ee LR Kiestra, The Impact of the European Convention on Human Rights on Private Inter-
national Law (Asser Press, 2014), 13–14, See A Mills, The Confluence of Public and
Private International Law: Justice, Pluralism and Subsidiarity in the International Consti-
tutional Ordering of Private Law (Cambridge University Press, 2009), 20–23.
2
See Arthur T. von Mehren, Adjudicatory Authority in Private International Law: A Com-
parative Study (MARTINUS NIJHOFF PUBLISHERS, 2007) 57–58; See generally M
Pryles, “Interstate Conflict of Laws in Australia” (1979) 44 Journal of Comparative and
International Private Law; Mills, supra n 1, 16–17; See generally Joost Blom, “Constitu-
tionalizing Canadian Private International Law – 25 Years since Morguard” (2017) 13(2)
Journal of Private International Law.
3
The Constitution of the Federal Democratic Republic of Ethiopia, 1995, Negarit Gazzeta.,
1st Year No. 1, articles 1, 46(1) and 50(1).
4
Ethiopian Constitution ,1995, articles 51(19), 55(3) and 55(4).
5
Ethiopian Constitution, 1995, article 52(1).
6
Ethiopian Constitution, 1995, article 50(2).
420 M.T. Setegn
Since the Constitution is the supreme law of the land,7 it should be the sole
touchstone in delineating the jurisdictions of the federal government and the
states. The Constitution divides the power to enact private laws between the
federal government and the states. It also establishes separate federal and state
courts. These empower both entities to wield classes of cases connected with
their respective private laws. In a marked contrast to this, the Federal Courts Pro-
clamation8 and a precedent set by the Federal Supreme Court’s Cassation Division
in the case of Meseret Alemayehu V.Emushet Mulugeta,9 promiscuously dictate
that the Federal High Court shall have an inherent jurisdiction over every
private international law dispute. Neither the legislation nor the precedent
makes a distinction between cases connected with the federal laws on the one
hand and state laws on the other.
Ironically, the Federal Supreme Court’s Cassation Division ruled that the jur-
isdictions of the state courts – to adjudicate cases connected with state laws – ema-
nates from their delegation to exercise the jurisdiction of the Federal High Court.
The power of the federal government to revoke this delegation, by establishing the
Federal High Court in the states, makes the irony more deplorable.10 Based on this
power, the federal government has already withdrawn the delegation of five
states.11 As long as the myth of inherent federal jurisdiction over disputes con-
nected with state laws is venerated, these states may not lay hands on any
private international law case; it is only the remaining four states that may exercise
even the ironic delegated jurisdiction.
The idea that the federal government should be the wielder of an inherent jur-
isdiction – over disputes connected with state laws – is quite conceited and uncon-
stitutional. There is no solid constitutional or logical justification which may
warrant extending the jurisdiction of the federal government to cases connected
with state laws. The emergence and progression of state private international
law rules and jurisprudence require extricating the states from reverence for the
frivolous myth of inherent federal jurisdiction over disputes connected with
state laws; the myth has hitherto smothered the very idea of state private inter-
national law.
Faithful implementation of the Constitution and the circumvention of the pro-
found confusion require cautious delimitation of jurisdiction. This requires tread-
ing through numerous and intricate conundrums. Among other things, one should

7
Ethiopian Constitution, 1995, article 9(1).
8
Federal Courts Proclamation, Number 25/96, Federal Negarit Gazeta of the Federal Demo-
cratic Republic of Ethiopia, 2nd Year, Number 13 (15 February 1996).
9
Meseret Alemayehu V.Emushet Mulugeta and Tsegaye Demeke, (2015), Federal Supreme
Court Cassation Bench, Vol. 18, File No.100290, 330.
10
Ethiopian Constitution, 1995, article 78(2).
11
A Proclamation to Provide for the Establishment of Federal High Court in Some Regions,
Number 322/2003, Federal Negarit Gazeta of the Federal Democratic Republic of Ethiopia,
9th Year, Number 42 (8 April 2003).
 Journal of Private International Law 421
go over the allocation of legislative and judicial jurisdictions under the Con-
stitution. It is also decisive to examine the relationship between the substan-
tive private laws and private international law rules. Crafting a legal
landscape where the normative differences and the autonomy of the states
may not jeopardise the legitimate expectations of parties involved in multi-
state disputes is also crucial; their potential legislations and judicial
approaches should be tolerant of their differences and deferent to the
federal arrangement.12
This article aims at exploring the extant constitutional and logical justifica-
tions for the enactment of state private international law rules and the adjudica-
tion of private international law disputes by the state courts. It answers the
question whether the states have inherent legislative and judicial jurisdictions
over disputes connected with their private laws. To this end, it critically analyses
the relevant provision of the Constitution, statutes and a caselaw. It also draws
on the experiences of the Nigerian and the U.S federations in dealing with
private international law disputes. These federations are selected based on
various considerations. First, taking the relatively embryonic Nigerian federalism
and the advanced US federalism as samples offers an ideal opportunity to
explore the experiences in both types of federations. Second, comparison with
these systems is sound and convenient as their structures of power allocation
are analogous to the Ethiopia Constitution.
This article is divided into five parts. The first part explores the role of the sub-
national units in Nigeria and USA in wielding private international law disputes.
The second part illuminates the erroneous Ethiopian legislative and judicial pos-
ition that the federal government possesses an inherent jurisdiction over cases con-
nected with state laws. This section analyses the relevant provisions of the Federal
Courts Proclamation and the decision of the Federal Supreme Court’s Cassation
Division in the case of Meseret Alemayehu V.Emushet Mulugeta. The third part
presents constitutional and logical justifications for state private international
law rules and the adjudication of private international law disputes by the state
courts. This section asserts that the states have inherent constitutional jurisdictions
over cases connected with their private laws. The Fourth part outlines the frontiers
of the jurisdictions of the federal government on one hand, and the states on the
other. The fifth part presents limitations that should check the private international
law jurisdictions of the states.

12
Jurisdictional conflict is one of the costs of federalism. For this and other costs of feder-
alism not to outweigh its benefits, there must be a developed legal system capable of resol-
ving the differences. This among other things requires an impartial umpire. See DL
Horowitz, “’The Many Uses of Federalism” (2007) 55 Drake Law Review 953, 969;
“within federal systems the inevitability of overlaps and interdependence in the exercise
by governments of their constitutional power has generally required extensive intergovern-
mental consultation, cooperation, and coordination.” See RL Watts, “Federalism, Federal
Political Systems and Federations” (1998) 1 Annual Review of Political Science 117, 129.
422 M.T. Setegn
B. Private international law disputes and the power of sub-national
units: the cases of Nigeria and the USA
There is an ongoing debate as to the precise meaning of federalism; there is no
exclusive design which may quench every thirst for a federal arrangement.13
However, one thing is common to all federations: a supreme and written Consti-
tution divides power between a central government and two or more sub-national
units.14 Earnest division of power gives both entities the final say over the matters
under their respective exclusive jurisdictions.15 However, a watertight division of
power is nearly impossible. Delimiting the federal and the state legal spheres
through interpretation is also perplexing.16
If both the federal government and the states have the power to enact private
laws, private international law disputes may spring in relation to the federal as well
as the state laws. Cases connected with federal laws could be characterised as an
international conflict of laws; the nationwide applicability of federal laws pre-
cludes interstate conflict of laws with respect to the matters they cover.17 Inter-
national, as well as intra-national private international law disputes, may arise
in connection with state laws. This section explores the role of the sub-national
units in Nigeria and USA in wielding private international law cases.
The 1999 Constitution of the Federal Republic of Nigeria provides that the nation
shall be a Federation comprising thirty-six states and a federal capital.18 It establishes
legislative bodies, both at the national and state levels. The legislature at the centre is
a bicameral body constituted by the Senate and the House of Representatives.19 On
the other hand, the state legislative bodies are unicameral assemblies.20 The Consti-
tution also establishes a high court for each state of the federation.21

13
EL Rubin, “’The Role of Federalism in International Law” (2017) 40(2) Boston College
International and Comparative Law Review 195, 200; See also RL Watts, Comparing
Federal Systems in the 1990s (Queen’s University Press, 1996), 7.
14
See JF Zimmerman, Contemporary American Federalism: The Growth of National Power
(State University of New York Press, 2nd edn, 2008), 4; See also DV Verney, “Federalism,
Federative Systems, and Federations: The United States, Canada, and India” (1995) 25(2)
Publius: The Journal of Federalism, 81, 85–88; See also Watts, supra n 13, 7; See also B
Harris, A New Constitution for Australia (Cavendish Publishing, 2002), 123.
15
Zimmerman, supra n 14, 4.
16
CH Beckett, “’Separation of Power and Federalism: Their Impact on Individual Liberty
and the Functioning of Our Government” (1988) 29 William & Mary Law Review 635,
636–37.
17
However, if the jurisdiction of the federal courts is delegated to the state courts, the nation-
wide applicability federal laws avoids only inter-state choice of law issues. See Pryles,
supra n 2, 719.
18
Constitution of the Federal Republic of Nigeria, 1999, s 2 (2) and s 3(1).
19
Constitution of Nigeria, 1999, s 4(1).
20
Constitution of Nigeria, 1999, s 6; AO Yekini, “Choice of Jurisdiction in Inter-state
Matters in Nigeria: A Need for Judicial Rethink” (2012) 6(2) The journal of Jurisprudence
and Contemporary Issues 1, 6.
21
Constitution of Nigeria, 1999, s 270(1).
 Journal of Private International Law 423
Nigeria is a pluralistic nation with analogous ethnic diversity and state struc-
ture to Ethiopia. Its Constitution divides legislative power between the federal
government and the states. The first part of the second schedule of the Constitution
provides the list of matters over which the federal government shall exercise exclu-
sive legislative power.22 The states have a residual legislative power on all matters
not included in the list of the exclusive powers of the federal government.23
The Power to legislate on matters of private law is constitutionally divided
between the federal government and the states. The Constitution confers a substan-
tial private lawmaking power upon the federal government. Among others things,
it may legislate on the formation, annulment, and dissolution of civil marriages;
labour; insurance; banking; copyright; patent; incorporation, regulation and
winding up of bodies corporate.24 The states may legislate on the remaining
civil matters such as tort, succession, and contract.25
Due to the federal arrangement, Nigerian courts may face two types of private
international law cases: international and interstate.26 As noted above, the states
have their own legislative and judicial organs, ie they have their own legal
systems. Therefore, for the purpose of private international law, they are con-
sidered as separate countries.27
Laws enacted by the states constitute important sources of private international
law; the majority of state high court laws have private international law rules.28
With respect to jurisdiction, the Nigerian Constitution confers exclusive jurisdic-
tion to adjudicate various disputes upon the Federal High Court. This includes dis-
putes pertaining to the operation of companies, intellectual properties, and
banking.29 The state high courts have unlimited jurisdiction over the reaming
civil and commercial matters.30
“Each state high court in Nigeria has an enabling law that makes provisions for
conflict of laws rules which in essence govern among others, choice of jurisdiction
rule.”31 The combined reading of the Constitution, the relevant provisions of the
state high courts’ enabling laws, and the Sheriffs and Civil Processes Act reveal

22
Constitution of Nigeria, 1999, s 4(2).
23
Constitution of Nigeria, 1999, s 7(a).
24
Constitution of Nigeria, 1999, s 4(2).
25
Constitution of Nigeria, 1999, s 4(7)(a).
26
HA Olaniyan, “Conflict of Laws through Nigerian Case Law: A Researcher’s Critical
Comments (Part I)” (2012) 20(3) African Journal of International and Comparative Law
388, 389 n 7.
27
Ibid, 389, n 7.
28
Yekini, supra n 20, 5.
29
Constitution of Nigeria, 1999, s 251.
30
Constitution of Nigeria, 1999, s 272; AO Yekini, “Comparative Choice of Jurisdiction
Rules in Cases Having a Foreign Element: Are There Any Lesson for Nigerian Courts
(2013) Commonwealth Law Bulletin 333, 349, available at https://www.tandfonline.com/
doi/abs/10.1080/03050718.2013.802129 accessed on 22 August 2018.
31
Ibid.
424 M.T. Setegn
that any state high court may exercise jurisdiction over any subject matter except
those reserved for the Federal High Court. With respect to private international dis-
putes, any state high court may exercise jurisdiction over international as well as
interstate cases – as far as the dispute is closely connected with it. This has been
well established through the experiences of the state courts and the rulings of the
Federal Supreme Court which affirmed that state courts may exercise jurisdiction
over private international law cases.32 In conclusion, there is no doubt that the
states have the power to introduce private international law rules and adjudicate
private international law disputes. The major concern is that the assertion of jur-
isdiction should be fair and square in every case: justifiable under the relevant sta-
tutes or the common law rules.
Moving onto the US experience, federalism is one of the pillars of its Consti-
tution.33 The US Constitution is often described as the “most perfect federal Con-
stitution that ever existed.”34 Under this covenant, power is divided between the
federal government and the states. There are also shared powers.35 “The [U.S.]
Constitution allows for local policy in areas where a uniform national policy
would be disastrous, if not tyrannical.”36 “The States have the power to enact a
civil law – relating to contracts, damages to persons and property, commercial
and personal relations, inheritances, and wills”37
In the US, private international law can be best characterised as a hybrid of
state laws that directly regulate private international law cases and federal laws
that fashion the state private international law rules.38 The US Supreme Court
rejected the idea that private international law is part of federal law; the court
stated that private international law is part of the law of each state. In Erie Rail
road V. Tomkins, the Court rejected the notion of federal common law. It stated
that federal courts exercising their diversity jurisdiction39 should apply the sub-
stantive laws of the state in which they are physically sitting. In Klaxon
V. Stentor Electric, it ruled that the federal courts should, in addition to state

32
Yekini, supra n 30, 349–51; HA Olaniyan, “Conflict of Laws in Nigerian Appellate and
Apex Courts: A Biennial Critical Assessment (2009–2010)” (2012) 9 US-China Law
Review 297, 310–16.
33
CH Beckett, “’Separation of Power and Federalism: Their Impact on Individual Liberty
and the Functioning of our Government” (1988) 29 William & Mary Law Review 635, 635.
34
A de Tocquevjlle, Democracy in America 160 (P. Bradley ed.1945). Cited in Beckett,
supra n 33, 646.
35
Beckett, supra n 33, 639.
36
Ibid, 648.
37
Mills, supra n 1, 86.
38
Ibid, 152.
39
Diversity jurisdiction refers to the power of the US Federal Courts to adjudicate disputes
over which the states normally have jurisdiction, should it involve the citizens of different
states. The original purpose of such jurisdiction was to avoid discrimination of non-citizens
by the state courts. See TA Sarver, “Resolution of Bias: Tort Diversity Cases in the United
States Courts of Appeals” (2007) 28(2) Justice System Journal 183, 183–84.
 Journal of Private International Law 425
substantive laws, apply state choice of law rules to cases they adjudicate based on
their diversity jurisdiction. However, the state private international rules operate
within the framework of federal laws. This includes the due process clause of
the Fourteenth Amendment and the full faith and credit clause.40
Given their power to enact various private laws, the states have their own
private international law rules. Due to their experimentation with private inter-
national law rules, the US states have been described as “the fifty laboratories.”41
The diversity of state legal systems has offered a fertile ground for the develop-
ment of state private international law rules.42 “Despite the claims of international
law and the large and growing importance of federal law, it is still the law of the
states which is of major concern in private interstate and international cases.”43
Excepting few constitutional limitations, a private international law dispute is
mostly a state law concern.44
To sum up, the legal landscapes in both federations reveal that the states exer-
cise both legislative and judicial jurisdictions over private international law dis-
putes. The legislative power of the states is not limited to enacting private laws;
rather, they have the major say on how private international law disputes should
be handled: in both federations, with the exception of certain limitations, the
states have a vivid jurisdiction over private international law disputes.

C. The myth of inherent federal jurisdiction over disputes connected

with state laws: the Ethiopian private international law paradox
The current Ethiopian Constitution came into force in 1995. It establishes a federa-
tion in which power is divided between the federal government and the states.45
The federal structure engendered three categories of government powers – exclu-
sive federal powers, exclusive state powers, and shared powers. The exclusive
powers of the federal government are enumerated under article 51 of the Consti-
tution. However, they are not limited to competencies enumerated under this

40
Mills, supra n 1, 134–37; MT Hertz, “The Constitution and the Conflict of Laws:
Approaches in Canada and American Law” (1977) 27(1) University of Toronto Law
Journal 1, 5.
41
L Brilmayer and R Lee, “’State Sovereignty and the Two Faces of Federalism: A Com-
parative Study of Federal Jurisdiction and the Conflict of Laws” (1985) 60 Notre Dame
Law Review 833, 852 cited in, Mills, supra n 1, 125.
42
Mills, supra n 1, 125.
43
EE Cheatham, “Sources of Rules for Conflict of Laws” (1941) 43 University of Pennsyl-
vania Law Review, 430, 447.
44
SK Marshall, et al., “Conflict of Laws” (2009) 62 SMU Law Review 1021, 1022.
45
Ethiopia has nine states, namely: (1) The State of Tigray (2) The State of Afar (3) The
State of Amhara (4) The State of Oromia (5) The State of Somalia (6) The State of Ben-
shangu-Gumuz (7) The State of the Southern Nations, Nationalities and Peoples (8) The
State of the Gambela Peoples and (9) The State of the Harari People: Ethiopian Consti-
tution, 1995, article 47.
426 M.T. Setegn
article; article 55 of the Constitution, on the powers and functions of the House of
Peoples’ Representatives, confers additional legislative powers upon the federal
government. The states have two categories of exclusive powers: enumerated
and residual. They have a residual power over matters that are not expressly
assigned to the federal government or the federal government and the states
jointly.46 There are also powers shared by the federal government and the states.
The Constitution provides that both the federal government and the states shall
have legislative, executive, and judicial organs.47 Coupled with this, the division of
private lawmaking powers between the federal government and the states engen-
dered disjunct systems of laws. The ensuing heterogeneity of laws and undesirable
conflicts in dealing with similar questions of private law necessitates private inter-
national law rules; these rules are vital to moderate inconsistent treatment of like
cases and achieve orderly international and intra-national private law relationships.48
“Private international law owes its existence to the fact that there are in the
world a number of separate municipal systems of laws – a number of separate
legal units … ”49 “The existence of diverse rules of private law in a national
legal system creates the potential for conflict, for the inconsistent legal treatment
of an event or set of facts.”50 Private international law is applicable to private law
disputes connected with two or more jurisdictions. Private laws, in relation to
which private international law cases may arise, include the law of contracts,
the law of torts, the law of agency, the law of succession, the law of companies,
the law of insurance, labour law, family law, and property law.51

46
Tsegaye Regassa, “Sub-national Constitutions in Ethiopia: Towards Entrenching Consti-
tutionalism at State Level” (2009) 3(1) Mizan Law Review 33, 43–46.
47
Ethiopian Constitution, 1995, article 50(2).
48
See Joseph William Singer, “Multistate Justice: Better Law, Comity, and Fairness in the
Conflict of Laws” 2015(5) University of Illinois Law Review 1923, 1937–57; see Gregory S
Alexander, “’The Application and Avoidance of Foreign Law in the Law of Conflicts: Vari-
ations on a Theme of Alexander Nekam” (1975) 70(4) Northwestern University Law
Review 602, 623; “The leading idea, underlying all modern systems of Private International
Law, would seem to be that, as a matter of principle, foreign legal thought shall be given
consideration in all cases before the domestic courts where fairness to the parties and
equity will demand such consideration”; see Gerhart Husserl, “’The Foreign Fact
Element in Conflict of Laws. Part II: Defining and Characterizing the Fact Element in Con-
flict Cases” (1940) 26(4) Virginia Law Review 453, 454–55; see Fowler V Harper, “Torts,
Contracts, Property, Status, Characterization, and the Conflict of Laws” (1959) 59 Colum-
bia Law Review 440, 443–44; “Completely disregarding foreign laws and decisions …
would lead to injustices for the parties involved in such international proceedings”
Kiestra, supra n 1, 16.
49
GC Cheshire, Private International Law (Clarendon Press, 1923), 3.
50
Mills, supra n 1, 16–17.
51
See JG Collier, Conflict of Laws (Cambridge University Press, 3rd edn, 2004), 5–6;
Kiestra, supra n 1, 14; However, there is an emerging thesis that choice of law should be
applicable in criminal matters. See generally Robert A Leflar, “Conflict of Laws: Choice
of Law in Criminal Cases” (1974) 25 Case Western Reserve Law Review 44.
 Journal of Private International Law 427
The Ethiopian Constitution divides the power to legislate on various areas
of private law between the federal government and the states. The legislative
jurisdiction of the federal government encompasses enacting a commercial
code,52 patents and copyrights laws,53 and a labour code.54 By virtue of their
residual power, the states may legislate on the remaining areas of private law
such as family, tort, contract, and succession.55 Consequently, private inter-
national law disputes may arise in relation to federal as well as state private
laws. The existence of federal private laws necessitates a federal private inter-
national law system which deals with disputes connected with federal laws.
Likewise, the existence of state private laws requires a state private inter-
national law system which deals with cases connected with state laws. There-
fore, both the federal government and the states should have their own
private international law rules and specific courts designated to adjudicate
private international law disputes.
Nevertheless, the Federal Courts Proclamation and the decision of the Federal
Supreme Court’s Cassation Division in the case of Meseret Alemayehu V. Emushet
Mulugeta, render the federal government the sole wielder of an inherent private
international law jurisdiction. Paradoxically, the Federal Supreme Court’s Cassa-
tion Division ruled that the jurisdiction of the state courts – to adjudicate cases
connected with state laws – emanates from their delegation to exercise the juris-
diction of the Federal High Court.56 The situation has gone south for states
whose delegations have been revoked by the federal government.57 These states
may not adjudicate private international law disputes connected with their
private laws – even through the ironic delegation; private international law dis-
putes connected with the laws of these states are made subject to the exclusive jur-
isdiction of Federal High Court.
The Federal Courts Proclamation under article 5(2) provides that the federal
courts shall have jurisdiction over suits involving permanent residents of differ-
ent states. Article 5(4) of the same Proclamation provides that the federal courts
shall exercise jurisdiction over cases involving a foreign national. Specifically,

52
Ethiopian Constitution, 1995, article 55(4).
53
Ethiopian Constitution, 1995, article 55 (2) (g).
54
Ethiopian Constitution, 1995, article 55 (3).
55
Ethiopian Constitution, 1995, article 52 (1).
56
The State Supreme Courts have constitutional delegation to exercise the jurisdiction of the
Federal High court: Ethiopian Constitution, 1995, articles 78(2) and 80(2).
57
Though the Constitution delegates the state supreme courts to exercise the jurisdiction of
the Federal High Court, the federal government may revoke this delegation by establishing
the Federal High Court in the states: Ethiopian Constitution, 1995, article 78(2) and 80(2).
Accordingly, the federal government has revoked the delegation of five states as of April
2003. The states are: (1) the State of Afar, (2) the States of Benshangul, (3) the States of
Gambella, (4) the States of Somali, and (5) the State of Southern Nations Nationalities
and Peoples. See Proclamation to Provide for the Establishment of Federal High Court in
Some Regions, Number 322/2003.
428 M.T. Setegn
article 11(2) (a) of the proclamation provides that the Federal High Court shall
exercise jurisdiction over private international law cases. These provisions do
not make any distinction between disputes connected with federal laws on
one hand, and state laws on the other. Since the proclamation is a federal legis-
lation, one may reasonably assume that it concerns only private international
law disputes connected with federal laws. However, article 6(1) (b) of the pro-
clamation which states that – the federal courts shall apply state laws if the case
pertains to such laws – extends the jurisdiction of the federal courts to cases
connected with state laws.
The decision of the Federal Supreme Court’s Cassation Division amplifies the
usurpation of the jurisdiction of the states by the Federal Courts Proclamation. The
Division in the case of Meseret Alemayehu V. Emushet Mulugeta,58 ruled that a
private international law dispute connected with the family law of the State of
Oromia falls under the inherent jurisdiction of the Federal High Court. According
to the Court’s holding, the state courts may adjudicate cases connected with their
own private laws only through a delegation to exercise the jurisdiction of the
Federal High Court.
At this juncture, examining the status and substance of the decision of the
Supreme Court’s Cassation Division is imperative. The Federal Supreme Court
has the supreme federal judicial authority.59 The Constitution provides that the
Court shall, in addition to its regular judicial authority, exercise a cassation
power and review final court decisions. It provides:

The Federal Supreme Court has a power of cassation over any final court decision
containing a basic error of law. Particulars shall be determined by law.60

The Cassation Division of the Supreme Court, on appeal, reviews the final
decisions of the federal and the state courts.61 However, the review is limited to
the legal aspects of the decisions: it may not review factual findings.
The subordinate legislation enacted by the federal government to operationa-
lise the above-cited constitutional provision gives the decisions of the Cassation
Division the status of a binding precedent. It provides:

58
Meseret Alemayehu V.Emushet Mulugeta and Tsegaye Demeke, (2015), Federal Supreme
Court Cassation Bench, Vol. 18, File No.100290, 330(Eth.).
59
Ethiopian Constitution, 1995, article 78(2).
60
Ethiopian Constitution, 1995, article 80(3) (a).
61
However, the power of the court to review the decision of the state courts over state
matters has been highly contested. Some writers argue that the cassation power of the
Federal Supreme Court should be limited to the decisions of the federal courts.
Despite the theoretical debates, the court to date reviews the decision of state courts
resolved based on state laws. See generally Muradu Abdo “Review of Decisions of
State Courts over State Matters by the Federal Supreme Court” (2007) 1(1) Mizan
Law Review.
 Journal of Private International Law 429
Interpretation of a law by the Federal Supreme Court rendered by the Cassation Div-
ision with not less than five judges shall be binding on federal as well as regional
courts at all levels.62

To return to the case of Meseret Alemayehu, it was lodged as an appeal before

the Federal Supreme Court’s Cassation Division to have the decisions of the courts
of the State of Oromia reversed; the appellant, Mrs. Meseret Alemayehu, sought
the reversal of the decisions of the East Shoa Zone High Court and that of the
Oromia Regional State Supreme Court which, on appeal, affirmed the decision
of the High Court.
The case involved the appellant, a Swedish citizen, and two respondents: an
American and another Ethiopian. Originally, the case was initiated through a
pleading lodged before the East Shoa Zone High Court, which is a State
Court, objecting to the decision of the court in another case. In the earlier
case, the court had pronounced a divorce and ordered the partition of the
alleged common property of the respondents. In this latter case, the appellant
had jointly sued the respondents, Mr. Tsegaye Demeke and Mrs. Emushet Mulu-
geta, whom the court divorced. She had contended that the decision of the court
was erroneous as the two respondents never married each other. Instead, she
claimed to be the wife of the second respondent and the owner of half of the
property. She had argued that the Court should reconsider its decision as it vio-
lates her right. However, the Court rejected her opposition on the ground that the
evidence she adduced was not admissible. The appellant had preferred an appeal
to the Oromia Regional State Supreme Court.63 The State Supreme Court
affirmed the decision of the State High Court.
As a last resort, the appellant took her case to the Federal Supreme Court’s
Cassation Division seeking the reversal of the decisions of the State courts. The
issue framed by the Federal Supreme Court’s Cassation Division was whether
the State High Court had the jurisdiction to adjudicate the case. By pointing out
the elements which connected the case with other jurisdictions, the Division
characterised it as a private international law dispute. The Division reasoned
that as the parties involved in the case are the citizens of three different states,
the case was not a purely domestic case. The Division also characterised the con-
clusion of the alleged marriage between the appellant and the second respondent in
the USA as a foreign element.
Finally, the Division reversed the decisions of the State Courts and
remanded the case to the Supreme Court of the State of Oromia for further pro-
ceedings. It determined that the State High Court had no jurisdiction to

62
Article 2(1) of Federal Courts Proclamation Re-amendment Proclamation No. 454/2005,
Federal Negarit Gazeta of the Federal Democratic Republic of Ethiopia, 11th Year No. 42,
(14 June 2005).
63
According to article 64(2) (b) of the Constitution of the Oromia Regional State, the
Supreme Court has the final judicial authority on State matters.
430 M.T. Setegn
adjudicate a private international law case. It further stated that the court
entrusted by law to adjudicate private international law disputes is the
Federal High Court. Ironically, the Division concluded that only the Supreme
Court of the State of Oromia may adjudicate the case through its delegation
to exercise the jurisdiction of the Federal High Court.
The Division based its decision on article 11(2) (a) of the Federal Courts
Proclamation which indiscriminately provides that the Federal High Court
shall have jurisdiction over private international law cases. The case concerned
matrimonial and divorce issues connected with the family law of the State of
Oromia. Nevertheless, the Division ruled that even such case falls under the
inherent jurisdiction of the Federal High Court. The Division’s decision
means that the state courts do not have an inherent jurisdiction to adjudicate
private international law disputes that may arise even in relation to their own
private laws. Sadly, other than restating the supercilious flaws of the proclama-
tion, the Division did render any constitutional or logical ground to confer such
power upon the Federal High Court.
In conclusion, the Federal Courts Proclamation and the precedent set by the
Federal Supreme Court invented a monumentally erroneous myth which depicts
the federal government as the sole wielder of an inherent private international
law jurisdiction. The following section refutes this myth by accentuating the
reasons why the states, as well as the federal government, should have their
own discrete private international rules and courts designated to handle private
international law disputes.

D. Justifications for discrete federal and state private international law

rules and courts
It is erroneous to take every private international law dispute as the exclusive
concern of the federal government. The states, as well as the federal government,
have inherent legislative and judicial jurisdictions over disputes connected with
their respective private laws. This empowers both entities to enact their own
private international law rules and designate one of their courts to handle
private international law disputes. This section presents justifications for discrete
federal and state private international law systems comprised of private inter-
national law rules and courts.
H.L.A Hart describes law as the combination of primary and secondary rules.
The primary rules are substantive laws that define rights and obligations. The sec-
ondary rules, on the other hand, control the incidence and operation of the primary
rules. The latter, among others things, dictate the procedure of ascertainment of the
primary rules, determine the entity that should authoritatively adjudicate disputes
and lay the procedures of adjudication. The secondary rules are not distinct from
the primary rules: they are supplementary. These rules are parasitic upon the basic
primary rules. According to Hart, the secondary rules are indispensable com-
ponents of any legal system. These rules are vital for the effective functioning
 Journal of Private International Law 431
of any system of primary rules.64 Private international law can be characterised as
a body secondary rule: it is a body of rules that allocate a regulatory authority
among various jurisdictions. These rules do not furnish substantive solutions;
they just direct us to adjudicatory bodies and applicable substantive rules.65
Therefore, any entity with the power to enact private laws should have the sup-
plementary private international law rules. In the Ethiopian context, both the
federal government and the states should have their own private international
law rules.
Besides the theoretical justification, the constitutional power of the states to
enact private laws subsumes enacting private international law rules. The Con-
stitution divides the power to enact private laws between the federal government
and the states. Consequently, private international law dispute may arise in
relation to the federal as well as state laws. This requires both entities to deter-
mine how disputes connected with their respective private laws should be
handled, ie they need to determine the incidence and operation of their respect-
ive private laws through private international law rules. These rules may require
courts to limit the application of forum laws in particular cases; based on the
choice of law rules, courts may hold back the application of forum law and
give precedence to the law of another jurisdiction.66 This is a patent limitation
of one’s legislative jurisdiction over the controversy in question.67 Choice of law
rules represents a decision to curtail the application of one’s private laws in
some cases. This makes enacting choice of law rules part and parcel of the
power to enact private laws; an entity with the power to enact the primary sub-
stantive laws should also determine the content of the parasitic private inter-
national law rules.68
In addition to their power to enact private laws, the other legislative powers of
the states also justify state private international law rules. Private international law
is a procedural law: it dictates how courts should handle cases involving a foreign
element.69 The Ethiopian Constitution requires the states to establish their own
courts and determine the “particulars” by law.70 Establishing a court, among
other things, requires prescribing how it should adjudicate cases, including a
private international dispute. Arguably, the “particulars” which the Constitution
refers to subsume enacting procedural laws such as private international law.
Moreover, the Constitution provides that the states as well as the federal

64
HLA Hart, The Concept of Law (Clarendon Press, 2nd edn, 1994), 79 –99.
65
Mills, supra n 1, 19–20.
66
Id., 19–20.
67
K Lipstein, Principles of the Conflict of Laws National and International (Martinus
Nijhoff Publishers, 1981), 66.
68
See generally Hart, supra n 23, at 79–99.
69
Lipstein, supra n 67, 15.
70
Ethiopian Constitution, 1995, article78 (3).
432 M.T. Setegn
government shall have the power to legislate on their respective “matters.”71 As
the Constitution confers upon the states the power to establish their own courts,
one of these matters should the procedure their respective courts must observe.
Accordingly, the states should prescribe how their respective courts should adju-
dicate private international law disputes.
It is self-evident that private international law rules should perfectly fit with the
private laws of a given jurisdiction. In the case of Ethiopia, this requires discrete
federal and state private international law rules. The Constitution divides the
power to enact private laws between the federal government and states. Due to
this division, they legislate on distinct areas of private laws. This necessitates
uniquely designed private international law rules congruent with the respective
laws of the federal government and the states; grafting the private international
law rules of one entity onto the peculiar disputes of the other will be futile.72
Therefore, both the federal government and the states should have their own
private international law rules designed based on their disjunct private laws.
Ensuring the integrity of the federal and the state legal systems also requires
the enactment of separate federal and state private international laws. As men-
tioned earlier, both entities have their own disjunct legal systems. As a result,
both the federal and the state courts face disputes connected with their respective
substantive laws. A given legal system should have adequate rules to address
issues that may arise under its laws.73 This includes private international law dis-
putes. Therefore, both entities must have their own private international law rules
which dictate how their courts should handle cases concomitant of their respective
private laws; the courts should not be expected to look into the procedural laws of
other jurisdictions to resolve cases brought to them.74
The experiences of other federations also reveal that the non-central govern-
ments regulate private international law cases through their own laws and
courts. As mentioned in the first section, in the U.S private international law
cases are predominantly regulated by the state laws.75 Likewise, the Nigerian
states have substantial control over private international law cases.

71
Article 55(1) of the 1995 Ethiopian Constitution provides: “The House of Peoples’ Repre-
sentatives shall have the power of legislation in all matters assigned by this Constitution to
Federal jurisdiction.” article 50(5) of the Constitution also provides: “The State Council has
the power of legislation on matters falling under State jurisdiction.”
72
See AJ Bellia, “Federal Regulation of State Court Procedures” (2010) 110 Yale Law
Journal 949, 993–97.
73
See Hart, supra n 64, at 99.
74
This rational has been presented to defend the regulation of first stage characterisation by
the internal substantive laws of the forum. Arguably, this can be used to support the claim
that conflict of laws issues that arise from forum internal substantive laws should be regu-
lated by forum conflict of laws rules. Cf. V Allarousse, “A Comparative Approach to the
Conflict of Characterization in Private International Law” (1991) 23 Case Western
Reserve Journal of International Law 479, 483.
75
Marshall, supra n 44, 1022.
 Journal of Private International Law 433
Besides the foregoing justifications, the underlying bases of private inter-
national law require the federal government and the states to have private inter-
national law rules. Among other things, ensuring fairness and predictability
require the states to adopt uniform private international law rules.
“Justice” is one of the foundations of private international law. Treating cases
involving a foreign element like that of purely domestic cases may result in an
unfair outcome. Private international law rules help to ensure justice by summon-
ing “appropriate” laws into application and obviating the application of the forum
laws deemed inappropriate to a given dispute.76 The recognition and enforcement
of a foreign judgment is the other mechanism of serving justice. This helps judg-
ment creditors to enforce valid judgments against migratory judgment debtors.77
Private international law rules also circumscribe the assertion of judicial jurisdic-
tion if it may lead to an unfair outcome due to unparalleled inconvenience to one of
the parties involved in a private international law dispute.78
In addition to advancing the ends of justice, private international law offers a
certain degree of predictability as it underpins the underlying policies of private
laws. For instance, the generally accepted purpose of the law contracts is upholding
the legitimate expectations of the contracting parties.79 Promiscuous application of
the law of the forum to a contract formed in another jurisdiction may render such
contract void and cripple the legitimate expectations of the contracting parties.
Private international law circumvents deplorable inconsistencies by referring
courts to the law which may uphold the legitimate expectations of the concerned
parties. This ensures uniformity in the settlement of cases irrespective of what
forum entertains a given case.80 This Uniformity is in turn expected to prevent
forum shopping.81 Private international law also gives convenience to parties
involved in multi-state transactions. It provides a room to make their transaction
expedient; within the bounds of the law, they may choose applicable law or forum.82

76
See Singer, supra n 44, 1937–57; Husserl, supra n 44, 454–55; Kiestra, supra n 1, 16.
77
[In the U.S] [t]he problem of migratory debtors was a major impetus behind the drafting
and adoption of the full faith and credit clause’ William L Reynold and William M
Richman, The Full Faith and Credit Clause: A Reference Guide to the United States Con-
stitution (Praeger Publishers, 2005), 2.
78
Ruth Hayward, Conflict of Laws (Cavendish Publishing, 4th edn, 2006), 5.
79
Peter Stone, The Conflict of Laws (Longman, 1995), 4; Singer, supra n 48, 50; In addition
to the substantive laws, private international law itself has a generally accepted purpose of
protecting the legitimate expectations of the parties. Upholding the legitimate expectations
of the parties augments the effort to achieve a fair outcome. Here it is important to note that
the parties may not have shared expectations. Thus, it is necessary to determine whose
expectation is the legitimate one. This requires applying objective standards. see Mills,
supra n 1, at 10.
80
Kiestra, supra n 1, at 16.
81
Alexander, supra n 48, 631.
82
Richard A Epstein, “Consent, Not Power, as the Basis of Jurisdiction” (2000) 2001(2)
University of Chicago Legal Forum 1, 1–3; Stone, supra n 79, 4.
434 M.T. Setegn
Generally, the states as well as the federal government should enact their own
private international law as this is crucial to achieving orderly international and
intra-national private law relationships.83 However, this does not mean that the
states should come up with utterly different private international law rules.
Indeed, they will have work on the harmonisation of their potential private inter-
national law rules. The primary purpose of state private international rules should
be, with the exception of irreconcilable differences, ensuring consistent treatment
of similar cases across the federation. This will ensure uniform adjudication of
private international law disputes: irrespective of the forum of adjudication like
disputes could be settled alike. Therefore, one should not be sceptical about the
relevance of state private international law rules.84
With respect to judicial jurisdiction, the Constitution confers upon the Federal
Supreme Court the highest and final judicial power over federal matters. Likewise,
the State Supreme Courts have the highest and final judicial power over state
matters.85 A sound interpretation of the word “matters” under the Constitution
encompasses controversies that are concomitant with the respective laws of the
states and the federal government. This makes disputes which may arise in relation
to state laws subject to the jurisdiction of the state courts. Therefore, the states may
designate a state court which adjudicates private international law disputes that
may arise in relation to their private laws. By the same token, the federal courts
should exercise jurisdiction over private international law disputes which may
arise in relation to federal laws.

E. The frontiers of the federal and the state governments’ jurisdictions

over private international disputes
1. The jurisdictions of the federal government
The competencies of the federal government in wielding private international law
disputes can be classified into two. The first pertains to private international law
disputes associated with centrally enacted private laws. The Constitution gives
the federal government a direct legislative and judicial mastery over such disputes.
Thus, the federal government may, through a detailed legislation, regulate issues
of judicial jurisdiction, choice of law and recognition of foreign judgements
associated with its private laws. Second, the federal government may indirectly
influence the private international law jurisdictions of the states based on its
foreign relations power and the power to regulate interstate commerce.
The legislative power of the federal government to enact private laws can be
classified into two. The first encompasses certain areas of private that are expressly
assigned to it by the Constitution. This covers commercial law, labour law, and

83
Stone, supra n 79, 4.
84
See ibid.
85
Ethiopian Constitution, 1995, article 80 (1) and (2).
 Journal of Private International Law 435
intellectual property laws.86 In addition to the enumerated private laws, the federal
government may enact civil laws which the House of Federation87 considers
necessary to establish and sustain one economic community.88 The Constitution
provides:

It [the House of Peoples’ Representatives] shall enact civil laws which the House of
the Federation deems necessary to establish and sustain one economic community.89

Therefore, a given area of civil matter may not perpetually remain under the jur-
isdiction of the states. This will have various ramifications. First, a private law
enacted based on this power will be a source of federal private international law
dispute. Second, the private international law jurisdiction of the federal govern-
ment cannot be determined solely based on the Constitution.
One concern here is the conundrum with respect to disputes which may
have connections with both federal and state laws. For instance, a given contro-
versy may arise under the federal commercial code and concern another inci-
dental issue under the succession law of one of the states. In such cases, the
sound solution is the adjudication of the case by the courts of the entity
under the law of which the principal issue has arisen and a mere application
of the law of the entity within the legal village of which the incidental issue
has arisen.90
The federal government may, in addition to its power to directly wield private
international law disputes pertaining to its private laws, set certain general touch-
stones which the states should observe in dealing with private international law
disputes. Based on its foreign relations and commerce powers the federal govern-
ment must make sure that the states will not unduly disrupt international and inter-
state interactions.
The experiences of numerous federations reveal that there are certain
powers deemed necessary for the federal government to discharge its roles

86
Ethiopian Constitution, 1995, articles 55(4), 55 (2) (g) and 55 (3).
87
The House of Federation is the upper house of the Ethiopian parliament. It is composed
the representatives of the Ethiopian Nation, Nationalities, and peoples. The House has the
power to interpret the constitution and “determine civil matters which requires the enact-
ment of laws by House of Peoples’ Representatives” Ethiopian Constitution, 1995, articles
53,61(1), 62(1) and (8).
88
The Authentication and Registration of Documents Proclamation was enacted to achieve
this. Authentication and Registration of Documents Proclamation No. 922/2015, Federal
Negarit Gazeta of the Federal Democratic Republic of Ethiopia, 22nd Year No. 39 (15 Feb-
ruary 2016) Preamble.
89
Ethiopian Constitution, 1995, article 55 (6).
90
The regulation of different issues in a given case by different laws is known as Dépeçage.
“Dépeçage is the practice of splitting multiple claims in a lawsuit, or multiple issues in a
claim, and applying different states’ laws to the separate issues or claims.” Marshall,
supra n 44, at 1047.
436 M.T. Setegn
for the federation as a whole. One of such authorities pertains to foreign
relations.91 While the specific division of power depends on each federation’s
Constitution until recent times the widely held view was that the central govern-
ments should exercise exclusive control over foreign relations. However, this has
been eroded due to the increasing involvement of sub-national governments in
foreign relations.92
The increasing involvement of non-central governments in international
relations is attributed to the impacts of the expanding international affairs over
their jurisdictions and the difficulty of determining whether a given conduct
falls within the domain of domestic or foreign policies. The interdependence
between social, cultural and environmental regulations that are considered dom-
estic concerns on one hand, and security and diplomatic concerns on the other
further complicate the problem. The confusion and the real concerns contributed
to the internationalisation of matters that were considered domestic issues and
domestication of previously international matters.93
The Ethiopian Constitution vests exclusive foreign relations power in the
federal government. It provides:

It [The federal government] shall formulate and implement foreign policy; it shall
negotiate and ratify international agreements.94

Specifically, the House of Peoples’ Representatives has the power to ratify inter-
national treaties. The Constitution provides:

It [The House of Peoples’ Representatives] shall ratify international agreements con-

cluded by the Executive.95

These provisions exclusively vest the foreign relations power in the federal gov-
ernment. However, determining its implications for the states’ private international
jurisdiction is a thorny task; like other federations, the precise limits of this power
could be contested.
In order to determine the relationship between the federal foreign relations
power and the states’ private international law jurisdiction, characterising
private international law disputes based on the level of their impact on the interests
of other nations is imperative. The bulk of private international law disputes do not

91
Watts, supra n 13, 74.
92
Ivo D Duchacek, “Perforated Sovereignties: Towards a Typology of New Actors in Inter-
national Relations”, in HJ Michelmann and P Soldatos (eds), Federalism and International
Relations: The Role of Sub-national Units, (Clarendon Press, 1990), (Reprinted 2001), 1,
1–3.
93
Id., at 7–8.
94
Ethiopian Constitution, 1995, article 51 (8).
95
Ethiopian Constitution, 1995, article 55 (12).
 Journal of Private International Law 437
have an appreciable effect on foreign relations; they involve individuals or private
legal entities acting in their own private capacities.

Private international law is concerned with the legal relations between private indi-
viduals and corporations, though also with the relations between states and govern-
ments so far as their relationships with other entities are governed by municipal law,
an example being a government which contracts with individuals and corporations
by raising a loan from them.96

Therefore, the states should exclusively regulate a private international law dispute
concomitant of their private laws – as long as it does not directly and significantly
affect the interest of a foreign sovereign. Albeit a foreign element is involved, the
states should exclusively regulate cases of purely or primarily private interest; a
mere involvement of a foreigner does not make a given case a matter of foreign
relations power of the federal government.97
The jurisdictions of the federal as well as the state courts cover areas of laws
over which their respective legislatures enact laws.98 The federal court’s jurisdic-
tion is limited to disputes which may arise in relation to federal laws. Likewise, the
state courts’ jurisdictions correspond to state laws. This reveals that the Consti-
tution delimits courts’ jurisdiction based on the nature of a controversy in ques-
tion, not the status of the parties involved in it. Contrary to this, the Federal
Courts Proclamation provides that the federal courts shall have jurisdiction over
cases to which a foreign national is a party.99 The proclamation does not make
any distinction between disputes connected with federal laws one hand, and
state laws on the other. If a given case emerges from the legal village of the
states, the state courts should adjudicate it no matter a foreigner is involved in
it. The difference between a foreigner and a foreign relation should not be
overlooked.
In exceptional circumstances, cases subject to the jurisdiction of the states may
affect the interest of other nations. This requires the involvement of the federal
government empowered to regulate the nation’s relations with other sovereigns.
One of the circumstances where the federal government may limit the jurisdictions
of the states pertains to diplomatic immunities. The state courts should respect the

96
JG Collier, Conflict of Laws (Cambridge University Press, 3rd edn, 2004), 5.
97
James AR Nafziger, “Resolving International Conflict of Laws by Federal and State Law”
(1990) 2 Pace International Law Review 67, 69; Ted Cruz in his article on the foreign
relation power of the US government asserts that the foreign relation power of the
federal government should be exercised only in relation to matters over which it has an
expressed power. According to Cruz, conclusion of treaties which pertains to matters
assigned to the states encroaches upon their indefinite power. Ted Cruz, “Limits on the
Treaty Power” (2014) 127(93) Harvard Law Review.
98
Ethiopian Constitution, 1995, article 80 (1) and (2).
99
Article 5(4) of the Federal Courts Proclamation No. 25/96, Federal Negarit Gazeta of The
Federal Democratic Republic of Ethiopia, 2nd Year No. 13 (15 February 1996).
438 M.T. Setegn
diplomatic protections accorded by the federal government and limit the appli-
cation of their jurisdictional rules.
It is neither possible nor desirable for the states to isolate themselves from the
rest of the world; various private international law matters require co-operation
with foreign sovereigns. For instance, the judgements of the state courts may
not be recognised in other jurisdictions unless there is a treaty to that effect.
Thus, crafting a constitutional mechanism by which the states may jointly nego-
tiate treaties through the federal government is imperative. If this approach is
adopted, it is important to design a mechanism for the states to scrutinise nego-
tiated agreements and adequately guard their interest.100
The federal government may, though arguable, influence the private inter-
national rules of the states based on its power to regulate interstate and inter-
national commerce. The commerce clause requires the federal government to
regulate interstate and international commerce.101 Specifically, the Constitution
requires the House of Peoples’ Representatives to legislate on interstate commerce
and foreign trade matters.102 Therefore, the federal government may exercise this
power to check laws which may unduly disrupt international or interstate
commerce.103
In conclusion, the federal government may directly regulate private inter-
national law disputes associated with its private laws and set basic touchstones
to fashion the private international law rules of the states.

2. The jurisdiction of the states

Save the areas assigned to the federal government, the legislative jurisdictions of
the states cover indefinite areas of private laws.104 Two classes of cases may spring
in relation to the private laws of the states: international and inter-state. Inter-
national conflict of laws arises where there is a case connected with one of the
states and a foreign sovereign. On the other hand, interstate disputes involve

100
See Z Degifie, “De-centering Treaty Making Power of The Federal Government under
the Ethiopian Federal System: In Search of Better Safeguarding Mechanisms” (2015) 1
(1) The International Journal of Ethiopian Legal Studies, 4, 27–31; See Nafziger, supra
n 97, 69; See also A Briggs, The Conflict of Laws (Oxford University Press, 3rd edn,
2013), 51–52.
101
Ethiopian Constitution, 1995, article 51(12).
102
Ethiopian Constitution, 1995, article 55(2) (B).
103
In the US there is no consensus about the precise limits of the power of the national gov-
ernment to regulate interstate commerce. The first view is that its authority covers only
direct regulation of matters with economic nature such as labour standards. The second
line of argument is that the authority of the national government includes the regulation
of non-economic activities, but still with substantial economic effect such as litigations.
In the latter case, the commerce clause can be used to ensure that certain litigations will
not disrupt interstate commerce. Bellia, supra n 72, 970.
104
Ethiopian Constitution 1995, articles 52, and 55(6).
 Journal of Private International Law 439
elements connected with two or more states of the federation. The states wield
constitutional legislative and judicial jurisdictions to regulate both types of
disputes.105
Due to socio-economic differences, the states may come up with disparate
private laws. The disparity of the laws of the states may entail a conflict of laws
in cases connected with two or more states. The establishment of separate court
systems by the states entails jurisdictional issues. The recognition and enforcement
of sister-state judgements is also the other concern. Therefore, the states should
regulate these issues by enacting private international law rules. So far, neither
the states nor the federal government has enacted a full-fledged private inter-
national law.
At this juncture, exploring areas of some state laws where differences are
apparent is important. The first noteworthy difference is the form required for
the conclusion of a valid betrothal under the Family Codes of the State of
Amhara and that of the State of Oromia. The first requires that a betrothal shall
be made in a written form.106 On the other hand, there is no such requirement
under the latter Code.107 It accords the same legal effect to betrothals concluded
orally as well as in writing. Then, what should be the fate of a betrothal concluded
orally in the State of Oromia if the parties move to the State of Amhara? Should the
courts of the state of Amhara recognise such betrothal or reject it?
The other difference between the two Codes is the duration of a betrothal.
According to the Amhara Regional State Family Code, a betrothal is valid for
two years.108 On the other hand, a betrothal is valid only for a year under the
Oromia Regional State Family Code.109 What should be the fate of a betrothal
concluded in the Amhara regional state if the parties move to the state of
Oromia after a year but before the end of the two years period prescribed by the

105
In the US, different approaches have been suggested as to what choice of law rules
should apply to international conflict of laws. The first line of argument demands the appli-
cation of national laws in every international conflict of laws cases. This argument primarily
rests on the idea that decisions in an international conflict of laws may affect the foreign
relations power of the federal government. The proponents, therefore, suggest that the
federal common law must supersede state laws. On the other hand, the second line of argu-
ment demands the application of state laws if the case has arisen under such law and its
application does not affect the foreign relations power of the federal government. Propo-
nents of the second approach argue that a significant portion of international conflict of
law cases can be properly handled by applying state laws. In Nafziger words: “Just
because a case is international does not mean that the foreign relations or other interests
of the federal government are affected significantly enough to replace the normal appli-
cation of state law. In fact, they usually are not.” Nafziger, supra n 97, 67–72.
106
Article 5 of the Amhara Regional State Family Code Approval Proclamation No.79/
2003, Zikre-Hig Gazetta, 8th Year, No. 3.
107
Article 11 of the Oromia Regional State Family Code, Megelete Oromia, Proclamation.
No.69/1995.
108
Article 6 of the Family Code of the State of Amhara, Proclamation 79/2003.
109
Article 13 of the Family Code of the State of Oromia of Proclamation No. 69/1995.
440 M.T. Setegn
Amhara Regional State Family Code? Should the Courts of the Oromia Regional
State reject such betrothal on the ground of the lapse of the one year period pre-
scribed by the Oromia Regional State Family Code or give it effect by displacing
such law and applying the Amhara Regional State Family Code?
The degree of matrimonial kinship they prohibit is the other difference between
the two Codes. The Oromia Regional State Family Code prohibits marriage within
seven degrees of collateral consanguinity.110On the other hand, the prohibition
under the Amhara Regional State Family Code is limited to the second degree of
collateral consanguinity.111 Therefore, a marriage validly concluded in the State
of Amhara may not be so under the Oromia Regional State Family law.112 These
and other issues that arise out of the disparity of state laws require state private inter-
national law rules which provide the courts with answers.
The Ethiopian Constitution recognises the freedom of movement and choice
of residence.113 It also recognises the right to marry and found a family.114
However, the disparities of the laws of the states and inconsistent treatment of
disputes may unduly curtail these constitutional rights.115 To obviate the chilling
effects of the diversity of their laws on the enjoyment of constitutional rights, the
states may use private international law rules. Among other things, the Consti-
tution requires the states to respect and enforce human rights it recognised.116
Through private international law rules, the states may ensure consistent treat-
ment of disputes. Specifically, choice of law rules may provide legal bases to
exclude the law of the forum and apply the law of another state which may, in
particular cases, allow giving effect to human rights of the concerned parties.
Therefore, the states should use private international law as an instrument of
human rights protection.117

F. Limitations on state private international law jurisdictions

The discussions in the foregoing sections reveal the reach of the legislative and
judicial jurisdictions of the states over private international law matters.
However, their jurisdictions should be checked through overarching norms
intended to ensure tolerance of differences and fairness to parties involved in inter-
state disputes. Exorbitant rules with no deference to the laws and judicial decisions

110
Article 27(2) of the Family Code of the State of Oromia, Proclamation No. 69/1995.
111
Article 19(2) of the Family Code of the State of Amhara, Proclamation No. 79/2003.
112
According to article 49 of the Family Code of the State of Oromia, a marriage concluded
in violation of the prohibited degree of matrimonial kinship can be dissolved upon the appli-
cation of any concerned person or public prosecutor.
113
Article 18 of the Ethiopian Constitution, 1995.
114
Article 34 of the Ethiopian Constitution, 1995.
115
Mills, supra n 1, 17.
116
Article 13 of Ethiopian Constitution, 1995.
117
Mills, Supra n 1, 124–25.
 Journal of Private International Law 441
of other states may spoil interstate relations and jeopardise individuals’ legitimate
interests. To check such irregularities a full faith and credit principle is commonly
used in federations such as the US and Nigeria.118 Lamentably, there is no such
requirement under the Ethiopian Constitution.
The major concern in an interstate conflict of laws is the place that should be
accorded to the official acts of a sister state. The U.S Constitution requires each
state to accord a full faith and credit to the official acts of other sister-states. It
provides:

Full Faith and Credit shall be given in each State to the public Acts, Records, and
judicial Proceedings of every other State. And the Congress may by general laws pre-
scribe the Manner in which such Acts, Records, and Proceedings shall be proved, and
the Effects thereof.119

The Full faith and credit clause requires the states to accord a full faith and credit to
each other’s public Acts, Records, and judicial Proceedings.120 With respect to
judicial decisions, the states are required to respect and enforce each other’s judi-
cial decisions.121 The full faith and credit clause, among other things, advances the
interests of the states and the Federation at large by welding the states into a united
nation.122
Coming to the Ethiopian Constitution, there is no constitutional provision
which requires the states to recognise each other’s laws and judicial decisions.
The Draft Proclamation to Provide for Federal Rules of Private International
Law under article 8 provides:

In inter-state matters, full faith and credit shall be given to the laws and judicial pro-
ceeding and judgments of the competent courts of a state by all other states.

Sadly, this provision does not offer any solution as it is just a draft. However, even if
enacted as a law, there is no constitutional basis which allows the federal government
to introduce such provision. Among other things, the Constitution requires the

118
Article IV section 1 of the U.S Constitution and Nigerian Sheriffs and Civil Process Act
1990, s. 105(2) and 108.
119
Article IV section 1 of the U.S Constitution.
120
See Stephen E Sachs, “Full Faith, and Credit in the Early Congress” (2009) 95 Virginia
Law Review 1203, 1229.
121
Tomas M Joraanstad, “Half Faith, and Credit?: The Fifth Circuit Upholds Louisiana’s
Refusal to Issue a Revised Birth Certificate” (2013) 19 William & Mary Journal of
Women and the Law 421, 42; Douglas Laycock, “Equal Citizens of Equal and Territorial
States: The Constitutional Foundations of Choice of Law” (1992) 92(2) Columbia Law
Review 252, 289.
122
Pamela K Terry, “E Pluribus Unum? The Full Faith and Credit Clause and Meaningful
Recognition of Out-of-State Adoptions” (2012) 80 Fordham Law Review 3092, 3105–107;
see Joraanstad, supra n 121 at 424.
442 M.T. Setegn
federal government to respect the powers of the regional states.123 However, the non-
existence of a full faith and credit clause in the Constitution or an agreement among
the regional states may not be reasonably invoked as a ground to deny the legal force
of the official acts of a sister-state. Let alone in an interstate conflict of laws, in the
case of international conflict of laws, it is not always a binding law that serves as a
basis to accept the laws and judicial decisions of another nation.124

G. Conclusion
The 1995 Ethiopian Constitution establishes a federal nation in which power is
divided between the federal government and the states. The states, as well as
the federal government, have the power to enact private law. This entails private
international law disputes connected with state private laws on one hand, and
laws enacted by the federal government on the other. In light of the constitutional
division of power and the purposes of private international law, the states should
wield cases connected with their private laws. Among other things, the states may
enact private international rules and designate one of their courts to entertain
private international law disputes.
In total disregard to the Constitution, the Federal Courts Proclamation and the
decision of the Federal Supreme Court’s Cassation Division in the case of Meseret
Alemayehu V. Emushet Mulugeta, render the Federal High Court the holder of an
inherent jurisdiction over disputes connected with state laws. Ironically, the Div-
ision ruled that the state courts’ power to adjudicate cases connected with their
own laws emanates from their delegation to exercise the jurisdiction of the
Federal High Court.
The idea that the states need to have the delegation of the Federal High Court
to adjudicate cases connected with their private laws is a frivolous myth. This
myth, invented by the Federal Courts Proclamation and the Federal Supreme
Court, usurps the constitutional jurisdictions of the states. Hitherto, it has stifled
the very idea of state private international law; the federal government is
viewed as the sole wielder of private international law jurisdiction. However,
this postulate is fundamentally flawed as it is entirely at odds with the Constitution
and the bases of private international law.
There are various constitutional and logical justifications which allow the
states to exercise legislative and judicial jurisdictions over cases connected with
their private laws. First, such jurisdiction naturally emanates from their power

123
Article 50(8) of The Ethiopian Constitution provides: “The Federal Government shall …
respect the powers of the States.”
124
The Canadian constitution has no full faith and credit clause. However, the Canadian
Supreme Court, in Morguard Investment Ltd v. De Savoye (1990), introduced a full faith
and credit principle. Therefore, the treatment of inter-state cases is analogous to that of
US and Canada whose constitutions have a full faith and credit clause. See Mills, supra
n 1, 168.
 Journal of Private International Law 443
to enact private laws: their power to enact a primary substantive law subsumes
enacting the parasitic private international law rules. Second achieving the ends
of private international law such as justice, predictability, and uniformity requires
the states to have discrete private international law systems consonant with their
private laws. Last, the protection of certain human rights enshrined in the Consti-
tution requires the states to have private international rules. Among other things,
ensuring freedom of movement within the federation requires consistent treatment
of like cases. Through the choice of law rules, the states may obviate the chilling
effects of the heterogeneity of their laws.
The way forward is to overturn the myth and reshape the Ethiopian private
international law architecture based on the constitutional division of power. The
federal legislature and the Supreme Court should swallow their pride and counter-
mand their flawed dictates. On the other hand, the states should enact private inter-
national law rules and designate one of their courts to handle private international
law disputes connected with their laws. In crafting their private international law
rules, the states should take into account the ends of private international law and
human rights recognised by the Constitution. Among other things, the state private
international law rules need to ensure “justice” and predictability.

Acknowledgement
I would like to express my sincere gratitude to my colleagues Mr. Wondwossen Wakene and
Mr. Bebizuh Mulugeta for their invaluable comments on the earlier version of this Article
and conversations that helped me improve it. I am also grateful to the anonymous reviewers
for their invaluable comments and suggestions.

Disclosure statement
No potential conflict of interest was reported by the author.