Arbitration: Practice & Procedure

Overview of presentation

• Part 1: Introduction
• Part 2: What is Arbitration - Principles
• Part 3: How is Arbitration Commenced?
• Part 4: Selection & appointment of Arbitral Tribunal
• Part 5: Conduct of Arbitral Proceedings
• Part 6: The Role of Court in Arbitral Proceedings
• Part 7: Recognition & Enforcement of Arbitral Awards
• Part 8: Challenging Arbitral Awards
• Part 9: International Arbitration – Practice
• Part 10: conclusion- Career path
 Legal framework

• The Constitution of the Republic of Uganda, 1995. Article 126(b) of the

1995 Constitution provides for one of the cardinal principles of justice in
Uganda which is that justice shall not be delayed and that reconciliation
between parties shall be promoted.
• The Judicature Act, Cap 13 The Act provides for Alternative Dispute
Resolution under Court’s direction. It provides for situations when
matters can be referred to a special referee or arbitrator to handle
where such authority has been granted(section 26&32)
• Arbitration and Conciliation Act, Cap.4 The Arbitration and Conciliation
Act, 200019 and Arbitration Rules made thereunder, govern arbitration
practice in Uganda. The principle of party autonomy is enshrined in
Sections 19(1) and 28(1) of the Act, which mandates the parties to the
contract to choose the laws and procedure in accordance with which
the arbitral tribunal will follow to resolve their disputes
• . The Civil Procedure Act (Cap. 71) and the Civil Procedure Rule S.I 71
– 1 Order XII (12) of the Civil Procedure Rules titled “Scheduling
Conference and Alternative Dispute Resolution” sets out in clear
terms the court’s role in arbitration. Rule 1 (1) thereof provides that
“...the courts shall hold a scheduling conference to sort out points of
agreement and disagreement, the possibility of mediation,
arbitration and any form of settlement.”
• INTERNATIONAL LAW
• the New York Convention The New York Convention is the United
Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards.24 The Convention is concerned with the
enforcement of foreign awards, which is one of the main reasons
parties find the law attractive
• European Convention on International Commercial Arbitration The European
Convention on International Commercial Arbitration, hereinafter, referred to as
(the “European Convention”) was designed to treat obstacles such as “archaic
and divergent” aspects of national laws that were compromising the efficiency
of international arbitration during the stages prior to an arbitral award

• UNCITRAL Model Law The UNCITRAL Model Law on International Commercial

Arbitration was adopted by the United Nations Commission on International
Trade Law (UNCITRAL) on 21 June 1985, (amended in 2006), against a
background of the desirability of uniformity of the law of arbitral procedures and
the specific needs of international commercial arbitration practice

• The International Chamber of Commerce (ICC) Arbitration Rules, 2012 The ICC
Arbitration Rules provide for dispute resolution procedure similar to the New
York Convention. The intention of the ICC Rules is to ensure transparency,
efficiency, and fairness in the dispute resolution process while allowing parties to
exercise their choice over many aspects of the procedure
1. Introduction
ADR mechanisms and their
characteristics
2. What is Arbitration?
principles
 Arbitration-Definition

▪ Domestic arbitration

▪ International arbitration (parties from different

countries)

▪ Investor- State investment arbitration

▪ International arbitration of disputes between States

 What is Arbitration? (1)

“Is a procedure in which a dispute is submitted, by

agreement of the parties, to one or more
arbitrators who make a binding decision on the
dispute…the parties opt for a private dispute
resolution procedure instead of going to court.”

Redfern & Hunter (2009)

 What is arbitration? (2)

“a process by which parties consensually submit a

dispute to a non-governmental decision maker,
selected by or for the parties, to render a binding
decision…”

International Arbitration, Law and Practice, Born

(2012)
 What is arbitration? (3)

“ Arbitration is a private form of binding dispute

resolution, conducted before an impartial tribunal,
which emanates from the agreement of the parties
but which is regulated and enforced by the State.”

“The State requires the parties to honour their

contractual obligation to arbitrate, provides limited
judicial supervision of arbitral proceedings and
supports the enforcement of arbitral awards in a
manner similar to that of national Courts judgments”

Latham & Watkins, Guide to International Arbitration

(2012)
• section 2 of the ACA
“arbitration” means any arbitration whether or not
administered by a domestic or international institution where
there is an arbitration agreement;
 What is arbitration? (4)

“ - arbitration is a mechanism for the settlement of

disputes;
- arbitration is consensual;
- arbitration is a private procedure;
- arbitration leads to a final and binding
determination of the rights and obligations of the
parties.”

United Nations Conference on Trade and

Development (UNCTAD )
 Key Characteristics of Arbitration (1)

1. Consensual (party autonomy)(section 3 ACA)

• Whether to agree to arbitrate
• Timing of the agreement
• Detail of how to arbitrate
• Arbitral Panel
• Speed and cost
• Procedure
• Role of the arbitral institutions
• . UNCITRAL Model Law, in article 19 (1), provides that “subject
to the provision of this Law, the parties are free to agree on
the procedure to be followed by the arbitral tribunal in
conducting the proceedings.
MV Lupex v Nigeria Overseas Chartering & Shipping Ltd9([2003]
10 SCM 71 at 79; [2003] 15 NWLR (Pt. 844) 569)
held inter alia that an arbitration clause is a written submission
agreed by the parties to the agreement must be construed
according to its language and in the light of the circumstances in
which it is made
 Contractual Basis of Arbitration
• An arbitration agreement is an
agreement by the parties, in writing,
to submit to arbitration certain
disputes / differences between
them.

• The Tribunals derive their jurisdiction

from the relevant arbitration
agreement.

• Tribunals generally have the power

to determine their own jurisdiction.

Arbitration Cause no. 04 of 2022; Smile

Communication Ug Ltd Vs ATC Uganda &
Eaton Towers (11/04/2023)
 Importance of Drafting
Arbitration Clauses Correctly

• Arbitration is a creature of consent – it can only take place if

the disputing parties expressly agree to resolve their disputes
via arbitration
• • Any ambiguity or uncertainty can lead to significant delays,
increased costs, and in a worst case scenario, the absence of
jurisdiction
• • The time to "figure it out" is not when a dispute arises, but
when a commercial agreement is being drafted
 Mandatory Clauses:
Introduction

• • There are certain clauses that you must have in order for an
arbitration clause to be effective:
• First, you need a clause that expressly states that the
parties agree that disputes will be resolved by
arbitration;
• Second, you need a clause that identifies what
arbitration rules will be applicable to the arbitration;
• Third, you need a clause that identifies the legal seat of the
arbitration;
• Fourth, you need a clause identifying the number of
arbitrators who will hear the arbitration;
• Finally, you need a clause identifying the language in which
the arbitration will take place.
 Mandatory Clauses: Clauses Subjecting Disputes
to Arbitration (I)

• Guideline 1: This clause should be drafted as broadly as

possible and provide that all disputes under the commercial
agreement shall be resolved by arbitration.

• Guideline 2: The clause should be drafted to cover not only all

disputes "arising out of the contract", but also all disputes "in
connection with or relating to" the contract.

• Guideline 3: The clause should expressly cover disputes

relating to the existence, validity, or termination of an
agreement.
 Recommended Clause:

• All disputes arising out of or in connection with this

agreement, including any question regarding its existence,
validity, or termination, shall be finally and conclusively
resolved by arbitration.
 Mandatory Clauses: Clause Subjecting
Disputes to Arbitration (II)

• The parties may want to carve out certain disputes from an

arbitration clause
• Example: the parties may wish to refer discrete pricing
or technical disputes to an expert, rather than an
arbitration tribunal.
• Be careful! It is often difficult to cleanly segregate different
kinds of disputes under a single contract, and these
types of clauses often give rise to jurisdictional issues.

• If the parties insist on them, the disputes that are not

subject to arbitration should be clearly identified and expressly
carved out, with all other disputes subject to arbitration.
 Recommended Clause:

• Except for matters that are specifically excluded from

arbitration hereunder, all disputes arising out of or in
connection with this agreement, including any question
regarding its existence, validity, or termination, shall be finally
resolved by arbitration.
 Mandatory Clauses: Clause Setting
Out Arbitration Rules (I)

• The parties must designate a set of arbitration rules that will

apply to an arbitration
• These set out the procedural framework for the arbitration.
For example:
• How can an arbitration be commenced?
• How are arbitrators to be appointed?
• How are arbitrators to be challenged or disqualified
What to do if an arbitrator is disqualified?
• The procedures to be followed during the arbitration.
• Absent a reference to a set of arbitration rules, it will be
unclear to the parties how any of the foregoing are to take
place, which will inevitably lead to delays and increased costs
 Mandatory Clauses: Clause Setting
Out Arbitration Rules (II)

• There many different sets of rules, which can be broken down into
two categories
• Institutional arbitrations are administered by an arbitral institution
(e.g., ICC, LCIA, ICDR, AAA, etc.) for a fee
• They do not play a role in the merits of a dispute, but ensure that an
arbitration runs smoothly and that procedural irregularities are
avoided

• Ad hoc arbitrations are not administered by any institution, and the

burden of running the arbitration falls on the parties and the
arbitrators they appoint
• They are less expensive than institutional arbitrations, however the
parties lose all the support that an arbitration institution provides, and
run a greater risk of procedural irregularities occurring
 Mandatory Clauses: Clause Setting
Out Arbitration Rules (III)

• Institutional arbitrations are recommended for disputes that

are relatively complex or involve large dollar amounts
• Ad hoc arbitrations are generally recommended for disputes
that are relatively straightforward or involve lesser dollar
amounts
• Recommended clause: Always use language suggested by the
relevant arbitration rules, but most will read as follows:All
disputes arising out of or in connection with this agreement,
including any question regarding its existence, validity, or
termination, shall be finally and conclusively resolved by
arbitration under the [Name of the Rules].
 Mandatory Clauses: Clause Setting
Legal Seat of Arbitration

• • The seat or place of arbitration is the "juridical or legal home" of the

arbitration
• The law of the seat governs certain procedural aspects of the arbitration:
• Courts at the seat are generally the only courts empowered to provide
judicial assistance;
• Courts at the seat are the only courts able to set aside an arbitral award;
and
• The legal seat can also affect the enforceability of an award.
• Parties should consider setting the legal seat of the arbitration in:
• A New York Convention State so that enforceability will not be
an issue;
• A jurisdiction whose laws are supportive of arbitration; and
• A jurisdiction whose courts are arbitration friendly.
• Recommended Clause: The place or legal seat of arbitration shall be
[City/Country].
 Mandatory Clauses: Clause Setting
Number of Arbitrators

• • Typically, either one arbitrator or three, but in any case, an odd

number.
• Benefits of going with one arbitrator:• Less expensive, as only paying
for one arbitrator; and
• Quicker proceedings.
• Benefits of going with three arbitrators:
• Better equipped to deal with complex issues of fact and law;
• Reduces the risk of irrational or unfair results; and• Gives the parties
more control over process.
• Generally, the more expensive and complicated a dispute, the more
the parties should err on the side of appointing three arbitrators•
Recommended Clause: There shall be [one or three] arbitrator[s].
 Mandatory Clauses: Clause Setting
Language of Arbitration

• • Where the parties or related parties come from different

countries, the language of the arbitration should always be
specified.
• Even if the parties are all from the same jurisdiction, in the
future a party might sell its interest in the commercial
agreement to a third-party from another country.
• Multi-language arbitrations are possible, but they always
cause delays and increased costs
• Recommended Clause: The language of the arbitration shall
be [Language].
 Mandatory Clause: Model
Clause

• All disputes arising out of or in connection with this

agreement, including any question regarding its existence,
validity, or termination, shall be finally and conclusively
resolved by arbitration under the Rules of Arbitration of the
International Chamber of Commerc
(a) The legal seat of the arbitration shall be Calgary, Alberta,
Canada.
(b) The number of arbitrators shall be three.
(c) The language to be used in the arbitral proceedings shall be
English.
 Optional Clauses:
Introduction

• The previously discussed mandatory clauses are just the bare

minimum provisions that need to exist in an arbitration clause
in order for an arbitration to be possible.
• However, every set of arbitration rules in existence differ from
one another, and all contain different gaps in their procedure.
• Therefore, there are an additional number of provisions that
the parties would be well-advised to insert into their arbitration
clauses, depending on which arbitration rules they select, and
the commercial agreement being negotiated
• Always seek expert advice from an arbitration specialist when
considering these optional clauses.
Drafting an Arbitration Clause -
Checklist
 Arbitration Agreement & Arbitral
Jurisdiction

Arbitration Agreement

• Doctrine of Separability / Severability

• Judge Schwebel, formerly of the International Court of
Justice:
‘[w]hen the parties to an agreement containing an
arbitration clause enter into that agreement, they
conclude not one but two agreements, the arbitral twin
of which survives any birth defect or acquired disability
of the principal agreement’.

S Schwebel, International Arbitration: Three Salient Problems,

Grotius Publications, 1987, pp. 2–3.
 Key Characteristics of Arbitration (2)

2. Final and binding decision

“they bind themselves to accept that decision,

once made, whether or not they think it right”.
Motunui v Methanex (Auckland High Court)
 Arbitral Jurisdiction
• Section 9 of ACA limits the intervention of Court in Arbitral matters

• Babcon Uganda Limited vs Mbale Resort Hotel Ltd CACA No. 06 of

2016- held that S. 9 ousts the jurisdiction of Court in matters of
arbitration except to the extent provided for.

• Arbitral Tribunal and the High Court have concurrent jurisdiction to

determine the validity of the arbitration clause and the jurisdiction of
the tribunal – Alain Francois Goetz & Anor vs Barnabas Taremwa & 2
Ors CACA No. 159 of 2021

• Shell (u) Ltd vs AGIP (U) Ltd SCCA No. 49 of 1995

• Where there is an arbitration clause, Court must refer the matter to

arbitration- Misc. Application N0. 234 of 2023; Newplan Ltd vs
Mercantile Properties Limited (delivered on 30/06/2023)
• The court in the case of East African Development Bank v Ziwa
Horticultural Exporters Ltd(High Court Misc. Application No.
1048 of 2000 arising from Companies Cause No. 11 of 2000)
it held that: Section 6(now section 5) of the Arbitration and
Conciliation Act, provides for mandatory reference to arbitration
of matters before court which are subject to an arbitration
agreement; where court is satisfied that the arbitration
agreement is valid, operative and capable of being performed, it
may exercise its discretion and refer the matter to arbitration
 Key Characteristics of Arbitration (3)

3. Supported by national law and national courts

▪ National law permits/encourages arbitration

▪ Role of National courts before the arbitral award
▪ Role of National courts after the arbitral award

• Lake Side Dairy Ltd VS ICAMEK & Anor Misc. Cause No. 021 of
2021
• British American Tobacco Uganda Ltd vs Lira Tobacco Stores
HCMA NO 924 OF 2013
• MTN Uganda Limited vs VAS Garage Ltd Misc Cause No. 44 of
2018
• Fulgensius Mugereza vs PWC SCCA no. 18 of 2002
• Vantag Mezznine Fund II Partnership vs Simba Properties
Investment Co. Ltd Msc. Application No. 201 of 202
 Key Characteristics of Arbitration (3)

4. Supported by international framework

• Enforceability
• UN Convention on Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention) to
which Uganda is Party.
• ICSID Convention (Washington Convention)1965
(International Centre for Settlement of Investment
Disputes)
• Bi-lateral and Multi-Lateral investment treaties E.g. EAC
Treaty & Protocol, COMESA
• Other treaties and conventions
• UNCITRAL Model law
 Why arbitrate?

• Speedy Resolution of disputes

• Enforceability: the potential for enforcing arbitral awards
worldwide is much greater than that of court judgments.
• Neutrality: Distrust for foreign legal systems
• Confidentiality: arbitration provides greater privacy and
confidentiality than litigation
• Technical Expertise- resolution by experts in business
• Control procedure, Procedural simplicity and flexibility
• Choice of arbitrators/Tribunal
• Costs ?
 Arbitration v Court Litigation

Court Litigation
Arbitration
• State-specific
• Neutral forum
• Private and Confidential • Public
(?) • Standard court procedure
• Flexible procedure
• No choice of judge
• Choice of arbitrator
• Limited scope for • Appeal available
appeal
• Enforcement (may be
simpler)
3. How is Arbitration commenced?
 Before commencing Arbitration

▪ Do you have a valid and enforceable Arbitration

clause or agreement?

▪ Is the dispute between the parties arbitrable? Arb.

Cause No. 04 of 2022; Smile Communications vs
ATC Uganda & Eaton Towers

▪ Does the agreement provide for the Rules

Applicable? Institutional or adhoc?

▪ Does the Agreement make reference to the seat

of Arbitration?

▪ What's the procedure of appointing the

arbitrators?
 Before commencing Arbitration-
Seat
• The place or “seat” of the arbitration is the legal jurisdiction
to which the arbitration is tied.

• It determines the lex arbitri, the courts with supervisory

jurisdiction over the arbitration and the "nationality" of the
award.

• Distinction between the place of arbitration in the legal

sense and the place of arbitration in the geographical
sense.

• It is the legal seat which determines the legal framework

within which the arbitration takes place.
 Before commencing
Arbitration- Seat
• Clear choice required
The seat, or legal place, of arbitration shall be [City
and/or Country].

• In absence of explicit choice, decided by:

– Arbitration Institution
– Tribunal
 Before commencing Arbitration-
Seat
The arbitration law of the place may govern:

▪ The enforceability of the arbitration agreement

▪ The conduct of the arbitral proceedings themselves

▪ The extent to which assistance may be provided by the

courts of the place in support of the arbitral
proceedings

▪ Certain substantive/procedural law issues such as

statutes of limitation and choice of applicable law by
the arbitral tribunal;
 Before commencing Arbitration- Seat
▪ Consequences of the seat

• Grounds and standards for setting aside an award

• Availability of judicial support of the arbitral proceedings

(e.g., compelling witnesses, securing evidence, interim
relief, etc.)

• Mandatory procedural rules of the seat of arbitration

cannot be overcome by agreement of the parties or
arbitrators
. Choice of Arbitration Rules
 Choice of Arbitration rules

 Many countries have arbitration laws which provide a legal

framework for the conduct of arbitrations.

 Subject to mandatory requirements of the applicable law,

parties are free to agree upon the procedure for their
arbitration (or simply accept the default procedure under
that law)

 These rules are then interpreted against the backdrop of

arbitration law of the seat of the arbitration.

 it is useful to distinguish between arbitrations which are

administered by institutions (“institutional arbitration” and
those which are not and “ad hoc” arbitrations)
 Arbitral institutions and rules
There are many arbitral institutions across the
world each with its own set of arbitration rules.

If the parties opt for institutional arbitration, the

choice of the arbitral institution automatically
determines which rules apply

Default timetables, fees and costs also differ.

Institutional rules usually permit the arbitration to

proceed if one party refuses to participate.

Unless the parties are very experienced and

“arbitration-savvy,” administered arbitration is the
safer choice
 Rules- Institutional or adhoc?

 Advantages of institutional arbitration

– Well-established rules (procedural certainty)
– Trained secretariat to address administrative matters
– Scrutiny of the arbitral award by some institutions
– "Pedigree" of the institution can sometimes be useful
at the enforcement stage
– Possibly easier to commence and proceed with
arbitration against party that refuses to participate
 Disadvantages of institutional arbitration
– Fees and expenses of the institution
– Not as much flexibility to tailor the arbitral process
(as in ad hoc arbitration)
 Proceedings in International
4 Arbitration
Language

• Express choice or leave to the

rules?

• Language of the contract

• Different languages for

evidence and documents?

• Interpreting?

54
 Typical Procedural Steps in
Arbitration

▪ Notice of arbitration;

▪ Response to the notice of arbitration;

▪ Appointment of arbitrators;

▪ Preliminary meeting between the arbitral tribunal

and the parties at which procedural timetables and
documents such as terms of reference might be
prepared (this meeting may be in person, by
telephone, video-link, or dispensed with altogether);
 Typical Procedural Steps in
Arbitration

▪ Exchange of written submissions (witness statements

may instead be attached to pre-hearing briefs);
▪ Disclosure of documentary evidence (requests to
produce);
▪ Oral hearing (with witnesses of fact and expert
witnesses);
▪ Post-hearing submissions;
▪ Deliberations of the arbitrators;
▪ Issuance of the award; and
▪ Setting aside or enforcement of the award in
domestic courts.
 Expedited procedures

• Some arbitration rules feature expedited

procedures for basic low-value disputes

• But most institutional rules do not

• If disputes are likely to be basic (e.g., unpaid
debts for periodic supply of goods or services),
consider bespoke provisions to expedite
arbitration
• time limit (e.g., 3 months)
• evidentiary limitations (e.g., documents-only
arbitration)
• award-related provisions (e.g., summary
reasons only)
• Build in flexibility to adjust timeframes and
procedures in the arbitrator's discretion to limit
scope for jurisdictional and due process
challenges
 Evidence / Discovery

• Rare that applicable rules of arbitration address this

in any detail

• Often a question of legal / cultural background and

approach of parties and arbitrators
• Is there a need for a standard of discovery,
e.g., "all documents reasonably necessary"?
• Do the parties want to limit discovery, e.g., to
exclude category-based requests for
documents?
• Do the parties want to incorporate the IBA
Rules on the Taking of Evidence in International
Arbitration into their arbitration agreement?

• Check consistency with the law of the seat

5. Appointment of Arbitrators
 Appointment Arbitrators
• The number of arbitrators has an impact on the overall cost,
duration and quality of arbitral proceedings.

• Number of arbitrators (1 or more?)

• Depends on the nature of the contract, amount of potential
dispute and complexity of potential controversies

• 1 arbitrator is less expensive and often more expeditious

• 3 arbitrators gives the parties more control over the

constitution of the tribunal and increases the likelihood of a
fair and well-reasoned result

▪ Criteria for selection

• Parties can include arbitrator qualifications (such as

nationality) but should refrain from too-specific requirements
on matters such as expertise or qualifications.
 Appointment of Arbitrators
• Selection of arbitrators;

• If a 3-member panel is chosen, parties can decide that the

presiding arbitrator will be chosen by agreement between
the 2 party-nominated arbitrators

• In administered arbitrations, the institution will usually appoint

arbitrators in case of default of one of the parties or inability
of the party-nominated arbitrators to agree on a presiding
arbitrator.

• The applicable arbitration rules should be reviewed for

default mechanisms (including timing)

• In UNCITRAL or other ad hoc arbitrations, the arbitration

clause should provide for an appointing authority (such as
ICC, AAA, LCIA, etc.)
 Appointment Of Arbitrators

• The freedom of parties to select their own arbitrator(s)

has been recognized as a basic and important
element of international arbitration.

• However critics state that the freedom of parties to

make appointments often result in the wrong
arbitrator(s) being selected for the wrong reasons.
Furthermore, party-appointed arbitrators will not be
neutral decision-makers, but will be biased in favour
of the appointing party.

• Arbitrators are required to be independent and

impartial even if appointed by the parties. (s. 12 ACA)
 Appointment Of Arbitrators
Advantages Of Party Appointments
Party autonomy:
• An arbitration clause which makes provision for party
appointment confers on parties the responsibility of taking
charge of a crucial process.

• Parties get a chance to exercise their independence/

sovereignty in deciding who will hear and determine their
dispute.

Perceived legitimacy of the arbitration proceedings:

• “Parties to an arbitration will tend to have greater faith in an
arbitral process in which they themselves are invested, not
just as disputants, but as the creators of the tribunal that will
judge them.” William W. Park, Arbitrator Integrity: The
Transient and the Permanent, 46 SAN DIEGO L. REV. 629, 644
(2009)

• A losing party is less likely to challenge the legitimacy of the

tribunal’s decision-making process.
 Challenging Arbitrator’s
appointment

• In Kenya, Uganda and Rwanda an arbitrator may be

challenged if circumstances exist that
“give rise to justifiable doubts as to his/her impartiality and
independence, or if he or she does not possess the
qualifications agreed to by the parties to the agreement”

• What amounts to impartiality?

• In Tanzania the only ground for challenging an arbitrator is

“Misconduct”
 Arbitrators- bias
• Does the law impose any limits on the parties’ freedom
of choice of arbitrator?

• Is a party entirely free to choose whoever he wants to

act as an arbitrator in a commercial dispute?

• Is he free to appoint someone he knows? If so, what

(if any) are the limits of acceptable acquaintance?

• It is a basic principle of law worldwide that a tribunal

should not hear a case if it is biased against one of the
parties
• Bias may a)actual partiality or bias, b)appearance of
partiality, or c)reasonable impression of partiality (Justice
Mubiru in Smiles Communication vs ATC)
 Challenging Arbitrator’s appointment
• The arbitrator if approached must disclose;

a) a prior involvement in the dispute in some other

capacity
b) Any direct or indirect financial interest in the outcome
of the dispute

c) Any past or present relationship with a party, an

affiliate of a party, counsel to a party, another
arbitrator, a witness or expert

d) Anticipated future relationship during the course of

the proceedings should also be disclosed

• The duty to disclose is rooted in arbitrator’s pre-eminent

duty to be impartial and independent of the parties and
to remain through the proceedings
See Halliburton Co. vs Chubb Bermuda Insurance [2020]
UKSC 48; [2021] AC 1083
H. Awards
 Characteristics of an arbitral
award

• Analyse the dispute and issues from the evidence.

• Be enforceable

• Be certain and capable of performance

• Be clear and unambiguous
• Deal with all the pleaded issues
• Comply fully with the submission (that is, the arbitration agreement)

• Decide on all the evidence adduced.

 Types of Awards

• An interim (or partial) Award is one that does not dispose of all the matters
in dispute but it does dispose finally of those matters which it decides.
• Rules on a preliminary point of law.
• Liability then quantum.
• Substantive matters before costs
• Declaratory.
A final award is the Arbitrator’s last act and ends the arbitration. An
arbitrator’s function ceases with a final Award ; he is said to be functus officio
 The Award: Content and Form (i)
• Section 31 of ACA, the Tribunal is required to render
an Award within two months from the date of
reference.

• The role of an arbitrator is not that of a national judge

who might be making decisions that need to accord
with notions of fairness applicable to the community
at large or that will set a precedent for future disputes
between other parties.

• Section 31 (6) of ACA, the Award must be in writing

signed and dated by the arbitrators

• The Tribunal must give reasons unless parties have

agreed otherwise
 The Award: Content and Form (ii)

S.33 of ACA, within 14 days after the award,

parties can apply to the tribunal to correct
errors. Otherwise the proceedings terminate
with delivery of the Award.

S. 39(2) ACA - An award shall be treated as

made at the seat of the arbitration, regardless
of where it was signed, dispatched or delivered
to any of the parties.

Awards should be drafted in manner that

minimises the possibility that they will be set
aside.

Arbitral tribunals have adopted scrutiny

 The Award: Content and Form (iii)

 While all awards are decisions of the tribunal not all

decisions are awards.

 UNCITRAL Rules require a majority decision

 What happens when all the arbitrators disagree? S 31 of

the ACA
 When choosing arbitral rules, establish how they cover
your costs – also look at the procedural laws
 The Award: Content and Form (iii)

 ‘Costs follow the event’ not applicable to some

jurisdictions
 S. 31 (9) of ACA, the Tribunal will determine costs- legal
and other expenses

 Sealed offers mitigate ‘costs follow the event’ principle.

 Fee structure – hourly or bases on the value of the subject

matter.
 The Award: Content and
Form (iv)
33. Correction and interpretation of arbitral award; additional
award.
(1) Within fourteen days after receipt of the arbitral award,
unless a different period of time has been agreed upon
by the parties—

(a) a party may request the arbitral tribunal to correct in the

arbitral award any computational errors, any clerical or
typographical errors or any other errors of a similar nature;
and

(b) a party may, if agreed by the parties, request the arbitral

tribunal to give an interpretation of a specific point or part
of the arbitral award.
 The Award: Content and Form (v)

If the arbitral tribunal considers the request made

(2)
under subsection (1) to be justified, it shall make the
correction or give the interpretation within fourteen
days after receipt of the request, and the interpretation
shall form part of the arbitral award.

(3) The arbitral tribunal may correct any error of the

type referred to in subsection (1)(a) on its own initiative
within thirty days after the date of the arbitral award.

(4) A party may, within thirty days after receipt of the

arbitral award, request the arbitral tribunal to make an
additional arbitral award as to claims presented in the
arbitral proceedings but omitted from the arbitral
award.
 Attributes of an Enforceable
Award

• CCCF
• Cogent – forcefully convincing

• Complete – all matters submitted for decision

• Certain – unambiguous & consistent ; It must not have more than one
interpretation, it must be consistent (both in itself and with all other Awards in
that arbitration) and it must clearly be within the arbitration agreement.

• Final – all issues addressed Enforceable In case an award does not as

 Challenge against Arbitral
Awards

• Under S. 34 of the Arbitration and Conciliation Act Chapter 4 an Application

for setting aside an arbitral award can only be made based on the limited
grounds thereunder; incapacity, invalidity of agreement, lack of notice, award
is outside contract, lack of capacity on tribunal.
• Under Section 38 a party may apply to Court to determine any question of
law arising in course of arbitration or appeal to Court on any question of law
arising out of the award, provided that the parties agreed on that course of
action. In essence there must be an agreement to apply or to appeal to Court
between the parties, therefore if, such agreement was not captured, there can
be no recourse to Court other than as provided under Section 34 and 38,
pursuant to Section 9 of the Act,
Role of the Court
 Ugandan Court Approach
• National law permits/encourages arbitration- ACA which is
based on the UNCITRAL model law.

• Section 35 provides for recognition and binding effect of

arbitral awards.

• Section 36 ACA regulates enforcement of foreign arbitral

awards.

• EAC countries signatories to the New York Convention on

Enforcement of Arbitral Awards.

• Section 41 & 42 of ACA New York Convention Awards are

enforceable the same way domestic arbitral awards would
be.

• Section 45, 46 and 47 of ACA, ICSID Convention Awards are

enforceable as court judgement after registration and
recognition.
 Ugandan Court Approach
• Role of National Courts before the arbitral award.

• Local Courts usually take pro-arbitration approach

and do not interfere unnecessarily.
• British American Tobacco Uganda Ltd –vs- Lira
Tobacco Stores HCMA NO 924 OF 2013.
• Babcon Uganda Ltd –vs- Mbale Resort Hotel Ltd,
Court of Appeal Civil Appeal No. 87 of 2011.
• Vantage Mezannine Fund II Partnership –vs- Simba
Properties & Anor HCMA No. 201 of 2020:
• Enforcement of agreement to arbitrate;
• Recognition of Section 9 of ACA in limiting the
role of Court to supervision;
• Recognition of the powers of the tribunal to
determine the question of jurisdiction
(concurrently),
 Ugandan Court Approach
• HC Arbitration Cause No. 1 of 2011; Fountain Publishers vs
Harriet & Rose Nalunga:
• Justice Wagutusi recognizes limited intervention of Courts in
arbitration matters under Section 9 ACA;
• Particular consideration for section 5 on stay of proceedings,
section 34 on setting aside and section 36 on enforcement.
• Misc. Application No. 691/2021; Alios Alliance Limited vs
NSJ Investment Limited & Nanvit Patel (Justice
Rwakakooko):
• Application for recognition of a CADER arbitral award;
• Court reviewed the requirements under section 34 of ACA-
Award Recognised and registered on 12/04/2022.
• Miscellenous Cause No. 3 of 2020; Welhai International
Economy & Technology Cooperative Co. Limited Vs
Hansa Cooperative Limited:
• Justice Mubiru set aside an arbitral award on grounds that
the arbitral tribunal was not properly constituted and the
applicant was not given a fair hearing.
 Recognition & Enforcement
7. of
Arbitral Awards
GETTING PAID

84
 From Award to payment
● Obtaining an award can be only a step towards the solution, not
the solution itself.

● ‘Able but unwilling’ debtors choose the come-and-get-it attitude

or see the award merely as a starting point for settlement
negotiations.

● The success of arbitration is in large part due to the fact that

awards can be enforced internationally, often even more
successfully than court judgments.

● Wherever in the world the award debtor holds assets, the award is
potentially enforceable through local courts.

85
 Enforcement tactics

‘Ablebut unwilling’ debtors require an integrated

approach:

● Knowledge of legal opportunities for recognition of

the award

● Asset tracing and factual research are key:

● Where are assets located
● What type of assets does the debtor hold
● Gathering factual evidence in support of
proceedings

● Understanding the attachment and execution regime

of jurisdictions where assets are located
86
● Perseverance, including the financial ability to keep
going
 Recognition & Enforcement

Enabling Legislation
▪ The Arbitration and Conciliation Act Cap. 4 Laws of Uganda
▪ The Civil Procedure Act, Orders XLVII,XII of the Civil Procedure
Rules)
Enabling Conventions
▪ All the EAC states are parties to the New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards
(New York Convention) and the Convention on the Settlement
of Investment Disputes (ICSID)
▪ These Conventions provide that arbitral awards made in any
member State are recognised and enforceable in all the other
member States
 Recognition & Enforcement of
arbitral awards- Uganda

RECOGNITION
 Section 35 of the ACA All arbitral awards recognised as
binding and are to be enforced by the High Court of Uganda

 For awards granted under the New York and ICSID

Conventions, the awards must be registered in the High court
of Uganda will be of the same force and effect for the
purposes of execution as if it had been a judgment of the
court
 Recognition & Enforcement of
arbitral awards- Uganda

ENFORCEMENT
 The enforcement procedure is generally similar across EAC
i.e.

 lodging a formal application accompanied by the

authenticated original award of certified copy and Original
arbitration agreement

 the court enters the award as its decree and enforces it just
like its other decrees
 The 1958 New York Convention

 Aimed at the cross border enforcement of arbitration agreements

and arbitral awards

 Dubbed one of the most successful treaties in the history of

international law

 Particularly high degree of voluntary compliance with arbitral

awards

 Particularly high degree of voluntary compliance with arbitral

awards

 Enforceable by legal proceedings if not carried out voluntarily

90
New York Convention

✓ Enforcement
. of arbitration agreement

✓ Enforcement
. of international arbitral awards

• × Interference of courts

✓ Widespread application
States
156 signed up

91
New York Convention in Africa
TUNISIA
MOROCCO 1967
1959

ALGERIA
1989 EGYPT
1959

SENEGAL
1994 MAURITANIA
2007 MALI NIGER
1994 1965
DJIBOUTI
1983

NIGERIA
CÔTE 1970
D’IVOIRE CENTRAL AFRICAN
CAMEROON REPUBLIC
1991 1988
BENIN 1962
1974 UGANDA KENYA
LIBERIA RWANDA
GAMBON 1992 1989 2008
2005
DEMOCRATIC
GUINEA BURKINA FASO 2006 REPUBLIC OF
1991 1987 BURUNDI
CONGO 2014
2014 TANZANIA
GHANA 1964
1968
COMOROS
2015
ZAMBIA
2002

MAURITIUS
African signatories to the ZIMBABWE
1994
1996
BOTSWANA
New York Convention 1972 MOZAMBIQUE
1998
MADAGASCAR
1962
Date of Entry into Force in
Domestic Legislation
LESOTHO
SOUTH AFRICA 1989
1976
92
New York Convention – where does it matter?
✓ Seat
. of arbitration – ✓ Location/s
. of
set aside enforcement

93
 Main Objectives and Principles
of the New York Convention

 No discrimination against foreign arbitral awards (Article III)

 Recognition and enforcement of arbitral awards in the

jurisdiction of each contracting state (Article III)

 Full effect to arbitration agreements – obligation to deny

access to national courts in contravention of an arbitration
agreement (Article II(3))

 Exhaustive list of grounds for refusal of recognition and

enforcement (Article V)
 Scope Of The New York
Convention
● Award made in a State other than the State where
enforcement is sought;

● Award rendered in the State where enforcement is

sought, if considered under national law to be ‘non-
domestic’ [often if one of the parties was a foreign entity]

● Sometimes reciprocity or ‘commercial’ requirement

● Keep in mind → what is considered a ‘domestic’ or

‘national’ award in one jurisdiction is a foreign award in
another jurisdiction

95
 The Essence Of The New York
Convention
• Courts of seat decide setting aside and thereby potentially affect
enforcement everywhere

• Courts in other jurisdictions only decide on recognition of the

award in their own jurisdiction

• The grounds for refusal of recognition listed under Article V are

exhaustive

• Burden of proof is squarely on the award debtor

• Courts may not review the award on its merits

• Courts must construe the grounds under Article V narrowly

• There should be no refusal of enforcement on the basis of 96

a minor defect which did not affect the outcome of the
proceedings.
 Challenging /enforcing arbitral
awards
 Certain grounds under which courts can refuse to recognise / enforce
an award – Art. V New York Convention
– Arbitration agreement invalid / incapacity
– Lack of due process
– Exceeded scope of arbitration agreement
– Composition of Tribunal
– Set aside in seat (possibly)
– Non-arbitrable
– Public policy

 Domestic arbitration laws also contain grounds – often echo above

 Note: Section of the Arbitration & Conciliation Act, Cap 4

 Setting Aside Arbitral Awards
 Uganda, Rwanda and Tanzania have similar grounds for setting aside:
Incapacity of a party; invalidity of an agreement; No notice of
appointment of arbitrators or of arbitration proceedings; deciding
matters beyond the scope of reference; fraud and corruption; dispute
not capable of being resolved by arbitration; and award is against
public policy
 Tanzania – the only ground for setting aside is misconduct
 In Kenya time limit for application is 3 months in Uganda and Rwanda 1
month and in Tanzania the law is silent
 Tanzanian case of WJ Tame Ltd v Zangortis Estate Ltd - can set aside
an award if there is an error on the face of the record and not simply
when there is an error of fact or error of law
 Public Policy - In Richardson v Mellish (1824) 2 Bing 229 the Court
branded public policy an “unruly horse [that] when you get astride it,
you never know where it will carry you”
 Setting aside Arbitral Award

[26] The grounds for challenging an award under the

Model Law are derived from Article V of the New York
Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the “New York Convention”).
Accordingly, authorities relating to Article V of the New
York Convention are applicable to the corresponding
provisions in Articles 34 and 36 of the Model Law. These
authorities accept that the general rule of interpretation
of Article V is that the 1999 CanLII 14819 (ON SC) grounds
for refusal of enforcement are to be construed narrowly:
A.J. Van Den Berg, New York Convention of 1958
Consolidated Commentary, cited in Yearbook Comm.
Arb. XXI (1996) at pp. 477-509.

Ontario Supreme Court Corporation Transnacional de Inversiones, S.A.

de C.V. v. STET International S.p.A., Date: 1999-09-22 Re Corporacion
Transnacional de Inversiones, S.A. de C.V. et al. and STET International,
S.p.A. et al. Superior Court of Justice, Lax J. September 22, 1999
 The Award: Challenge and
Enforcement

• Failure to make a timely objection to a procedural

irregularity may be fatal to any subsequent attempt to
object to enforcement of an award based on that
irregularity

• To be absolutely sure that as state is not immune from the

enforcement or execution of an arbitral award, an
express waiver of a state’s immunity form execution
should be included in t eh arbitration agreement.
 Grounds for Setting Aside
Kenya Tanzania Uganda Rwanda
• Part VI, S.35(2): •Section 16: • Section 34: • Art 47:
a. Incapacity a. If arbitrator has a. Incapacity a. Incapacity
b. Invalid agreement b. Invalid agreement
misconducted b. Invalid agreement
c. Improper notice or c. Improper notice or unable
unable to present case himself to present case c. Improper notice or
d. Dispute outside terms b. If award is d. Dispute outside terms of unable to present
of reference improperly reference case
e. Improper composition procured e. Improper composition of d. Dispute outside
of tribunal tribunal terms of reference
f. Making of award f. Award procured by fraud,
e. Improper
induced by fraud, bribery, undue means or
bribery, undue evident partiality or composition of
influence or corruption corruption in arbitrator(s) tribunal
g. Non-arbitrable dispute g. Award not in f. Non arbitrable
h. Public policy accordance with Act dispute
h. Non-arbitrable dispute g. Public security
i. Public policy
NB – No ground for
fraud or
corruption
 Zooming in on the public
policy exception
The public policy exception of Article V(2)b in practice.

● Often heavily relied on by award debtor, and sometimes in an

unjustified attempt to get a full review if the award.

● If applied incorrectly, can become a tool to insert the local

laws which parties contracted out of.

● A wise judge said:

“I am persuaded by the logic of the Supreme Court of India

and I take the view that although public policy is a most
broad concept incapable of precise definition, or that as
the common law Judges of yonder years used to say, its an
unruly horse and when once you get astride of it you never
102
know where it will carry you.”
Christ for all Nations –vs- Apollo Insurance Co. Ltd. (2002) EA
366
 Implied right of Appeal?

 Roko Construction Co. Ltd v Mohammed (Ug)–

Although s 34 did not expressly bar appeal,
when read in light with s 9 clear that no right of
appeal under Act unless expressly conferred.

 No right to appeal against decision by High

Court on an application to set aside under s34.