ARBITRATION AND ECONOMIC GROWTH IN AFRICA

JUDICIAL SUPPORT FOR ARBITRATION & ADR IN AFRICA – LESSONS FROM

UGANDA

JIMMY .M. MUYANJA

WHAT IS THE JUDICIARY Third arm of the state. Busy body whose primary function

is to interpret and enforce the law. Limited influence in lobbying

legislative policy formulation i.e. draft legislation

ADR ROLES ENVISAGED BY PRIOR LEGISLATION

JUDICATURE ACT, CHAPTER 1341. Functions of the Rules Committee.

(1) The Rules Committee may, by statutory instrument, make rules for regulating the practice and procedure of the Supreme Court, the Court of Appeal and the High Court of Uganda and for all other courts in Uganda subordinate to the High Court.

(2) Without prejudice to the general application of subsection (1), theRules Committee may make rules of court under that subsection for—(x) regulating and prescribing the duties and procedure of referees and arbitrators;

SCORE CARD [1963-2000]? – ZERO

ECONOMIC REFORM AGENDA Judiciary perception - Inefficient!

Too few judges – single statute analysis Backlog Case load backstopping – Land Act (District Land Tribunals

– 60,000 cases) Issue was formulation of legislation which can

immediately stimulate missing linkages in the economy

Was ADR the panacea?

ECONOMIC REFORM AGENDA EMERGING ADR ISSUES

JUDICIARY ADR SECTOR

Limited number of Judges- Economic growth- Population growth- Increased legislation

- Arbitrators and Neutrals are AUXILIARY FORCE funded by private sector with minimum 1:1 ratio boost

Non strategic litigation approach by advocates

Overlooked critical function of ADR in case backlog reduction

Judicial deemed ADR as ouster of court’s jurisdiction

Fatalistic outlook which was suicidal for the economy because ADR is subject to court oversight

Challenge on which platform to use to share mutual interests

MIND SET MATTERS!

Shaka kaSenzangakhona

Negus Tekle Haymanot

ADR AS AN ECONOMIC SOLUTION Attempt to deliver joint lobby position on legal reform

was a still-birth because of conservative views. Soft-turf agreement that nevertheless ADR sector

would lobby the legislature (without judicial dissent) “think not what your country can do for you but what

you can do for your country” Lesson 1 – you can get judiciary buy-in by engaging

them

ADR AS AN ECONOMIC SOLUTION

Lobbying was left to ADR SectorTactic was to influence strategic adaptation of

the UNCITRAL Model Law on International Commercial Arbitration and UNCITRAL Conciliation Rules

Lesson 2 – Strategy limit court’s rolesleave procedural issues to ADR sector

ECONOMIC REFORM AGENDAUNCITRAL Model Law

on International Commercial

Arbitration 1985

Art.11(3)Compulsory

Appointment of Arbitrators upon Party

Failure to Appoint

Art.11(4)Compulsory

Appointment of Arbitrators upon

Procedural Failure to Appoint

Art.13(3)Challenge of

Arbitrator upon Appointment

Art.14Challenge of Arbitrator for

Failure or Impossibility to

perform functions

UNCITRAL DESIGNATION “court or other authority”

UGANDALEGISLTIVE PATTERN

CADER CADER CADER CADER

S.2(a)ADRSPIs

[Yet to apply to be designated by the

Minister for Justice]

S.2(a)ADRSPIs

[Yet to apply to be designated by the

Minister for Justice]

S.2(a)ADRSPIs

[Yet to apply to be designated by the Minister for

Justice]

ECONOMIC DIVIDENDS OF

PRO-ADR LEGAL REFORM AGENDA

- LESSON 3- Centre for Arbitration and Dispute

Resolution (CADER) is the epitome of national ADR infrastructure because the Courts gave away ground

INFRASTRUCTURE OUGHT TO BE VISIBLE

- Today the judiciary houses CADER .

- Aim is to cure economic hangover questions

INFRASTRUCTURE OUGHT TO BE VISIBLEUNCITRAL Model Law

on International Commercial

Arbitration 1985

Art.11(3)Compulsory

Appointment of Arbitrators upon Party

Failure to Appoint

Art.11(4)Compulsory

Appointment of Arbitrators upon

Procedural Failure to Appoint

Art.13(3)Challenge of

Arbitrator upon Appointment

Art.14Challenge of Arbitrator for

Failure or Impossibility to

perform functions

UNCITRAL DESIGNATION “court or other authority”

NIGERIA CourtNigeria C.I.Arb ?

ICAMA

CourtNigeria C.I.Arb

?ICAMA

CourtNigeria

C.I.Arb ?ICAMA

CourtNigeria

C.I.Arb ?ICAMA

ECONOMIC DIVIDENDS OF

PRO-ADR LEGAL REFORM AGENDA

- Lesson 4- Today ADR is a visible domestic

economic sector (Judicature Act ghost overcome!!!)

CADER fills in economic gap existing because of absence of private sector investment such as CIArb.

ECONOMIC DIVIDENDS OF

PRO-ADR LEGAL REFORM AGENDA

- Lesson 5- POLITICAL CORRECTNESS- The judiciary has overlooked and

sacrificed implementation of the Civil Procedure Rules which restricted courts to appoint lawyers or judges only as arbitrators

- Judiciary has simply abandoned and buried ugly precedent

ECONOMIC DIVIDENDS OF

PRO-ADR LEGAL REFORM AGENDA

- Lesson 6- Ugandan and Africa continent based

arbitrators appointed by the parties or CADER

ECONOMIC DIVIDENDS OF

PRO-ADR LEGAL REFORM AGENDA

- Lesson 6- Ugandan and Africa continent based

arbitrators appointed by the parties or CADER

- Average number of CADER compulsory appointments is 95 per annum (without distinguishing between one-person or three-person tribunals)

- On Sunday 1st November 2015, I signed off 8 appointments and provided 1 tribunal list for party approval (how flexible is court to this mode of business?)

ECONOMIC PAY-OFFS OF PRO-ADR LEGAL REFORM AGENDA

- LESSON 7- Today the judicial support is a-national

Bayeti Farms v Transition Grant Services, Yearbook Comm. Arb’n XXXVIII (2013) Voorzieningenrechter [President], Rechtbank [Court of First Instance], Arnhem, 27 September 2012, Case no. 221871 I KV RK 11-9991 – Dutch Court

Uganda Telecom Ltd v. Hitech, Federal Court of Australia http://www.newyorkconvention1958.org/index.php?lvl=notice_display&id=787

- (investor protection???)- The learning curve for the Ugandan judiciary is that

ADR is subject to a shared international heritage

ECONOMIC PAY-OFFS OF PRO-ADR LEGAL REFORM AGENDA

- LESSON 8 – CADER/ADRSPIs?- Today the judicial support is coterminous

because of CADER input (adjective- having the same boundaries or extent in space, time or meaning)

Bayeti Farms v Transition Grant Services, Uganda Telecom Ltd v. Hitech, Federal

Court of Australia The foreign courts found the arbitrator

appointments were sufficiently made by CADER

ECONOMIC PAY-OFFS OF PRO-ADR LEGAL REFORM AGENDA

- LESSON 9 – INNOVATING INCUBATION PROGRAMS

- Court annexed mediation program Mediation incubation program at

Commercial Court in 2000 Constitutional challenges?

Now a permanent feature in all Courts since 2013 (quantum leap from 140-600 per annum to 18,000 files for mediators)

Commercial Court Settlement Rate (Ask Judges?)

2013 – 53 settled by Ugandan mediators 2014 – 78 settled by Ugandan mediators

ECONOMIC PAY-OFFS OF PRO-ADR LEGAL REFORM AGENDA

- LESSON 10 – FUTURE CASE SCHEMES CHALLENGES

Arbitration incubation program (post litigation arbitration clauses?) Incubation at Commercial Court? Constitutional challenges? Court rooms as arbitration

classes?

DOES THE ECONOMIC OUTLOOK MATTER?

Hernando de Soto

The Mystery of Capital:

Why it works in the west and fails everywhere else.

My point: It fruitless to engage in any venture which is not linked to

enhancing your economy

?