Adjudication Training.

Uganda Institution of Professional Engineers

24th -25th October 2019.

David S. Kaggwa, FCIArb

david@kaggwalaw.com T: +256772 474695.
 David Kaggwa’s Biography
• David Kaggwa is a Commercial lawyer and Arbitrator. He is a Partner and
heads the Arbitration and Construction Law practice at Kaggwa & Kaggwa
Advocates.
• David has written several Arbitral Awards under the UNCITRAL,CADER, LCIA
and other rules, all of which have been enforced by the Court.
• David is an Advocate of the Courts of Judicature of Uganda and is a Fellow
of the Chartered Institute of Arbitrators of UK. He holds a Master of Laws
Degree in Construction Law and Arbitration from the Robert Gordon
University Aberdeen – Scotland, a Bachelor of Laws Degree from Makerere
University and a Post Graduate Diploma in Legal Practice. He is member of
the London Court of International Arbitration, International Bar Association
and the Society of Construction Law.
 The Legal Framework for Construction Dispute
Resolution in Uganda.

• The Constitution of the Republic of Uganda.

• The Constitution of the Republic Uganda is the supreme law of Uganda and
it provides for modes of dispute resolution which are relevant to
construction. Article 139 of the Constitution establishes the High Court,
which, subject to the law, is clothed with unlimited original jurisdiction.
• Therefore, The High Court’s unlimited jurisdiction is subject to laws which
expressly removed jurisdiction from it and conferred it upon other bodies.
• S. 9 of the Arbitration and Conciliation Act, provides that except as provided
in this Act, no court shall intervene in matters governed by this Act.
 Powers of the High Court
• Within the Act, the High Court has powers to grant interim order of
protection under S. 6, Stay of proceedings under S. 5, appeal against
a decision on jurisdiction under S. 16 (6), assistance in taking
evidence under S. 27, recognition and enforcement of awards under
S. 35 an 36 of the Act, setting aside of awards under S. 34, and
hearing appeals on questions of law under S. 38 of the Act where
the parties have agreed to refer such questions to the Court.
• Article 123(2) of the Constitution provides that: “Parliament shall
make laws to govern the ratification of treaties, conventions,
agreements or other arrangements made under clause (1) of this
Article.”
 Ratification

Ratification of Treaties Act, Cap 204.

• Ratification is one of the methods through which states express their
willingness to be bound by a treaty.

• The Vienna Convention on the Law of Treaties of 1969 (herein after referred
to as the Convention) in Article 2(1) (b) provides that ratification means the
“international act so named whereby a State establishes on
the international scene its consent to be bound by a treaty.”
It is used as a means of expressing consent to be bound by a treaty
 Ratification

• In compliance with Article 123 (2) of the Constitution, Parliament

enacted the
Ratification of Treaties Act Cap to govern ratification of treaties. Under S
ection 2 of the Act, there are two methods of ratification in Uganda.
• All treaties shall be ratified as follows: by the Cabinet in case of any
treaty other than a treaty referred to in paragraph (b) of this section; or
by Parliament by resolution. From the above provisions
treaties in Uganda are ratified by the Cabinet save
for the exceptions given in (b) above.
 Trial by Special Referee or Arbitrator

The Judicature Act, Cap. 13

• Sections 26 to 32 of the Act provides for the appointment by the High

Court of of a special referee or arbitrator to inquire and report on any
cause or matter other than a criminal proceeding. These provisions
read together with section 41 of the Act, which stipulates for the
functions of the Rules Committee give to the passing of the Judicature
(Mediation) Rules, 2013.
 ADR by the Courts.
The Civil Procedure Act (Cap. 71) and the Civil Procedure Rules S.I 71-1
• Order 12 of the Civil Procedure Rules provides for “Scheduling Conference and Alternative
Dispute Resolution”. Rule 1 (1) provides – “The Court shall hold a scheduling Conference to sort
out points of agreement and disagreement, the possibility of mediation, arbitration and any form
of settlement . . .” This provision is meant to help the parties consider the option of settling the
matter before hearing in Court can commence. Any construction dispute, which is filed at the
Court, even in the absence of an arbitration clause can be mediated or arbitrated is the parties
agree to do so.
• Order 12 rule 2 provides that, where the parties do not reach an agreement under rule 1, . . . the
Court may, if it is of the view that the case has a good potential for settlement, order alternative
dispute resolution before a member of the bar or the bench, named by the Court.
• (2) Alternative dispute resolution shall be completed within twenty one (21) days after the date
of the order . ..the time may be extended for a period not exceeding 15 days on application to
the Court, showing sufficient reasons for the extension. (3) The Chief Justice may issue directions
for the better carrying into affect alternative dispute resolution . ..”
 ADR by the Court

• O r d e r ( 4 7 ) CPR Provides for Arbitration under Order of Court, also referred to

as Court-annexed Arbitration. The beauty of this rule, again as in the spirit of
ADR, lies in agreement between the parties. Rule 1 (sub rule 1) of this Order, for
instance, provides that – “Where in any suit all the parties interested who are
not under disability agree that any matter in difference between them in the suit
shall be referred to arbitration, they may, at any time before judgment is
pronounced, apply to the court for an order of reference.”
• Rule 2 of the same Order goes on to provide that the “Arbitrator shall be
appointed in such manner as may be agreed upon between the parties”. If the
parties have opted for arbitration but fail to agree on the arbitrator, the Court
shall appoint one as is provided for in rule 5 thereto.
 Arbitration & Conciliation Act
The Arbitration and Conciliation Act (Cap. 4)
• This Act domesticated the provisions of the 1985 United Nations
Commission on International Trade (UNCITRAL) Model Law on
International Commercial Arbitration as well as the UNICITRAL Arbitration
Rules 1976 and the UNCITRAL Conciliation Rules 1976. However, it should
be noted that the Act does not provide for the immunity of an arbitrator
which is covered under the UNCITRAL Model law.
• S. 9, expressly ousted the jurisdiction of the Court in arbitration matters,
therefore once an arbitration clause exists, even if one of the parties
disputes its validity, the Court would refer that issue to the Arbitrator since
he or she has jurisdiction to rule on their jurisdiction under the
“competence competence” principle. This also applies to adjudicators.
 Arbitral Institutions.

• Section 2(1)(c) provides for the meaning of “Arbitration Agreement”.

It states – “an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them
in respect of a defined legal relationship, whether contractual or not”
• The Act also provides for the Centre for Arbitration and Dispute
Resolution (CADER) as a Statutory Institutional alternative dispute
resolution provider.
• ICAMEK has also been established under S. 2 of the Act as a privaye
sector led arbitration institution.
 Mediation
The Judicature Mediation Rules, SI No. 10 of 2013.
• Provides that it is mandatory to attend court annexed mediation
before the hearing of the case. However, accepting the terms of the
mediation is voluntary.
• All claims including construction claims filed in the court shall be
referred to the court annexed mediator before the hearing. In case of
agreement, the terms are reduced into a consent judgment or in case
of disagreement the matter is referred to the Court for a scheduling
conference where other forms of ADR can be explored under Order
12 as discussed above.
 International Treaties

Protocol on Arbitration Clauses

• This protocol was ratified by Uganda on 5th May 1965 and Article 1
states;
• “Each of the Contracting States recognizes the validity of an agreement
whether relating to existing or future difference between parties
subject respectively to the jurisdiction of different contracting states
by which the parties to a contract agree to submit to arbitration all or
any differences that may arise in connection with such contract
relating to commercial matters or to any other matter capable of
settlement by arbitration, whether or not the arbitration is to take
place in a country to whose jurisdiction none of the parties is subject.”
 International Treaties
Convention on Execution of Foreign Arbitral Awards
• The Convention was signed at Geneva on the 26th September 1927,
entered into force on 25th July 1929 and was domesticated under the
old Arbitration Act, Cap. 55 and Uganda is still a signatory thereof.
• The member states agreed that arbitral awards made in pursuance of
an agreement covered by the protocol on arbitral clauses shall be
recognized as binding and shall be enforced in accordance with the
rules of procedure of the territory where the award is relied upon.
 International Treaties
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York Convention 1958)
• This convention shall apply to the recognition and enforcement of
arbitral awards made in the territory of a state other than the State
where the recognition and enforcement of such awards are sought,
and arising out of differences between persons, whether physical or
legal. It shall also apply to arbitral awards not considered as domestic
awards in the State where their recognition and enforcement are
sought.
• Uganda became a signatory on 12th February 1992.
 Formal Requirements of an Award

• Location. The location (seat) is also important in case the Award is to be enforced
in another jurisdiction, under some convention or treaty or, more usually, the
‘New York’ Convention of 1958.
• The details of the dispute need to be listed, from the contentions of the parties in
their submissions, followed by the details of the proceedings, interlocutory
matters and any hearings of evidence including the parties’ representatives and
the witnesses they called, divided between witnesses of fact and experts
• Award must have reasons unless the parties expressly agree to dispense with
reasons.
• You should state who are the parties ; identify them precisely. If this is not done,
your Award will be unenforceable because it is uncertain.
Thank you.