CONSTRUCTION

ADJUDICATION IN UGANDA
A Practitioner’s Brief
 LEGAL BASIS-UK
• an interim dispute resolution procedure by which the parties submit their dispute to an independent
third party for a decision. (see James Pickavance-A Practical Guide to Construction Adjudication,
2016). Distinguished from ordinary English meaning adjudicare
• Industry Standard in the Construction Industry where the dual tier dispute resolution model is used
for ADR. Resolution of instant disputes, i.e. IPC payment, delay events et al
• In the UK, a creature of the Housing Grants Construction & Regeneration Act (commonly called
‘the 1996 Act’ or HGCRA). Applies to all construction contracts after 1 May 1998 & cant be
contracted out of. In addition to the primary legislation, the Scheme for Construction Contracts
(England and Wales) Regulations 1998 was enacted and sets out the procedure for adjudication.
• The 1996 Act did not do away with Arbitration & Litigation as dispute resolution mechanisms in the
Construction Industry.
• Adjudications are, by their very nature, a speedy way to resolve disputes with an enforceable and
temporarily binding decision, “unless and or until one or other of the parties seeks to reopen the
dispute in litigation or arbitration” (Coulson on Construction Adjudication,2011,p.337), being
obtained in as little as 28 days, as set out in S108 (2)(c) of the HGCRA. 28 days from the date of the
 PROS & CONS
• Speedy
• Hearings in private thus safeguarding commercially sensitive information.
• Enforceability of decision- victor Party that’s awarded monies can claim ASAP (Adjudicators will usually order that their
decisions be complied with in 7-14 days) + delay in payment attracts interest in accordance with the Late Payment of
Commercial Debts (Interest) Act, 1998, thus if contract is current, safeguarding its cash flow et al.
• Project continuity (See above), and refer to disputes that may lead to suspension of works et al.
• Cost effective (Cost free, no jurisdiction to award costs unless expressly agreed to by the Parties)
• Because its speedy and usually handled by persons not trained in law (Engineers, Architects), on a rigid and inflexible
timetable, on usually highly technical matters, errors of fact & law are common. These errors don’t render an
Adjudication decision a nullity. See Macob Civil Engineering v Morrison Construction Ltd & Carillion Construction Ltd
v Devonport Royal Dockyard Ltd
• May be unsuitable for large disputes.
• Doesn’t encompass non-contractual disputes such as those based on negligence or negligent misstatement
LEGAL OR CONTRACTUAL BASIS IN UGANDA
• Adjudication in Uganda is Contractual. [No statute expressly providing for the same]. Emphasis
on the latter part of the Act is on the PPDA Model Contract (a standard form contract)- In
UNRA, applicable to ‘term maintenance’ contracts. No reference to DAABs & the FIDIC Model
or the EDF Model that is used for ‘civil works’ contracts.
• The Clause;

• Duty of the PM as the first quasi-judicial forum

• UIPE is appointing authority- Attempts to codify Rules/Guidelines in the UIPE Guidelines
(‘straightforward process without need for involvement of lawyers’ ), Rarely relied on or cited.
• Decision of Adjudicator Not final/binding, temporarily or otherwise.
 ARBITRATION IN UGANDA VIS A VIS AN
ADJUDICATOR’S DECISION
• Arbitration & Conciliation Act, Cap 4 (ACA)
• Final & Binding Award with the only avenue for ‘review’ being S.34- application for setting
aside requiring proof of very limited & strict grounds (Mbale Resort v Babcon COA decision,
Total v Buramba Agencies decision) et al
• Also provided for under GCC 25.3 of the PPDA Model Contract (use actual wording)
• When does arbitration ‘commence’? & how does this affect an Adjudicator’s decision.
• Enforcement of Adjudicator’s decision. Can it be registered as an Arbitral Tribunal’s s Award and
thereafter enforced as per the ACA?
 ENFORCEMENT OF ADJUDICATION DECISIONS IN THE U.K

• In the UK, an Adjudication decision is ‘binding until set aside’. Parties must comply with a valid decision until such
time as it is overturned in final proceedings. May only be set aside on jurisdictional grounds, bias & procedural
unfairness or fraud. The Act doesn’t explicitly provide for how Decision is to be enforced. The mechanism is purely
judge made.
• The Macob Civil Engineering Ltd v. Morrison Construction Ltd [1999] EWHC 254 decision- first decision in the UK
to consider enforcement of an Adjudication decision
• Currently Recognized Modes for enforcement are;
 An action before the TCC (Specialized Court) for Summary Judgment . Judgment given in 8 weeks, in accordance
with the TCC Guide (2014). Defendant must prove that he has realistic prospect of success/triable issue, under Part 24
of the UK CPR. [Equivalent of Order 36]. Appns almost always granted.
• Pre-emptory Order by an Adjudicator under Section 23 of the Scheme- These provisions mean that an adjudicator
(acting in a Scheme adjudication) may order the parties to comply with its decision straightaway and without objection
(paragraph 23) and that the court must enforce such an order (paragraph 24).
 Application for mandatory injunction, to compel a party to comply (rarely used, given the availability of the 1 st mode)
 Statutory Demand [insolvency route] inapplicable if there is a cross claim/ debt disputed .
• The ‘ Pay now, Argue Later’ principle. See Alstom Signalling Ltd v Jarvis Facilities Ltd (No. 2) [2004] EWHC 1285
(TCC), per Lloyd J at [19–20]. If monies are ordered, you pay now and save the forensic/detailed arguments for
 LIFE AFTER MACOB
• The rule in Macob was applied in Carillion Construction Ltd v Devonport Royal Dockyard. [2005]
EWCA Civ 1358, COA later approved Akenhead J’s decision. Adjudicatio recognized as ‘rough justice’
• The adjudication procedure does not involve the final determination of the parties’ rights (unless the
parties so agree).
• The court has repeatedly emphasized that adjudicators’ decisions must be enforced, even if they result
from errors of procedure, fact or law.
• Where an adjudicator acts in excess of jurisdiction or in serious breach of the rules of natural justice,
the court will not enforce the decision. [essentially the 2 grounds]
• Judges must be astute to examine technical defences with a degree of skepticism consistent with the
policy of the Act. Errors of law, fact or procedure by an adjudicator must be examined critically before
the court accepts that such errors constitute an act in excess of jurisdiction or a breach of the rules of
natural justice.
 ENFORCEMENT OF ADJUDICATION
DECISIONS IN UGANDA
• Very lightly tested principle in the Ugandan jurisdiction
• The UNRA v T.K Engineers & BOU (2019) decision where Adjudication decision was
erroneously registered in Court as an Arbitral Award under the ACA. And garnishee proceedings
commenced to recover UGX. 10 Bn
 CHALLENGES IN UGANDA

• Bias [Actual or Imputed]- Nature of the industry.

• Delays in Delivery of Decisions
• Absence of a Legal Regime regulating the mechanism.
• UIPE (no clear procedures on who is appointed as an arbitrator, compared to UK, applications to
professional bodies and interviews)
• No clear enforcement mechanism (Statutory of Court made)
• Curious case of fees.
 WHAT’S IN IT FOR LAWYERS? & WAY
FORWARD
• Construction Disputes on the rise (Even in the UK with the ‘96 Act and the TCC), the ‘oil era’ is
on the horizon. Uganda is in an infrastructure phase.
• Enactment of Legislation- Other jurisdictions have enactedlegislation, similar or even tougher
than the HGCRA- Building & Construction Industry Security of Payment Act 1999- New
South Wales, AUS + Construction Contracts Act, 2003- NZ, Isle of Man, Singapore & Ireland
have followed suit. (Germany, Hong Kong, RSA)
• Specialized Training - LLM + Msc. Construction Law + professional accreditations. CIArb, ICE,
ICCP, SCL, SCA
• UIPE List (often viewed exclusively as an Engineer’s field)- Inter-body lobbying. ULS – UIPE,
Addition of Qualifying Members to the list.