arbitration and economic growth in africa judicial support for arbitration & adr in africa –...
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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
?