dispute resolution mechanisms in uganda. which way forward for the business community; reform of the...
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DISPUTE RESOLUTION DISPUTE RESOLUTION MECHANISMS IN UGANDA. MECHANISMS IN UGANDA.
WHICH WAY FORWARD WHICH WAY FORWARD FOR THE BUSINESS FOR THE BUSINESS
COMMUNITY; REFORM OF COMMUNITY; REFORM OF THE LAW OR ATTITUTIES?THE LAW OR ATTITUTIES?
oijnjook
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The use of Dispute The use of Dispute Resolution Mechanism in Resolution Mechanism in
Business.Business.
Contract interpretationNon payment for goods and services givenNon delivery of goods and services paid forDelivery of goods not fit for the purpose or
according to description contracted for.
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The use of Dispute The use of Dispute Resolution Mechanism in Resolution Mechanism in
Business continued…Business continued…
Financial intermediation correction through loan/ credit non repayment, insurance etc
Joint venture failures and International enforcement of judgment and
many more.
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Classification of Disputes.Classification of Disputes.
a) Preventive Intervention (in anticipation of breach) “ Pre emptive strike”
i.Injunction; ii. Prerogative Orders of Mandamus,
Certiorari, Prohibitionb) Declaration Rights between parties i. Declaratory order ii. Interpleader (deciding ownership)
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Classification of Disputes Classification of Disputes continued…continued…
c) Restitution “ recovery of lost status or property”
d) Compensatory
i. Special damages
ii. General damage
iii. Exemplary / punitive damages
b) Public Interest Litigation
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Objectives of Dispute Objectives of Dispute ResolutionResolution
Create reconciliation “ principle of give and take” or “win win” situation
Determine Rights i. As of fact ii. As of law Make directive and enforceable orders. Determine adequate compensation for wrongs Correct a public wrong.
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Choice of forumChoice of forum
Enforceability of decisions made
Neutrality
Expert understanding
Confidentiality vis a vis open trial
Speed
Cost
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Traditional approach to Traditional approach to Dispute Resolution in Dispute Resolution in
Uganda and its Impact on Uganda and its Impact on business transactions.business transactions.
A statistical analysis of this tradition approach to dispute resolution reveals the following results;
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Table 1Table 1 Comparison of work, caseload and through Comparison of work, caseload and through put (1999)put (1999)
Court Caseload/ No.of cases per judicial officer
Through put/ no. of cases per judicial officer
Court of Appeal 45 32
High Court 417 169
Chief Mag. 929 505
Mag. Grade I 689 535
Mag. Grade II 328 219
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Table 2Table 2 Average duration of cases completed from Average duration of cases completed from filling to completion (1999)filling to completion (1999)
Data Source: Nordic Consulting Group (U) Ltd November 2001
Court Average adjournments
per case
Average duration of cases(Monthly)enforce
ment not included
Court of Appeal 2 11
High Court 4 10
Chief Magistrate's Court
7 5
Magistrate Grade I
Not available 3
Magistrate II Not Available 2
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Table 3 Commercial court case load and through Table 3 Commercial court case load and through putput
Year(end of Yr)
Cases brought thru the year
Newly registered
completed
Pending; sent to next yr
2001 884 1328 1180 926
2002 1425 1556 1015 1467
2003 1777 1781 1451 1797
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Table 4: Judge caseload commercial courtTable 4: Judge caseload commercial court
Year Cases brought forward
No. of Judges Average No. of cases per Judge
As at Jan I, 2004
1797 4 449.25
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Table 5: Private Sector perceptions of accessibility to Table 5: Private Sector perceptions of accessibility to commercial justice institutionscommercial justice institutions
Commercial Dispute Resolution
No. of institutions in Uganda
Perceptions of accessibility nation wide
Perception of accessibility (Kampala)
Informal Sector%N=607
Formal Sector%=488
Informal Sector%N=314
Formal Sector%=264
LC Court 4000 67 59 69 55Mag. Courts 508 43 59 56 76Comm.Court 1 19 27 44 52High Court 1 18 23 36 44Court of Appeal
8 17 22 52 67
Supreme Court 1 15 17 30 49
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Industrial Court 1 9 14 27 42Tax Appeals Tribunal
1 9 17 26 31
CADER 1 8 12 19 26
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Legal framework for dispute resolution Legal framework for dispute resolution
i. Resistance Council (Judicial Powers) Act Cap ii. Investment Code Act.iii. Non- performing Assets Recovery Trust Act Chapter
95, 2000iv. Report on Judicial Reform 1994 v. 1995 Constitution of the Republic of Uganda vi. Practice Direction No. 1 of 1996 vii. Tax Appeals Tribunal Act Cap viii. The Civil Procedure (Amendment) Rules 1998 ix. The Arbitration ad Conciliation Act Cap 4 x. Legal Notice No. 7 of 2003 xi. The commercial Court Division (Mediation Pilot
Project) Practice Direction, 2003
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What Alternatives Exist to What Alternatives Exist to what the law has provided?what the law has provided? Negotiation Conciliation Mediation Arbitration Rent a judge Mini trial Ombudsperson
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The experience of Mediation The experience of Mediation and Arbitration in Ugandaand Arbitration in Uganda
Since 2000 there has been an increase in the activity of mediation and arbitration following the creation of The Centre For Arbitration and Dispute Resolution (CADER). It is now possible to do some analysis on its impact as a dispute resolution mechanism.
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Mediation case settlement Mediation case settlement status; CADERstatus; CADER
Year Cases referred
Cases settles or partly
Complete but unsuccessful
Discontinued
Oct 03-Oct 04
410 94 142 108
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Registered mediators and Registered mediators and Arbitrators at CADERArbitrators at CADER
Mediator Staff 4
Mediator and Arbitrators ( Non staff)
60
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Mediation workload under Mediation workload under mediation pilot schememediation pilot scheme
Cases referred No.of staff mediators
Average cases per mediator
410 4 102.5
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Emerging ChallengesEmerging Challenges
Intransigent/ unreasonable parties or their legal Advisors who are not willing to try ADR. In some cases counsel has invoked internal processes to defeat ADR
The Use of Court based ADR to delay justice or act as a “fishing” expedition to establish what is possible. The requirement of Shs. 50000/= levied on failure of a party to show up for mediation has been unsuccessful due to lack of a clear enforcement mechanism.
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It has been predicted that settlement processes would result in diminished protection of parties not at the table, frustration of laws designed to create social change, and loss of the court's voice on public values through precedent. With such predictions those in the legal profession would not easily spearhead the move towards ADR.
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ConclusionConclusion
Other dispute resolution mechanisms especially ADR are not fully utilized and yet in many cases ADR offers many similar desired qualities of the court system
Furthermore there is now elaborate legislation in place to support the use of ADR I Uganda. What now remains is the need for a change in attitude to embrace ADR as part of the available menu in resolving disputes in Uganda.