DISPUTE RESOLUTION MECHANISMS IN UGANDA. WHICH WAY FORWARD FOR THE BUSINESS COMMUNITY; REFORM OF THE LAW OR ATTITUTIES? oijnjook

The use of Dispute Resolution Mechanism in Business. Contract interpretation Non payment for goods and services given Non delivery of goods and services paid for Delivery of goods not fit for the purpose or according to description contracted for.

The use of Dispute Resolution Mechanism in Business continued… Financial intermediation correction through loan/ credit non repayment, insurance etc Joint venture failures and International enforcement of judgment and many more.

Classification of Disputes. a) Preventive Intervention (in anticipation of breach) “ Pre emptive strike” i.Injunction; ii. Prerogative Orders of Mandamus, Certiorari, Prohibition b) Declaration Rights between parties i. Declaratory order ii. Interpleader (deciding ownership)

Classification of Disputes 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

Objectives of Dispute Resolution 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.

Choice of forum  Enforceability of decisions made  Neutrality  Expert understanding  Confidentiality vis a vis open trial  Speed  Cost

Traditional approach to Dispute Resolution in Uganda and its Impact on business transactions. A statistical analysis of this tradition approach to dispute resolution reveals the following results;

Table 1 Comparison of work, caseload and through put (1999) CourtCaseload/ No.of cases per judicial officer Through put/ no. of cases per judicial officer Court of Appeal4532 High Court Chief Mag Mag. Grade I Mag. Grade II328219

Table 2 Average duration of cases completed from filling to completion (1999) Data Source: Nordic Consulting Group (U) Ltd November 2001 CourtAverage adjournments per case Average duration of cases(Monthly)enforce ment not included Court of Appeal211 High Court410 Chief Magistrate's Court 75 Magistrate Grade I Not available3 Magistrate IINot Available2

Table 3 Commercial court case load and through put Year(end of Yr) Cases brought thru the year Newly registered complete d Pending; sent to next yr

Table 4: Judge caseload commercial court Table 4: Judge caseload commercial court YearCases brought forward No. of JudgesAverage No. of cases per Judge As at Jan I,

Table 5: Private Sector perceptions of accessibility to commercial justice institutions Commercial Dispute Resolution No. of instituti ons in Uganda Perceptions of accessibility nation wide Perception of accessibility (Kampala) Informal Sector%N =607 Formal Sector%= 488 Informal Sector%N=31 4 Formal Sector%=2 64 LC Court Mag. Courts Comm.Court High Court Court of Appeal Supreme Court

Industrial Court Tax Appeals Tribunal CADER

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, 2000 iv. Report on Judicial Reform 1994 v 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

What Alternatives Exist to what the law has provided? Negotiation Conciliation Mediation Arbitration Rent a judge Mini trial Ombudsperson

The experience of Mediation and 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.

Mediation case settlement status; CADER YearCases referred Cases settles or partly Complete but unsuccessful Discontinued Oct 03- Oct

Registered mediators and Arbitrators at CADER Mediator Staff4 Mediator and Arbitrators ( Non staff) 60

Mediation workload under mediation pilot scheme Mediation workload under mediation pilot scheme Cases referredNo.of staff mediators Average cases per mediator

Emerging 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 /= levied on failure of a party to show up for mediation has been unsuccessful due to lack of a clear enforcement mechanism.

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.

Conclusion 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.