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 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), the Rules Committee may make rules of court under that subsection for— (x) regulating and prescribing the duties and procedure of referees and arbitrators; SCORE CARD [ ]? – 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 JUDICIARYADR 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 Sector Tactic was to influence strategic adaptation of the UNCITRAL Model Law on International Commercial Arbitration and UNCITRAL Conciliation Rules  Lesson 2 – Strategy limit court’s roles leave procedural issues to ADR sector

ECONOMIC REFORM AGENDA UNCITRAL 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.14 Challenge of Arbitrator for Failure or Impossibility to perform functions UNCITRAL DESIGNATION“court or other authority” UGANDA LEGISLTIVE PATTERN 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 VISIBLE UNCITRAL 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.14 Challenge of Arbitrator for Failure or Impossibility to perform functions UNCITRAL DESIGNATION“court or other authority” NIGERIA Court Nigeria C.I.Arb ? ICAMA Court Nigeria C.I.Arb ? ICAMA Court Nigeria C.I.Arb ? ICAMA Court Nigeria 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 1 st 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 I KV RK – Dutch Court  Uganda Telecom Ltd v. Hitech, Federal Court of Australia ?lvl=notice_display&id=787 ?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 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 ?