Wakilii

Captain Joseph Charles v Dand D International (U) Limited (Miscellaneous Application 283 of 2018)

High Court · [2023] UGCOMMC 40 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to vacate an interim measure of protection granted by an arbitrator during ongoing arbitration proceedings
Decision
Application to vacate interim measure dismissed; arbitration to continue to conclusion or abate if not completed within thirty days

Observed later treatment

Cited — treatment unverified cited in 2 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 2 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court held that it lacks jurisdiction to intervene in ongoing arbitration proceedings to vacate an interim measure of protection granted by an arbitrator. The Arbitration and Conciliation Act limits court intervention to six specific instances, none of which permit review of interlocutory arbitral decisions. The court found that the arbitrator's concurrent jurisdiction to grant interim measures was properly exercised, as new facts had arisen since the court's earlier dismissal of a similar application. Objections to the arbitrator's appointment and procedural conduct were premature and could only be raised when challenging a final award under section 34(2). The application was dismissed with costs.

Outcome

Application to vacate interim measure dismissed; arbitration to continue to conclusion or abate if not completed within thirty days

Facts

On 28 January 2010, the applicant granted the respondent a 25-year concession to operate Amuka Lodge at Ziwa Rhino Sanctuary. Construction was completed around 2014. Disputes arose over concession fees, and on 16 October 2017 the applicant terminated the concession. The respondent invoked arbitration on 22 January 2018. The respondent had earlier sought an interim injunction from the High Court on 29 November 2017, which was dismissed on 30 January 2018. After the arbitrator was appointed, the respondent renewed the application for interim protection. On 7 April 2018, the applicant attempted to evict the respondent. The arbitrator granted an interim measure on 16 April 2018, restraining the applicant from evicting the respondent until conclusion of arbitration. The applicant then sought to vacate that order and challenged the arbitrator's mandate before CADER. The arbitration has been suspended since July 2018 pending resolution of the challenge.

Issues

  1. Whether the court has jurisdiction to vacate an interim measure of protection granted by an arbitrator during ongoing arbitration proceedings.
  2. Whether the arbitrator exceeded his jurisdiction or acted with bias in granting the interim measure of protection.
  3. Whether the appointment of the arbitrator was procedurally irregular.
  4. Whether the arbitrator failed to give parties an opportunity to agree on procedural rules.
  5. Whether the arbitration has become inoperative due to unconscionable delay.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.
  • If the arbitrator does not conclude proceedings and publish an award within thirty days from service of this ruling, the arbitration agreement shall be deemed inoperative and proceedings will abate.

Rules and key headnotes

Court Intervention — Limited Jurisdiction During Ongoing Arbitration
Under the Arbitration and Conciliation Act, courts have only ancillary jurisdiction in arbitration matters and may intervene in ongoing arbitration proceedings only in six specified instances: appointment of arbitrators (s.11(2)), stay of suit (s.5), review of preliminary jurisdictional rulings (s.16(6)), assistance in taking evidence (s.27), interim measures of protection (s.6), and determination of questions of law where parties have so agreed (s.38(1)(a)). Outside these instances, no court may intervene before or during arbitration.
Interim Measures — Concurrent Jurisdiction of Courts and Arbitral Tribunals
Sections 6(1) and 17(1) and (3) of the Arbitration and Conciliation Act create concurrent jurisdiction between courts and arbitral tribunals regarding interim measures of protection. A party may seek interim relief from either forum, even after the arbitral tribunal has been constituted. This concurrent jurisdiction is not overlapping; a party should not be given a second chance to obtain identical interim relief from the arbitral tribunal where the party has already applied unsuccessfully before a court, unless new facts have arisen, new evidence has become available, or the criteria and legal tests applied differ.
Kompetenz-Kompetenz — Arbitral Tribunal's Power to Decide Its Own Jurisdiction
Under the doctrine of kompetenz-kompetenz, an arbitral tribunal has jurisdiction to consider and decide disputes regarding its own jurisdiction, including objections to the existence or validity of the arbitration agreement or the process of appointment. Courts should avoid anticipating decisions that the tribunal is empowered to make. Jurisdictional objections based on process rather than inherent jurisdiction are capable of waiver; failure to raise such objections before the arbitrator signifies consent to the arbitrator's jurisdiction.
Judicial Review — Timing and Scope of Court Intervention
Recourse to court against an arbitral award may be made only by application to set aside the award under section 34(2) of the Arbitration and Conciliation Act. Only a final award on the merits, or a partial award that resolves part of the subject-matter of the dispute, may be challenged. Interlocutory or procedural decisions by an arbitrator cannot be reviewed by the court during ongoing arbitration proceedings. Objections to procedural irregularities can only be raised when challenging a final award.
Delay in Arbitration — Effect on Validity of Award
While section 31(1) of the Arbitration and Conciliation Act requires arbitrators to make their award within two months or an extended period, delay per se is not a ground for setting aside an award under section 34(2). To constitute a ground for setting aside, it must be shown that the award suffered from patent illegality on account of delay. Inordinate delay may warrant greater scrutiny of whether all issues were addressed, but a party complaining of delay must show that it has caused or will cause substantial injustice.
Challenge to Arbitrator — Effect on Arbitration Proceedings
A challenge to an arbitrator under section 13(2) of the Arbitration and Conciliation Act must be made within fifteen days after becoming aware of grounds for challenge. The appointing authority must decide the challenge within thirty days from receipt of a written statement. Although the Act does not provide for suspension of arbitral proceedings during a challenge, where the appointing authority fails to decide within thirty days, the arbitration should continue to its logical conclusion to avoid dilatory tactics and promote expediency and efficiency.

Legislation cited (28)

Cases cited (11)

  • Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd (1993) AC 334
  • Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618
  • Golden Ocean Group Ltd v Humpuss Intermoda Transportasi Tbk Ltd [2013] 2 Lloyd's Rep 421
  • Amco Asia Corp v Republic of Indonesia (ICSID Case No. ARB/81/1)
  • Blumenthal v Merrill Lynch Pierce Fenner & Smith Inc 910 F 2d 1049 (2nd Circuit 1990)
  • Cooper Lavalin NV v Ken-Ren Chemicals and Fertilisers Ltd [1994] 2 All ER 465
  • Coppée-Lavalin SA/NV v Ken-Ren Chemicals and Fertilizers Ltd (1994) 170 NR 203
  • Hong Huat Development Co (Pte) Ltd v Hiap Hong & Co Pte Ltd [2000] 1 SLR (R) 510
  • Coal & Oil Co LLC v GHCL Ltd [2015] SGHC 65
  • BV Scheepswerf Damen Gorinchem v The Marine Institute [2015] EWHC 1810 (Comm)
  • Mitsui Engineering and Shipbuilding Co Ltd v Easton Graham Rush [2004] 2 SLR (R) 14

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Captain Joseph Charles v Dand D International (U) Limited (Miscellaneous Application 283 of 2018) [2023] UGCommC 40 (19 January 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.