Wakilii

Captain. Joseph v D and D International Uganda Limited (Miscellaneous Application 1626 of 2022)

High Court · [2023] UGCOMMC 41 · 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 dismissed; arbitration to continue unless award not published within thirty days, in which case proceedings will abate

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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 and courts have concurrent jurisdiction over interim measures, and the arbitrator's decision was based on different facts and circumstances than the earlier court ruling. Objections to the arbitrator's appointment and procedure were premature and could only be raised when challenging a final award. The application was dismissed.

Outcome

Application dismissed; arbitration to continue unless award not published within thirty days, in which case proceedings will abate

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 first sought an interim injunction from the High Court on 29 November 2017, which was dismissed on 30 January 2018. After an arbitrator was appointed, the respondent renewed the application before the arbitrator. On 12 April 2018, after the applicant attempted to evict the respondent on 7 April 2018, the arbitrator granted an interim measure 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 procedure.
  5. Whether the arbitration has become inoperative due to unconscionable delay.

Orders

  • Application dismissed with costs to the respondent.
  • If within thirty days from service of this ruling the arbitrator does not conclude proceedings and publish an award, 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 only six specified instances: appointment of arbitrators, stay of suit, review of preliminary jurisdictional rulings, assistance in taking evidence, interim measures of protection, and determination of questions of law where parties so agreed. Outside these instances, courts have no power to intervene in ongoing arbitration proceedings.
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, not overlapping, jurisdiction between courts and arbitral tribunals regarding interim measures of protection. Once an arbitral tribunal is constituted, a party may apply to either the court or the tribunal for interim relief, and the tribunal may reconsider a court's earlier decision on interim measures where new facts have arisen, new evidence has become available, or different criteria and legal tests apply.
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, and failure to raise them before the arbitrator signifies consent to the arbitrator's jurisdiction.
Judicial Review — Timing and Scope of Court Intervention
Section 34(2) of the Arbitration and Conciliation Act permits court intervention only to set aside a final arbitral award on specified grounds. Courts cannot review or modify interlocutory decisions of arbitrators. Without a final award, there is nothing for the court to review. Objections to procedural irregularities during arbitration can only be raised when challenging a final award under section 34(2)(a)(iii) and (vii), not during ongoing proceedings.
Delay in Arbitration — Effect on Validity of Award
While arbitrators must use reasonable dispatch and make awards within two months or an extended period under section 31(1) of the Arbitration and Conciliation Act, delay per se is not a ground for setting aside an award under section 34(2). Inordinate delay may constitute serious irregularity, but a party must show the delay has caused or will cause substantial injustice. Where delay is explained by a party's own conduct, such as filing a challenge to the arbitrator's mandate, the arbitration should continue to its logical conclusion.
Challenge to Arbitrator — Timing and Effect on Proceedings
A challenge to an arbitrator must be made within fifteen days after becoming aware of grounds for challenge under section 13(2) of the Arbitration and Conciliation Act. While the Act does not provide for automatic suspension of arbitral proceedings during a challenge, and the appointing authority must decide the challenge within thirty days under section 12(2), arbitration should continue to its conclusion if no decision is made within the stipulated period, particularly to reduce the risk of dilatory tactics.

Legislation cited (27)

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

Full judgment

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Captain. Joseph v D and D International Uganda Limited (Miscellaneous Application 1626 of 2022) [2023] UGCommC 41 (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.