Wakilii

Dontak Agencies Ltd v Nakasero Hospital Ltd (CAD ARB 57 of 2017)

Tribunal · [2018] UGCADER 1 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for appointment of arbitrator under Article 11 UNCITRAL Model Law following respondent's failure to participate in arbitration proceedings
Decision
Arbitrator to be appointed by statutory procedure

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where parties to an arbitration agreement compound the clause with a conciliation requirement but both parties abandon the conciliation procedure and the respondent fails to participate in constituting the arbitration tribunal, the tribunal has jurisdiction to appoint an arbitrator under Article 11 UNCITRAL Model Law. A dispute resolution clause requiring ultimate submission to arbitration remains an arbitration agreement notwithstanding preliminary procedural requirements such as conciliation. Application granted.

Outcome

Arbitrator to be appointed by statutory procedure

Facts

The parties executed a Grocery Supply Service Agreement containing a dispute resolution clause requiring arbitration and conciliation. The applicant served notice to refer a dispute to arbitration on 25 August 2017. The respondent ignored the notice. The applicant drafted and served the application himself. The respondent directed service upon Sebalu & Lule Advocates, who acknowledged service on 4 and 16 October 2017 but did not attend designated hearing dates or file any affidavit in reply. Neither the respondent nor its counsel participated in constituting the conciliation or arbitration forums. The applicant did not invoke conciliation and the respondent did not appear to demand it. The applicant applied for statutory appointment of an arbitrator.

Issues

  1. Whether the tribunal should appoint an arbitrator where the respondent failed to participate in constituting the arbitration forum despite service of notices.
  2. Whether the failure to invoke conciliation as required by the dispute resolution clause bars the commencement of arbitration proceedings.
  3. Whether a dispute resolution clause requiring both arbitration and conciliation constitutes an arbitration agreement for purposes of statutory appointment of an arbitrator.

Orders

  • Application for appointment of arbitrator granted.
  • No order as to costs.

Rules and key headnotes

Arbitration Agreement — Compounded Clauses — Effect of Preliminary Conciliation Requirement
An agreement requiring parties to submit their disputes ultimately to arbitration, although it may also require the parties in the first instance to follow a preliminary procedure such as conciliation, constitutes an arbitration agreement for purposes of statutory appointment of an arbitrator.
Conciliation — Abandonment by Both Parties — Effect on Arbitration Proceedings
Where both parties to a dispute resolution clause requiring conciliation and arbitration abandon the conciliation procedure, and conciliation proceeds only by consent and is not enforceable as of right under the Arbitration and Conciliation Act, the failure to invoke conciliation does not bar commencement of arbitration proceedings.
Appointment of Arbitrator — Failure to Participate — Mutual Obligation
All parties to alternative dispute resolution clauses are under a mutual obligation to fulfill the clause by active participation, failing which they unwittingly forfeit their statutory rights to participate in constituting the arbitration tribunal.
Settlement Before Arbitrator — Section 30 ACA — Scope
Section 30 Arbitration and Conciliation Act permits parties to record a settlement before the arbitrator arising from any settlement procedure devised and positively invoked by the parties, which may go beyond conciliation, and is not limited by the conciliation regime under Section 59.

Legislation cited (5)

  • Arbitration and Conciliation Act Cap.4 s.62
  • Arbitration and Conciliation Act Cap.4 s.30
  • Arbitration and Conciliation Act Cap.4 s.59
  • Arbitration and Conciliation Act Cap.4 s.10(2)
  • UNCITRAL Model Law on International Commercial Arbitration Article 11

Cases cited (2)

  • Uganda Post Ltd v East Africa General Insurance Co Ltd [2009] UGCADER 4
  • Westco Airconditioning Ltd v Sui Ching Construction & Engineering Co Ltd [1998] HKCFI 946

Full judgment

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

Dontak Agencies Ltd v Nakasero Hospital Ltd (CAD ARB 57 of 2017) [2018] UGCADER 1 (23 February 2018)
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.