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Great Lakes Energy Company NV v MSS XSABO Power Limited and 2 Others (Miscellaneous Application 1041 of 2023)

High Court · [2023] UGCOMMC 28 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for variation of interim measure of protection order in support of ongoing LCIA arbitration proceedings
Decision
Interim measure of protection order varied to clarify its duration — to remain in force until final award becomes enforceable as a decree

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 court held that it has jurisdiction to vary interim measures of protection granted under s.6 of the Arbitration and Conciliation Act to clarify their duration and scope. The court clarified that 'final determination' includes the period for correction and additional awards under LCIA Rules (up to 56 days after the final award). The court refused to extend protection until the determination of an appeal from enforcement orders, holding that post-award interim measures cannot be granted to unsuccessful parties and that such measures serve only to protect fruits of proceedings until enforcement. The variation order directed that the freezing order remain in force until the final award becomes enforceable as a decree of the High Court.

Outcome

Interim measure of protection order varied to clarify its duration — to remain in force until final award becomes enforceable as a decree

Facts

The applicant, a Netherlands-incorporated energy company, and the respondents entered into investment and loan agreements for a 20MW solar photovoltaic project in Uganda. The applicant advanced US$150,000, US$5,000,000, and US$9,420,000 under various loan agreements. A dispute arose when respondents accused the applicant of inflating engineering costs by US$6,000,000, leading respondents to rescind the investment agreement. The project was completed and commenced operations on 9 January 2019. The applicant commenced LCIA arbitration seeking specific performance. Two partial awards were rendered (11 March 2022 and 10 January 2023) finding in the applicant's favour on most claims. The High Court granted an interim preservation order on 16 August 2021 restraining withdrawals from the 1st respondent's bank accounts exceeding US$60,000 per month until final determination of the arbitral proceedings. The applicant sought variation to extend the order until determination of its appeal from enforcement orders.

Issues

  1. Whether the court has jurisdiction to vary an interim measure of protection order to extend its duration beyond the final determination of arbitral proceedings.
  2. Whether an applicant may seek interim measures from a domestic court without authorisation from the LCIA arbitral tribunal once the tribunal is formed.
  3. Whether an interim measure of protection order should be extended to preserve assets until the determination of an appeal from an enforcement order.
  4. What is the proper interpretation of 'until the final determination' of LCIA arbitration proceedings.

Orders

  • Application allowed.
  • The order of 16th August 2021 and as subsequently varied on 14th October 2022 is to remain in force until the final award of LCIA Consolidated Arbitration No. 204602 becomes enforceable as a decree of this Court.
  • Costs of the application awarded to the applicant.

Rules and key headnotes

Interim Measures of Protection — Concurrent Jurisdiction of Courts and Arbitral Tribunals
Courts and arbitrators possess concurrent, coordinate or parallel jurisdiction to grant interim measures of protection whether the arbitral proceedings have their seat in Uganda or abroad. The concurrent authority is an exception to the principle of arbitral exclusivity and judicial non-interference in arbitration. Institutional arbitration rules cannot oust the jurisdiction of courts to grant interim measures.
Interim Measures — Application to Court Without Tribunal Authorisation
A party to an international arbitration agreement may seek interim measures of protection from a national court without thereby either waiving their rights to arbitrate or violating their agreement to arbitrate. An application to court without the tribunal's permission may not be deemed incompatible with the agreement to arbitrate or the parties' autonomy, as institutional arbitration rules do not oust the jurisdiction of courts. Such a party may be sanctioned by the tribunal for breach of institutional rules but suffers no legal consequence regarding the court application.
Interim Measures — Circumstances Justifying Court Intervention
A court may grant interim measures instead of deferring to the remedial powers of an arbitral tribunal where the tribunal lacks the power or practical ability to grant effective relief within the relevant timescale. Courts may grant interim measures directed at third parties who are not bound by the arbitration agreement, provide ex parte relief traditionally unavailable in arbitration, and exercise enforcement powers that tribunals lack. Courts must take great care not to usurp the arbitral process and must ensure that substantive questions are reserved for the arbitrators.
Duration of Interim Measures — Meaning of 'Final Determination'
Although s.6 of the Arbitration and Conciliation Act permits courts to grant interim measures 'before or during arbitral proceedings', it does not prescribe the duration of such orders, and they last for such time as the court may determine. The expression 'until the final determination' of LCIA arbitration proceedings includes the period allowed for applying for correction of a final award and rendering additional awards under article 27 of the LCIA Rules, which is up to 56 days after receipt of the final award.
Post-Award Interim Measures — Limited Scope
After an arbitral award is made, interim relief can only be sought to protect the fruits of the proceedings until the award is enforced. Post-award interim measures serve to secure the value of the award for the benefit of the party seeking enforcement. An unsuccessful party cannot seek post-award interim measures because such measures would not be in aid of the final relief accruing to that party even after favourable disposal of an application to set aside the award.
Variation of Court Orders — General Principles
A court may vary its orders when: (i) aspects of the order were erroneously granted; (ii) there is ambiguity, patent error or omission in the order; (iii) the order was granted as the result of mistake common to the parties or misstated facts; (iv) circumstances have arisen that render the order inoperative or impracticable or there has been a material change of circumstances; (v) a certain clause or expression in the court order requires precise clarification and/or elaboration; or (vi) any other sufficient cause. The power should not be used to circumvent the principle that final orders are intended to be final and that the only way to set aside a final order is ordinarily by way of appeal.

Legislation cited (10)

Cases cited (4)

  • Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334
  • Babcon v Mbale, CA 87 of 2011 and S.C. Appeal No. 6 of 2016
  • Makula International Case
  • Bireije decisions

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.

Great Lakes Energy Company NV v MSS XSABO Power Limited and 2 Others (Miscellaneous Application 1041 of 2023) [2023] UGCommC 28 (18 August 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.