Wakilii

TMA Architects and Another v Prome Sonsultants (Miscellaneous Cause 80 of 2023)

High Court · [2023] UGCOMMC 44 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application under section 16(6) of the Arbitration and Conciliation Act to challenge an arbitrator's preliminary ruling on jurisdiction
Decision
Application challenging arbitrator's jurisdiction dismissed; arbitration to proceed under ICAMEK rules

Observed later treatment

No later-treatment classification is recorded for this judgment.

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.

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 the parties validly varied the arbitration clause when the applicants' director signed the ICAMEK Variation Form on 30 January 2020, thereby substituting ICAMEK for ICC as the administering institution. The variation was supported by consideration in the form of practical benefit to both parties. The applicants' challenge to jurisdiction was raised over eight months after the arbitrator's appointment, well beyond the 15-day time limit, and the applicants had waived their right to object by participating in the arbitration proceedings without raising any challenge until November 2020. The application was dismissed.

Outcome

Application challenging arbitrator's jurisdiction dismissed; arbitration to proceed under ICAMEK rules

Facts

On 31 October 2013, the applicants and respondent entered into a subcontract for design, consultancy and supervision services for the Lubowa Housing Project. The subcontract contained an arbitration clause vesting jurisdiction in the ICC. When a dispute arose, the respondent filed a request for arbitration with ICAMEK on 18 December 2019. On 30 January 2020, the applicants' director signed an ICAMEK Variation Form agreeing to resolve the dispute under ICAMEK rules. The applicants participated in the selection of an arbitrator, who was appointed by ICAMEK on 3 March 2020. The applicants filed pleadings and participated in preliminary meetings. On 27 November 2020, over eight months after the arbitrator's appointment, the applicants raised a preliminary objection challenging ICAMEK's jurisdiction. The arbitrator ruled on 5 October 2021 that the arbitration clause had been validly varied and that she had jurisdiction. The applicants then applied to the High Court under section 16(6) of the Arbitration and Conciliation Act to challenge that ruling.

Issues

  1. Whether the arbitrator appointed by ICAMEK had jurisdiction to handle the dispute between the parties when the original arbitration agreement vested jurisdiction in the International Chamber of Commerce (ICC).
  2. Whether the parties validly varied the arbitration clause to substitute ICAMEK for ICC as the administering institution.
  3. Whether the applicants' challenge to the arbitrator's jurisdiction was raised within the time limit prescribed by section 13(3) of the Arbitration and Conciliation Act.
  4. Whether the applicants waived their right to challenge the arbitrator's jurisdiction by their conduct in participating in the arbitration proceedings.

Orders

  • Application dismissed.
  • Costs of the application to abide the outcome of the arbitration.

Rules and key headnotes

Kompetenz-Kompetenz — Arbitral Tribunal's Power to Decide Own Jurisdiction
Under the doctrine of kompetenz-kompetenz, an arbitral tribunal has the power to decide upon matters of its own jurisdiction in the first instance, and courts should as far as possible avoid anticipating a decision that the tribunal is empowered to make.
Variation of Arbitration Agreement — Requirements for Valid Variation
A variation of an arbitration agreement is itself a contract requiring mutual agreement, intention to permanently affect rights, compliance with any formal requirements, and consideration. A written arbitration agreement may be varied by exchange of communications in writing, and need not be contained in a single signed document.
Contract Variation — Practical Benefit as Consideration
Consideration for a variation may be found in the mutual surrender of rights or the conferment of benefit on each party. The practical benefit of contractual performance, including increased economic efficiency of a dispute resolution mechanism, constitutes valid consideration for a contract modification.
Authority to Bind Company — Director's Ostensible Authority
A director of a company has ostensible authority to bind the company to agreements falling within the usual scope of that office. Where a director signs a variation of an arbitration agreement in their capacity as director, the company is bound by that variation even in the absence of express board authority, provided the director acted within the usual scope of their office.
Challenge to Arbitrator — Time Limits and Waiver
A party who appointed an arbitrator or participated in the selection may only challenge the arbitrator within fifteen days after becoming aware of the composition of the appointing authority or for reasons of which the party became aware after the appointment. A challenge raised over eight months after appointment, where the grounds were known from the outset, is time-barred and constitutes a waiver.
Waiver by Conduct — Participation in Arbitration Proceedings
Where a party signs a variation form, participates in the nomination of an arbitrator, files pleadings, and engages in preliminary meetings over a period of eight months without raising any jurisdictional challenge, that party's conduct constitutes a clear pattern of behaviour inconsistent with the original arbitration clause and consistent only with having agreed to vary those terms, resulting in waiver of the right to challenge jurisdiction.

Legislation cited (14)

Cases cited (13)

  • Golden Ocean Group Ltd v Humpuss Intermoda Transportasi Tbk Ltd and Another [2013] 2 Lloyd's Rep 421
  • Republic of Sierra Leone v SL Mining Ltd [2021] EWHC 286 (Comm)
  • BG Group v Argentina 572 U.S. 25 (2014)
  • BBA v BAZ [2020] 2 SLR 453
  • Beatty v Guggenheim Exploration Co (1919) 225 NY 380
  • Surrey County Council v Suez Recycling and Recovery Surrey Ltd [2021] EWHC 2015 (TCC)
  • Rock Advertising Limited v MWB Business Exchange Centres Limited [2018] UKSC 24
  • Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549
  • Italian Delegation on Wheat Supplies v Certain Exporting Houses (1925) 22 LI L Rep 673
  • Wyndham Rather Ltd v Eagle Star and British Dominions Insurance Co Ltd (1925) 21 LI L Rep 214
  • Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1
  • Koenigsblatt v Sweet [1923] 2 Ch 314
  • Rail India Technical and Economic Services Ltd v Ravi Construction (2003) 4 RAJ 394 (Kar)

Full judgment

↓ Download PDF

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

TMA Architects and Another v Prome Sonsultants (Miscellaneous Cause 80 of 2023) [2023] UGCommC 44 (27 February 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.