Wakilii

Tumusiime v Techno Three Uganda Ltd (CAD ARB 29 of 2011)

Tribunal · [2017] UGCADER 4 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for compulsory appointment of arbitrator under Section 11(4) Arbitration and Conciliation Act
Decision
CADER to appoint arbitrator to preside over the dispute between the parties

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the respondent failed to comply with the equality imperative under Section 18 of the Arbitration and Conciliation Act by not placing the applicant on notice of communications with the appointing authorities. The President of the Uganda Society of Architects and the President of the East Africa Institute of Architects erred in not simultaneously notifying both parties of steps taken to activate the arbitration clause mechanism. Application granted for compulsory appointment of arbitrator by CADER under Section 11(4) of the Arbitration and Conciliation Act.

Outcome

CADER to appoint arbitrator to preside over the dispute between the parties

Facts

The parties signed a building contract on 28 April 2009 for completion of an office block, showroom and road access. Clause 36 of the contract provided for arbitration with the arbitrator to be appointed by agreement or, failing agreement within 14 days, by the President of the East Africa Institute of Architects who could delegate to the Chairman or Vice-Chairman of the local Society of Architects. On 28 February 2017 the respondent declared a dispute and nominated three arbitrators. The applicant rejected these nominees and issued a counter-proposal list on 2 March 2017. The respondent did not reply to the counter-proposal but instead sent unilateral emails to the President of the East Africa Institute of Architects requesting appointment of an arbitrator. These emails were not copied to the applicant. The respondent then requested the President of the Uganda Society of Architects to pursue delegation of appointment powers. The President of the Uganda Society of Architects appointed an arbitrator on 28 April 2017, which the applicant objected to for want of jurisdiction. A delegation letter from the President of the East Africa Institute of Architects dated 27 April 2017 was only disclosed after the application was filed. The applicant applied to CADER for compulsory appointment of an arbitrator.

Issues

  1. Whether CADER should appoint an arbitrator where the agreed procedure for appointment under the arbitration clause was not properly followed.
  2. Whether the respondent's unilateral communications to the appointing authorities violated the equality imperative under Section 18 of the Arbitration and Conciliation Act.
  3. Whether the President of the Uganda Society of Architects had proper delegated authority from the President of the East Africa Institute of Architects to appoint the arbitrator.

Orders

  • Application granted.
  • CADER to appoint an arbitrator.
  • Costs of the application awarded to the applicant.
  • Appointed arbitrator to be listed in consequential ruling.

Rules and key headnotes

Arbitration & ADR — Appointment of Arbitrator — Agreed Procedure — Equality of Treatment
Where an arbitration clause provides for appointment of an arbitrator by a designated authority, Section 18 of the Arbitration and Conciliation Act requires that both parties be treated with equality and each party be given reasonable opportunity to present their case. A party invoking the right to request the appointing authority to appoint an arbitrator must place the opposite party on notice of such request and all communications with the appointing authority.
Arbitration & ADR — Appointment of Arbitrator — Delegation of Powers — Disclosure Requirements
Where an arbitration clause provides that an appointing authority may delegate appointment powers when appropriate, the appointing authority and the delegate authority are under a duty to notify both parties of receipt of the appointment request, the basis upon which they will proceed, assurance that delegation was the result of independent exercise of discretion, and the reasons why delegation was considered appropriate. Failure to provide such disclosure violates the equality imperative under Section 18 of the Arbitration and Conciliation Act.
Arbitration & ADR — Appointment of Arbitrator — Compulsory Appointment — Grounds
Under Section 11(4) of the Arbitration and Conciliation Act, CADER may grant statutory relief for compulsory appointment of an arbitrator where a party has failed to comply with the equality imperative by not placing the opposite party on notice of invocation of appointment rights, and where the appointing authorities have failed to simultaneously notify both parties of steps taken in activating the arbitration clause mechanism.
Arbitration & ADR — Appointment of Arbitrator — Counter-Proposal — Duty to Respond
Where one party proposes a list of arbitrators and the other party issues a counter-proposal list, the first party errs in not replying to the counter-proposal before proceeding to invoke the default appointment mechanism under the arbitration clause.

Legislation cited (6)

Cases cited (1)

Full judgment

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

Tumusiime v Techno Three Uganda Ltd (CAD ARB 29 of 2011) [2017] UGCADER 4 (4 June 2017)
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.