Wakilii

Uganda Post Ltd v R.4 International Ltd (CAD ARB 11 of 2009)

Tribunal · [2009] UGCADER 5 · 2009 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for appointment of arbitrator under Section 11 of the Arbitration and Conciliation Act
Decision
Second arbitrator appointed; matter to proceed to arbitration

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

CADER has statutory authority under Section 11 of the Arbitration and Conciliation Act to appoint an arbitrator where a party has refused or neglected to perform its duty to appoint. CADER does not have power to delimit the arbitral tribunal's jurisdiction; that power vests exclusively in the arbitral tribunal itself under Section 16(6) of the Act. The appointment of an arbitrator is a mutual obligation imposed on all parties by the arbitration clause.

Outcome

Second arbitrator appointed; matter to proceed to arbitration

Facts

The parties executed two tenancy agreements on 1 May 2008 and 5 May 2008, both containing arbitration clauses providing for appointment of arbitrators and application of UNCITRAL Rules. On 21 May 2009 the Applicant appointed Mr. Chris Bwanika as its arbitrator and communicated notice to the Respondent. The Respondent failed to appoint its arbitrator. The Applicant applied to CADER for appointment of a second arbitrator under Section 11 of the Arbitration and Conciliation Act. The Respondent's counsel argued that CADER should delimit the scope of the arbitral tribunal's authority, referencing three earlier tenancy agreements without arbitration clauses and submitting that arbitration should relate only to the period before 1 August 2008.

Issues

  1. Whether CADER has authority to appoint a second arbitrator where the respondent has failed to appoint one.
  2. Whether CADER has power to delimit the scope of the arbitral tribunal's jurisdiction.

Orders

  • Application granted.
  • Hon. Herbert Ntabgoba (retired Principal Judge) appointed as second arbitrator.
  • Should Hon. Ntabgoba decline on grounds of impartiality, Hon. Alfred Karokora (retired Supreme Court Judge) or Mr. Stephen Musisi shall be deemed appointed in sequential order.
  • Arbitrators to sign Declaration of Impartiality and Party Undertaking Agreement and file with CADER.
  • All monies regarding arbitration to be submitted through CADER.
  • Costs of the application to be borne by the Respondent.

Rules and key headnotes

Arbitration — Appointment of Arbitrators — Duty of Parties
The appointment of an arbitrator is a mutual obligation imposed on all parties to an arbitration agreement. A party unwittingly forfeits its statutory right when it fails to participate in the appointment of the arbitrator.
Arbitration — Nature of Arbitration Clause
An arbitration clause is distinct from other contractual clauses. It does not impose an obligation on one party in favour of the other, but embodies the agreement of both parties that any dispute regarding their obligations shall be settled by a tribunal of their own constitution.
Arbitration — CADER's Powers — Appointment of Arbitrator
Under Section 11 of the Arbitration and Conciliation Act, CADER is tasked only with effecting the compulsory appointment of an arbitrator where it is established that the respondent has either refused or neglected to perform its duty to appoint.
Arbitration — Jurisdiction of Arbitral Tribunal — Determination
Section 16 of the Arbitration and Conciliation Act empowers the arbitral tribunal to determine its own jurisdiction. Only the arbitral tribunal has power to determine the scope of its jurisdiction under Section 16(6). CADER has no power to delimit the arbitral tribunal's jurisdiction.
Arbitration — Jurisdiction — Grounds for Setting Aside Award
The jurisdiction question is critical as it constitutes a ground upon which an arbitral award can be set aside under Section 34(1)(iv) of the Arbitration and Conciliation Act, or can cause continuance of arbitral proceedings or invoke further action from the tribunal under Section 34(4).

Legislation cited (10)

  • Arbitration and Conciliation Act Cap.4 s.11
  • Arbitration and Conciliation Act Cap.4 s.12(1)
  • Arbitration and Conciliation Act Cap.4 s.16
  • Arbitration and Conciliation Act Cap.4 s.16(2)
  • Arbitration and Conciliation Act Cap.4 s.16(3)
  • Arbitration and Conciliation Act Cap.4 s.16(6)
  • Arbitration and Conciliation Act Cap.4 s.34(1)(iv)
  • Arbitration and Conciliation Act Cap.4 s.34(4)
  • Penal Code Cap.120 s.2(u)(iv)
  • Penal Code Cap.120 s.93

Cases cited (3)

  • Heyman v Darwins [1942] All ER 337
  • Hayter v Nelson [1990] 2 Lloyd's Rep 265
  • Ellerine Bros Ltd v Klinger [1982] 2 All ER 737

Full judgment

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Uganda Post Ltd v R.4 International Ltd (CAD ARB 11 of 2009) [2009] UGCADER 5 (1 September 2009)
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.