DISPUTE RESOLUTION DISPUTE RESOLUTION MECHANISMS IN UGANDA. MECHANISMS IN UGANDA.

WHICH WAY FORWARD WHICH WAY FORWARD FOR THE BUSINESS FOR THE BUSINESS

COMMUNITY; REFORM OF COMMUNITY; REFORM OF THE LAW OR ATTITUTIES?THE LAW OR ATTITUTIES?

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The use of Dispute The use of Dispute Resolution Mechanism in Resolution Mechanism in

Business.Business.

Contract interpretationNon payment for goods and services givenNon delivery of goods and services paid forDelivery of goods not fit for the purpose or

according to description contracted for.

The use of Dispute The use of Dispute Resolution Mechanism in Resolution Mechanism in

Business continued…Business continued…

Financial intermediation correction through loan/ credit non repayment, insurance etc

Joint venture failures and International enforcement of judgment and

many more.

Classification of Disputes.Classification of Disputes.

a) Preventive Intervention (in anticipation of breach) “ Pre emptive strike”

  i.Injunction; ii. Prerogative Orders of Mandamus,

Certiorari, Prohibitionb)  Declaration Rights between parties  i.      Declaratory order ii.      Interpleader (deciding ownership)

Classification of Disputes Classification of Disputes continued…continued…

c) Restitution “ recovery of lost status or property”

d) Compensatory

i.   Special damages

ii.  General damage

iii.      Exemplary / punitive damages

b)      Public Interest Litigation

 

Objectives of Dispute Objectives of Dispute ResolutionResolution

Create reconciliation “ principle of give and take” or “win win” situation

 Determine Rights i.    As of fact ii.            As of law Make directive and enforceable orders.  Determine adequate compensation for wrongs Correct a public wrong. 

Choice of forumChoice of forum

      Enforceability of decisions made

      Neutrality

      Expert understanding

Confidentiality vis a vis open trial

      Speed

Cost

Traditional approach to Traditional approach to Dispute Resolution in Dispute Resolution in

Uganda and its Impact on Uganda and its Impact on business transactions.business transactions.

A statistical analysis of this tradition approach to dispute resolution reveals the following results;

Table 1Table 1 Comparison of work, caseload and through Comparison of work, caseload and through put (1999)put (1999)

Court Caseload/ No.of cases per judicial officer

Through put/ no. of cases per judicial officer

Court of Appeal 45 32

High Court 417 169

Chief Mag. 929 505

Mag. Grade I 689 535

Mag. Grade II 328 219

Table 2Table 2 Average duration of cases completed from Average duration of cases completed from filling to completion (1999)filling to completion (1999)

Data Source: Nordic Consulting Group (U) Ltd November 2001

Court Average adjournments

per case

Average duration of cases(Monthly)enforce

ment not included

Court of Appeal 2 11

High Court 4 10

Chief Magistrate's Court

7 5

Magistrate Grade I

Not available 3

Magistrate II Not Available 2

Table 3 Commercial court case load and through Table 3 Commercial court case load and through putput

Year(end of Yr)

Cases brought thru the year

Newly registered

completed

Pending; sent to next yr

2001 884 1328 1180 926

2002 1425 1556 1015 1467

2003 1777 1781 1451 1797

  Table 4: Judge caseload commercial courtTable 4: Judge caseload commercial court

Year Cases brought forward

No. of Judges Average No. of cases per Judge

As at Jan I, 2004

1797 4 449.25

Table 5: Private Sector perceptions of accessibility to Table 5: Private Sector perceptions of accessibility to commercial justice institutionscommercial justice institutions

Commercial Dispute Resolution

No. of institutions in Uganda

Perceptions of accessibility nation wide

Perception of accessibility (Kampala)

Informal Sector%N=607

Formal Sector%=488

Informal Sector%N=314

Formal Sector%=264

LC Court 4000 67 59 69 55Mag. Courts 508 43 59 56 76Comm.Court 1 19 27 44 52High Court 1 18 23 36 44Court of Appeal

8 17 22 52 67

Supreme Court 1 15 17 30 49

Industrial Court 1 9 14 27 42Tax Appeals Tribunal

1 9 17 26 31

CADER 1 8 12 19 26

Legal framework for dispute resolution Legal framework for dispute resolution

i. Resistance Council (Judicial Powers) Act Cap ii. Investment Code Act.iii. Non- performing Assets Recovery Trust Act Chapter

95, 2000iv. Report on Judicial Reform 1994 v. 1995 Constitution of the Republic of Uganda vi. Practice Direction No. 1 of 1996 vii. Tax Appeals Tribunal Act Cap viii. The Civil Procedure (Amendment) Rules 1998 ix. The Arbitration ad Conciliation Act Cap 4 x. Legal Notice No. 7 of 2003 xi. The commercial Court Division (Mediation Pilot

Project) Practice Direction, 2003

What Alternatives Exist to What Alternatives Exist to what the law has provided?what the law has provided? Negotiation Conciliation Mediation Arbitration Rent a judge Mini trial Ombudsperson

The experience of Mediation The experience of Mediation and Arbitration in Ugandaand Arbitration in Uganda

Since 2000 there has been an increase in the activity of mediation and arbitration following the creation of The Centre For Arbitration and Dispute Resolution (CADER). It is now possible to do some analysis on its impact as a dispute resolution mechanism.

Mediation case settlement Mediation case settlement status; CADERstatus; CADER

Year Cases referred

Cases settles or partly

Complete but unsuccessful

Discontinued

Oct 03-Oct 04

410 94 142 108

Registered mediators and Registered mediators and Arbitrators at CADERArbitrators at CADER

Mediator Staff 4

Mediator and Arbitrators ( Non staff)

60

  Mediation workload under Mediation workload under mediation pilot schememediation pilot scheme

Cases referred No.of staff mediators

Average cases per mediator

410 4 102.5

Emerging ChallengesEmerging Challenges

Intransigent/ unreasonable parties or their legal Advisors who are not willing to try ADR. In some cases counsel has invoked internal processes to defeat ADR

 The Use of Court based ADR to delay justice or act as a “fishing” expedition to establish what is possible. The requirement of Shs. 50000/= levied on failure of a party to show up for mediation has been unsuccessful due to lack of a clear enforcement mechanism.

It has been predicted that settlement processes would result in diminished protection of parties not at the table, frustration of laws designed to create social change, and loss of the court's voice on public values through precedent. With such predictions those in the legal profession would not easily spearhead the move towards ADR.

ConclusionConclusion

Other dispute resolution mechanisms especially ADR are not fully utilized and yet in many cases ADR offers many similar desired qualities of the court system

Furthermore there is now elaborate legislation in place to support the use of ADR I Uganda. What now remains is the need for a change in attitude to embrace ADR as part of the available menu in resolving disputes in Uganda.