Transcript DISPUTE RESOLUTION MECHANISMS IN UGANDA. WHICH …

REFERRING DISPUTES TO
ADR: A PERSPECTIVE
FROM A COMMERCIAL
JUDGE

By Justice Geoffrey Kiryabwire
The use of Dispute
Resolution Mechanism in
Business.

Contract interpretation
 Non payment for goods and services given
 Non delivery of goods and services paid for
 Delivery of goods not fit for the purpose or
according to description contracted for.
The use of Dispute
Resolution Mechanism in
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.
a) Preventive Intervention (in anticipation of
breach) “ Pre emptive strike”
i.Injunction;
ii. Prerogative Orders of Mandamus,
Certiorari, Prohibition
b) Declaration Rights between parties
i. Declaratory order
ii. Interpleader (deciding ownership)
Classification of Disputes
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
Resolution





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 forum






Enforceability of decisions made
Neutrality
Expert understanding
Confidentiality vis a vis open trial
Speed
Cost
Traditional Litigation
approach to Dispute
Resolution its Impact on
business transactions.

Litigation is the traditional approach to
dispute resolution.
 Litigation is based on the adversarial system
 Litigation is long and expensive
Table 1 Impact of poor dispute resolution on
development
Table 2
421
Poor countries
417
Middle Income countries
280
Rich countries
Days from filing case to enforcement
(Source doing business in 2005)
Table 2 Impact of poor dispute resolution on
development
Table 4
Country
Debt
Cost of Court and Attorney
US$
fees US$
Venezuela
5,000
2,500
Philippines
2,000
1,000
Indonesia
2,000
2,000 (plus)
(Source doing business in 2005)
Table 3 Impact of poor dispute resolution on
development
Table
5
Investment as a percent of GDP
23.5
23
22.5
22
21.5
21
20.5
20
19.5
19
Shortest
Longest
Countries ranked by days to enforce a contract, quintiles (Source: Doing business in
2005)
Table 4: Private Sector perceptions of access to
commercial justice institutions
Commercial
Dispute
Resolution
No. of
instituti
ons in
Uganda
Perceptions of
Perception of accessibility
accessibility nation wide (Kampala)
Informal
Sector%N
=607
Formal
Sector%=
488
Informal
Formal
Sector%N=31 Sector%=2
4
64
Comm.Court
4000
508
1
67
43
19
59
59
27
69
56
44
55
76
52
High Court
1
18
23
36
44
Court of Appeal
8
17
22
52
67
Supreme Court
1
15
17
30
49
LC Court
Mag. Courts
Other dispute resolution
mechanisms

This where ADR comes in
 ADR can be defined as
 “That ADR is a structured negotiation process
whereby the parties to a dispute themselves
negotiate their own settlement with the help
of help of an independent intermediary who is
a neutral and trained in the techniques of
ADR”
What Alternatives Exist to
what the law has provided?

Negotiation
 Conciliation
 Mediation
 Arbitration
 Rent a judge
 Mini trial
 Ombudsperson
The experience of Mediation
and 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 results under
court annex project
Cases referred to
mediation
778
Mediation cases
settled
172
Mediation cases
completed but
unsuccessful
251
Cases
discontinued
278
Mediation results under
court annexed project
1
Total mediations held from start to finish
(successful and unsuccessful)
54.3%
2
Mediations that failed at reference
for various reasons
35.7%
3
Mediations that settled and
disposed of the dispute
22.1%
Dispute Resolution under
TCRA Guidelines
Emerging 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.
Conclusion

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.