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DISPUTE RESOLUTION MECHANISMS IN UGANDA. WHICH WAY FORWARD FOR THE BUSINESS COMMUNITY; REFORM OF THE LAW OR ATTITUTIES?

DISPUTE RESOLUTION MECHANISMS IN UGANDA. WHICH WAY FORWARD FOR THE BUSINESS COMMUNITY; REFORM OF THE LAW OR ATTITUTIES?. oijnjook. 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

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DISPUTE RESOLUTION MECHANISMS IN UGANDA. WHICH WAY FORWARD FOR THE BUSINESS COMMUNITY; REFORM OF THE LAW OR ATTITUTIES?

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  1. DISPUTE RESOLUTION MECHANISMS IN UGANDA. WHICH WAY FORWARD FOR THE BUSINESS COMMUNITY; REFORM OF THE LAW OR ATTITUTIES? • oijnjook

  2. 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.

  3. 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.

  4. 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)

  5. 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

  6. 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.

  7. Choice of forum ·      Enforceability of decisions made ·      Neutrality ·      Expert understanding · Confidentiality vis a vis open trial ·      Speed · Cost

  8. Traditional approach to Dispute Resolution in Uganda and its Impact on business transactions. • A statistical analysis of this tradition approach to dispute resolution reveals the following results;

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

  10. Table 2Average duration of cases completed from filling to completion (1999) • Data Source: Nordic Consulting Group (U) Ltd November 2001

  11. Table 3 Commercial court case load and through put

  12. Table 4: Judge caseload commercial court

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

  14. Legal framework for dispute resolution • Resistance Council (Judicial Powers) Act Cap • Investment Code Act. • Non- performing Assets Recovery Trust Act Chapter 95, 2000 • Report on Judicial Reform 1994 • 1995 Constitution of the Republic of Uganda • Practice Direction No. 1 of 1996 • Tax Appeals Tribunal Act Cap • The Civil Procedure (Amendment) Rules 1998 • The Arbitration ad Conciliation Act Cap 4 • Legal Notice No. 7 of 2003 • The commercial Court Division (Mediation Pilot Project) Practice Direction, 2003

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

  16. 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.

  17. Mediation case settlement status; CADER

  18. Registered mediators and Arbitrators at CADER

  19.  Mediation workload under mediation pilot scheme

  20. 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.

  21. 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.

  22. 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.

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