Recent decisions by the Court of Appeal have firmly slammed the door on prospects for appeals from arbitration, upholding as sterling the principle of finality. Previously, a single-judge decision of the Court seemingly pointed out a gap in the law, by finding that an appeal could be preferred where decisions, even though arising from an arbitration, were made under general civil procedure laws. (See our previous article).
In its latest decisions in the Simba Properties v Vantage saga, the Court of Appeal has now held that the Arbitration and Conciliation Act (“ACA”) is the exclusive law governing all court intervention in arbitration, including enforcement and further that interlocutory orders in enforcement proceedings are not appealable unless the ACA or the parties express allow or the Court grants leave.
The issue is particularly pertinent in the context of post-arbitral award relief.
Background
Following the successful conclusion of an arbitration, Vantage secured orders from the High Court to safeguard its securities acquired from Simba, its debtor. However, the High Court ruled that it lacked jurisdiction under the ACA to issue such orders after the arbitration had been finalised. Nevertheless, the Court was delighted to exercise its inherent powers under the Civil Procedure Act (”CPA”) to uphold justice.
Simba then sought to appeal said orders and the first contest was whether there was a right of appeal arising from an arbitration matter. The single Judge of the Court of Appeal found that the orders in question were made under the CPA and not the ACA, and that therefore an appeal could be brought.
However, the full bench of the Court of Appeal has now decided that appeals against interlocutory orders in arbitration enforcement are only possible if the ACA or the parties expressly allow, or the Court grants leave in exceptional cases. The Court expressly ruled that even if a decision were made on a point under the Evidence Act, that would not have the effect of permitting an appeal outside the ACA.
Unfortunately, the Court of Appeal did not cite the ruling of the single judge and therefore did not address his argument on the lacuna in the ACA regarding post-award relief. The reliance of the Court of Appeal on the more procedural as opposed to substantive Evidence Act as an example, is also open to question. It is an easier argument to make that a decision on an affidavit made under the Evidence Act, being a matter of procedure, would not have the effect of taking the matter out of the ACA. But does that apply equally to the exercise of inherent jurisdiction of the court?
The thorny question is whether the High Court should have dismissed the application for preservation of assets after the award was made, given that the ACA did not provide for such a remedy. What happens if the debtor attempts to dissipate assets after the award is made but before enforcement?
A claimant may consider requesting interim measures from the arbitral tribunal before the award is issued or simply choose an arbitral seat in a jurisdiction that allows post-award interim relief, if enforcement in Uganda is not the only concern.
What Happens Next
The ACA currently lacks provisions for post-award interim relief, which could potentially undermine the effectiveness of arbitration and complicate enforcement. Consequently, this omission may deter parties from selecting Uganda as a venue for arbitration.
To address this, Parliament should amend the ACA to:
- Enable courts to grant interim measures (such as asset preservation) after an award is issued but before enforcement as done in the UNCITRAL model law.
- Establish clear criteria for granting such relief and provide a limited right of appeal.
Such reforms would bring Uganda in line with international best practice and strengthen its position as an arbitration-friendly jurisdiction.
Key Takeaway
The previous “rare exception” allowing post-award interim relief is no longer valid. Until the legislation is changed, parties must plan to safeguard their interests when arbitrating in Uganda.
For guidance on arbitration agreements, interim relief, or enforcement in Uganda, get in touch with the ENS team.
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