Young ICCA Skills Training Workshop: Opportunities and Challenges of International Arbitration in Uganda and East Africa
Post Event Report
On 7th April 2016, Young ICCA and the International Law Institute (“ILI”), with the support of AF Mpanga Advocates, ABMAK Associates and Sebalu & Lule Advocates held its first ever Young ICCA event in Kampala, Uganda. The one day workshop was hosted at the ILI with an attendance of approximately 45 participants including advocates, reputable arbitrators and arbitration practitioners, representatives from Government and statutory bodies, judicial officers, students and Young ICCA members.
The topic of the event was ‘Opportunities and Challenges of International Arbitration in Uganda and East Africa’. The workshop was facilitated by a total of seven speakers, over two panels moderated by Daniel Gantungo, Senior Associate, AF Mpanga Advocates and Patson Arinaitwe, Senior Associate, Sebalu & Lule Advocates.
Denis Kusaasira, Managing Partner, ABMAK Associates, in a key note address introduced Young ICCA and set the stage for the discussions of the day.
The Honourable Justice James Ogoola, a retired Principal judge drawing from his extended practice as a judicial officer in several jurisdictions emphasized the role of courts in arbitration. He elaborated on the revolutionary mechanism of delivering substantive justice at the Regional courts of COMESA and East Africa Court of Justice. Justice Ogoola guided the audience through various pros and cons that are of relevance to the arbitration process. His enlightening presentation solicited thought provoking questions and comments from the participants, including the age-old debate whether arbitration hinders the growth of jurisprudence and common law, and comments on the phenomenal model of the East African regional arbitral bodies, among others.
Ms. Jacqueline Lule, Of Counsel at AF Mpanga, presented on the role of counsel and tackled the often confusing area of drafting arbitration clauses in contracts and their interpretation in commercial disputes. Several real-life examples shared by Ms. Lule provoked debate by participants, as several in attendance encountered similar challenges in their routine practice.
The second session started with a presentation from Mr. Jimmy Muyanja, the Executive Director of the Centre for Arbitration and Dispute Resolution (“CADRE”), a statutory body that handles arbitration in Uganda. Mr. Muyanja shared what he termed “a brutal summary” of the new emerging arbitral bodies in several jurisdictions and their establishment to fill the current economic void. He delved into the new emerging DNA of arbitration bodies, which have watered down the role of the courts and concentrated on the interface of economics and the law.
Building on from the presentation made by Ms. Lule, Mr. Muyanja emphasized the need for arbitrators to understand the economic terrain in which parties operate in order to give effect to their true intentions and arrive at fair decisions. He implored participants to have confidence in regional arbitration centers as a way of empowerment. In his view, this would ensure efficiency in resolving disputes by arbitration.
Honourable Justice Geoffrey Kiryabwire, a serving justice of the Court of Appeal in Uganda, discussed the ways in which the courts can support international arbitration in Uganda. He took the participants through the history of informal arbitration and litigation in Uganda. As a keen contributor in the drafting of the Uganda Arbitration Law, a publisher in the discipline and part of the founding members of CADER, he emphasized the need to promote arbitration in Uganda because the Ugandan law on arbitration is one of the best. Justice Kiryabwire noted the need to evolve and rephrase the term ADR from “Alternative” Dispute Resolution to “Appropriate” Dispute Resolution.
An insightful presentation by Ms. Kim Rosenberg, Counsel at Freshfields Bruckhaus Deringer (Dubai), first delved into foreign investment in East Africa and then elaborated on the enforcement of arbitral awards. In the form of a case study, she shared examples from her arbitration practise and highlighted challenges in enforcing arbitral awards. The lesson for the day was the importance of knowing the seat of arbitration and establishing that it supports the enforcement of arbitral awards.
Mr. Baiju Vasani, partner at Jones Day (London/Washington, DC) shared practical challenges faced by both arbitrators and parties to disputes relating to the setup and structure of arbitration centers. Some of the issues include: establishing restrictions on the discovery processes; setting fixed pay/remuneration for appointed arbitrators; fixed time for delivery of arbitral awards; short pleadings or none at all; racial, ensuring gender and age diversity of all arbitral panels; and creating mechanisms that ease enforcement of awards. The open discussion centered around gathering input from participants regarding the issues they would like to be changed or included in the set-up and operations of an ideal arbitration center.
The last presenter for the day was Mr. Peter Muliisa, a Manager-Prosecutions of Legal Services at the Uganda Revenue Authority who discussed Uganda’s experience and lessons at the International Centre for Settlement of Investment Disputes (ICSID). Mr. Muliisa shared his personal experiences as counsel in the landmark case of Heritage Oil & Gas Limited and the Government of Uganda. Major challenges included the high cost of the arbitration process, the vast amount of discovery and the volumes of paperwork that required review under strict timelines. His presentation sparked an interesting discussion on confidentiality versus transparency and accountability as a duty of the Government, when the Government is a party in arbitration proceedings.
During the workshop, several other topics arose and were debated such as the need to “burst the myths” around arbitration; the cost of arbitration; the nature and conduct of arbitration proceedings which has resulted in the process becoming a close mirror to litigation; the need to raise awareness and inform lawyers and clients of the benefits of arbitration; and the need for trained arbitrators to fill the diversity gap; amongst others.
The workshop was closed with an invitation to all participants to join Young ICCA. Following the workshop, all speakers and participants were hosted at a lunch which offered an opportunity for extended discussions and interactions.
The event was a great success having attracted an excess of 100 people interested in registering. There is real growing interest in arbitration among young legal practitioners and law students in Uganda and the region.
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