ADR Group 6 Work-2

Arbitration relationship to law
The New York Convention 1953, which was a convention on recognition and enforcement and
foreign arbitral awards. 135 states have ratified the convention and are committed to recognizing
arbitral agreements, therefore their courts will not exercise jurisdiction over the substance of a
dispute if either party insists on the arbitration clause. They have also agreed to recognize arbitral
awards as binding and enforce them in accordance with the rules of procedure in force in the
state.
UNCITRAL Model Law in 1985, which gives authority to parties and arbitral tribunal to
fashion the procedure as they wish as long as they adhere to the rule of Article 18 that “ the
parties shall be treated with equality and each party shall be given full opportunity of
presenting their case”
Article 5 provides that in matters governed by this law, no court shall intervene except where so
provided in this law.
Arbitral rules. These are in two, that is the institutional arbitration rules and the ad hoc
arbitration rules .
The institutional arbitration rules allow parties to decide on the procedure to be followed in
arbitration, so parties in most cases choose an arbitration institution in which arbitration will take
place. The rules set forth the procedure for commencement of arbitration, appointment of
arbitrators, conduct of proceedings and issuance of the awards. They may reflect the particular
needs of the type of arbitrations that will take place at the institution.
Ad hoc arbitration rules. This occurs in situations where the parties conduct arbitration
without any reference to an arbitration institution. Among the reasons as to why the parties opt
for this, is that it involves a limited amount of money and they did not or were unable to agree on
the institution. However, parties may find it different to commence arbitration, because at the
time of the dispute they might be despising one another and are unwilling to cooperate.
There are two sets of rules for ad hoc arbitration that is the ECE Arbitration rules and
UNCITRAL arbitration rules. Parties may provide in the arbitration clause in their contract
that any dispute may be settled by arbitration in accordance with the rules. Although ECE rules
are widely used in Europe, the have been shadowed by UNCITRAL arbitration rules.
UNCITRAL arbitration rules were adopted in 1976.
Ad hoc arbitration under the rules can take place in 2 different ways; one is purely as hoc, that is
no institution plays any role in the arbitration and the other, arbitration institution takes on some
administrative tasks on the request of parties.
If the parties are unable to appoint an arbitrator, the rules authorize appointing authority to do so.
If a challenge is made to an arbitrator, it will be heard by the appointing authority.
Sources of Arbitration.
- International instruments. These include the New York Convention, 1985,

UNCITRAL Model Law among others.
- Statutes. In Uganda, the main act for arbitration is the Arbitration and Conciliation Act,
cap 4. Section 1 provides that it’s for both domestic and international arbitration and
Conciliation in Uganda. It’s an offshoot of the UNCITRAL Model Law, UNCITRAL
arbitration rules and New York Convention
- The 1995 constitution of the Republic of Uganda, as amended. Article 126 makes
provisions for Alternative dispute resolution, which also encompasses arbitration
- Common law and doctrines of equity. These were introduced in Uganda by the
colonialists, and Uganda adopted many laws of the British upon getting independence.
Principles
Party autonomy. This is the freedom given to contracting parties to construct their contractual
relationship as they wish or see fit. It gives parties full rights to enter into an Arbitration
Agreement to suit their purpose.
An arbitration agreement derives it’s power from party autonomy, therefore arbitration can only
happen if agreed to by the parties. It lets the parties design and formulate terms of the arbitral
process, governing law, venue, composition of arbitral tribunal, language during proceedings and
other issues related to conduct of arbitral proceedings.
Section 19 of ACA is to the effect that the parties are free to agree on the procedure to be
followed by arbitral tribunal in conducting the proceedings.
Separability. An arbitration agreement in an agreement is a separate and distinct agreement to
the main agreement. The Arbitration clause is construed as an agreement which does not depend
on the terms and conditions of the contract than the will of parties.
The unenforceability of the underlying agreement does not automatically render an arbitration
agreement or clause contained within it unenforceable. Section 16(1)(a) & (b) ACA provide that
an arbitration clause which forms part of a contract shall be treated as an agreement independent
of the other terms of the contract. That the decision of the tribunal that the contract is null and
void shall not itself invalidate the arbitration clause.
Fairness and impartiality. The arbitrator has to be independent and impartial. It is therefore a
ground of objection that the nominee lacks impartiality. Section 12(2) ACA an arbitrator can be
challenged if circumstances exist that give rise to justifiable doubts as to his or her impartiality
and independence. In Roko construction ltd v Aya Bakery (u) ltd1 CADER held that
arbitrators have no right of audience under ACA regarding any challenge on their lack of
impartiality, independence or qualifications.
Confidentiality
Finality and enforceability. The decision of the tribunal is final and binding upon the parties.
Section 35 ACA provides that an arbitral award shall be recognized as binding and upon
application in writing to court shall be enforced. In addition, Section 36 provides that the award
shall be enforced as a decree of court. The decision is final and not subject to appeal as per
Section 16(7) ACA.
1
MA no. 12 of 2008.

ADR Group 6 Work-2

Uploaded by

Copyright:

Available Formats

ADR Group 6 Work-2

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

ADR Group 6 Work-2

Uploaded by

Copyright:

Available Formats

Arbitration relationship to law

- International instruments. These include the New York Convention, 1985,

You might also like