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REFERRING DISPUTES TO ADR: A PERSPECTIVE FROM A COMMERCIAL JUDGE l By Justice Geoffrey Kiryabwire
The use of Dispute Resolution Mechanism in Business. l Contract interpretation l Non payment for goods and services given l Non delivery of goods and services paid for l Delivery of goods not fit for the purpose or according to description contracted for.
The use of Dispute Resolution Mechanism in Business continued… l Financial intermediation correction through loan/ credit non repayment, insurance etc l Joint venture failures and l 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 l Determine Rights i. As of fact ii. As of law l Make directive and enforceable orders. l Determine adequate compensation for wrongs l Correct a public wrong. l
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. l Litigation is the traditional approach to dispute resolution. l Litigation is based on the adversarial system l Litigation is long and expensive
Table 1 Impact of poor dispute resolution on development
Table 2 Impact of poor dispute resolution on development
Table 3 Impact of poor dispute resolution on development
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 nation wide (Kampala) Informal Sector%N =607 Formal Sector%= 488 Informal Formal Sector%N=31 Sector%=26 4 4 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 l This where ADR comes in l ADR can be defined as l “That ADR is a structured negotiation process whereby the parties to a dispute themselves negotiate their own settlement with the 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? l Negotiation l Conciliation l Mediation l Arbitration l Rent a judge l Mini trial l Ombudsperson
The experience of Mediation and Arbitration in Uganda l 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 54. 3% (successful and unsuccessful) 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 l 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.
l. 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 l 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 l 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.