Notes

Smile Communications Uganda Limited V Atc Uganda Restricted And One Other Arbitration Trigger 4 Of 2022 2023 Ugcommc 30 11 April 2023
The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were supposed to be excluded from the arbitrator’s jurisdiction (see Fiona Trust & Holding Corp v. Privalov, [2007] UKHL 40). This implies that a liberal means of construing arbitration agreements has to be pursued even in those instances where normally contract regulation the ambiguity couldn't be resolved via the application of conventional technique of interpretation. It would be incredible and unrealistic for this Court to anticipate that an Arbitrator can be accused of bias as a outcome of he worked with a regulation agency twenty years ago with no different professional relationship with the mentioned firm ever since the time he left. The Applicant has not furnished any proof of a link between M/s Katende Ssempebwa & Company Advocates and Aristoc Booklex the place the guide is sold. The award of interest to the first respondent didn't amount to bias because the award was merely part of the arbitrator’s chain of reasoning after he found that the Applicant had breached the contract by intentionally refusing to pay for the providers they loved from the first respondent.
There is a deliberate cause why the author/Arbitrator selected not to put the respondents' attorneys beneath the acknowledgement section however instead selected to place them under the dedication part and it can't be assumed that he meant to merely acknowledge them. If it had been his intention to merely acknowledge them, then he ought to have clearly included them underneath the acknowledgements section of the e-book. On the other hand, the dedication section which is only seven lines prominently shows the respondents' attorneys and draws special attention to them as supposed by the writer. Advocates under the dedication section if actually his solely intention had been to merely acknowledge them. The Arbitrator's dedication of his book to the respondents' lawyers tells one thousand unspoken stories of the deep and private relationship that they take pleasure in past what a CV might inform. This is of special concern because the authorship and publication of the guide in issue occurred in 2021 during the pendency of the arbitration proceedings.
The Court just isn't empowered to evaluation the award as to whether the findings of truth rendered by the arbitrator are, on the whole document of mentioned arbitration proceedings, supported by substantial evidence, and whether as a matter of regulation based mostly on such findings of truth the award ought to be affirmed, modified or vacated. The determination of the question of the jurisdiction of a tribunal lies in its personal area, no less than in the first instance, by virtue of the precept of “Kompetenz-Kompetenz.” According to that doctrine, an arbitral tribunal has jurisdiction to consider and determine any disputes relating to its own jurisdiction, subject to, in sure circumstances, subsequent judicial evaluate. Should the respondent keep its objection within the proceedings, the tribunal will make its own jurisdictional willpower. Such prima facie jurisdictional choices are made after the preliminary exchange of written submissions when the respondent, in its answer. The tribunal could conduct a listening to on jurisdictional questions, corresponding to whether or not the arbitration agreement is no longer valid or whether there ever was a valid arbitration settlement in the first place. An objection could also be upheld if the arbitration clause clearly refers to another arbitrator or arbitration institute form the one presiding.
The Court of Appeal upheld the lower court’s findings and noted that there have been no grounds to determine an obvious bias or misconduct on the part of the third arbitrator and chairman of the ICC tribunal. Having examined the authorized regime regulating the licensing and management of actions in the electricity sector in matters concerning the generation, transmission, distribution, sale and use of electrical energy in Uganda, I am of the thought of view that the target is these engaged in the sector as public utilities, whether or not state owned or privately owned. The public coverage concerns for the regulation of pricing, licensing, sale, consumption, computing, and general use of electrical energy are all directed at public utilities, which the 2nd respondent just isn't. It would due to this fact be misguided if public policy issues of that statutory regime are dropped at bear upon a personal contract between entities that aren't engaged in sale and use of electrical energy to most people. The balancing act between freedom of contract and clear and simple harm to the general public should be resolved in favour of freedom of contract as there might be no clear and plain harm brought on to the public. The enforcement of the award would due to this fact not be tantamount to the courtroom encouraging or directing the applicant to violate the law.
The court docket should contemplate the underlying foundation and true nature of the issue or claim, and never solely the style in which it is pleaded (see Tomolugen Holdings Ltd and another v. Silica Investors Ltd and other appeals [2015] SGCA 57). Where the remedy or aid sought is one that only impacts the parties to the arbitration, the Court will be inclined to seek out in favour of arbitrability. The arbitral award in this matter is not inconsistent with the Constitution, or, any laws of Uganda and it isn't inimical to national curiosity or contrary to justice and morality. The important problem that the arbitrator was confronted with was whether or not the 2nd respondent was in the enterprise of generating, distributing or promoting electricity to find a way to be underneath the realm of the Electricity Regulatory Authority. The arbitrator, upon reviewing the contractual relationship between the events, the licencing regime of the parties, the proof adduced by the events and testimonies of the events rightly found that the relationship between the parties was ruled by the Uganda Communications Commission under The Uganda Communications Act and never the Electricity Regulation Authority. The arbitrator discovered that the relationship between the applicant and the 2nd respondent is for provision of telecommunication providers and the supply of power is not the core business of the 2nd respondent.
The supply of energy to the Claimant's gear is a worth added service and the parties agreed to the rate and the procedure for billing for this service. The definition of Electricity beneath The Electricity Act doesn't match or augur with the relationship between the Claimant and the 2nd respondent. The relationship of the Claimant and the 2nd respondent and the MSA and the FSL is not regulated beneath the realm of the Electricity Regulatory Authority however somewhat beneath the UCC Act the entity that licensed both the Claimant and the 2nd respondent and regulates their operations. Furthermore, the quantity of power supplied by the 2nd respondent to the Claimant does not fall beneath the edge as given beneath of Section 5l (t) & section 3 (q) of The Electricity Act but rather it is simply an extra service as per section 5 of The Uganda Communication Act and this is ruled by UCC and never ERA. I discover benefit within the submissions of the Counsel for the 2nd respondent and think about that the connection between the Claimant and the 2nd respondent is regulated by The Uganda Communications Act and never The Electricity Act and I so discover. The pertinent points raised by the events had been; whether or not the 2nd respondent’s electrical energy expenses and billing practices for its websites have been unlawful, discriminatory and irregular; and whether or not the applicant was in breach of its cost obligations to the 2nd respondent.
While beneath the settlement with the 1st respondent the mechanism for dispute resolution was arbitration beneath the International Chamber of Commerce Rules to be performed in London und Kampala, under the agreement with the 2nd respondent arbitration was to be carried out beneath the same guidelines however in France. The take a look at for obvious bias is “whether a good minded and informed observer, having considered the information, would conclude that there was a real risk that the tribunal was biased” (see Porter and Weeks v. Magill [2002] 2 WLR 37; [2002] 2 AC 357; [2002] 1 All ER 465). The informed observer may be expected to focus on the authorized traditions and tradition of this jurisdiction (see Taylor v. Lawrence [2002] 2 All ER 353 at p.370, para 61). Public coverage contains cases where arbitration is used as a method to cowl up corruption, money laundering, exchange management fraud or different felony exercise.
2.5 Nothing in this section shall forestall a celebration from in search of enforcement of an arbitration award issued in accordance with this part in any courtroom. Notwithstanding anything in this part to the contrary, both Party might search interim measure of safety or injunctive reduction both via the arbitration process pursuant to this section or in any Court. The Arbitrator declined to grant punitive or exemplary damages for the rationale that applicant did not show to his satisfaction that the practices of billing and the Master Tower Space Agreement and the First Side Letter were illegal. The Arbitrator didn't discover that the grant of punitive and common damages in opposition to the 2nd respondent was warranted. On the whole the declare was dismissed with costs of the arbitration awarded in opposition to the applicant save for one merchandise. The applicant’s claim was in any other case dismissed whereas the respondent’s prayers in the counterclaim had been awarded.
self-liquidating facility
It is a settled regulation that this court cannot substitute its own choice for that of the arbitrator each on information and law is final. These provisions were made clearly with a view to circumscribe to a narrow point, the objections that may be entertained where an arbitral award is assailed. An award is not subject to appeal or to another treatment besides these provided for in The Arbitration and Conciliation Act. It is on that account that the courtroom will now proceed to assume about the problem arising from this application.
Public policy is “that precept of law which holds that no topic can lawfully do that which tends to be injurious to the basic public, or against the common public good, which can be termed . The coverage of legislation or public coverage in relation to the administration of the law” (see Egerton v. Earl of Brownlow [1853] Eng R 885, (1853) 10 ER 359). Certain acts or contracts are mentioned to be in opposition to public policy if they tend to advertise breach of the regulation, of the policy behind a legislation or tend to harm the state or its citizens (see Cooke v. Turner (1845) 60 Eng. The definition of public coverage represents a sure matter that impacts public benefit and public interest. Had he properly directed himself, he wold have discovered that “electricity” is defined as electrical power generated from water, mineral oil, coal, gas, solar vitality, wind vitality, atomic power or another means (see section 3 (q) of The Electricity Act).

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