UGANDA Law and Practice Contributed by: Moses J. Adriko SC, Ernest Sembatya Kaggwa, Derrick Kizito Kunyiga and Philip E. Nsaja, MMAKS Advocates
clearer approach to arbitrability, and a sharper dis - tinction between domestic and international arbitra - tion. That Bill remains pending and, if enacted, would materially update the arbitration landscape.
eral, any dispute concerning rights that the parties may freely dispose of by agreement is arbitrable. Case law treats as non-arbitrable those disputes whose resolution the legislature has reserved to exclu - sive public fora or that engage rights and interests beyond the parties, including criminal liability, matters of personal status such as matrimonial causes, tax assessments, insolvency and winding-up petitions, and the validity of registered rights operating against the whole world. The general approach is therefore twofold: the courts ask whether a statute confers exclusive jurisdiction on a court or arbitral tribunal, and whether the remedy sought operates in rem or affects third parties or a broader public interest rather than merely the parties’ private rights (see Smile Com- munications Uganda Ltd v ATC Uganda Ltd [2023] UGCommC 30). 3.3 National Courts’ Approach Law Governing the Arbitration Agreement There is little direct authority on the choice of law governing the arbitration agreement as distinct from the main contract. In practice, the courts apply the law chosen by the parties and, in the absence of an express or implied choice, the law of Uganda where Uganda is the seat, consistent with Section 34 (2)(a)(ii) of the ACA, which tests the validity of the agreement by the law to which the parties subjected it or, failing any indication, Ugandan law. Enforcement of Arbitration Agreements The courts consistently enforce arbitration agree - ments. Section 5 of the ACA obliges a judge or mag - istrate, on a party’s application, to refer the matter to arbitration unless the agreement is null and void, inoperative or incapable of being performed, or there is in fact no dispute between the parties. The lead - ing authorities, from East African Development Bank v Ziwa Horticultural Exporters Ltd to the recent restric - tive appellate decisions discussed in 11.1 Grounds for Appeal , reflect a strong “hands-off” judicial policy anchored in Section 9, and arbitration agreements are usually enforced. 3.4 Validity Section 16 (1) of the ACA codifies the doctrine of separability: an arbitration clause forming part of a
3. The Arbitration Agreement 3.1 Enforceability
Under Section 3 of the ACA, an arbitration agreement must be in writing and must relate to disputes arising out of a defined legal relationship, whether contractual or not. It may take the form of an arbitration clause in a contract or a separate agreement, and the writing requirement is satisfied by: • a document signed by the parties; • an exchange of letters, telex, telegram or other means of telecommunication providing a record of the agreement; • an exchange of statements of claim and defence in which the agreement is alleged by one party and not denied by the other; or • a reference in a written contract to a document containing an arbitration clause, where the refer - ence makes the clause part of the contract. The courts adopt a validating approach: even a “bare” arbitration clause that omits the seat, rules or appoint - ment mechanism is enforceable if the parties’ inten - tion to arbitrate is clear, with the ACA’s default provi - sions filling the gaps ( Lakeside Dairy Ltd v International Centre for Arbitration and Mediation in Kampala and Another ). Gaps are cured by default rules such as having one arbitrator if the parties have not agreed a number (Section 10), statutory default appointment machinery (Section 11) and determination of the place of arbitration by the arbitral tribunal where the parties have not agreed one (Section 20). What matters is that the clause is operative such that it discloses a genuine, workable intention to arbitrate rather than a merely permissive option to consider arbitration. 3.2 Arbitrability The ACA does not contain a list of non-arbitrable mat - ters; Section 34 (2)(b)(i) simply permits an award to be set aside where the subject matter is not capable of settlement by arbitration under Ugandan law. In gen -
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