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UGANDA 3
High Court of Uganda, Kampala (Commercial Division), 18 April 2024, Arbitration Causes No. 0075 of 2023 and 0014 of 2024 (Consolidated)
(Xsabo Power Ltd et al. v. Great Lakes Energy Company NV)
UGANDA 3
The High Court granted exequatur of an award rendered in Kenya in accordance with the LCIA Rules, finding that the arbitrators had not exceeded their authority by deciding an issue under a related agreement which had not incorporated the arbitration clause in the agreement based on which the arbitration had been initiated, because the issue was “inextricably interwoven” with arbitrable issues. The Court also found that there was no violation of public policy, in particular, because the interest rate determined in the parties’ contract and applied by the arbitral tribunal (USD 3-month LIBOR plus 8 percent) had been officially discontinued after the award was rendered, as this representative interest had been replaced with a synthetic USD LIBOR rate applicable at the relevant time.
The court discusses the determination and relevance of the place where the award was made (in a foreign State or another contracting State.
The court discusses the principle that the procedure for the enforcement of awards under the Convention is governed by the lex fori, as well as procedural issues (such as the competent enforcement court) not falling under the specific cases of ¶¶ 302-307.
The court discusses the applicable period of limitation for seeking enforcement of an award.
The court discusses the general conditions the Convention imposes on a petitioner for seeking recognition and enforcement of an arbitral award – namely, the submission of the original arbitration agreement or arbitral award or a certified copy thereof – and examines in general whether these conditions were complied in the case at issue.
The court discusses the overall scheme and/or pro-enforcement bias of the Convention.
The court discusses the principle that the merits of the award may not be reviewed and that the court may only carry out a limited review of the award to ascertain grounds for refusal.
Due process: The court discusses various irregularities affecting due process, including letters not sent, names of arbitrators or experts not communicated, language of proceedings and communications, etc.
Award not binding, suspended or set aside: The court discusses the difference between the exclusive jurisdiction to set aside an award (primary jurisdiction), which belongs to the courts of the country of origin of the award, and the jurisdiction of all other courts to recognize and enforce the award (secondary jurisdiction); issues relating to the determination of the “competent authority”; and whether an award that has been set aside in the country of origin can be enforced in another State under the Convention.
Public policy: The court discusses the meaning of (international as compared to domestic) public policy, generally defined as the basic notions of morality and justice of the enforcement State.
Public policy: The court discusses the effect of other alleged violations of public policy on the recognition and enforcement of an arbitral award, such as contradictory reasons, manifest disregard of the law (US), etc.