Various considerations are made by the World Bank in rating the performance of economies with respect to doing business. Among some of the considerations is enforcement of contracts, doing business across borders, resolving insolvency claims, protection of minority investors besides other infrastructural development and policy reforms.

In the Doing Business in Uganda 2015[1] World Bank report ranked Uganda at number 150 out of 189 economies across the world having improved from number 152 from 2014. The report ranked Uganda at number 80 in enforcing contracts having dropped from number 79 in 2014; but has greatly improved in resolving insolvency from number 126 in 2014 to 98 in 2015. The key reforms that were observed in the report as creating the improvement include reducing the time for filing and serving claims; consolidating all laws regarding corporate solvency into one law making it easy to refer and follow; establishing the administration of companies (reorganization), setting standards on the professional qualifications of insolvency practitioners and introducing provisions allowing the avoidance of undervalued transactions.[2]

This article examines the legal framework governing enforcement of foreign judgments in Uganda; the regional legal framework of the East African region and lastly makes some recommendations for possible consideration in a bid to increase the attractiveness of Uganda as an investment destination.

The Legal Framework in Uganda

The legal framework governing the enforcement of foreign judgments in Uganda is enshrined in various laws governing enforcement of foreign judgements in Uganda. They range from the Arbitration and Conciliation Act Cap 4, the Foreign Judgments (Reciprocal Enforcement) Act; The Judgment Extension Act Cap 12; and the Reciprocal Enforcement of Judgments Act Cap 21 and some other international treaties.

In discussing the legal framework, the adequacy of the laws shall be evaluated and proposals made for reform where called for.

The Arbitration and Conciliation Act Cap 4

The Arbitration and Conciliation Act provides for domestic arbitration, International Commercial Arbitration and enforcement of foreign arbitral awards among others. Where parties have agreed to submit to arbitration all or certain disputes, which have arisen between them and have obtained an award as a result; or it is a foreign arbitral award, such an award is enforceable in Uganda.

In the national plane, the Act is only binding where parties have a commercial contract that makes provision for the submission of disputes for arbitration. In a bid to promote a more responsive and quick dispute settlement mechanism, the Commercial Division of the High Court of Uganda piloted a project of Court assisted mediation to facilitate the process of dispute resolution.

The Act recognizes and gives effect to New York Convention Awards[3]. Under section 39, arbitral awards made in pursuance of an arbitration agreement in the territory of a state which is party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) adopted by the United Nations Conference on International Commercial Arbitration on 10^th June 1958 is enforceable in Uganda.

A New York Convention Award shall be binding for all purposes on the persons as between whom it was made.[4] It shall be recognized and deemed binding and enforced upon application in writing to the court where it is sought to be enforced.[5]

Further, the Act also gives effect to the enforcement of ICSID awards. The ICSID Convention Award means an arbitral award rendered pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other states. It includes any decision interpreting, revising or annulling an award, being a decision pursuant to the ICSID Convention, any decision as to costs, which the Convention is to form part of the award.[6] A person seeking enforcement of an ICSID Convention Award shall be entitled to have the award registered in the court subject to proof of the prescribed mattes and the other provisions of the part.

Given the wider membership and application of these international conventions (New York Convention with (149) states (see list of members)[7] and ICSID Convention with (159) states (see list of members[8]), the Arbitration and Conciliation Act broadens the scope and openness of Uganda in recognizing and enforcing foreign judgments. 

It should however be noted that the openness is specifically in relation to arbitration awards and not per se court decisions. A party who is dealing with another where these conventions are applied enjoys the liberty to enforce the awards in Uganda. For court decisions, they can only be enforced in accordance with the procedures set out by law.

The Foreign Judgments (Reciprocal Enforcement) Act Cap 9

It is an Act to makes provision for the enforcement in Uganda of judgments given in foreign countries which accord reciprocal treatment to judgements given in Uganda, for facilitating the enforcement in foreign countries of judgments given in Uganda, and for other purposes in connection with the matters aforesaid.

The Act applies to an ‘action in personnum’ which shall not be deemed to include any matrimonial cause or any proceedings in connection with matrimonial matters, administration of the estates of deceased persons, bankruptcy, winding-up of companies, guardianship of infants or the care of, or the administration of the estates of, persons of unsound mind.[9] In effect, this Act is applicable to judgments obtained in commercial and contractual or other tortious or civil claims against a person.

Section 2 of the Foreign Judgments (Reciprocal Enforcement) Act gives powers to the Minister if satisfied that in the event of the benefits conferred by this Part of the Act being extended to judgments given in superior courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement in that foreign country of  judgments given in the superior courts in Uganda may by statutory order direct that this part of the Act extends to that foreign country and that such courts of that foreign country as are specified in the order shall be deemed superior courts of the that country for the purposes of this part of the Act.

For a judgment from a foreign court to be admitted, it must: be final and conclusive as between the parties to the judgment; and there is payable under the judgment a sum of money, not being a sum payable in respect to taxes or other charges of a like nature or in respect of a fine or other penalty; and it is given after the coming into operation of the order directing that this part of this Act shall extend to that foreign county.[10]

Under this Act and many other Acts except for the Arbitration and Conciliation Act, the principle of reciprocity is a mandate. Black’s law Dictionary defines the word ‘reciprocal’ to mean ‘directed by each toward the other or others.’[11] The theories adopted to enforce foreign judgments is ably discussed in the case of Christopher Sales & Carol Sales v Attorney General[12] There are two theories viz the theory of obligation and reciprocity which are combined and the theory of comity.

The theory of obligation considers that foreign judgment creates a debt and liability to pay. Meanwhile, the theory of reciprocity enjoins the court of one country to recognize and enforce judgments of another country. I must hasten to add this is doable because of the mutual benefit that accrues from the reciprocal arrangements made at a political level and enforced through statutory instruments. In the case of Emmanuel & Others v Symon[13] it was observed, speaking of the courts in the United Kingdom,

“… the courts of this Country enforce foreign judgments because those judgments impose a duty or obligation which is recognized in this country and leads to judgment….”

The doctrine of comity on the other hand as discussed in JP Morgan Chase Bank v Altos Honos de Mexico[14] focuses on maintaining amicable working relationships between nations, a shorthand for good neighborliness, common courtesy and mutual respect between those who labor in adjoining judicial vineyards where a point of law is raised, which if decided in one way would be decisive of litigation.

Accordingly, the court in Uganda was seized with a grand challenge to resolve the issue of what a judgment creditor seeking to enforce a foreign judgment against a debtor in a country where there is apparently no reciprocal arrangement. The learned trial judge departing from a more rigid and non-progressive pursuit of the doctrine of reciprocity espoused by our laws, forcibly and purposively applied the doctrine of comity and allowed the registration of a judgment obtained from the USA. In his reflections, Justice Eldard Mwangutsya (as he then was) considered the fact that the debtor could not just be left ‘stranded’ without a remedy having obtained a judgment from a country with a well-established legal systems and courts that are credible.

He noted that

‘…the considerations in this type of trial are recognition and enforcement of foreign judgments which is distinguishable form an application under the Foreign Judgment (Reciprocal Enforcement) Act cap 9 laws of Uganda where under s.3 would be for registration of the judgment.’

Under this Act, a foreign judgment can only be enforced where there is a reciprocal arrangement and it is registered.[15] In the case of Christopher Sales and Carol Sales v Attorney General,[16] the applicants obtained a judgment against the respondent from USA and could not enforce the same against the respondent (Uganda) and thus applied to have it recognized and enforced under the Ugandan Legal regime. There being no reciprocal arrangement between USA and Uganda, Justice Eldard Mwangutsya departed from the cardinal principles espoused in the Act premised on the principle of reciprocity and went ahead to grant the recognition and enforcement of the USA judgment despite the lack of reciprocal arrangement. He noted that

“A judgment creditor armed with such a judgment should be allowed to realize the fruits of his judgment which should be afforded recognition by our courts in absence of a reciprocal arrangement.”

This judgment opens up Uganda as a jurisdiction that recognizes as credible certain judicial systems and sets aside the responsibility of the Minister to issue statutory orders, and there by over rules the principle of reciprocity being in application of necessity. Whether this is judicial activism without restraints is yet to be investigated!

The benefit on the other hand is to make it easy for various nations with credible judicial systems to automatically register their judgments and enforce them in Uganda. The danger is where a judgment to be enforced in Uganda is against public policy in Uganda and yet lawful in the country of origin. The question thus is whether public policy and the political relations should govern this or rather, judicial activism should prevail.

Section 8(1) provides that the Minister may by statutory order (a general application order) direct that this Part of this Act shall apply to the territories of the Commonwealth and to judgments obtained in the courts of those territories as it applies to foreign countries.

There is a wealth of benefit in having reciprocal arrangements that benefit the country in terms of trade. There is no statutory order giving effect to this Act in terms setting out the countries with which Uganda has reciprocal arrangements. All applications for extension of this Act as it stands now require parties making specific applications to the Minister seeking such extension of reciprocity and thus making it costly. With the implication of the Christopher Sales case[17], what Uganda would require for recognition and enforcement of a foreign judgment is credible judicial systems of the country of origin.

The Judgment Extension Act Cap 12

This law provides for the execution by the courts of Uganda of decrees and warrants in court cases made and granted by the courts of Kenya, Malawi and Tanzania.  Under section 1 of the Act where a decree is obtained or entered in the supreme court of Kenya or in the High Court of Malawi or of Tanzania or in any court subordinate to any of those courts, for any debt, damages or costs, the same may be transferred to the High Court of Uganda or other courts subordinate there to for purposes of execution of the same. Such decrees are deemed the original decrees of the Ugandan court. A judge or Magistrate in a Ugandan Court has powers to endorse and execute. A minister may by statutory order extend the provisions of this Act to other common wealth countries. [18] This law somehow seems applicable at a regional level, especially the former East African Community members like Kenya and Tanzania, which in effect made it easy to enforce judgments across the borders of each country in the list. But with the enlargement and growth the East African Community Partner members like Rwanda and Burundi and many other countries seeking membership, it is important for the East African Community to pass a protocol for the enforcement of foreign judgments within the member states and in relation to other regional economic blocs.

The Reciprocal Enforcement of Judgments Act Cap 21

This is an Act enacted for the enforcement in Uganda of judgments made in the United Kingdom and other Commonwealth countries and the Republic of Ireland.

Where a Judgment has been obtained in a superior court in the United Kingdom or the Republic of Ireland, the judgment creditor may apply to the High Court of Uganda at any time within twelve months after the date of the judgment, or such other longer period as may be allowed by the court to have the judgment registered in the Court and executed. [19] A judgment creditor who obtains judgment against a person resident in the United Kingdom in like manner shall obtain a certified copy of the said judgment and apply in a court in the United Kingdom to execute the same.[20]

Where reciprocal arrangements have been made with any other commonwealth countries outside the United Kingdom, the Minister may by statutory order extend the application of the Act accordingly.

It should be noted that this Act is narrower in its application given it specifically applies to the United Kingdom and the Republic of Ireland.

As a general observation, the legal framework that exists in Uganda wide and cross-cutting in terms of the countries they apply to. The legal framework is graced by international conventions such as New York Convention and the International Centre for Settlement of Investment Disputes Convention (ICSID) which rightly widens the scope of application of the legal framework. Given that Uganda engages in business relations with other countries that are not of commonwealth background, it is necessary to develop a legal framework that applies to countries that may not have subscribed to the treaties herein mentioned and such countries that may be lacking credible judicial systems as a result of wars and instability yet are credible business partners.

To give a better effect to business and investments in the country and region, key regard should be paid to broadening the practice of private international law in Uganda.

Regional Legal Frame Work

At the East African Community Level, the East African Community Treaty enjoins the national courts of the Partner states to enforce judgments of the community courts. Article 44 of the treaty provides that

‘the execution of a judgment of the East African Court of Justice which imposes a pecuniary obligation on a person shall be governed by the rules of civil procedure in force in the Partner State in which the execution is to take place.’

The Treaty under article 32 grants jurisdiction to the East African Court of Justice to handle and determine matters that arise from arbitration clauses in commercial contracts between parties that choose to resolve the same before the courts.

‘The significance of using national courts to enforce international judgments cannot be underestimated. It is perhaps the most potentially effective means for securing compliance with decisions of international courts and enhancing the effectiveness of international adjudication. They contribute to international rule of law and strengthening the status of international law in national legal systems.’[21]

As such it is paramount therefore that each Partner state in the East African Community focuses on the development of their national legal systems so as to improve the overall performance of the region.

Proposals to making Uganda an attractive Investment destination

To make Uganda a better investment destination, a well-rounded set of reforms ranging from e-commerce, legal reforms in the areas of case management, filing and service of claims, institutionalizing and expediting the dispute resolution processes, giving a bigger recognition of other foreign judgments across the world, promoting investment, improving infrastructure like roads, transport systems, and security among others should be considered.

Most specifically, the statutory directives should be developed specifying the countries that qualify and have reciprocal arrangements with Uganda so that it is clear and easily enforceable. The directive should apply generally to the Foreign Judgments (Reciprocal Enforcement) Act Cap 9.

Uganda needs to set up a dispute resolution and Arbitration Centre which is private sector-led; that is more efficient its management, independence, professional and cost effective in resolving disputes.

Further efforts should be made to improve on the process of filing and serving claims through introduction of electronic filing and service of court process or claims before tribunals.

The capacity of the judiciary and the general population needs to be enhanced through awareness creating to understand the importance of effectiveness and aptness in determining disputes and resolving them by using alternative dispute resolution mechanisms.

At a regional level, the East African Community needs to pass a protocol for the enforcement of foreign judgments within the member states and in relation to other regional economic blocs to enhance inter and intra-regional trade and investments.

Conclusion

There is a robust legal framework for the enforcement of foreign judgments and arbitral awards in Uganda. To be able to make the country an attractive investment destination, necessary directives or policies and adoption of electronic filing and serving of claims; creation of an independent private led arbitration center and awareness creation on the need to embrace alternative dispute resolution mechanisms will grow the economy’s attractiveness.

 

 

 

 

[1] http://www.doingbusiness.org/data/exploreeconomies/uganda visited March 21, 2015

[2] ibid

[3] Ss. 2(h), 39, Arbitration and Conciliation Act, Cap 4

[4] S. 41, ibid

[5] Ss. 35, 42 and 43, ibid

[6] S. 45, Supra note 3

[7] http://www.newyorkconvention.org/new-york-convention-countries visited March 21, 2015

[8]https://icsid.worldbank.org/apps/ICSIDWEB/icsiddocs/Documents/List%20of%20Contracting%20States%20and%20Other%20Signatories%20of%20the%20Convention%20-%20Apr%202014.pdf  visited March 21, 2015

[9] Section 1(2) Foreign Judgments (Reciprocal Enforcement) Act Cap 9

[10] Section 2(2), ibid

[11] Black’s Law Dictionary, 8^th Edition, 2004, pg.3980

[12] Civil Suit No.91 of 2011 (unreported); http://www.ulii.org/ug/judgment/high-court/2013/15-2 visited 18th March 2015

[13] (1908)1 KB 302

[14] US Court of Appeals 2^nd Circuit in 2004

[15] Section 7, ibid

[16] Civil Suit No.91 of 2011 (unreported); http://www.ulii.org/ug/judgment/high-court/2013/15-2 visited 18th March 2015

[17] ibid

[18] Section 5, Supra

[19] Section 2, The Reciprocal Enforcement of Judgments Act cap 21

[20] S.3, ibid

[21] Enforcing judgments of the SADC Tribunal in the domestic courts of member states, Richard Frimpong Oppong; www.kas.de/upload/auslandshomepages/namibia/.../MRI2010_chapter7.pdf visited 19th March 2015