The Republic of Uganda v Rift Valley Railways (Uganda) Ltd

Section 67 of the Arbitration Act 1996 permits a challenge to an award concerning an arbitral tribunal’s substantive jurisdiction. It does not confer a general power to review interlocutory procedural rulings.

Whether a tribunal decision is an award depends on substance, finality, the nature of the issue, the tribunal’s description, the reasonable recipient’s view and compliance with applicable formal requirements. A decision described as a procedural order, signed only by the presiding arbitrator, lacking required formal elements and leaving matters open is unlikely to be an award.

The supervisory court should avoid deciding issues which the parties have accepted the tribunal can determine in the first instance, particularly where the underlying factual position remains uncertain.

The Republic of Uganda applied under section 67 of the Arbitration Act 1996 to set aside Procedural Order No. 5 made in a London-seated UNCITRAL arbitration concerning a concession agreement with Rift Valley Railways (Uganda) Ltd.

The Republic argued that the procedural order was an award as to the tribunal’s substantive jurisdiction and that the company’s former management lacked authority to continue the arbitration following liquidation proceedings in Uganda. It also sought declarations concerning the company’s standing and representation.

The central issues were whether Procedural Order No. 5 was an award, whether the section 67 application could succeed, and whether the supervisory court should determine the company’s authority before the tribunal.

1. The section 67 application was dismissed. Procedural Order No. 5 was not an award.
2. The court applied the substance-based approach identified in ZCCM Investments Holdings Plc v Kansanshi Holdings Plc [2019] EWHC 1285 (Comm). Relevant considerations included finality, the nature of the issue, the tribunal’s description, the reasonable recipient’s perspective, the formality and detail of the reasoning, the tribunal’s intention and compliance with applicable formal requirements.
3. Procedural Order No. 5 was called a procedural order, rather than an award. It was signed only by the president, did not state the seat in its body, and did not comply with the formal requirements in section 52 of the Arbitration Act 1996 and article 34.4 of the UNCITRAL Arbitration Rules. The issues had not been intelligibly advanced as jurisdictional objections, the order did not address section 30 or waiver, and it did not finally determine any issue. Its provisional character was confirmed by paragraph 48 of the order.
4. The court endorsed the principle that judicial intervention in an arbitration should be kept to a minimum and that there is no general power to supervise or review interlocutory procedural decisions: Charles M Willie & Co (Shipping) Ltd v Ocean Laser Shipping Ltd (The ‘Smaro’) [1998] EWHC 1206 (Comm), K/S A/S Bill Biakh v Hyundai Corporation [1988] 1 Lloyd’s Rep 187 and Fletamentos Maritimos SA v Effjohn International BV (No. 2) [1997] 2 Lloyd’s Rep 302.
5. The Standing Application was refused. The section 67 proceedings were unfounded, the parties accepted that the tribunal could determine the representation issue in the first instance, and the position concerning liquidation in Uganda remained uncertain and subject to further developments.

The proceedings were dismissed.