Francis Ssekandi

Justice Francis M. Ssekandi (Rtd) - International Arbitration Lawyer of the Year

Interview

In this compelling interview, we delve into the experiences and insights of Francis Ssekandi, an international legal consultant with an extensive career in mediation, arbitration, and judicial service. After his early retirement from Uganda’s Supreme Court, Francis transitioned to focus on mediation and arbitration in international disputes, drawing from his expertise in navigating complex legal landscapes.

We explore his challenges in resolving disputes for the United Nations’ peacekeeping operations and his pivotal role in high-profile investigations across Kosovo and Lebanon. He offers a unique perspective on the role of alternative dispute resolution (ADR) within development finance institutions, reflecting on his tenure as General Counsel for the African Development Bank and as a judge at the World Bank Administrative Tribunal.

What inspired your transition from serving as a Justice of the Supreme Court of Uganda to focusing on mediation and arbitration?

I took early retirement from my position as Justice of Appeal on the Uganda Supreme Court in 1980 and joined the United Nations in 1981 after a year as Visiting Professor of International Law at Wayne University, in the USA. The United Nations, under Section 29 of the Convention on the Privileges and Immunities of the United Nations is obligated by virtue of its immunity from legal process, to make provision for “appropriate modes of settlement” of “disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.” Thus, as Senior Legal Officer in the United Nations, handling and resolving claims against and by the Organization, my principal responsibility included drafting dispute settlement clauses consistent with the Convention, offering to settle claims amicably or through mediation and, if not, through arbitration, as well as applying these clauses in all cases arising from UN contracting activities and its development cooperation and peacekeeping operations.

Given your role in resolving disputes in UN peacekeeping operations, what unique challenges do you encounter in mediating international disputes?

Main Challenges: The transition from my experience as an attorney and then a Judge in Uganda where almost all disputes are adjudicated (Uganda is a Common Law Country), was not easy. ADR has only been introduced in Uganda, formally, in the last 10 years, despite the fact that the majority of the people in Uganda traditionally resolve disputes through reconciliation and mediation, by clan elders and local chiefs. My first case at the United Nations was a claim by survivors of UN officials and experts that were killed while flying as passengers in a small aircraft owned by a state owned airline, that crashed on the way to the Capital City in the midst of a storm. The Government Aviation investigation determined that the aircraft was not airworthy and the pilot did not follow standard procedures in undertaking and operating the aircraft in the midst of a storm. Unfortunately, these findings enabled Lloyds, the airline underwriters, to deny liability or entertain any
claims arising from the accident. The UN sought to recover compensation from the airline directly but failed. Through private Counsel, the UN initiated a law suit in the Courts in Tanzania which was dismissed on the grounds that since the UN is immune, it cannot litigate in the local courts. It is at that juncture, after more than four years of trying informal negotiation, that I initiated resolution of the case through diplomatic intervention by the UN Secretary-General with the President of Tanzania. An offer was made by the UN to compensate the Survivors,from funds held by the UN for Tanzania, using the the standard compensation formula for victims of aircraft accidents under the rules of the Warsaw or Montreal Convent. The President of Tanzania accepted the offer and the survivors of the victims of the accident were compensated. I give this unique example to demonstrate the delicacy of resolving international disputes, especially when they arise from civil disputes. The other cases arising from the Kosovo and Lebanon investigations are too delicate to elaborate here but they were equally, if not more complicated, as individual Governments of which the personnel involved were citizens, were involved in espousing the claims of the survivors. The resolution of the claims after the investigations completed, were handled diplomatically at the highest level of the Organization and the Governments involved. The results of the investigations formed the basis of the eventual resolution of those disputes. The other claims and incidents I handled involved contractors supplying equipment or services to the United Nations in the peacekeeping missions. These were much easier to resolve, mostly through negotiations with the contractors and occasionally mediation followed by arbitration where no settlement was not reached. An example of one such complex cases was the destruction of Equipment ordered by the United Nations for its operations in the then Zaire at the port of Matadi during an insurrection. The equipment was to be delivered by a Japanese firm and the UN sought to recover against the Insurance coverage but this was not possible because of assessed force majeure. Mediation was conducted with the Company representatives without success. But the claim was eventually settled by the Company amicably through negotiations between the head of the company and the head of the UN Agency involved. In yet another case that ended tragically, I initiated negotiations to settle a claim by a contractor engaged to provide catering for the UN peacekeeping Mission in Somalia. Agreement was already reached but by the administration intervened insisting on arbitration. The UN lost the arbitration; however, by the end of the arbitration, the contractor was killed by his workers for failure to pay their wages.

You have played a key role in high-profile investigations such as in Kosovo and Lebanon. How have these experiences shaped your approach to international legal consulting?

My main takeaway from the high-profile investigations involving Governments is that diplomacy is key to resolving international claims. But diplomatic skill can also play a role in handling private disputes. Most recently, I was engaged by a UN Permanent Mission to handle a property dispute between the Permanent Representative of the Mission and a neighbour concerning an alleged encroachment over the boundary line dividing the Mission property occupied by the Permanent Representative and the neighbour. The neighbour sued in State Court, but the dispute was transferred at my request to Federal Court. There were at least two efforts at mediation at the District Court level
and one on Appeal, but on each occasion, the mediation failed because counsel for the neighbour insisted the Mission to renounce its privileges and immunities, a stand he was able to get the lower court and Court of Appeal to accept. This led to a default judgment rather than submit to litigation of the dispute, with the consequence of exposing the Mission to disclosure motions in violation of its immunities, in particular, the inviolability of the Mission official communication its premises and possible attachment of its property. I have, however, succeeded to resolve a dispute between another Mission with squatters on their property, through various approaches including threatened court action. My eventual experience is that while diplomacy, mediation and if needed arbitration, such as under ICSID, operates most successfully, on the international level, it is more difficult in private disputes, particularly when faced with opposing counselt more familiar with litigation.

As the former General Counsel of the African Development Bank, how do you view the role of ADR in development finance institutions?

ADR in Development Financial Institutions
There are two levels of dispute resolution in Development Financial Institutions. One level involves disputes between the Institution and its staff and the other involves disputes arising from the Institutions’ operational activities. At the African Development Bank, I was instrumental in establishing the AfDB Administrative Tribunal, which is now in its 27th year of operation. What is unique to this Administrative Tribunal is that Judges are selected from the most senior judicial officers and jurists from the Bank’s Member States. A former Chief Justice of Nigeria presided over the inaugural sessions, assisted by the Head of the Constitutional Court of Benin and a Senior Jurist from Egypt. The second tier of disputes, arising from the Bank’s operations, generally concern the Bank’s private sector operations, whereby the Bank extends loans to co-finance major development projects undertaken by private multilateral companies on Build, Operate,Transfer (BOT) basis. The projects, such as major bridges or highways, are transferred to the Recipient Government after operation by the company on a profit basis (tolls) to receive its investment. These operations give rise to disputes that would involve the Recipient Government and are best resolved through negotiation, mediation or submitted to arbitration. The arbitration of such disputes are almost always submitted to ICSID for resolution. ICSID is the International Center for Settlement of Investment Disputes, in which I serve as a Panel Member. On leaving the African Development Bank, I was appointed a Judge on the World Bank Administrative Tribunal based on my experience in the United Nations and at the African Development Bank. The Administrative Tribunals operate more like ADR than normal judicial adjudication through the Courts. Furthermore, in the last two years, I have chaired the Appeals Board of the International Renewal Energy Agency (IRENA), which involved two claims by staff against the agency. ICSID has been very effective in resolving State/Investor disputes which have increased in number due to the proliferation of Bilateral Investment Treaties that favour international arbitration, mostly through ICSID.

Throughout your career, how have you observed the evolution of ADR practices within international institutions?

ADR is the preferred mode for the resolution of disputes in International Organizations, especially through arbitration, under the auspices of Administrative Tribunals, the leading ones being the United Nations Disputes and Appeals Tribunals and the ILO Administrative Tribunal. These Tribunals have generated and accumulated legal principles on many aspects of Administrative Law and Labour Law, which, though not binding, serve as evidence of the way the constitutive instruments of such organizations are interpreted.

In my early years in the United Nations, I tried very hard to introduce a system that would enable staff to resolve their disputes amicably through negotiations or mediation, without success. It is my experience that by the time the relations between the staff and the administration mature into disputes, reconciliation or mediation becomes impossible. Thus, most of these disputes end up in arbitration before the Administrative Tribunal. ADR works more effectively to resolve private claims by individual contractors or parties, largely because the settlement of such disputes by mediation or arbitration is the only available remedy available to them given the immunity from legal process enjoyed by the Organizations. The United Nations has formalized the ADR process, short of arbitration, by offering UN contractors, especially in peacekeeping missions an opportunity to dispute non-selection for contracts through the Award Review Board and Vendor Review Committee. I serve on the Boards and the Committees of both and have assisted in resolving a number of such disputes through written legal opinions after reviewing the parties submissions. International Organizations work on limited budgets, and operate under close monitoring by the States Members of the Organizations. The Organizations thus find it difficult to settle claims or pay compensation without formal findings of fault by an established body, such as the Administrative Tribunal or in case of private contracts after review of the dispute and legal determination of fault by an independent body or anArbitrator. The Review Board and Review Committee serve a similar role. My experience is that ADR functions more effectively if the claimant can be offered a substantial payment in settlement of his/her claim. But payments in such cases become difficult for Organizations to justify unless ordered by a Tribunal or Arbitrator or after a formal legal review of the claim by an established body.