Principles - of - ADR - in Tanzania

ALTERNATIVE DISPUTE RESOLUTION
ADR
BY
MSWAHELA D. B., & MAKORI. L. M
August 2021.
i
ADR – Tanzania, 2021 Mswahela D. & Makori L
PRINCIPLES ON
ALTERNATIVE DISPUTE RESOLUTION
Writers: Daudi B. Mswahela., LLB Mzumbe University

Makori L. Makori., LLB Mzumbe University
Contributors: Paul S. Zachalia., LLB - Mzumbe University

Hakimu E. Mzopola., LLB - Mzumbe University
Contacts: 0653042143/0782909555/0766716404
0625551127/0743979370/0659852629.
Email: Daudymswahela@gmail.com
Lucasmakori94@gmail.com or
Edwardhakimu@gmail.com
Copyright ©
All rights reserved. No part of this manual may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording, or otherwise, without the prior written
permission of authors.
Mzumbe University, Tanzania - 2021.
ii
PREFACE
Alternative Dispute Resolution (ADR) is now considered to be an important
method of solving disputes in the society. In almost all cases, the principles of
Alternative Dispute Resolution are invoked in one form or the other. Thus,
Alternative Dispute Resolution has not only arrived but has come to stay.
This manual is essentially meant for LLB students around all Universities in
Tanzania. Our humble attempt in writing this manual is to present
fundamental principles of Alternative Dispute Resolution as they have been
developed through the judicial process.
We have gone through the standard books on the subject. Also, we studied
leading English, American and Indian Textbooks, Journal Articles, Cases and
have tried to state and explain the well-established principles clearly, lucidly
and precisely.
We have also taken care to see that the manual will become useful to all
academic activities around Tanzania and even abroad. Considering the recent
trend of matters, amendment of laws considering the enactment of the
Arbitration Act of 2020 as well as the emanated new principles of Alternative
Dispute Resolution.
ACKNOWLEDGEMENT
First and fore most we thank God, the Almighty for his endless blessings; and
also, we are express our heartfelt appreciation to the Mzumbe University
Faculty of Law and all people who have contributed in preparation of this
Manual either by sharing ideas, views, thoughts or material supports.
We are indebted to a great number of people who aided us in one way or

another to write this Manual. We would have to fill in at least ten pages to
squeeze all their names in. Hopefully, they will not feel offended for not
mentioning their tireless support and encouragement.
Thank you all and may God bless you.

iii
ABSTRACT
This Manual written purposely to present general overview of the Principles of
Alternative Dispute Resolution in Tanzania. Two main motives encouraged
authors to write this manual. The first reason is the scarcity of literature on
Alternative Dispute Resolution in Tanzania, despite the fact that ADR was
formally incorporated in the country’s civil procedure and practices since.
The second reason is the enactment of the new arbitration Act of 2020 which
come into operation January 2021, the new Act incorporates various rules that
actually shaped well the face of voluntary arbitration in Tanzania. Due to that
it was potential to give out those rules that have been incorporated therein.
Therefore, this manual contains various topics which covers matters related to
Alternative Dispute Resolution at National as well as International level.
iv
LIST OF LAWS
CONSTITUTION
The Constitution of the United Republic of Tanzania, 1977.
LOCAL STATUTES
The Arbitration Act, No. 02 0f 2020.
The Civil Procedure Code Act, [Cap 33 R:E 2019].
The Employment and Labour Relations Act [Cap 366 R:E 2019].
The Evidence Act [Cap 6 R:E 2019].
The Labour Institutions Act [Cap 300 R:E 2019].
The Law of Marriage Act, Cap. 29 [R.E 2019].
The Tanzania Investment Act of 1997.
The Ward Tribunals Act of 1985 [Cap 206 R.E 2002].
REGULATIONS
The Arbitration (Rules of Procedures) Regulations, G.N No. 146 published on
29/1/2021.
The Code of Conduct and Practice for Reconciliators, Negotiators, Mediators

and Arbitrators Regulations, G.N No. 148 Published on 29/1/2021.
The Reconciliation, Negotiation, Mediation and Arbitration (Practitioners

Accreditation) Regulations, G.N No. 147 Published on 29/1/2021.
The Tanzania Arbitration Centre (Management and Operations) Regulations,

G.N No. 149 published on 29/1/2021.
INTERNATIONAL INSTRUMENTS
Convention on the Recognition and Enforcement of Foreign Arbitral Awards of
1958.
Geneva Protocol of 1923 and Geneva Convention 1927.
United Nation Commission on International Trade Law Model Law of 1985.
v
Rules of Arbitration of the International Chamber of Commerce, came into force
on 1st January 1998.
UNCITRAL Arbitration Rules on Arbitration, UN Resolution 31/98, adopted by

the UN General Assembly on 15th December 1976.
FOREIGN STATUTES
The English Arbitration Act, 1996.
The Swedish Arbitration Act 1999.
vi
LIST OF CASES
LOCAL CASES
Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. (P) Ltd. & Ors.
(2010) 8 SCC.
African Construction Co. Ltd vs. The Ministry of Agriculture, Food security and
Cooperatives, Miscellaneous Commercial Case No. 42 of 2006,
(unreported).
Ashak Kabani & Another vs. Ayisi Makariani & seven (7) Others High Court of
Tanzania (Commercial Division) at Dar es Salaam, Commercial Case No
265 of 2001 (Unreported).
Azania Bancorp Ltd. vs Frederick Oldenburg, High Court of Tanzania at Dar es

Salaam, Civil Case No. 234 of 2001 (Unreported).
Dispute between Torgindi of Mba Yar and Mtswen of MbaGishi, 1950.
CRDB Bank Ltd. vs. Seif Ahmed Sharji, High Court of Tanzania at Mbeya, Civil
Case No. 11 of 2002 (Unreported).
D.B. Shapriya & Co. Ltd. vs. Bish International BV, (No 2) [2003] 2 East Africa
Law Rep 404 (HCT).
David N. Mushi vs. Joseph Massawe, High Court of Tanzania at Dar es Salaam,
Civil Case No. 109 of 2001 (Unreported).
Fahari Bottlers Ltd & Another vs. Registrar of Company & Another, (2000) TLR
102.
G.K. Hotels Limited & Resort (Pty) vs. Board of Trustees of the Local Authorities
Provident Fund Misc. Civil Cause No. 1 of 2008 (High Court Commercial
Division) (unreported).
Kigoma/Ujiji Municipal Council vs. Nyakirang’ani Construction Ltd

Miscellaneous Commercial Cause No. 239 of 2015, (unreported).
vii
Kimbute Otiniel vs. The Republic Court of Appeal at Dar es Salaam Criminal
Appeal No. 300 of 2011.
Legal and Human Rights Centre & 3 Others vs. Dowans Tanzania Ltd. & 2
Others, High Court of Tanzania at Dar es Salaam, Misc. Civil Application
No. 8 of 2011 (Unreported) [Ruling dated 6th September 2011]. p. 43.
Mandani vs. Suchale, (1971) HCD No. 10.
Mvita Construction Co. vs. Tanzania Harbours Authority Court of Appeal of

Tanzania at Dar es Salaam, Civil Appeal No. 94 of 2001 (Unreported).
Rex vs. Palamba s/o Fundikira 14 E A C A 96 (Tanganyika, 1947).
Shamji vs. Treasury Registrar Ministry of Finance, [2002] 1 EA 273.
Tanzania Cotton Marketing Board vs. Cogecot Cotton Company Sa,1997 TLR
165 (CA).
Tanzania Electric Supply Co Ltd vs. Dowans Holding SA (Costa Rica) & Dowans
Tanzania Ltd (Tanzania) HC of Tanzania at DSM, Misc. Civil Application No
8 of 2011 (Unreported).
Tanzania Motor Service Ltd and Presidential Parastatal Sector Reform

Commission vs. Mehar Singh t/a Thaker Singh, Civil Appeal No. 115 of
2005.
The Kadume’s Case.
Travelport International Ltd vs. Precise Systems Ltd, Misc. Commercial

Application No. 359 of 2017.
Vodacom Tanzania Limited vs FTS Service Limited Civil Appeal No. 14 of 2016.
Wembere Hunting Safaris Limited vs. Registered Trustees of Mbomipa

Authorized Association, Commercial Case No. 40 of 2013 (High Court
Commercial Division-DSM) (unreported).
viii
FOREIGN CASES
Central Asbestol Co vs. Dodd, (1972) 3 WLR 333.
Champsey Bhara & Co. vs. Kuvraj Ballow SPG & WVG Co. Ltd (1923) AC 480.
Dr. Bonham vs. Cambridge University (1610) 8 Co. Rep. 113 h: 77 ER 646.
F.R. Absalom Ltd. vs. Great Western (London) Garden Village Society [1933] AC
592.
Harbour Assurance Company (UK) vs. Kansa General International Assurance
Company Limited [1993].
Heyman vs. Darwins Ltd [1942] A.C 374-375.
Kelly vs. Tri Cities Broadcasting (1983) 147 CA 3d 666.
Melchor Investment Co. vs. Rolm Systems (1992) 3 CA 4th 587.
Prima Paint Corporation vs. Conklin Manufacturing Co [1967] 338 US 395.
Publicis Communication vs. True North Communications 206 F.3d 725 (2000).
Spiliada Maritime Corp vs. Consulex Limited, [1987] AC 640.
Taylor & Son Ltd. vs. Barnett Trading Co (1953) 1 WLR. 563.
The Government of the State of Kuwait vs. The American Independent Oil
Company (1984) ILR 518.
Werner vs. Hendricks (1936) 121 Pa. Super. 46.
ix
TABLE OF CONTENTS
PREFACE.................................................................................................................... iii
ACKNOWLEDGEMENT ............................................................................................... iii
ABSTRACT.................................................................................................................. iv
LIST OF LAWS ............................................................................................................. v
CONSTITUTION ........................................................................................................... v
LOCAL STATUTES ....................................................................................................... v
REGULATIONS ............................................................................................................ v
INTERNATIONAL INSTRUMENTS ................................................................................. v
LIST OF CASES ......................................................................................................... vii
LOCAL CASES ........................................................................................................... vii
FOREIGN CASES ........................................................................................................ ix
TABLE OF CONTENTS ................................................................................................. x
CHAPTER ONE ...........................................................................................................1
INTRODUCTION TO THE ALTERNATIVE DISPUTE RESOLUTION ............................1
1.0 Introduction...........................................................................................................1
1.1 What is hidden by the Acronym “ADR”? .................................................................2
1.2 Meaning of Alternative Dispute Resolution .............................................................3
1.3 Forms of Alterative Disputes Resolution Systems ...................................................5
1.4 History of Alternative Disputes Resolution .............................................................6
1.5 The Need for Alternative Dispute Resolution ........................................................ 14
1.6 Revival of Alternative Dispute Resolution (ADR) ...................................................16
1.7 Alternative Disputes Resolution in Tanzania ........................................................ 20
1.8 The Need for ADR In Tanzania Antique Point of View ...........................................23
1.9 Situations where Alternative Dispute Mechanisms will not be Applicable .............26
1.10 Challenges in Practicing ADR in Tanzania ......................................................... 30
1.11 Benefits of Alternative Dispute Resolution ......................................................... 30
x
CHAPTER TWO .........................................................................................................32
NEGOTIATION AND CONCILIATION ........................................................................32
2.0 Introduction.........................................................................................................32
2.1 Conciliation as Method of Alternative Dispute Resolution ....................................32
2.1.1 Meaning of Conciliation ....................................................................................32
2.1.2 Main Features of Conciliation ...........................................................................33
2.1.3 Conciliator ........................................................................................................33
2.1.4 Main features of conciliator ...............................................................................33
2.2 Negotiation as Method of Alternative Dispute Resolution .....................................34
2.2.1 Meaning of Negotiation ..................................................................................... 34
2.2.2 Distinctive Attributes of Negotiation as a Means of Dispute Resolution .............35
2.2.3 Competitive and Integrative Models in Negotiation ............................................38
2.3 Negotiation Approaches ....................................................................................... 40
2.4 Principles Governing Negotiation .........................................................................41
2.5 Negotiation Skills .................................................................................................44
2.6 Duration of Negotiation / Conciliation made under CPC ......................................47
2.7 Conclusion of An Agreement and its Legal Consequences ....................................47
CHAPTER THREE .....................................................................................................49

MEDIATION ..............................................................................................................49
3.0 Introduction.........................................................................................................49
3.1 Meaning of Mediation........................................................................................... 49
3.2 Forms of Mediation .............................................................................................. 51
3.3 The Advantages of Mediation ...............................................................................52
3.4 Positive Results of Mediation ...............................................................................55
3.5 The Role of the Mediator ...................................................................................... 56
3.6 Skills and Tools of a Good Mediator .....................................................................56
3.7 The Problems that the Mediator Attempts to Resolve ...........................................57
3.8 Techniques and Strategies ...................................................................................57
xi
3.9 Models and Approaches to Mediation ...................................................................58
3.10 Steps of Mediation ............................................................................................. 62
3.11 Problems Encountered in Mediation ..................................................................63
3.12 Psychological Issues .......................................................................................... 64
3.13 Duration of Annexed Mediation..........................................................................65
3.14 End of Annexed Mediation and Powers of Court .................................................65
CHAPTER FOUR .......................................................................................................66

DOMESTIC ARBITRATION ....................................................................................... 66
4.0 Introduction.........................................................................................................66
4.1 Meaning and Scope of Domestic Arbitration ......................................................... 68
4.1.1 Meaning of Arbitration ...................................................................................... 68
4.1.2 Kinds or Categories of Arbitration .....................................................................70
4.1.3 Importance or Advantages of Arbitration ........................................................... 72
4.1.4 Dis-advantages of Arbitration ...........................................................................73
4.1.5 Advantages of a Lawsuit over Arbitration .......................................................... 74
4.1.6 Disadvantages of a Lawsuit over Arbitration ..................................................... 75
4.1.7 The Law governing Arbitration in Tanzania ....................................................... 77
4.1.8 Tanzania’s Compliance with International Arbitration Law ............................... 83
4.2 The Arbitration Agreement ...................................................................................85
4.2.1 Mandatory Requirement to Refer the Proceeding to the Arbitral Tribunal ..........88
4.2.3 Doctrine of Separability of the Arbitration Agreement .......................................90
4.2.2 Stay of Legal Proceeding ...................................................................................93
4.2.3 Death of One Party in the Arbitration Agreement ..............................................99
4.2.4 Matters referable to arbitration ....................................................................... 100
4.3 Arbitral Tribunal ................................................................................................ 100
4.3.1 Appointment of arbitrator and procedural issues ............................................ 101
4.3.2 Default to appoint sole arbitrator .................................................................... 104
4.3.3 Qualifications of an arbitrator ......................................................................... 104
xii
4.3.4 Acceptance of appointment as arbitrator (s) .................................................... 108
4.3.5 Jurisdiction of Arbitral Tribunal ..................................................................... 109
4.3.6 Challenging and changing of arbitrator ........................................................... 112
4.3.7 Immunity of Arbitrators .................................................................................. 114
4.4 Arbitral Proceedings ........................................................................................... 115
4.4.1 General duty of Arbitral Tribunal .................................................................... 116
4.4.2 Commencement of Arbitral Proceedings .......................................................... 116
4.41.3 Limitation of Time in filing Arbitral Proceeding.............................................. 117
4.4.4 Conduct of Arbitral Proceedings ...................................................................... 117
4.4.5 Language of arbitration ................................................................................... 124
4.4.6 Consequence for non-appearance of one party ................................................ 125
4.5 Impartiality in Arbitration .................................................................................. 125
CHAPTER FIVE....................................................................................................... 127

FINALITY, RECOGNITION AND ENFORCEMENT OF AN ARBITRAL AWARDS ..... 127
5.1 Introduction....................................................................................................... 127
5.2 The Arbitration Awards ...................................................................................... 128
5.3 Effects of Arbitral Award .................................................................................... 128
5.4 Difference between “Orders” and “Awards” ......................................................... 130
5.5 Forms of arbitral award (formality)..................................................................... 131
5.6 Types of Awards ................................................................................................. 132
5.7 Grounds for challenging an Award ..................................................................... 136
5.8 Procedure in Challenging an Arbitral Award ...................................................... 141
5.9 Remedies Available in Challenging an Arbitral Award ........................................ 142
5.10 Remedies, Interests and Costs for Arbitral Award ............................................ 143
5.11 Enforcement of Domestic Arbitral Awards ........................................................ 145
5.12 Grounds for Refusing Recognition and Enforcement of an Award .................... 147
5.13 Filing of Arbitration Award ............................................................................... 148
xiii
CHAPTER SIX ......................................................................................................... 150
INTERNATIONAL COMMERCIAL ARBITRATION ................................................... 150
6.1 Introduction....................................................................................................... 150
6.2 Complexity of legal regime / Complex interaction of laws ................................... 150
6.2 Agreement to Arbitrate under International Perspective ..................................... 151
Law applicable to the arbitration agreement ............................................................ 151
6.3 Law Applicable to the Arbitration Proceedings ................................................... 154
Law Governing the Arbitration ................................................................................. 155
6.4 Law applicable to the substantive merits of the dispute ..................................... 157
6.5 Delocalization and Territoriality ......................................................................... 160
6.5.1 Arguments Favoring Delocalization ................................................................. 161
6.5.2 Arguments Opposing Delocalization ................................................................ 162
6.6 Sports Arbitrations ............................................................................................ 163
6.7 Recognition and enforcement of foreign awards ................................................. 164
6.8 Grounds for Refusing the Recognition and Enforcement of Arbitral Award ......... 166
REFERENCES ......................................................................................................... 169
xiv
CHAPTER ONE
INTRODUCTION TO THE ALTERNATIVE DISPUTE RESOLUTION
1.0 Introduction
Conflicts among human beings are as old as life itself. From the time we began
to work and socialize with other people we have had to learn how to resolve
conflict. Using approaches ranging from negotiation to problem solving among
Tanzania societies. Indeed, our degree of success in dealing with the conflicts
inevitable to human interdependence is one mark of our success (or not) in
archiving an advanced civilization.1
Conflict resolution can be solved through the processes of negotiation,

mediation and arbitration which has become an acceptable and, indeed,
inevitable part of creative lawyering in the 21st century. That explains why all
self-respecting law schools now provide for skills training in the field of
Alternative Dispute Resolution (ADR) as part of their core offerings.2
Stuart Hampshire (the philosopher) has suggested that while we will never
reach agreement about the substantive good in our culturally and politically
diverse world, we can come close to achieve human universal value by
committing to procedural fairness. Thus, we have developed law, legal
institutions, and other procedural mechanisms so as to try regulating our
conflicts or potential conflicts with one another.3
Today, ADR processes are being applied worldwide to a universality of

situations hitherto governed by either litigation or, in extreme cases, by warfare
between nations.
1 In Striving to deal with our differences as to values, opinions, and means we often have
focused on trying to establish fair process to resolve these differences.
2 At Mzumbe University ADR is one among of the core courses offered in the third year of
studies.
3 Both substantive law and legal process are modes of conflicts resolution. These processes
include Judiciary, legislature and executive entities but also traditional legal institutions are
one among of the institution used to resolve conflicts between its personnel.
1
Obvious examples of such situations are in the areas of international peace
and world order, environmental and public policy, science and technology,
sports, social development and community-related issues, crime control and
prevention, schooling, restorative justice and the family. To this list may be
added the more traditional areas such as commercial contracts, employment,
labour relations and insurance.4
1.1 What is hidden by the Acronym “ADR”?

The word "alternative" can be extremely deceptive. An alternative to what? to
court proceedings or to other dispute resolution processes or merely, a choice
of optional processes? So too, the intricate meaning of the word "dispute" could
be glossed over. What type of dispute? A legal dispute or a dispute that is as
yet in need of transformation or in stages of transformation?
"Resolution" has a number of technical meanings relating to the quality of an

outcome. As an acronym, "ADR" could be used, glibly, encouraging rhetoric if
the deeper meaning of the represented words is not analyzed and critically
evaluated. Although the acronym "ADR" is used throughout this manual; this
should not be misconstrued as a cosmetic treatment of the subject. Indeed, the
themes of this manual can be reduced to an analysis of the words “alternative
dispute resolution”, used both separately and in combination.
The word “alternative” is rich in meaning, going to the core of the system of
ADR, drawing out its principles and forming its theoretical grounds. A starting
point is to be found in the dialectic. ADR processes are placed in a
dichotomous relationship with court proceedings. The theory rests on an
oversimplified logic; all ADR processes are alternatives to the process of
litigation; therefore, all ADR processes are by definition non-litigious. The
result is extremely restrictive for no valid system of theory can be constructed
on a negative theorem. The flaw lies in the use of the dichotomy as a model for
4 Fiadjoe, A., Alternative Dispute Resolution: A developing World Perspective; Cavendish

Publishing Ltd: London, 2004.
2
reasoning. Once the exaggerated absolutes inherent in the dichotomy are
detected, its importance diminishes. Yet, the dichotomy does serve a useful
purpose, at least initially, since the counterbalancing of various processes
establishes the basis for developing a classification of these processes.5
In contradistinction to the process of litigation, ADR is founded on three

primary processes: negotiation, mediation and arbitration. Prior to the
development of ADR, there was no special connection between these processes
nor are they original. to ADR. Each existed separately and independently until
appropriated by ADR when they became functionally associated with each
other under its auspices.
An unlikely coalition in a practical setting, yet coordinated within the system of

ADR, the first tentative steps at coalescing these processes into some sort of
coherent processual system were taken. An initial approach classifies the
primary processes on the basis of their functional characteristics in respect of
each other and in regard to the process of litigation.
Evaluation based on the characteristics of the primary processes is useful yet

limited in its potential to develop theory because only instrumentalist criteria
are applied, which can progress no further than mere comparisons of the
advantages or disadvantages of using a particular process. This work
introduces the form of process as an additional dimension and combines form
with the function of process.
1.2 Meaning of Alternative Dispute Resolution

It is regrettable that the phrase Alternative Dispute Resolution has come to
define the growing movement of favor of alternative options. Almost necessarily,
the phrase suggests that, disputes should be resolved by an alternative to
court litigation. Appropriate dispute resolution or active dispute resolution
more properly would describe a dispute resolution culture that recognizes the
5 Fiadjoe, A., Alternative Dispute Resolution: A developing World Perspective. Op. Cit.
3
need to consider the client’s objectives in every case and to develop a strategy
designed to accomplish those objectives.6
The term Alternative Dispute Resolution includes, in narrow sense only those
process in which the decision finally arrived at is with the consent of the
parties, namely negotiation, mediation, as well as conciliation in which parties
retain their freedom to decide the outcome of their dispute. The conciliator or
mediator does not himself decide the dispute, he facilitates its resolution and
helps the parties in identifying the common ground that has so far eluded
parties.7
In wider sense ADR includes arbitration also along with negotiation, mediation
and conciliation- because arbitration constitutes an alternative to litigation
however arbitration contemplates an imposed decision. As arbitration process
settles the disputes outside the court it is considered as ADR, as it brings the
parties to the negotiating table, identifying problems, establishing facts,
clarifying issues, developing the point of settlement and ultimately solving the
disputes through award which is binding on the parties.
Whatever the phrase used to describe the alternatives, it is important to

consider all of the opinions in every case, including negotiation, litigation,
arbitration, mediation and other non-traditional options. Moreover, this
alternative should not be regarded as mutually exclusive. In some
circumstances, for example, a focused litigation strategy can promote a
favorable outcome in mediation and provide a forum in the event a mediation is
unsuccessful. mediation, conciliation, and arbitration.8
6 Picker.B.G., (2005). Mediation Practice Guide: A handbook for Resolving Business Disputes, 2nd
Ed: American Bar Association: United States of America, p.7.
7 Mnyeni.S.R., (2005). Arbitration, Conciliation and Dispute Resolution Systems; Asia Law
House: India, p.10.

8 Kimei, M.C., “Alternative Schemes for Resolving Banking and Financial Disputes.” The
Tanzania Lawyer. Vol. 1 No. 2, 2012, pp. 46–71, p. 54. See also Street, L., and “The Language
of Alternative Dispute Resolution.” Alternative Law Journal, Vol.66, 1992.
4
Alternative Dispute Resolution sometimes is called Non-Binding Process
though there some process that are binding including Court Annexed
Mediation.9 ADR is non-binding when its typically private and when fails it is
when non the binding process of ADR take place.
1.3 Forms of Alterative Disputes Resolution Systems

The history of law involves a longstanding relationship between private and
public power. This relationship has evolved considerably, perhaps even taken a
change in direction, since the emergence of the alternative dispute resolution
movement in the 1970s. During that period, and despite deep differences in the
nature of public and private dispute resolution, the two have formed a marriage
of sorts with the institutionalization of ADR in courts and the adoption of ADR-
like techniques and procedures by judges.10
Though ADR evolves the private’s system of solving dispute, considerably we

have two forms of ADR mechanisms, that is to say, there is Private system as
well as Public System.11
1.3.1 Private System

Private ADR is the form of ADR that is actually not formalized but parties use
the system either knowingly or blindly. This kind of ADR is common in our
societies and it is used to solve minor conflicts between parties.
Private ADR solves interoffices conflicts, Matrimonial conflicts as well as

interpersonal conflict by involving third party(ies) or through parties in conflict
themselves.12
9 Take note that, Excluding Arbitral award other decisions arising out of ADR are not binding
and the process itself is non-binding, that is to say is not mandatory to go for ADR except when
parties wishes to do so. Although when issues like Marriage Conciliation Board, Commission
for Mediation and Arbitration as well as Court Annexed Mediation comes, parties are bound.
10 CATHCART, C., 2013. No Sunlight, No Shadow: Seeking the Rule of Law in Mediation and
Ombudsman Schemes. MSc dissertation, Strathclyde University.

11 CATHCART, C., 2013. No Sunlight, No Shadow: Seeking the Rule of Law in Mediation and
Ombudsman Schemes. MSc dissertation, Strathclyde University.

5
1.3.2 Public System
Public System are those formalized system of ADR.13 Public system has been
formalized in the sense that, they are recognized by the law and any part could
use them. Example of Public system ADR is Court Annexed Mediation as well
as Arbitration.14
1.4 History of Alternative Disputes Resolution

It is contended that, ADR has been existed long time ago even before the birth
of Jesus Christ.15 ADR has been in used since King Solomon, as to biblical
theory 990 B.C.16
King Solomon is regarded as one of the most famous practitioner of dispute

resolution. He was born in 990 B.C, as successor to his Farther David. Was the
King of Israel from 970- 93 B.C. He was attributes as the author of the books of
Proverbs and Ecclesiastes. When God asked him if he wished to be given
wisdom, wealth or longevity, he chose wisdom. King Solomon was given many
opportunities to utilize his wisdom.
The Story of the Twice-Claimed Baby
12 Picker.B.G., (2005). Mediation Practice Guide: A handbook for Resolving Business Disputes,
2nd Ed: American Bar Association: United States of America,
13 Bockstiegel H. K., “Past, Present, and Future Perspectives of Arbitration”, Arbitration
International, Vol. 25, No. 3, (2009).

14 Ibid.
15 Jesus Christ was Born 2020 years ago.
16Ventola, S (2018) Profiles in Dispute Resolution-King Solomon retrieved from
www.https://ventolamediation.com on 10th August 2021.
6
The story is recounted in 1 Kings 3:16-28. Where two young women who lived
in the same house and who both had an infant son came to Solomon for a
judgment. One of the women claimed that the other, after accidentally
smothering her own son while sleeping, had exchanged the two children to
make it appear that the living child was hers. The other woman denied this and
so both women claimed to be the mother of the living son and said that the
dead boy belonged to the other.
After some deliberation, King Solomon called for a sword to be brought before
him. He declared that there was only one fair solution: the live son must be split
in two, each woman receiving half of the child. Upon hearing this terrible verdict,
the boy's true mother cried out, “Oh Lord, give the baby to her, just don't kill
him!” The liar, in her bitter jealousy, exclaimed, “It shall be neither mine nor
yours—divide it!”
Due to that, King Solomon declared the first mother as the true mother, as a
true, loving mother would rather surrender her baby to another than hurt him,
and gave her the baby.17 King Solomon’s judgement become known
throughout all Israel and was consider an example of the profound wisdom.18
Apart from that, ADR has a long tradition in many of the world societies dating
back to 12th Century in China, England and America.19The Ancient traditional
societies around the world used ADR as a means of solving disputes, and for
Africa it was done before the invasion of colonialists. In such regards evidence
and practice shows that, ADR was common among the societies.
17 Philip II, the father of Alexander the Great, also utilized arbitration to settle territorial
disputes stemmed from a peace treaty with southern states of Greece in 337 B.C. ago. Later,
arbitration had played a significant role throughout the Babylonian days, Greeks, Egyptians,
Romans, England, and Indians. Arbitration, for the first time, used to solve commercial
disputes in the Babylonian days
18The expressions "splitting the baby" or "cutting the baby in half" are sometimes used in the
legal profession for a form of simple compromise: solutions which "split the difference" in terms
of damage awards or other remedies (e.g. a judge dividing fault between the two parties in a
comparative negligence case).
19 Sheffield, W and Rao, P.C (Eds), (1996). Alternative Dispute Resolution; Universal Law
Publishing Co. Pvt Ltd: New Delhi,India.

7
The modern system of ADR is believed to emanate from the African tradition
systems of adjudication. The origin of ADR is said to be USA but USA only
developed its ADR system through studying of the African Customary systems
of dispute settlement and from the tribes of USA. Gulliver in his book Social
Control in an African Society (1963) writes of the Arusha. He described about
mediation which was existed in Africa during pre-colonialism. African tribes
mainly adopted mutual reconciliation. The parties were encouraged to reconcile
amicably.
The following is an example of a dispute in which the conflicting parties had

negotiated strongly against one another. In this instance the disputants were
members of the same inner lineage: each attempted to use the cause of
continued lineage unity and the value of the restoration of agnatic cooperation
as a lever against the other. Let us now discuss the dispute.20
The Kadume’s Case

The Kadume dispute concerned land. It was a dispute between Kadume –
Makara’s son, and Soine-MAkara’s half-brother. Both Kadume and Soine took
advantage of the inner lineage of Mesuji. They therefore aimed at restoring the
agnatic cooperation established by Mesuji.21
Kadume's mother had separated from Makara ten years before the dispute
arose. She took her son Kadume and went to live in her brother's home-
Kadume's uncle. Makara's life depended on his half brolher-Soine and Soine's
wife. On the death of Makara, Soine took Makara's land. Kadume got married
and was given two heads of cattle and three goats from the estate of Makara.
Kadume agreed with Soine that Kadume herds would graze at 'Makara's
paddock. Kadume was therefore accepted as one of the members of the inner
lineage.
20 R. V. Makaramba., “Legal Method Patr Two.” Open University. At p, 36.

21 Ibid.
8
One year after the grazing agreement, Kadume claimed possession of illl of his
father's land. Soine refused and a quarrel ensued between them. soine barred
Kadume altogether from grazing his herd in Soine's paddock. Kadume went to
the lineage counselor to present his case.
The lineage counsellor convened the inner conclave of the inner lineage.
Further quarrels ensued and the inner conclave failed to reconcile the
disputants. Soine argued that Kadume has no right over the land because he
had not cultivated it. Soine further argued that since the time Kadume's
mother deserted her husband Makara, Soine had been looking after Kadume
and that Kadume has already acquired land in his uncle's farm while Soine has
got only a small plot of land. The lineage counsellor decided in favor of Soine.
Kadume was aggrieved with the decision and insisted that the lineage
counsellor should convene the internal moot.
At the internal moot Kadume was represented by Kirevi. Kirevi argued that
Kadume was the only adult son of Makara and because he was now a big man-
olokitok, and had inherited Makara's animals, he should also inherit the land.
Soine reiterated his former position and advanced the same arguments he had
presented at the conclave of the inner lineage and emphasized that he had
shortage of land, so he should take the disputed land. Kadume cautioned that
in principle “Brothers do not inherit, sons do. That is a custom of long ago.”
Soine answered back, “Not always.”
Kirevi stood up and advanced three principles:22

(1) That Soine in refusing to give the land to Kadume was going against
established customs of the ancestors,
(2) That Soine must honour the young generation for they will not
honour him when he is dead, and

9
(3) That Kadume having come of age should be given full responsibility to
look after his own life.
These arguments met with approval from among the members with a word by
the lineage counselor that sons should honour their elders irrespective of what
wrong the elders do to them. This was further reinforced by Olamal, Kadume’s
paternal cousin that Kadume should be given responsibilities as a full and
grown up member of the family and that norms should be honored.23
The internal moot finally reached a conclusion after examining all the evidence
and relevant facts and divided the land into two in which both Kadume and
Soine got a share. The internal moot retired for beer in a cordial way and
members congratulated each other for the final settlement of both makara’s
inheritance matters and the land dispute.24
Drumming the Scandle

This dispute ensued in 1950 between Torgindi of Mba Yar and Mtswen of
MbaGishi. Both were of the lineage contained within MbaDuku. Mtswen who
was the secondary marriage guardian of the wife of Torgindi's son, was accused
of highhanded tactics that caused the marriage to fall through. Mtswen refused
to act as an intermediary to get Torgindi's bride wealth refunded. Torgindi and
Mtswen therefore exchanged harsh words.25
Torgindi went home and sung a song in which he said that Mtswen was a
skunk. During the night, Torgindi drummed and sang the song as loud as he
could for the whole countryside to hear. Mtswen, who lived only a quarter a
mile away, did the same the next night and all the members of his compound
and other compounds of his lineage joined in the chorus.
Mtswen had not made up a song of his own against Torgindi, but was not a
good songmaker. He hired the best songmaker in Sangev Ya to stay at his place

24 Ibid.
25 Ibid, at p, 40.
10
and compose scurrilous songs about Torgindi and all his kinsmen and wives.
Torgindi's inventiveness was also exhausted so he too hired a songmaker. The
two men held dances and song contests every night. Each brews beer and
made food in order to attract dancers to come to dance and sing songs directed
at the other.
There was a specific rule for these songs that:26
If an act attributed in such a song was possible of human performance, it

should be true, or the slandered person could call a jir (a kind of supernatural
powers). However, if the act was not humanly possible anything could be said.
For example, in one of Mtswen's songs, he accused one of Torgindi's wives of

stealing yams. The particular wife mentioned in the song was of the Udem a
tribe of reputed thieves so by local consensus, this was probably true. If not
true, Torgindi and his wife could call a jir against Mtswen and the songmaker.
In another song Mtswen told how Torgindi changed himself into a pig at night
and made it unsafe for every sow in the countryside. Torgindi could not
actually do that hence such song could not be the basis for a jir.
The Sangev songmaker had actually thought of some much worse things to
suggest that it was in Torgindi's nature to do but Mtswen had stopped him
because what he wanted was to win the content and not to spoil Torgindi's
heart permanently as they were after all neighbors.
The drumming contest continued every night for more than three weeks before
the mbatarev (village elder) one Change took notice. Change decided that if the
contest was allowed to continue as such it will end up into a fight for which he
himself would be answerable to the District Officer. Change made a note to
both Mtswen and Torgindi that they and their people were to come to his
compound the following afternoon, and both would sing and drum and he
Change, as the mbatarev would decide the case.
26 R. V. Makaramba., “Legal Method Patr Two.” Open University. At p, 40-1.

11
Both sides came fully prepared. Torgindi's group dragged a large drum for two
an a half miles in order to accompany their songs and dances. Mtswen song
maker and one of his sons hurried across to Udam and bought two small
wooden figurines of the sort the Udam people use in divination a small black
male and a large red painted female. The black represented Torgindi who was
small and a very black man and the red was his wife who was tall, fat and light
coloured. These figurines were tired together at the top of a long pole in a
somewhat compromising position and were waved frantically in
accompaniment to all the songs.27
Mbatarev walked back and forth between the two performing groups, noting
the performers and the songs. After two hours he called for attention and said
that they would now hear the jir. Torgindi began his story. The man carrying
the two figurines put them up in the air and waived them. a roar of laughter
followed. Change took the figurines from the offender and put them under his
chair until the hearing was over.28
Both parties concurred in the judgment. Mbatarev announced the winner of

the song contest. Torgindi won the case and Mtswen had the better songs. He
then advised both songmakers to go home immediately and not to return to
MbaDuku for a couple of months until the feelings which had been aroused
had died down.29
Ordeal
Rex vs. Palamba s/o Fundikira30
This was a trial by ordeal to discover who had by witchcraft caused the death
of the eleven children of the first appellant in this case. The two appellants
were jointly charged in the High Court of Tanganyika at Kigoma and were
27 R. V. Makaramba., “Legal Method Part Two.” Open University. At p, 41.

28 Ibid, at p, 42.
29 Ibid.
30 14 E A C A 96 (Tanganyika, 1947)
12
found guilty of the murder of a woman one WarnIunda d/o Kulyungumba, the
senior wife of the first appellant.31
The two appellants went to a traditional medicine man (jujuman), a six hour
journey, to get certain traditional medicine called by the witness “MWAVI.” The
traditional medicine man had since died. The MWAVI is a medicine
(mtisharnba) used by witches. If a person takes it and he has done something
wrong he will die, whereas if a person takes it and he or she has not done
anything wrong, he or she does not die but only vomits.
Four women of the family of the appellant were compelled to take this
"medicine" and to swallow large quantities of water. A certain amount of
formality was being observed during the swallowing, with the first appellant
presiding with a gun and intimating that anyone refusing to take the
"medicine" would be shot. Of the four women who took the "medicine", two
vomited and survived; the two older women did not vomit and they died. All
four women were in good health before the administration of the "MWAVI".
The body of Wamulanda to whom the murder charge relates was apparently
burnt after death so no post-mortem examination could be made to ascertain
scientifically whether she had died as a result of taking MWAVI or not. Except
that MWAVI was administered to each woman by mouth in powder form on the
of a knife there was no evidence at all as to what would constitute a fatal dose
of MWAVI, so no proper proof that the woman died as the result of the dose of
MWAVI given to her. Even on hearsay evidence MWAVI according to local lore
of itself is not a fatal poison-it requires, in order to be fatal, an additional
element, namely the guilt of the person taking it, that is, guilt of witchcraft.32
So far as the court was concerned, Wamlunda was innocent of witchcraft for it
does not exist. On this basis, the first appellant ex-hypothesis, believed that
31 R. V. Makaramba., “Legal Method Part Two.” Open University. At p, 42.

32 ibid
13
the administration of MWAVI to a person innocent of witchcraft would not
cause death hence this negativated his malice aforethought as per section 200
of the Penal Code, for the intent to cause death or the knowledge that the act
will probably because death was absent. The appeal was allowed and
conviction and sentences were quashed.
Basing on the above examples, it is actually clear that, in traditional

societies, the methods that were used to solve disputes in that particular era,
are what recently we do call them as Alternative Dispute Resolution though for
that time was not an alternative since it was the only means that were
employed to solve conflicts among people. This is because, in Traditional era
there was no Court system that is why; all disputes were solves via the said
traditional means.
In Africa, the traditional means of solving disputes falls slightly when

colonialists introduced their own means of solving disputes. Though in some
areas elements of traditional means of solving disputes did not vanish.33
1.5 The Need for Alternative Dispute Resolution

The Movement of modern ADR began in the United States and is now dated
from the late 1970’s.34 a result of two main concerns in the US judicial
system:-
1. First, there was call for better-quality processes and outcomes in the
judicial system; and,
2. Second the need for efficiency of justice.35
These concerns are briefly discussed below.
33 Societies like Maasai and Datooga are some of the Makabila in Tanzania that managed to
use traditional means of solving disputes from the traditional era up to date.
34Menkel-Meadow, C., (2002) “Alternative Dispute Resolution.” In Kritzer, H.M. (ed.), Legal
Systems of the World: A Political, Social and Cultural Encyclopedia. Cited in Mashamba, C.,
(2014). Alternative Dispute Resolution, Law and Practice; Mkuki na Nyota: Dar es Salaam,
Tanzania.
35 Kamau, W., “Law, Culture and Dispute Resolution: Prospects for Alternative Dispute
Resolution (ADR) in Africa.” East African Journal of Peace and Human Rights. Vol. 15 No. 2,
2009. pp. 336–360, pp. 336–7.
14
1.5.1 Need for better-quality processes and outcomes in the judicial
system
Some ADR proponents did not focus on the high costs associated with
litigation, but on the appeal of interest-based dispute resolution in terms of the
quality of outcomes reached, the low level of party satisfaction with the
procedure employed, and the impact of the resolution on the disputing parties'
relationship and their future interactions, as well as considerations relating to
the broader community.36
The call for better quality of dispute resolution processes was attributed to lack
of responsiveness and sensitivity of the judicial system. There was also lack of
participation of members of the community in the formal justice system. The
ranges of outcomes provided by the formal justice system were pre-determined
and limited. At the same time, the justice system did not provide a continuing
social relationship amongst disputants in certain matters. This concern
necessitated advocates for reform in the justice system in the US in the 1960s
and 1970s to campaign for better quality processes and outcomes.37
Indeed, one of the strongest reasons for the appeal of interest-based dispute
resolution processes was their promise of win-win resolutions, as described by
Professors Roger Fisher and William Ury in Getting to Yes,38 and by Professor
Carrie Menkel-Meadow who advanced problem-solving in legal practice. In
terms of quality of outcomes, courts were criticized for their limited remedial
imagination, with most cases resulting in some form of monetary
compensation.39
36Donna Shestowsky, Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern

Look at an Old Idea, 10 PSYCHOL. PUB. POL'Y & L. 211 (2004).
37 Kamau, W., “Law, Culture and Dispute Resolution: Prospects for Alternative Dispute
Resolution (ADR) in Africa.” East African Journal of Peace and Human Rights. Vol. 15 No. 2,
2009.
38Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without
Giving in 40 55 (Penguin Group 1981).

39Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-
Opted or "The Law of ADR", 19 FLA. ST. U. L. REV. 1, 3 (1991) [hereinafter Menkel-Meadow,
Pursuing Settlement].
15
1.5.2 Need for efficiency of justice
Equivalent to the concern for better quality in the judicial processes in the US,
there was a call for efficiency of justice. This was attributed by the fact that the
judicial process was too expensive, overwhelmed by cumbersome rules of
procedure. The judicial process was also seen as unnecessarily prolonged,
resulting in being too expensive and time consuming.40
Furthermore, it was argued that the judicial process was congested with, or
over-loaded, by caseload. Hence, there was a need for a dispute settlement
system that would divert cases from the court and reduce case backlogs and
provide other and efficient ways of providing access to justice.41
1.6 Revival of Alternative Dispute Resolution (ADR)

In response to the foregoing concerns, Chief Justice of the United States
convened a conference in 1976 where leading practitioners, academics, and
judges discussed the ills of the legal system and potential solutions to the
problems.42 The principal problems discussed were the high costs associated
with a slow, complex and overburdened system.43 The adoption of ADR held a
promise for reducing caseload and costs that was attractive not only for the
justice system, but was also significant for those concerned over the ability of
disadvantaged disputants to bring their disputes before the courts.44
As we discussed below, an "access to justice" movement emerged in the 1970's,

calling for equal access to the legal system, and was also a source of support
for ADR. During the Pound Conference, Professor Frank Sander presented his
vision of a “multi-door courthouse,” a place that would offer a multitude of
40 Mnyeni.S.R., (2005). Arbitration, Conciliation and Dispute Resolution Systems; Asia Law
House: India, p.10.
41 Mashamba, C J., Alternative Dispute Resolution, Law and Practice; Mkuki na Nyota: Dar es
Salaam, Tanzania, (2014). Pp.21.

42 Warren Burger, convened the National Conference on the Causes of Popular Dissatisfaction
with the Administration of Justice (Popularly known as the Pound Conference) to develop
proposals for judicial reform.
43 JEROLD S. AUERBACH, JUSTICE WITHOUT LAW? 95 (1983).
44 Ibid.
16
processes for addressing different types of conflicts involving parties with
varying characteristics.45 The US government actually funded a few local court
systems to create such multi-door courthouses and many people (lawyers,
psychologists and community leaders and social workers) were trained as mediators.46
Sander further developed this approach as he advocated "fitting the forum to

the fuss," matching particular kinds of disputes to particular kinds of
processes.47The basic insight regarding the need to tailor dispute resolution
processes to the characteristics of the dispute and the parties also influenced
the subfield of dispute systems designed and some years later, and, to a large
extent, has justified the need for ADR in addressing disputes that arise
online.48
Also, different group of reformers (including this author) proposed that different
forms of dispute resolution were necessary to solve problems in a different way.
There are many modern problems that don’t have simple right or wrong
answers—the “truth” or “justice” are more complicated sometimes, and parties
working together might come up with more creative and different solutions
than those courts were authorized to give, since courts are limited by law as to
what they can do (award damages or sometimes an injunction) and so have
“limited remedial imaginations.”49
45 Frank E.A. Sander, Varieties of Dispute Processing, in THE POUND CONFERENCE:

PERSPECTIVES ON JUSTICE IN THE FUTURE 65, 84 (A. Levin & R. Wheeler eds., West, 1979).
13 Frank E.A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-
46 John M. Conley & William M. O'Barr, Litigant Satisfaction Versus Legal Advocacy in Small
Claims Court Narratives, 19 L. & Soc'Y REV. 661 (1985); Tom R. Tyler, Citizen Discontent with
Legal Procedures: A Social Science Perspective on Civil Procedure Reform, 45 AM. J. COMP. L.
871, 888 (1997).
47 Frank E.A. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User- Friendly
Guide to Selecting an ADR Procedure, 10 NEGOT. J. 49, 66 (1994).

48Donna Shestowsky, Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern
Look at an Old Idea, 10 PSYCHOL. PUB. POL'Y & L. 211 (2004).

17 CARRIE MENKEL-MEADOW ET AL., DISPUTE RESOLUTION: BEYOND
49 Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-
Opted or "The Law of ADR", 19 FLA. ST. U. L. REV. 1, 3 (1991)

17
Joint custody of children after divorce is one example and intellectual property
licensing agreements are another. This approach to “ADR” (creative problem
solving) in turn led to the development of specialists in designing “appropriate”
dispute systems (now called DSD, dispute system design) for different kinds of
disputes. Thus, some are motivated to use ADR for quantitative,
efficiency reasons and others for qualitative, better solutions and
more participation by the parties (more deliberative democracy and party
control over conflict resolution).50
In the last few decades different forms of ADR have gone global—a new field
of transitional justice has developed to provide both punishment and
reconciliation in post-apartheid, post-civil-war and other post-conflict zones. So
although there is now an International Criminal Court for state violations of
human and civil rights and criminal prosecutions, in some settings, a form of
ADR has been used to create Truth and Reconciliation Commissions (e.g. South
Africa, Bolivia, Argentina, Liberia) which are often hybrid institutions that seek
the “truth” about what atrocities have occurred, but also try to use various
forms of narrative, apologies, forgiveness ceremonies and rituals to attempt to
“heal” the past, so newly constituted countries can move forward.51
Ironically, or in a return to earlier history, some countries have used older

indigenous processes like community moots (gacaca in Rwanda) to attempt to
combine justice of the past with peace for the future. These new forms of
institutions are hybrid because they draw on both public international law
concepts (international criminal law) and national or indigenous processes.52
50Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without
Giving In 40-55 (Penguin Group 1981).
51Carrie Menkel-Meadow, The Trouble with the Adversary System in A Post-Modern, Multicultural
World, 38 Wm. & Mary L. Rev. 5 (1996).

52 Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without
Giving (Penguin Group 1981).

18
At the international level, negotiation (between and among different countries,
states and communities are as old as humankind) and is a process now used
by the 200 countries in the world to negotiate treaties (which are state
commitments to not engage in war or other bad acts, or to positively
collaborate on other activities, like poverty amelioration, environmental
protection, anti-discrimination, health, education and cultural cooperation).53
Modern international legal activity is often conducted in informal networks of

negotiation and new forms of international administrative actions, rather than
by formal courts or executive diplomacy. Mediation by international officials is
now commonly used to try to resolve interstate conflicts before they escalate to
war. Mediation and arbitration are both used in both public law and private,
commercial law settings. Arbitration is used on an international level to resolve
border and boundary disputes, private commercial cross-border disputes, and
now disputes involving private investors in foreign countries.54
Formal institutions like the World Trade Organization use arbitral processes
and investment arbitration now represents a controversial hybrid, using
arbitral processes, but relying on more public law principles and demands for
transparency. Most informal dispute processes ultimately rely on the
enforcement powers of national courts under international treaties, such as the
New York Convention for the Recognition and Enforcement of Foreign Arbitral
Awards or the Washington Convention for dispute processes for foreign
investment disputes with states.55
At the level of everyday disputing, the European Union and some national
court systems are now promoting various forms of ADR, such as those
described here, to reduce long court delays and to provide consumer and even
53 Sheffield, W and Rao, P.C (Eds)., Alternative Dispute Resolution; Universal Law Publishing
Co. Pvt Ltd: New Delhi, India, 1996.
54 Menkel-Meadow, Regulation of Dispute Resolution, supra note 1; Judith Resnik, Procedure as
Contract, 80 NOTRE DAME L. REV. 593, 609 (2005).

55Ibid.
19
businesses different ways to resolve their disputes, including the promotion of
Online Dispute Resolution (computer platforms for trans-border and national
consumer disputes or disputes between citizens and states). 56
The expansion of different forms of dispute resolution has led to interesting

issues and policy differences about whether conflicts and disputes belong to
the parties, so they can privately choose their form of resolution, or whether
conflict resolution should remain a public and transparent state function when
the impact or precedent of a conflict resolution might be greater than just on
the interested parties.57ADR is used in many different ways these days, in local
disputes, in global disputes, in public and in private. Some call this “informal”
justice (party choice of process and outcomes with-consent”) versus “formal”
justice (with clear rules of law, evidence, but limited remedies) and others now
see that we have not only formal and informal but “semi-formal” (hybrid and
combined forms of) dispute resolution.58
1.7 Alternative Disputes Resolution in Tanzania

The 1970’s situation in America was not strange in other jurisdiction like
Tanzania. Since in other jurisdiction people they were not supporting the
system that was available. Issues like expensiveness, cumbersome rules of
procedure and evidence as well as congested with, or over-loaded cases.
Lord Simon in Central Asbestol Co vs. Dodd,59 started that, “Litigation

involves a call on scarce resources, and it is apt to set up emotional and social
strains of its own...hence the desirability for forensic dispatch. There can be few
circumstances in which contentions within a society can be prolonged unresolved
56 Sara Cobb, The Domestication of Violence in Mediation, 31 L. & SOC'Y REV. 397, 411-12
(1997); Lauren B. Edelman et al., Internal Dispute Resolution: The Transformation of Civil Rights
in the Workplace, 27 L. & Soc'Y REV. 497 (1993).
57Orna Rabinovich-Einy, Deconstructing Dispute Classifications: Avoiding the Shadow of the
Law in Dispute System Design in Healthcare, 12 CARDOZO J. CONFLICT RESOL. 55, 78-80
(2010).
58 William L Ury Et Al., Getting Disputes Resolved: Designing Systems to Cut the Costs Of
Conflict 65-85 (Jossey Bass Inc. 1988).

59(1972) 3 WLR 333.
20
without risk to the fabric of society. Moreover, dilatory procedures may defeat the
very purpose of the judicial process.”
Despite that, Tanzania had the Arbitration Act of 1931 as well as its governing
rules of 1957 that was actually used purposely to govern arbitration issues
subject to arbitration clauses there was the need of ADR even in the court
system.60
In order to address the problem facing the system in Tanzania, several

measures were taken and put into action, including the enactment of laws.
This law will be stipulated hereunder as follows; -
The Ward Tribunals Act of 1985

Inter alia this law vested limited Quasi-judicial power into ward tribunals,
emphasizing the need to use mediation as much as possible in resolving
disputes brought before them. Under section 8(1) of the Act, on the general
jurisdiction of the tribunal, the primary purpose of each established tribunal is
to secure peace and harmony in the area for which it is established by
mediating and endeavoring to obtain just and amicable settlement of dispute.
As per the Act attempt to reach settlement by mediation is to be the first step
before the tribunal exercise its compulsive jurisdiction. This is provided under
section 8 (2) of the Act.61 As per recent evaluation reports notices, the effect of
this law was minimal.62
60The Act was revised in 2002 and 2019 but in 2020 it was repealed by Act No 2 of 2020(The
recent Arbitration Act). Also, the rules made thereunder (G.N No 427 of 1957) was repealed, in
such regards now we are using the Arbitration (Rules of Procedures) Regulations, G.N No 146
of 2021.
61 [Cap 206 R.E 2002].
62 Global Justice Solutions “Alternative Dispute Resolution Training Manual”.
21
The Law of Marriage Act of 1971
This is an Act which was enacted purposely to regulate issues relating to
marriage, personal and property rights as between husband and wife,
separation, divorce, other matrimonial reliefs and other related matters.63
The Act establishes the Marriage Conciliation Board which used as the
mechanism of settling the marriage dispute before the matter to be filed in the
court of law. The law provides for conciliation before the board to be mandatory
procedure with special exceptions before one takes the dispute to the court of
law.64
This approach aims at rescuing the marriage institution. It entails parties
seeking third party that is the board to amicably reconcile them. In Tanzania
there are many marriage settlement mechanisms, ranging from traditional
leaders, elders, relatives, religious bodies to government authorities65. So, it
was in this approach that the Act made a mandatory requirement for anyone
seeking to solve matrimonial mishaps to refer to Marriage conciliation Board.66
The Tanzania Investment Act of 1977

This is the Act that was enacted in order to make provision for investment in
Tanzania, to provide for more favorable conditions for investors and related
matters.67Under the Act, negotiation and arbitration as among of the
mechanisms of solving disputes under ADR was incorporated in the Act. Upon
any arisen disputes under investment perspectives, the required means of
solving disputes opted to be negotiation and arbitration.68
63 See the Long title of the Law of Marriage Act, Cap 29 [R.E 2019].
64 Section 101 of The Law of Marriage Act, Cap. 29 [R.E 2019].
65 Mashamba C. J., “Family Law and Practice in Tanzania.” Raphil Traders: Dar Es Salaam,
2007.
66Section 101 states that “No person shall petition for divorce unless he or she has first
referred the matrimonial dispute or matter to a Board and the Board has certified that it has
failed to reconcile the parties.”
67 See the long title of the Tanzania Investment Act of 1997.
68 See section 23 of the Tanzania Investment Act of 1997.
22
In spite of all these measures and others, public outcry grew about court
congestion and inclusion of alternative means of solving disputes aimed among
others to reduce backlogs of cases before the court of law as well as to
encourage peacefully means of solving disputes.
In such regards apart from having the said statutes that actually encourages
an alternatives disputes resolution but still it seems there were some
challenges especially in excessive delays in the dispensation of justice in the
country. As the result this brought to the fore the concept of finding alternative
methods of resolving civil disputes to complement the traditional judicial
system.
1.8 The Need for ADR In Tanzania Antique Point of View

As we have just observed above, although the Government and the Judiciary
introduced both legislative as well as administrative measures, still the civil
justice system continued to grapple with a number of chronic problems,
including inordinate delays in disposing cases and caseload congestion. This
meant that the Tanzanian Judiciary and the Government had to continue the
search for appropriate and effective dispute resolution mechanisms.
A Story to Tell
During one of his visits to the United States of America, the late Chief Justice
of Tanzania, Francis Nyalali, came across the practice of ADR in the Superior
Court of Washington, DC, which appealed to him.
Consequently, in April 1993 he invited two Judges from the Superior Court of
Washington, DC, to attend a Judges’ Conference held in Arusha. At that
Conference, the two American Judges presented Papers on the practice of ADR
in the United States. That presentation inspired the participants of the
Conference, who resolved, inter alia, that Tanzania should find out if some
forms of ADR would fit local circumstances as part of the Judiciary’s bid to get
rid of delays in disposal of cases.
23
Appointment of Mroso Commitee
As a follow up on this resolution, the Chief Justice appointed a Committee of
three High Court Judges chaired by Hon. Mr. Justice Mroso (now retired).
Among the Terms of Reference of the Committee were: first, to compile and
recommend strategies and tactics to be used in a “Programme” for elimination
of court delays in the disposal of cases in the High Court and courts
subordinate thereto. Second, to consider the possibility of adopting in the
country a system of administering justice by using ADR mechanisms in the
form of negotiation, conciliation, and arbitration as part of the civil justice
system or outside the court system (out of court settlements) as practiced in
the Superior Court of Washington, DC.
Third, to consider how the strategies and tactics used so far in Tanzania can
continue in operation parallel to the ADR.
The Outcome of the Mroso Committee

After been given the said task the committee come up with their
recommendations, the Mroso Committee recommended the adoption of ADR in
the form of negotiation, conciliation, mediation, case evaluation, and
arbitration, which was already given legislative recognition in the Arbitration
Act of 1931.69 Consequently, this recommendation was adopted; and so, ADR
was to be introduced in the in those forms ‘but, as it turned out, with emphasis
on mediation, and that such mediation would be court-annexed with Judges
and Magistrates as the Mediators.’
What Follows
Following recommendations of the Mroso Committee, the court- annexed
mediation under the Civil Procedure Code was introduced under the
Government Notice No. 422 of 1994. The Notice amended the 1st schedule to
the Civil Procedure Code whereby the amendments introduced Orders VIIIA,
69 Cap 15 [R.E 2019]. Repealed.

24
VIIIB and VIII C.70 This amendment introduced certain stages/ procedures
between the completion of pleadings and a given trial, and now it has been
incorporated under Order VIII C of the Civil Procedure Code.71 In such regards
under, courts process, ADR is mandatory.72
The effect of G.N No 422 was the introduction of the two forms of ADR now
namely, ADR inside the Court as well as ADR outside of the Court. ADR
outside the court is typically private system since parties choose to solve their
disputes themselves though it does not mean that totally the court has been
excluded.73
In Fahari Bottlers Ltd & Another vs. Registrar of Company & Another,74
The court held that, “the requirement for a suit to be referred to mediation first
before full trial begins is a mandatory one under the Civil Procedure Code.
Apart from that, the Section 96 of the Arbitration Act,75 amended the Civil
Procedure Code,76 whereby the act added section 10A which requires parties to
take the bonafide steps to resolve disputes out of the court of law.77
70Mashamba, C., (2014). Alternative Dispute Resolution, Law and Practice; Mkuki na Nyota: Dar
es Salaam, Tanzania.
71 Cap 33 [R.E. 2019].
72 Under the Civil Procedure Code Cap 33 [R.E. 2019] Court Annexed Mediation is under Order
VIII C Rule 23.

73For instance, parties who undertake to go for arbitration their clause may stipulate that,
whenever the dispute has not been solved can be taken to the court of law.
74(2000) TLR 102.
75 Act No. 02 of 2020.
76 Cap 33 [R.E 2019].
77 Read section 96 of Act No 02 of 2020 to see what amounts to bonafide steps under the CPC.
25
1.9 Situations where Alternative Dispute Mechanisms will not be
Applicable
Though the supreme Court of India in Afcons Infrastructure & Ors Ltd. v.
Cherian Varkey Construction & Ors,78 accepted that in most cases
references to ADR process is must but also there are some matters that are
excluded from being referred to ADR process.79 In such regards, the said
articulation of the Indian Supreme Court seems to be effective and hereunder
the discussion will focus on the situation where Alternative Dispute
Mechanisms will not be applicable.80
1.9.1 Offences Excluded from Plea Bargaining, one of the big and crucial
steps that Tanzania has archived in criminal system is to formalize plea
bargaining as a possible process during criminal proceedings. It is an
alternative, apart from the solid and common criminal litigation process
embraced by courts for a long time now81. Plea bargaining process in Tanzania,
introduced by the amendment made on the Criminal Procedure Act,82 passed
by the parliament through the Written Laws (Miscellaneous Amendment) Act,83
Plea bargaining involves negotiation in criminal case between a prosecutor and
the accused person.84
By considering those explanations above, it may be argued that, the plea

bargain is an alternative to conduct full criminal trial in court by offering a
solution to the conflict in court, and as such is an integral part of the board
and inclusive ideas of alternative dispute resolution because it involves
78 Afcons Infrastructure Ltd. vs. Cherian Varkey Construction Co. (P) Ltd. & Ors. (2010) 8 SCC.
79 Ibid page 23.
80 This also can be seen in the case of Grant vs. Minister for Communications, where it was
reaffirmed that not all cases are appropriate for mediation.

81 AbrahamJ.,(2019). Review of criminal Law, Introduction of Plea Bargaining in Tanzania
available at. https://www.hg.org/legal-articles/review-of-criminal-laws retrieved on 1st

July,2021.
82 [CAP 20 R.E 2019].
83 Act No 4 of 2019.
84Section 194A (1) of Criminal Procedure Act, [Cap 20 R.E 2019].
26
negotiation between prosecutor and the accused person which is tenet for
Alternative Dispute Resolution.
Though plea bargaining is applicable over criminal offences, but there is

another offence by which cannot go through plea bargaining, and those
matters are well stipulated under section 194F of Criminal procedure Act,85
and those offences are Sexual offences with a punishment which exceeds five
years, Sexual offences involving a victim whose age is under eighteen, Treason
and treasonable offences.
Offences relating to possession or trafficking in narcotic drugs whose market

value is above twenty million shillings, Terrorism, Possession of government
trophy whose value is above twenty million shillings without the consent of
Director of Public Prosecutions in writing and any other offence as the Minister
may, upon consultation with other relevant authority and by order published
in the gazette. Hence criminal offences other than those specifically outlined in
the plea-bargaining schemes cannot go for alternative dispute resolutions
hence ADR as a mechanism for alternative to court litigation has nothing to do
to some criminal offences.86
The issue of solving disputes out of the normal court proceeding under the
Criminal justice’s system can be seen under section 163 of the Criminal
Procedure Act,87which have been amended by section 93 of the Arbitration Act
of 2020.
1.9.2 Suits Mentioned under Order I, Rule 8 of Civil Procedure Code,88

Order I Rule 8 of the Code is all about representative suits. which involve,
interest of public or several persons. Under representative suit its contended
that, where there are numerous people having the same interest in one suit,
85Cap 20 [R.E 2019].

86 Myneni, S., (2004). Arbitration Conciliation and Alternative Dispute Resolution Systems,
Hyderabad: Asia Law House, p.18.
87 Cap 20 [ R.E. 2019].
88 Cap 33[R.E 2019].
27
one or more of such persons may, with the permission of the court, sue or be
sued, or may defend, in such suit, on behalf of or for the benefit of all persons
so interested. Hence, in that particular circumstance Alternative Dispute
Resolution will not be applicable simply because its contended that, even
compromise in such a suit is difficult process requiring notice to the persons
interested in the suit before its acceptance.89
1.9.3 Election Disputes as to Public Offices, most who have looked at the
use of alternative dispute resolution (ADR) in election disputes have concluded
that ADR is not appropriate in the election context, particularly in post-election
disputes. Election disputes fit squarely on the list of public disputes for which
current dispute resolution mechanisms fall short.90
It is most certainly the case that litigation is best for certain post-election
disputes. 91Most of scholars still suggests that ADR states could find the means
by which can enable election disputes to be solved through Alternative Dispute
Resolution this is because it have been realized that, most of such cases go
directly to the normal litigation.92
1.9.4 Human Rights Cases and Constitutional Petitions, its critical

importance always to remember that Alternative Dispute Resolution, like all
rules of practice and procedure, is intended to further the end of justice ad
recognized human rights by enabling fair and equitable hearing.93Though ADR
may e see as huma right tool in the resolution of the road range of disputes
across community between citizen themselves as well as citizen and the state
in various states including Tanzania, human rights cases and Constitutional
Petitions they are actually not undergo Alternative Dispute Mechanisms, this
89 Torgbor E., “Courts and the Effectiveness of Arbitration in Africa”, Arbitration International,
Vol. 32, (2017), P. 379.
90 Ibidpage 378.
91 Robert H. (200). Beyond Winning: Negotiating to Create Value in Deals ind Disputes at p.3.
92 Robert H. (200). Beyond Winning: Negotiating to Create Value in Deals ind Disputes at page 6.
93 Croft, C., “Recent Developments in Arbitration in Australia”, Journal of International
Arbitration, (2010), Vol. 28, p. 599.

28
is simply because the legal set up of determining such particular rights, do not
give an avenue for ADR.
For instance, Article 26 (2) and 30 (3) the Constitution of the United Republic
of Tanzania,94 allows any person who claim that any provision of the
Constitution or any law concerning his right or duty owed to him has been, is
been or is likely to be violated to institute the proceedings before High Court. In
such particular regards, any claim that follows out of the constitution when
one embarks to seek redress before the mandated court, there is no room for
ADR process to take place.95
1.9.5 Injunctive Relief and other related applications, is not appropriate for
the case of injunctive relief as there is no room for it. This is because an
injunctive relief is sought for the purpose of protection of the status quo of the
subject matter this why is regarded as prohibitory order. When the parties in
the suit either of them is a likelihood of removed of the subject matter, the
plaintiff may seek protection of the property pending the determination of the
main suit. It is the order that the court is called to intervene and make the
status of property be protected. It is necessary for the temporary injunction to
be issued so that the parties to a suit of the subject matter be rendered
negative.96
Apart from that, ADR is limited in Cases of Prerogative Remedies is not

appropriate in prerogative orders. Prerogative orders involve the judicial review
on decision of an administrative organ which is ultra-vires. In that regard the
remedy granted is based the discretion of the court hence ADR cannot be
94Of 1977(As amended time to time).

95 The application is done by way of an originating summons in terms of sections 4 and 5 of
the Basic Rights and Duties Enforcement Act, [Cap. 3 R.E, 2019] and rule 4 of the Basic Rights
and Duties Enforcement (Practice and Procedure) Rules 2014.
96Neiman, when is Mediation inappropriate?Available at https://www.neimanmediation.com
Retrieve on 29th June,2021 at 22:04 P.M.

29
appropriate as the question of law is involved to determine whether the
decision was given ultra-vires or not.97
1.9.6 Cases Seeking Interpretation of Law, alternative Dispute Resolution is

not appropriate in matters that involves the interpretation of laws. ADR process
is only suitable to disputes that are rather serene and possible to solve through
the mediator proposing solutions to the parties that the parties may either
agree with the settlement or not. However, in disputes that may involve the
interpretation of the law’s ADR is definitely not the appropriate scene. A good
example of this is the case Kimbute Otiniel vs. The Republic,98 where the
counsel sought the interpretation, construction and application of the Evidence
Act99 on the matters of evidence from a child of tender years.
1.10 Challenges in Practicing ADR in Tanzania

Courts and other stakeholders, though they give priority to ADR, the aims have
not been realized due to a set of setbacks:
i. Lack of seriousness on the part of the judiciary
ii. Lack of awareness of ADR
iii. Lack of effective dispute resolution techniques into the mainstream.
1.11 Benefits of Alternative Dispute Resolution

ADR is generally regarded as having many benefits over the formal litigation
mechanisms – ranging from being less expensive, speedier, In a number of
cases, the courts in Tanzania have held that resort to ADR reduces delays in
determination of legal disputes. See particularly CRDB Bank Ltd. v. Seif
Ahmed Sharji,100 David N. Mushi vs. Joseph Massawe,101 less formal and
more flexible. As Kamau points out: ‘The flexibility of ADR is said to lend itself
97 Paranjape, N, (2006). Arbitration and Alternative Dispute Resolution, Allahabad: Central Law
Agency, p.268.
98 Court of Appeal at Dar es Salaam Criminal Appeal No. 300 of 2011.
99 Cap 6 [R.E. 2019].
100 High Court of Tanzania at Mbeya Civil Case No. 11 of 2002 (Unreported).
101 High Court of Tanzania at Dar es Salaam Civil Case No. 109 of 2001 (Unreported).
30
to the crafting of “win-win” solutions rather than the “zero sum” game of
litigation.’
In this regard, ADR suits and functions well in situations where the disputants
are to maintain ongoing relationships even after the dispute is resolved. These
situations include employer and employee, landlord and tenant, and family
relationships. This is the main reason why all dispute settlement mechanisms
introduced in Tanzania recently in these areas of the law make it mandatory to
initially try to resolve by some form akin to ADR. For instance, under section
86 of the Employment and Labour Relations Act (ELRA) (Cap 366 R:E 2019), all
labour disputes should ordinarily be referred to the Commission for Mediation
and Arbitration (CMA) whose procedure requires a dispute first to be mediated
and if mediation fails it should be arbitrated.
31
CHAPTER TWO
NEGOTIATION AND CONCILIATION
2.0 Introduction
This chapter introduces the key concepts, principles and skills of Negotiation
and Conciliation in a generic form with examples of how they might be applied
in the context of individuals conflicts. The glossary contains definitions of
terms used, and readers are advised to familiarize themselves with them.
Subject to the provisions of any written law, the court shall refer every civil
action for negotiation, conciliation, mediation or arbitration or similar
alternative procedure, before proceeding for trial.102
2.1 Conciliation as Method of Alternative Dispute Resolution
2.1.1 Meaning of Conciliation
Conciliation is an extension to the bargaining process whereby a third-party

brings the disputing parties together in order for them to solve their problem.
The conciliator does not take part in the process or settlement discussions but
acts as a broker, bringing people together. The conciliator's primary role is to
keep the parties together, reduce the parties' inflammatory rhetoric and
tension, open channels for communication and facilitate continued
negotiations.103
Conciliation in the strict sense of the word, differs from mediation, in which the
third party is more actively involved and attempts to suggest proposals and
methods for actual resolution of the problem. Conciliation also differs from
arbitration in which the independent third party considers the arguments of
both sides and then takes a decision binding on the parties in the dispute.
102 Order VIII C, Rule 24 of the Civil Procedure Code [Cap 33 R:E 2019].
103 Shamir. Y., “Alternative Dispute Resolution Approaches and Their Application.” Israel Center
for Negotiation and Mediation (ICNM), Israel. PCCP Publications 2001-2003. p, 6.
32
2.1.2 Main Features of Conciliation
1. A peace-making process.
2. An extension of the bargaining process.
3. Is not law enforcement: a means to assist the parties in reducing the
extent of their differences and to find an agreed and amicable solution.
4. A neutral third party involved.
5. An assisted bargaining.
6. begins when bargaining becomes deadlocked.
7. A systematic intervention in a dispute.
8. Conciliation outcomes are owned by the parties.
9. A flexible process and a low-risk process.
10. Usually confidential.
2.1.3 Conciliator
Who is a Conciliator?
Conciliation outcomes are owned by the parties. a flexible process. a low-risk
process. usually confidential. The main role of the conciliator is to assist the
parties in finding a solution to their problem. However, there are many sub-
roles which can exist at the same time. Or “reconciliatory” means a person who
handles reconciliation matters.104
2.1.4 Main features of conciliator
1. A servant of the parties, not their master.

2. A facilitator, not a judge.
3. not an advocate for either party.
4. An educator who:
i. educates both sides to each other’s position;
ii. educates both sides to the reality of the world in which they operate;
iii. educates himself on each party's position.
104Regulation 2 of the Reconciliation, Negotiation, Mediation and Arbitration (Practitioners

Accreditation) Regulations, GN No. 147 of 2021.
33
5. A source of information and ideas.
6. striving to maximize the gains for both parties.
7. A translator who conveys the position of one party to the other.
8. A catalyst who changes the relationship between the parties a resource
person who encourages the parties to extend their options and think
more broadly.
9. an analyzer who breaks issues and situations into smaller components.
10. A focuser who encourages the parties to concentrate on what is really
important and relevant.
11. A resource person who encourages the parties to extend their options
and think more broadly.
12. A refiner (who gets beyond the general to the specific).
13. A transformer who can change one issue into another (e.g. over-time
payment into time-off).
14. A moderator who keeps the parties talking.
15. A packager who brings together issues presented by the parties in
acceptable packages an “atmosphere setter” who encourages
cooperation and common interests.
16. A conductor, not of the parties, but of their agenda.
17. A bearer of bad news from one party to the other.
18. A scapegoat, sounding board and alternative target.
19. A communication links.
20. Never takes any decision about the dispute, he only assists the parties
in finding an amicable collusion.
2.2 Negotiation as Method of Alternative Dispute Resolution

2.2.1 Meaning of Negotiation
Negotiation is “communication for the purpose of persuasion.”105 Negotiation
is a process in which parties to a dispute discuss possible outcomes directly
105 Goldberg, Sander, and Rogers., “Dispute Resolution: Negotiation, Mediation, and Other
Processes.” Aspen Casebook Series. 1992.
34
with each other. Parties exchange proposals and demands, make arguments,
and continue the discussion until a solution is reached, or an impasse
declared.106
Negotiation, is an alternative dispute resolution mechanism which involves the

parties themselves or with their advisers in which the parties negotiate and try
to settle their dispute without involvement of third party. This process is
usually used where the parties are still in talking terms and so do not need the
services of a third party to calm down their emotions. It is non-binding process
the resulting agreement is not binding.107 In the case of Werner vs.
Hendricks,108 defined negotiation to mean the deliberations which take place
between the parties touching a proposed agreement.
Negotiation means the dialogue between two or more parties which is facilitated
by a negotiator. And “negotiator” means a person who handles negotiation
disputes between parties.109
2.2.2 Distinctive Attributes of Negotiation as a Means of Dispute

Resolution
Voluntary Process with Unrepresented System

Negotiation is considered to be a voluntary process, it ensure that there is
absolute freedom of the parties that is the freedom to set agendas of their
choice and to ensure the objective of the negotiation is achieved. There is no
interference of a third party in the negotiation process which leads to the
proper safeguard of the confidential information. It is very important to draw a
line of distinction between third party intervention and parties being
106 Goldberg, Sander, and Rogers in Dispute Resolution: Negotiation, Mediation, and Other
Processes (1992).
107Myneni, S. (2004). “Arbitration, Conciliation and Alternative Dispute Resolution Systems.”
p.11.
108 (1936) 121 Pa. Super. 46.
109 Regulation 2 of the Code of Conduct for Reconciliators, Negotiators, Mediators and
Arbitrators, Regulations G.N No. 148/2021.

35
unrepresented. One of the principles entrenched in negotiation is that, no
representation of party in the negotiation process.
It is different from other mechanism of ADR since neither, a dispute is between

only two disputants, party can be represented by another person who is not
party of the dispute regardless the wishes of either party to a dispute. The
negotiation process however depends on party’s ability to communicate, their
willingness to make concessions and their ability to recognize possible
solutions.110 The essence of non-representation of the party is to give effect
direct communication between the parties who knows the dispute according
and to avoiding unequal balance in negotiation process. It is unlike other
processes of dispute resolution where it gives a chance for both parties to be
represented by a person who has authority to decide on the matter at hand.
No Third Party Intervention

The need for a neutral third party which is the characteristics of most of the
ADR systems is not the case with negotiations. This type of Aternative Dispute
Resolution which is mostly recommended in cases of highly classified
information such as the case of administration which if leaked through a third
party would create havoc.
The entire process involves only parties to a dispute with exclusion of the other
as the definition of negotiation suggest the communication is only made
between the parties who are in dispute. No intervention of the third party is
required in the process as a person who will facilitate or help the parties to
reach consensus but communication and any other means are facilitated by
parties themselves.111
This is attribute differentiate negotiation from other mechanism of ADR in

dispute resolution, the process involves only disputant parties, the presence of
110Picker,B., “Mediation Practice Guide: A Hand book for Resolving Business Disputes.”
American Bar Association, Section of Dispute Resolution. 2003 p. 55.
111Rao, P.C & Sheffield, W., “Alternative Dispute Resolution,” New Delhi, Universal Law
Publishing Co. PVT.LTD. 1997, p. 26.

36
disputant parties to the table is only thing which is required in order to
facilitate process to reach the decision. Through parties is where a negotiator is
found to facilitate the process between them.112
In negotiation there is no need of having a third party who is not party to a

dispute. Unlike other processes where intervention of the third party is very
important in the controlling the process as when the dispute is resolved under
mediation and arbitration. Third party intervention is of paramount important
in the whole process from the initial stages up to the end where parties reach
to the agreement. Therefore, non-intervention of third party in negotiation is
peculiar attribute that can be used to differentiate with others.113
Comfortable Process with Unstructured Mode of Dispute Resolution

The process of negotiation is safe, it normally is a speedy process whereby the
decision does not bind any other party other than the stakeholders. The
process does not require witnesses is comfortable, there is no third party
imposing any order over the parties, it is a completely self-built process.
Unlike other methods Negotiation does not involve any formal procedures in
resolving the dispute, whereby parties themselves agree on certain matters and
reach into consensus without involving a third party who may need it to be
structured.114 For example; In Arbitration tribunal there must be an arbitrator
and gives a decision and parties choose whether to take the decision or not and
there should be a structured form compared to negotiation whereby parties are
themselves and don’t need any structured form.
Information Exchange and Improvement in Relations

In negotiation process parties exchange their information, opening the
negotiation normally involves information and making preliminary offers and
112 Picker, B., “Mediation Practice Guide: A Hand book for Resolving Business Disputes.” Op. Cit.
p, 57.
113 Ibid.
114 Ponte, L.M. &Cavanagh, T. D., “Alternative Dispute Resolution in Business,” West
Educational Publishing Company, Cincinnati, Ohio. 1999, p. 62.

37
fundamental facts should be determined first.115 Whereby parties focus on
interests, issues and positions and use cooperative and or competitive
processes to come to an agreement. For example; In the process of exchanging
information that each party needs to explain its own interest and listen
carefully to and seek to understand and sympathize with the interests of the
other party.116 Hence in the process of exchange information a conscious effort
is needed to avoid premature judgment, while multiple options for settlement
are quietly explored.
After the successful completion of the negotiation rounds such as in the

international negotiations, there is an improvement in the relations of the
parties. The successful completion of negotiations further leads to the
incentives of the negotiations with the other countries as well. Thus facilitating
the process of negotiations on further occasions.
Unlike with other modes of dispute resolution negotiation has distinctive

attributes whereby there is evidence presentation so as to determine the truth
of the dispute. For example; In Arbitration and Mediation there is a production
of evidence presentation so that to determine the said matter also when one
looks on early neutral case evaluation whereby, parties don’t know their case
and heir an expert whereby he has to investigate so that to obtain evidence or
parties presents evidence.117
2.2.3 Competitive and Integrative Models in Negotiation
In principle, negotiation is characterized by polarity between two extremes: i.e.

competition-cooperation; and opposing interestscommon interests. In the
material world, competition and opposing interests ‘lead to a requirement by
the parties to divide the assets or resources under dispute. They lead to
115Ponte, L.M. & Cavenagh, T. D, (1999). “Alternative Dispute Resolution in Business,” West
Educational Publishing Company, Cincinnati, Ohio. p. 62.
116Rajan, R (2005). “A Primer on Alternative Dispute Resolution.” p. 372.
117Winkle, J., “Mediation: A Path back for the lost lawyers.” (2ndedn). United States of America:
American Bar Association of Dispute Resolution. 2015, p. 25.

38
“dividing the pie” or “claiming value,” in other words a “zero-sum game.” On the
other hand, when negotiations are based on cooperation and identification of
common interests, this can lead to seeking opportunities for “increasing the
pie” (which is also called “creating value”).118
Adversarial, Distributive, or Competitive Model

This model is manifested when negotiation is based on “rights” or “power” and
falls under the “adversarial, distributive, or competitive model,” ‘where the
parties try to get the best deal for themselves at a cost to the others. A gain for
one side means a loss for the other.’119
Practically, living in a society in which competition is part of the daily

experience, ‘we tend to think of competition as the only way to reach our goals.’
In the material world, competition ‘is almost always at the expense of someone
else. In the “conventional way,” a negotiation is “zero-sum game” – whatever
one side wins the other side loses. Both of the parties assume that it would be
best to ensure that they end the negotiation at the positive side of the
equation.’120
Integrative or Collaborative Model

This model is manifested when negotiations are based on common interests,
cooperation, and joint problem solving. This model, developed through the
Project on Negotiation (PON) at Harvard University in the US in the early
1980s, ‘is useful for parties to negotiate over a number of issues or resources,
since they can try to create value and maximize benefits by trade-offs between
them.’ In principle.121
This is because the order of priority among these issues for one party may
differ from that of the other and provide an opportunity for exchanges.
Therefore, the parties find ways to increase gains through creativity,
118 Shamir. Y., “Alternative Dispute Resolution Approaches and Their Application.” Op. Cit. p, 6.
119 C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Op. Cit. at p, 52.
120 Ibid.
121 Ibid.
39
originality, and linkage between issues to enlarge the overall pie, thereby
creating value.
In this context, the integrative or collaborative model is a very useful model in

the negotiation process.122
2.3 Negotiation Approaches

In negotiations there are three approaches to resolving the dispute, each with a
different orientation and focus – interest-based, rights-based, and power-based
and they can result in different outcomes.123
Interest-Based Approach
This approach shifts the focus of the discussion from positions to interests.
Because there are many interests underlying any position, a discussion based
on interests opens up a range of possibilities and creative options, whereas
positions very often cannot be reconciled and may therefore lead to a dead end.
The dialogue on interest should be transparent, in order for the parties to
arrive at an agreement that will satisfy the needs and interests of the parties.124
While interest-based negotiations have the potential of leading to the best

outcomes, the parties may not adopt it, and therefore we often find that
negotiations are “rights-based” or “power-based.”
Rights-based Approach
This approach comes to play when negotiations between parties fail whereby
the parties may then attempt to resort to what they consider to be their rights.
This is whereby the parties use other means like appealing to the court for
further decision, whereby the court.125
124 Ibid.
125 Ibid.
40
Power-Based Approach
Resorting to threat or even violence as a way of communication for the purpose
of persuasion is called power-based negotiation (for example, the posture of the
Americans in the Cuban missile crisis). Rights-based and power-based
approaches are used at times when parties cannot or are not willing to resolve
their issues through interest-based negotiation.126
2.4 Principles Governing Negotiation
“The reason to negotiate is to produce something better than the results that
you can obtain without negotiation” (Fisher et al., 1991). The goal is to reach
an agreement that is acceptable to all parties, to which they remain committed,
and which they indeed implement. This is the essence of interest-based
negotiations, which has the following principles:127
Interests–Needs
Interests are needs (food, shelter, security, and so on), desires, aspirations,
fears, hopes, and concerns. Positions are what we want and demand. The
interests are the reasons behind the position. In negotiating on the basis of
interests, parties will need to:128
i. distinguish between positions and interests.
ii. move from positions to interests.
iii. list all the interests according to priority.
iv. think of positions as only one of many solutions to the problem.
Alternatives
Alternatives are those actions that one can take outside the negotiations, alone
or possibly with a third partner, but without the party with whom one
negotiates. The alternative that yields the best outcome for you is called the
BATNA (Best Alternative to a Negotiated Agreement).
127 Ibid.
128 Ibid.
41
The BATNA is the “best alternative to a negotiated agreement.” If any of your
alternatives without negotiation is better than the deal on the negotiating table,
you will obviously go to the best alternative. If however the deal on the table is
better than any of your alternatives, it will be your BATNA. It is important to
make sure that the alternatives are indeed realistic, and try to improve your
BATNA, because the BATNA influences the way in which you conduct the
negotiations.129
Having a BATNA provides us with the ability to negotiate effectively, and

provide the answers to the following:
i. What are our alternatives if this negotiation reaches a dead end?
ii. Do we have an alternative at all if the negotiations fail?
iii. Which agreement do we consider (the one which is at least as good as

our BATNA).?
Options
This is the range of outcomes that the parties agree to consider during the
negotiations. Options are outcomes that can enlarge the pie and create value
with little or no extra cost to the parties. In developing the options use the
following criteria:
i. Use brain storming among the parties to generate a list of options.
ii. Look to the interests in order to generate a broad range of options to

choose from.
iii. Include options that will answer both parties’ needs and interests.
42
Standards and Criteria
Objective standards and criteria can be used in the negotiations to enable both
parties to perceive the process as fair and legitimate. Objective standards and
criteria include:
i. Market value of an asset or a resource.
ii. The law regarding the matter being discussed.
iii. Precedents.
iv. Opinion of an expert.
v. Priority of human water consumption over other users (in water issues).
Relationship
This refers to the interpersonal and intergroup dynamics between all the
parties to the negotiation. Proper consideration of these elements requires that
one:
i. Separate the people from the substance; that is, do not allow oneself to
become personal, but stick to the matters being discussed.
ii. Consider that there are differences in the way in which people in other
cultures value interpersonal relationships as a precondition to
negotiating.
Agreement and Commitment

An agreement should be specific, realistic, operational, clear, and understood
by all parties. It should be specific as to who will do what, how, when, and
where. In the agreement the parties should commit to what they have agreed.
Before signing an agreement, one should ask:130
i. Does the agreement anticipate future contingencies, to avoid surprises

and disappointments that may result in motivation not to uphold it?
ii. Do we have the authority to sign this agreement?
iii. Does the other side have the authority to sign this agreement?
130 Ibid. p, 10.

43
iv. Do we want a tentative agreement, subject to final approval?
v. Do we want an interim agreement that covers only part of the issues and
leaves the rest for a further and final agreement?
In interest-based negotiation one should strive to reach an agreement that will

satisfy:
i. All or most of our interests, and
ii. The other parties’ interests in a way that will be acceptable to them.
One needs to ensure that the other parties’ interests are met to a degree that
will satisfy their interests because their interests are inextricably tied to one’s
own and both needs have to be met in order for the agreement to hold.
2.5 Negotiation Skills
Communication skills
This refers to all the means by which the parties communicate with each
another, including spoken words, level and tone of speech, body language, and
any other means that parties use to signal to one another. This is important
because part of the message is not just the words, but also in the manner in
which it is delivered. To consider these aspects one must:131
i. Be attentive to all signals of communication.
ii. Speak clearly and exercise “active listening.”
Communication Skills: Active Listening

This is one of the most important and difficult skills for a negotiator and a
mediator. Active listening as a skill and technique are taught to, and applied
by, negotiators and mediators to enhance their effectiveness during the
process.132
132 Ibid. p, 10.
44
i. Active listening means stopping our inner voices, and truly listening to
the other person. Listening will enable you to hear important
information, and learn a great deal about the other party. By listening
attentively, you:
ii. Show interest in what the other party has to say.
iii. Show understanding to the way they feel, their positions and underlying
issues, hidden agendas, demands, and priorities (showing understanding
does not mean that you agree with what was said).
iv. Acknowledge that people like to be listened to, and when you listen, you
create a positive atmosphere.
v. Hope it may clarify many issues; make you understand the other side’s
point of view, and show respect to the other party’s needs, hopes, and
fears.
vi. Hope it may help to improve the relationship, and break the cycle of
arguments.
Communication Skills: Talking Clearly and Precisely

Effective negotiation is also making sure that whatever you said was
understood in the way that you meant it to be. You have to speak clearly,
phrase your sentences carefully, make sure that the other party listens to you,
and check with the other party to make sure that they understood you
correctly. Send messages that are comprehensive, and explain where you are
coming from, your needs, hopes, and fears. While talking you have to assess if
the other party is listening, and how they hear/receive your message.133
Re-Framing Positions as Interests

Re-framing is a way of giving feedback, and showing that you listened and
understood what the other party said. It is restating and capturing the essence
133 Ibid.
45
of what the other party said. One removes the negative tones, and translates
the statements of positions into statements of interests and needs. When we
start negotiating we have to identify the issues at the table. The issues have to
be defined in a neutral and acceptable way to all, and not include any
suggestions of the outcome, or judgment of any kind.
Typically, parties start the negotiation process by stating their position, and
their conclusion of what to do based on it. If the one party opens the
negotiation in this manner, that is, by stating a position, it is very helpful to re-
frame it as an interest. It helps the parties to identify their interests, and move
from position to interests.134
Open Questions
Questions are an essential skill for the negotiator and mediator. When asking a
closed question, we get “yes” or “no” for an answer. Often these types of
questions are also leading questions “Would you agree that . . .” “Didn’t you
think that it was unfair . . .” The closed questions, and the leading ones, do not
provide us with the essential information we need at the negotiating table and
they tend to close down the discussion.135
“Do you want to buy this property?” will provide us only with a “yes–no”
answer, which does not include all the important information regarding the
intention/ability of the buyer.
“What are the problems that concern you?” is a question which will provide us
with important information as to how they feel about it, what are their
concerns, their plans, and so on.
“How do you view the offer Mr. Brown has just made?” is an open-ended
question, while “Do you like Mr. Brown’s offer?” is a closed question.
135 ibid.
46
Open-ended questions such as: “What are in your opinion the possible
advantages and disadvantages regarding his offer?” or “What would you need to
clarify prior to your counter-offer?” provide us with important information that
can help the process rather than bring it to a dead end.
You have to be aware of your prejudices, values, and biases when you ask the
questions, so that if you have any they will not be evident from your tone or
body language.
Separate the People from the Problem

It is important to understand the other party’s point of view, needs, interests,
and concerns. One does not have to agree with the other point of view, just
understand that it is legitimate to have a different point of view, needs, and
concerns. One has to separate the people from the problem. Removing the
person usually does not remove or solve the problem. However, trying to
separate the person from the problem is not always practicable. There are
societies in which personal relationships have a very high value, and
separating the two is difficult.136
2.6 Duration of Negotiation / Conciliation made under CPC
The negotiation or conciliation period shall not exceed a period of thirty days
from the date the trial court referred the matter to negotiation or conciliation
unless otherwise extended by the trial court.137
2.7 Conclusion of An Agreement and its Legal Consequences

A negotiation or conciliation shall come to a conclusion when:-138
i. the parties execute a settlement agreement and notify the court
within the prescribed period for negotiation or conciliation;
ii. one of the parties or both make(s), a declaration to the effect that
further negotiation or conciliation is not worthwhile; or
137 Order VIII C, Rule 37 of the Civil Procedure Code [Cap 33 R:E 2019].
138 Order VIII C, Rule 38 ibid.
47
iii. thirty days or such other period as may be extended by the trial
court expire.
At the conclusion of negotiation or conciliation the parties shall remit the

settlement agreement to the trial court immediately or within forty-eight
hours.139
The ending result of Conciliation and Negotiation is not binding i.e. it has no
legal force. In all modes of dispute resolution such as mediation and arbitration
the outcome reached is that they reach in a conclusion from mediation or
arbitration is enforceable by the court as the arbitration tribunal provides that
they have reached into consensus. Rather in negotiation the situation is
different whereby the end result is unenforceable because it lacks certainty. As
parties only agree among themselves and it is not enforceable.140
139
Order VIII C, Rule 39 ibid.
140Rajan, R., “A Primer on Alternative Dispute Resolution.” Barathi Law Publications, 2005. p.
375.
48
CHAPTER THREE
MEDIATION
3.0 Introduction
As we discussed in Previous Chapters, in Tanzania mediation is the most

common form of ADR used in courts and even outside of the courts. It has
been made part of the civil procedure and practice in courts. Worldwide, it is
widely used in all sorts of disputes, ranging from matrimonial disputes to civil
lawsuits; to very complex public policy problems; and to international conflicts.
Many disputes that have not responded to an initial attempt at negotiation can
still be settled through mediation.
Mediation has become a very important and viable alternative to adjudication

and arbitration in the legal system (labor disputes, family, business, and
commercial disputes). In some countries and states we find laws of mandatory
mediation, as a way to encourage the parties to the dispute to use the
mediation process as a preferred way to resolve disputes.
3.1 Meaning of Mediation

Regulation 2 of the Reconciliation, Negotiation, Mediation and Arbitration
(Practitioners Accreditation),141 provides for the meaning of mediation and
meditor, and it reads as hereunder;
“mediation” means the settlement of a legal dispute through interactive
participation of a mediator; and “mediator” means a person who assists
parties in a dispute to find points of agreement in a conflict and agree on a
fair result.
Generally, Mediation is a process that employs a neutral/impartial person or

persons to facilitate negotiation between the parties to a dispute in an effort to
reach a mutually accepted resolution. Mediation is a process close in its
premises to negotiation: mediation is an assisted and facilitated negotiation
141 GN. No 147/2021.

49
carried out by a third party.142 Honeyman, C. and N. Yawanarajah defined
mediation as follows;
Mediation is a process in which a [neutral] third-party assists in resolving
a dispute between two or more other parties. It is a no adversarial
approach to conflict resolution. The role of the mediator is to facilitate
communication between the parties, assist them in focusing on the real
issues of the dispute, and generate options that meet the interests or
needs of all relevant parties in an effort to resolve the conflict.143
The mediators, who are hired, appointed, or volunteer to help in managing the
process, should have no direct interest in the conflict and its outcome, and no
power to render a decision. They have control over the process, but not over its
outcome. Power is vested in the parties, who have control over the outcome:
they are the architects of the solution.144
The mediator’s role is multiple: to help the parties think in new and innovative
ways, to avoid the pitfalls of adopting rigid positions instead of looking after
their interests, to smooth discussions when there is animosity between the
parties that renders the discussions futile, and in general to steer the process
away from negative outcomes and possible breakdown towards joint gains.145
Mediation has become a very important and viable alternative to adjudication

and arbitration in the legal system (labor disputes, family, business, and
commercial disputes). In some countries and states we find laws of mandatory
mediation, as a way to encourage the parties to the dispute to use the
mediation process as a preferred way to resolve disputes.
Unlike the process of facilitation, where the third party merely hosts the parties
and encourages them to continue negotiating in a neutral, welcoming
143 Honeyman, C. and N. Yawanarajah, “Beyond Intractability: A Free Knowledge Base on More
Constructive Approaches to Destructive Conflict.” Available at
http://www.beyondintractability.org/essay/mediation (accessed July 31, 2021).
145 Ibid.
50
environment, the mediator plays a more active role. The mediator not only
facilitates but also designs the process, and assists and helps the parties to get
to the root of their conflict, to understand their interests, and reach a
resolution agreed by all concerned.146
A mediator should study the substance of the dispute, and try to identify the
issues in conflict, using tools such as re-framing, active listening, open-ended
questions, and his/her analytical skills.147
Mediation is a voluntary process (except where there is a law of mandatory

mediation in place). The parties agree to the process, the content is presented
through the mediation, and the parties control the resolution of the dispute.148
Because the participation of the parties and the mediator is voluntary, the
parties and/or the mediator have the freedom to leave the process at any time.
The mediator may decide to stop the process for ethical or other reasons, and
the parties may decide that they are not satisfied with the process. The
agreement, which is reached between the parties, is voluntary; the parties own
it and are responsible for implementing it. The agreement is validated and
ratified by the courts.149
3.2 Forms of Mediation
Mediation as an alternative method to dispute settlement, it operates under

various forms, this can be through voluntary form of mediation and court
annexed mediation as it can be set out below. Therefore, it is for the parties
themselves go to a mediator of their own choice who help them to reach to an
agreement, that is in mediation parties own the outcome of the mediation and
therefore, the implement it voluntarily. There are three main forms of
mediation in Tanzania jurisdiction, these are;
146 Ibid, at p, 24.

147 Ibid.
148 See section 86 of the Employment and Labour Relations Act [Cap 366 R:E 2019].
51
Court Annexed Mediation, see Order VIII C, Rule 24 to 34 of CPC,150
In Tanzania, court-annexed ADR is mainly practiced in the form of mediation.
This mode of dispute settlement was introduced in Tanzania by GN No. 422 of
1994, amending the 1st Schedule to the Civil Procedure Code (CPC). This
amendment introduced certain stages/ procedures between the completion of
pleadings and a given trial. court-annexed mediation, ‘a case is said to be ready
for mediation when all the pleadings have been duly filed and there are no
pending applications or any other preliminary matter to be disposed of. In
effect, it is when the case would ordinarily be said to be ready for trial.151
Voluntary Mediation
Mediation is a voluntary process, it is optional for both parties. Unless both
parties agree to mediation as a way to resolve their disagreement, a mediation
session cannot be scheduled. The Mediation session is completely confidential
and encourages open communication.
Also, there is another form which is Mediation under Commission for Mediation
and Arbitration, See section 86 of the Employment and Labour Relations
Act.152
3.3 The Advantages of Mediation

Mediation has a special advantage when the parties have ongoing relations that
must continue after the dispute is managed, since the agreement is by consent
and none of the parties should have reason to feel they are the losers. It is
therefore useful in family relations, disputes between neighbors, in labor
relations, between business partners, and adjacent political entities.
To date, mediation has become a very important and viable alternative to

adjudication and arbitration in many legal systems around the world. Its
prominent application is evident in labour, family, business, and commercial
150 Civil Procedure Code [Cap 33 R:E 2019].

151Global Justice Solutions, “Alternative Dispute Resolution (ADR) Training Manual.”
152 [Cap 366 R:E 2019].
52
disputes. In some countries, like Tanzania, certain laws have made mediation a
mandatory stage in dispute resolution, ‘as a way to encourage the parties to
the dispute to use the mediation process as a preferred way to resolve
disputes.’153
Mediation has been made mandatory in proceedings before the Commission for
Mediation and Arbitration (CMA)154 and all civil proceedings under O. VIII C
Rule 24 and 25 of the Civil Procedure Code.155
Mediation creates a foundation for resuming the relation after the particular
issue has been resolved. Additional advantages of mediation are discussed
below. In addition, Shamir156 enlists the following advantages of the mediation
in resolving disputes:
Flexibility
The mediation process can be adapted to meet the needs of the parties during
the process and in formulating a solution. This may involve the choice over
location of the mediation, the time frame, the people who are to be involved, the
selection of acceptable objective criteria, and many other choices related to the
process. Most important, mediation is not conducted under a fixed set of rules,
as is the case in a court of law.
Informality
Mediation is an informal process, designed to suit the needs of the parties. It
appeals to parties who feel that they want to be partners in the process of
resolving their conflict and take part in the decision on the fate of their dispute.
It allows the parties to present their arguments in an informal manner, not
bound by the procedures of the legal system. Mediation is a form of guided
dialogue, where the parties have the ability to express their feelings, not only
facts, so that venting anger can help in reaching an agreed solution.
154 See section 86 of the Employment and Labour Relations Act [Cap 366 R:E 2019].
155 [Cap 33 R:E 2019].
156 Shamir. Y., Op. Cit. p, 24-5.
53
Confidentiality
Mediation is confidential, off the record, and away from the public eye and the
press. The mediator is bound not to divulge any of the information he/she
hears from one party to the other or to anyone else without permission, so the
parties can feel free to confide in the mediator. The mediator will not share the
confidential information, not even with a judge. Mediators can meet with each
party in separate and private caucus, to assist them in understanding their
own underlying interests and those of the other party.157
Also, confidentiality in mediation is provided under Order VIII C Rule 31 of the

Civil Procedure Code,158 where it reads as follows;
“All communications at a mediation session and the mediation notes and
records of the mediator shall be confidential and a party to a mediation
may not rely on the record of statement made at or any information
obtained during the mediation as evidence in court proceedings or any
other subsequent settlement initiatives, except in relation to proceedings
brought by either party to vitiate the settlement agreement on the grounds
of fraud.”
Non-Binding Nature
Mediators assist the parties to reach a negotiated settlement, an agreement,
which is then usually put in writing. If the parties are not happy with the
process or the outcome, they have not relinquished the right to use another
dispute resolution mechanism in order to resolve their dispute, for example
they can go to court or to an arbitrator.
Savings on Resources
Mediation is generally faster than the judicial process, it is less costly, and
saves on resources (time, money, and energy). It can often be scheduled at the
convenience of the parties, avoiding long court delays and associated costs. In
157 Shamir. Y., Op. Cit. p, 24-5.

158 [Cap 33 R:E 2019].
54
mediation, the focus is on the future, but it does not ignore the past, which
provides the information about the issues and the causes of the conflict. This
minimizes non-productive justifications, assessment of “who is right,” and
differing views of “the truth.”
Maintenance and often Improvement of the Relationship

One of the main reasons for using mediation as an alternative to the judicial
process is to preserve and potentially improve relationships between the
parties. The mediation process works well in the case of a long-term
relationship or interest-based disputes. In the process, the parties gain
understanding of each other’s motives, needs, and interests. This
understanding can often improve the relationship between them. When the
relationship is maintained and improved through the resolution of the conflict,
the parties have an increased capacity both to maintain the agreement and to
resolve future conflicts.159
3.4 Positive Results of Mediation

The positive aspects of mediation are:160
i. It helps to identify the true issues of the dispute.
ii. It resolves some or all of the issues.
iii. Agreement can be reached on all or part of the issues of the dispute.
iv. The needs and interests of the parties are met (in part or in full).
v. The parties reach an understanding of the true cause of the dispute.
vi. The parties reach an understanding of each other’s needs and
interests.
vii. It provides the possibility of preserving the relationship.
viii. An improved relationship may result.
159 Shamir. Y., Op. Cit. p, 25.

55
3.5 The Role of the Mediator
The mediator should consider the following to be part of her/his task:161
i. Help to coordinate the meetings.
ii. Introduce the parties.
iii. Explain the process to the parties.
iv. Set the agenda and rules.
v. Create a cease-fire between the parties.
vi. Open communication channels.
vii. Gain the confidence and trust of the parties.
viii. Gather information and identify obstacles.
ix. Allow the parties to express feelings and vent emotions.
x. Help the parties to identify and understand their interests and
priorities.
xi. Help the parties with brainstorming creative options and solutions.
xii. Help in defining acceptable objective criteria.
xiii. Help the parties understand the limitations of their demands
through what is
xiv. known as “a reality test.”
xv. Help in evaluating alternatives.
xvi. Allow the process to move forward according to the needs and pace
of the parties.
xvii. Help in crafting the agreement.
xviii. Help in validating the agreement by the courts (if there is a court
that has jurisdiction).
3.6 Skills and Tools of a Good Mediator

As we have already observed, the success or failure of a mediation process
depends greatly on the mediator. For the mediator to be effective in discharging
56
his or her duty in the mediation process, he or she must have the following
skills;162
i. listening skills, active listening
ii. strong negotiating skills (because mediation is facilitated negotiation)
iii. the ability to create trust among the parties
iv. the ability to identify the issues of the dispute
v. patience, endurance, and perseverance
vi. thoughtfulness, empathy, and flexibility
vii. common sense, rational thinking
viii. a likeable personality
ix. experience, education, training
x. neutral, impartial
xi. problem-solving skills, creativity
xii. ability to reframe the parties views in softer terms and summarize
what was said
xiii. good people skills
xiv. asking open-ended questions.
3.7 The Problems that the Mediator Attempts to Resolve
i. litigation issues
ii. business interests
iii. personal / professional relationship interests
iv. community interests.
3.8 Techniques and Strategies

Mediators use a variety of strategies and techniques during mediation. They
develop their personal style depending on their personality, experience, and
beliefs in the role of mediation. The mediators have no power as far as what the
outcome of the process will be, but they have the responsibility to design the
57
process, set the agenda, and control it. They have to bring the parties to trust
them, and guide them towards a settlement.163
Mediators may use experts and expertise in certain disputed issues, and seek
guidance for resolution of the dispute on the basis of law, industry practice,
and so on.
The Facilitative Strategy

The mediator uses strategies and techniques of facilitating and assists the
parties to understand their situation and interests, and encourages them to
communicate, create options, and reach an agreement. During mediation the
focus is on the future, but the process does not ignore the past, which provides
the information about the issues and the causes of the conflict.
Mediators elicit ideas from each side for possible resolution, and assist the
parties to develop a negotiated settlement, an agreement, which is usually put
into writing, and can be ratified by the court.
The Evaluative Strategy

The mediator will focus on the legal demands, evaluate the case, offer an
opinion, and predict the outcome of the case in court. In such an approach, the
mediators do not concern themselves with the process or the relationship of the
parties. They focus on the settlement of the case and suggest solutions to the
problem.
3.9 Models and Approaches to Mediation

There are several different approaches and mediation models:164
i. the model of co-mediation
ii. the model of a single mediator
iii. the model of a panel of mediators

164 Ibid. p, 26-7.
58
Mediation is not an easy process, and co-mediation has many advantages
which are very beneficial, but only if the mediators are compatible and know
how to work together.165
i. The mediators complement each other (in divorce cases a lawyer with
a psychologist or social worker can be very effective; one can
strategize and the other can reframe positively).
ii. They can divide the tasks (one can listen and the other can take
notes).
iii. They can strategize and brainstorm together.
iv. If one gets “stuck,” the other can proceed.
v. They can compare their perception of what was really said by the
parties, and so on.
If however the mediators do not know one another, or are not compatible, the
process may work better with a single mediator. Single mediation is a very
common model which is used for economic reasons, and because mediators
enjoy working alone and being in control of the process. Experienced mediators
who work alone are doing excellent work.166
The model of a panel of mediators is used in very complex cases that involve
multi-party mediation, and in cases of environmental mediation. The models
vary in terms of the methods, techniques, and the process of mediation, and in
the particular circumstances of the dispute in question.167
There are several approaches to mediation, and we will present the two that are
most used. While the special characteristics and aims of mediation remain the
same, they can be achieved in different ways, by different approaches, as will
be discussed below. The mediator needs to adopt one of these approaches, or a
165 Shamir. Y., Op. Cit. at p, 27.

166Ibid.
167 Ibid.
59
combination, depending on the specifics of the case and the nature of the
parties, as well as his/her own beliefs, experience, and expertise.168
The Evaluative Approach

Evaluative mediation is a process where the mediator is the one who provides
guidance as to the appropriate grounds for settlement, on the basis of the law
or her/his experience and knowledge in a specific field of expertise.169
The mediator’s creativity and knowledge are used in order to help the parties
navigate towards a settlement. In the evaluative approach the mediator tries to
help the disputants to view realistically the strength and weaknesses of their
case and claims. The mediator offers solutions, and even tries to predict the
likely outcome in court, in case the mediation process fails. As the mediator
has a dominant role in the process, the evaluative mediator influences and
directs some – and sometimes all – of the outcomes of the mediation.
The mediator may study relevant documents in order to understand the nature
of the dispute, its substantive issues, and professional aspect, and suggest
areas of agreement, solutions, and even compromise, urging the parties to
accept a particular settlement.
Predicting the possible outcomes may pressure the parties to reach a decision
as to their options; an evaluative mediator may help the parties, and
sometimes even urge them to come up with options accordingly. Mediators may
use their own creativity, and come up with suggestions, ideas, and offers of
their own. Although they do not have any binding authority, evaluative
mediators may use the authority conferred by their experience to propose
solutions or compromises and direct the parties towards them.
168Shamir. Y., Op. Cit. at p, 28.

169 Ibid.
60
The Transformative Approach
This approach in mediation is a process in which the mediator’s role is to help
and assist the parties to reach an agreement. The transformative approach to
mediation, as described by Folger and Bush in The Promise of Mediation
(1994), views conflict as an opportunity for solving problems through
transformation. Folger and Bush believe that conflicts store the potential for
valuable transformation in two aspects: empowerment of the parties, and
recognition.170
Empowerment. The parties believe in themselves and their value. They believe
that they have the ability and capability to identify and define their issues, and
it is their responsibility to find a mutually acceptable solution to their problem.
Recognition. The parties have the ability to understand the other party’s point
of view, and why they proposed the solution that they did (without necessarily
agreeing to it). A transformative mediation has an educational value for the
parties. By gaining the ability to reflect on the process, the parties may be able
to use the same techniques in order to avoid future disagreements and
disputes. The parties learn to use the opportunity of a conflict as an event from
which both parties may benefit.171
The potential effects of this approach may be valuable in the long run, both for
the parties and for society. This approach provides and enhances moral growth
and the ability to handle disputes in a cooperative way in the future.
The mediator may help the parties to identify and analyze their interests, and
gain greater clarity about their goals, resources, options, and preferences. This
will help them reach effective decisions, and develop a better and more efficient
outcome.172

171 Ibid.
61
A transformative/facilitative mediator leaves the responsibility with the parties.
The mediator assumes that the parties are best placed to know what is right for
them and have the ability and good sense to reach the most suitable outcome
regarding their situation.
The mediator would not be judgmental as to the parties’ claims or positions, or

choice of outcomes. The mediator would encourage the parties, and facilitate
the process through which they will come up with creative proposals and
options, as an outcome of their understanding of the situation. Transformative
mediation empowers the parties by developing a sense of their own ability to
deal with the issues and problems of the dispute.
The mediator knows that, if the roots of the conflict are to be understood, it is
impossible to make short cuts; transformation and a true dialogue are what is
aimed for, in the belief that this would lay the grounds for creative, freely-
made, and constructive choices and solutions.
3.10 Steps of Mediation

Many people think that mediation is an informal process in which a friendly
mediator chats with the disputants until they suddenly drop their hostilities
and work together for the common good. It doesn't work this way. Mediation is
a multi-stage process designed to get results. It is less formal than a trial or
arbitration, but there are distinct stages to the mediation process that account
for the system's high rate of success. Most mediations proceed as follows:173
Step 1: Mediator's opening statement. After the disputants are seated at a

table, the mediator introduces everyone, explains the goals and rules of the
mediation, and encourages each side to work cooperatively toward a
settlement.174
173 Mediate, Don’t Litigate: Strategies for Successful Mediation, by Peter Lovenheim (Nolo).
174 Ibid.
62
Step 2: Disputants' opening statements. Each party is invited to describe the
dispute and its consequences, financial and otherwise. The mediator might
entertain general ideas about resolution, as well. While one person is speaking,
the other is not allowed to interrupt.
Step 3: Joint discussion. The mediator might encourage the parties to

respond directly to the opening statements, depending on the participants'
receptivity, in an attempt to further define the issues.
Step 4: Private caucuses. The private caucus is a chance for each party to
meet privately with the mediator. Each side will be placed in a separate room.
The mediator will go between the two rooms to discuss the strengths and
weaknesses of each position and to exchange offers. The mediator continues
the exchange as needed during the time allowed. These private meetings
comprise the guts of mediation.
Step 5: Joint negotiation. After caucuses, the mediator might bring the
parties back together to negotiate directly, but this is unusual. The mediator
usually doesn't bring the parties back together until a settlement is reached or
the time allotted for the mediation ends.
Step 6: Closure. If the parties reach an agreement, the mediator will likely put
its main provisions in writing and ask each side to sign the written summary of
the agreement. If the parties didn't reach an agreement, the mediator will help
the parties determine whether it would be fruitful to meet again later or
continue negotiations by phone.
3.11 Problems Encountered in Mediation
The field continues to struggle with many controversial issues, including:175
i. The evaluative mediator versus the transformative mediator.
63
ii. The issue of “private caucus”: should we have private caucus, or use
only joint meetings with the parties?
iii. Is there a need for a mediator with special expertise in specific subject
matters?
iv. (banking, land, water, building industry, computers, and so on)?
v. Should criminal cases and domestic violence be mediated?
What mediation is all about and how it should be handled are topics of
contention and disagreements in the mediation community.176
Dwight Golann (1996) addresses the issue of the purpose of mediation, and
proposes that the primary function of the mediator is to resolve disputes, not to
empower and transform the parties. Golann is not against empowerment and
transformation of the disputants, but feels that the parties who are in court, or
are about to go that route, concern themselves with the need of settling the
dispute, not with transformation.177
3.12 Psychological Issues
The mediation process includes interactions of various kinds:178
i. between the parties and the mediators

ii. between the mediators (in co-mediation)
iii. between the mediators and the lawyers
iv. between the lawyers and the parties (their clients).
It is the mediator’s role and duty to be aware of the emotional climate during
the mediation, the barriers to the resolution, and ways and possibilities of
overcoming these barriers.

177 Ibid, p, 29.
178 Ibid.
64
Emotions can affect the judgment of the parties, and strong feeling can result
in irrational decisions that are counterproductive and even harmful to the
parties:
i. The parties often show a distorted view of the situation.
ii. They are only willing to hear information that will support their view.
iii. They react in a negative way to any suggestion of the other side.
The mediator should identify these emotions and deal with them, not ignore
them. The mediator has to be aware of these feelings, listen to what is said,
identify the source of the emotions, acknowledge it, show empathy, and
address these issues in a non-inflammatory way. He has to deal with irrational
positions that result from strong emotions by helping the parties to analyze the
results, and giving them time to change their perspective.179
3.13 Duration of Annexed Mediation

The mediation period shall not exceed a period of thirty days from the date of
the first session of mediation. This is per Order VIII C Rule 32 of the Civil
Procedure Code.180
3.14 End of Annexed Mediation and Powers of Court

A mediation shall come to an end when the parties execute a settlement
agreement, the mediator, after consultation with the parties, makes a
declaration to the effect that further mediation is not worthwhile; or thirty days
expire from the date of the first session of mediation.181 At the conclusion of the
mediation the mediator shall remit the record to the trial Court immediately or
within forty-eight-hours (48 hrs.).182

180 [Cap 33 R:E 2019].
181 Order VIII C Rule 32 of the Civil Procedure Code. Ibid.
182 Order VIII C Rule 33 ibid.
65
CHAPTER FOUR
DOMESTIC ARBITRATION
4.0 Introduction
In previous chapters, Introduction to Alternative Dispute Resolution

(hereinafter ADR), Negotiation, Conciliation and Mediation have been discussed
in detail. Basically, this chapter deals with Arbitration in Tanzania Laws and
Practice.
Historically, in Tanzania ADR as a mode of dispute settlement (arbitration

inclusively), in Court system was at first time introduced in 1994 through G.N
No. 422 and was incorporated under Order VIII C of Civil Procedure Code
Act.183 Arbitration as a mode of ADR then it’s a concern of this chapter.
Before 1994 the arbitration outside of the Court was governed by the
Arbitration Act.184 Arbitration Act as the Tanzanian legislation on arbitration
was at first introduced in 1931 and it was amended from time to time. The Act
incorporates several multilateral agreements like the Geneva Protocol on
Arbitration Clauses of 1923, the Geneva Convention on the Execution of
Foreign Arbitral Awards of 1927 and the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards of 1958, famously known as ‘the New
York Convention’ which came into force in Tanzania on 11 January 1965. It
has to be noted that the UNCITRAL Model Law of 1985 had no influence on
Arbitration Act.185 But now days new Arbitration Act of 2020 incorporates some
aspects from this Model.186
Wilbert Kapinga, Ofotsu A Tetteh-Kujorjie and Kamanga Kapinga, provide the

following major differences between the Tanzania Arbitration Act and the
UNCITRAL Model Law:
183 Cap 33 of 1966 R:E 2019.

184 [Cap 15 R:E 2019]. Repealed.
185 W. Kapinga., et. al., ‘Getting the Deal through - Arbitration- Tanzania’, Chapter. Mkono & Co
in association with Dentons, 2014. p, 406.

186 See section 4 (a) (ii) of Act No. 02 of 2020.
66
1. Under the UNCITRAL Model Law, three arbitrators are the established
requirement, whereas schedule 1 of the Arbitration Act provides that only
a single arbitrator is necessary.
2. The Arbitration Act requires arbitrators to proceed in an impartial

manner Whereas the Model Law prescribes the additional requirement of
independence of arbitrators, and
3. Unlike the Model Law, the tribunals’ determination of its own jurisdiction
under domestic law is not a necessary prerequisite to a party’s desire to
appeal to court.187
The Arbitration Act188 was supported and accompanied by the Arbitration

Rules of 1957 (Published in Government Notice No. 427 of 1957), note this Rule
now is no longer exist, it’s repealed and replaced by the Arbitration (Rules of
Procedures) Regulations.189
The Arbitration Act, also is repealed and replaced by the Arbitration Act.190 The
new Arbitration Act come into operation on 18th day of January, 2021 via the
Arbitration (Date of Commencement) Notice,191 and in order to implement this
new Act several Regulations have been enacted to support the operation.
These Regulations are the Arbitration (Rules of Procedures) Regulations, the

Reconciliation, Negotiation, Mediation and Arbitration (Practitioners
Accreditation) Regulations,192 the Code of Conduct and Practice for
Reconciliators, Negotiators, Mediators and Arbitrators Regulations,193 and the
Tanzania Arbitration Centre (Management and Operations) Regulations.194
187 W. Kapinga et al. Op. Cit. p, 406.

189 G.N No. 146 published on 29/1/2021.
190 Act No. 02 of 2020.
192 G.N No. 147 Published on 29/1/2021.
193 G.N No. 148 Published on 29/1/2021.
67
Moreover, this chapter will discuss in detail about meaning, Law governing
arbitration in Tanzania, advantages and disadvantages of arbitration over other
litigation, arbitration agreements, qualifications of arbitrators, appointment of
arbitrators and its procedures, Modes and process of conducting arbitration,
Powers and role of arbitrators, and finally it will discuss about challenging and
changing arbitrators.
4.1 Meaning and Scope of Domestic Arbitration

4.1.1 Meaning of Arbitration
Arbitration is defined under section 3 of the Arbitration Act,195 as follows;
‘Arbitration’ means “a process by which parties submit a dispute to the
decision of a neutral person or persons appointed by mutual consent or in
accordance with the provisions of this Act.”
Arbitration is an alternative dispute resolution mechanism. It is touted as a

mechanism for saving time and costs. One of its main attractions is the ability
of parties to resolve disputes privately without the intervention of courts. This
is called party autonomy and gives rise to “arbitral justice.” It means that the
process of resolving disputes by arbitration is taken outside of the glare of the
publicity that might arise in litigation before courts, or what we may call formal
“state justice.”196
Arbitration is essentially a very simple method of resolving disputes.

Disputants agree to submit their disputes to an individual whose judgment
they are prepared to trust.197 Each puts its case to this decision maker, this
private individual in a word, this ‘arbitrator’. He or she listens to the parties,
considers the facts and the arguments, and make decision. That decision is
final and binding on the parties and it is final and binding because the parties
195 Act No. 02 of 2020.

196 V. R. Makaramba., “Arbitration as a Mechanism to Speed up Delivery of Justice.” The
Judiciary of United Republic of Tanzania, 2012. p. 3.
197 A. Redfern & M. Hunter, International Commercial Arbitration. 2nd ed. Sweet & Maxwell,
2004. at p 1.
68
have agreed that it should be, rather than because of the coercive power of any
state.198
Hon. Nchimbi, J (as he then was) in Wembere Hunting Safaris Limited vs.
Registered Trustees of Mbomipa Authorized Association,199 defined
arbitration as follows:
“Undoubtedly, arbitration is a dispute resolution mechanism agreed by the
parties themselves. The arbitration process is constituted by the parties
themselves. It is in other words, the party’s own entity. It is also
significant to state with emphasis that for a matter to be referred to
arbitration there must be an arbitration agreement ordinarily in writing,
which illustrates or expresses the intention of the parties to submit
themselves to that process of dispute resolution.”
In other hand it can be defined as a form of ADR, where parties decide to solve
their disputes outside of the courts. The dispute is being decided by one or
more persons (the “arbitrators,” “arbiters” or “arbitral tribunal”) who render(s)
the “arbitration award.” The latter award is legally binding on both sides and
enforceable in the courts.200 However, the Law allows aggrieved party to
challenge an arbitral award, this is per section 60 (2), also see section 69 (1),
70 (1) and 72 of the Arbitration Act.201
Also, the right to challenge arbitral award was provided in the case of African
Construction Co. Ltd vs. The Ministry of Agriculture, Food security and
Cooperatives,202 from this suit the respondent through the Attorney General
had petitioned to challenge the arbitral award and have it set aside. The
applicants raised a preliminary objection which, upon being upheld, the
petition was dismissed. Subsequent thereto, the court proceeded with an
application to have the arbitral award adopted as decree of the Court. See also
198 A. Redfern & M. Hunter, International Commercial Arbitration. Op. Cit, p, 1.
199 Commercial Case No. 40 of 2013 (High Court Commercial Division-DSM) (unreported).
200 B. Robert., “Big Arbitration Firm Pulls Out of Credit Card Business.” Business Week, 2009.
201 Act No. 02 of 2020.
202 Miscellaneous Commercial Case No. 42 of 2006, (unreported).
69
the decision of Mwambegele J., in Kigoma/Ujiji Municipal Council vs.
Nyakirang’ani Construction Ltd.203
Generally, arbitration means a form of ADR which allows the parties to solve
their disputes out of the courtroom. But the mandatory requirement of
referring the dispute to the arbitral tribunal will depend upon the arbitration
clause. In most cases parties to the employment contract may agree to include
arbitration clause in their agreement contact. The clause usual must specify
mode of solving dispute, manner of appointing arbitrator, place, laws to be
used, and number of arbitrators.204
Domestic Arbitration is defined under section 3A of the Act,205 to mean, as an

arbitration agreement shall be deemed to be a domestic arbitration if it
provides expressly or by implication for arbitration in Mainland Tanzania.
4.1.2 Kinds or Categories of Arbitration

Various scholars and writers have tried to trace categories of the arbitration,
but here we present two essentially kinds or categories of arbitration, which
are; ad hoc and institutional arbitration.
Ad Hoc Arbitration
Ad hoc arbitration is conducted independently and according to the rules
specified by the parties and their attorneys.206 The parties therefore agree to
execute the arbitral process themselves by appointing the arbitrator and
attending to the necessary administrative requirements before and during the
hearing. The parties then conduct the arbitration under the procedural rules
designated by the contractual arbitration clause; or, more often than not, by
the rules agreed to once the dispute has arisen.207
203 Miscellaneous Commercial cause No. 239 of 2015, (unreported).

204 Section 17 of Act No. 02 of 2020.
205 See Section 3A ibid.
206 V. R. Makaramba., “Arbitration as a Mechanism to Speed up Delivery of Justice.” Op Cit. p. 8.
207 Ibid.
70
On its face, ad hoc arbitration may seem to be less expensive and more flexible,
which is why it is touted as the cheaper option because no administrative fees
are paid for the referral. However, counter arguments suggest that the absence
of facilitative processes may cause the parties to incur unforeseen expenses
exceeding the administrative fee.
Institutional Arbitration
An institutional arbitration is one that is entrusted to one of the major
arbitration institutions to handle. It provides an independent, neutral set of
rules that already exist. It requires that an institution provide services that are
critical to ensuring that the arbitration proceeds smoothly. For example, the
International Court of Arbitration (ICA),208 decides on the number of arbitrators
and their fees, appoints the arbitrators, ensures that the arbitration is being
conducted according to International Chamber of Commerce Rules, determines
the place of arbitration, sets time limits, and reviews arbitral awards.
In addition, an arbitral body will ensure controlled costs, since it will have a
pre-determined framework of charges. An arbitral body sets forth a set of
arbitration rules that governs the potential arbitration. It may also issue a
model arbitration clause that can be incorporated into the contract or business
agreement when the transaction is made.
In institutional arbitration, the specialist institution generally administers the

arbitration under its own rules, unless it agrees to do so under another set
selected by the parties. The arbitration institution appoints the tribunal and, in
most cases, acts as the intermediary between the parties and the tribunal until
the hearing commences, undertaking all necessary administrative
arrangements. In choosing an arbitration institution however, parties must
ensure that its procedural rules are compatible with the laws of the lex arbitri,
that is, the place where the arbitration is to be held or seat of arbitration for
that matter.
208 Available at http://www.iccwbo.org/court/arbitration/id4400/index.html

71
In recent years institutional arbitration has grown fast. One reason for such
growth is that there are now many arbitral bodies, and parties can select one
that is best suited to their needs. Some organizations welcome any type of
dispute. In contrast, there are organizations that specialize in particular types
of disputes, such as those involving investment disputes209 or that focus on a
particular topic, such as intellectual property disputes.210 Some arbitral bodies
specialize in disputes in particular industries.211 This clearly shows that
arbitral awards may be issued by a number of institutions, which may
complicate research in this particular area. Another factor in selecting an
institution is the nature of the party; one institution may be open only to states
or member governments, while another may be available to any entity or
individual.212
4.1.3 Importance or Advantages of Arbitration

Arbitration has various advantages not only to the parties but also even to the
court system, since because it enables to divert cases from the court and
reduce case backlogs and provide other and efficient ways of providing access
to justice.
Hon. Mr. Justice Robert Vincent Makaramba at his best provides the following
advantages of Arbitration over the Court litigation:213
1. Speedier resolution; however, there can be exceptions due to multiple

parties, arbitrators, lawyers and litigation strategy.
2. Less costly; however, there can be exceptions due to multiple parties,
lawyers, arbitrators and litigation strategy.
209 International Centre for Investment Dispute Settlement (ICSD).

210 WIPO Convention, the constituent instrument of the World Intellectual Property
Organization (WIPO), was signed at Stockholm on July 14, 1967, entered into force in 1970
and was amended in 1979. WIPO is an intergovernmental organization that became in 1974 one
of the specialized agencies of the United Nations system of organizations and has its own Rules
of Arbitration for settling IPR Disputes.
211 An example is the American Arbitration Association (AAA) ((http://www.adr.org), which has
different sets of special rules governing disputes in different subjects.

212 V. R. Makaramba., “Arbitration as a Mechanism to Speed up Delivery of Justice.” Op Cit. p. 9.
213 Ibid. at p. 3-4.
72
3. Exclusionary rules of evidence don’t apply; everything can come into
evidence so long as relevant and non-cumulative.
4. Not a public hearing; there is no public record of the proceedings.
Confidentiality is required of the arbitrator and by agreement the whole
dispute and the resolution of it can be subject to confidentiality imposed
on the parties, their experts and attorneys by so providing in the
arbitration agreement.
5. From defense point of view, there is less exposure to punitive damages
and run-away juries;
6. A party may record a lis pendens even if there if an arbitration pending
by filing a law suit and then holding the case in abeyance until the
arbitration is resolved.
7. The ability to get arbitrators who have arbitrator process expertise and
specific subject matter expertise.
8. Limited discovery because it is controlled by what the parties have
agreed upon and it is all controlled by the arbitrator.
9. Often, the arbitration process is less adversarial than litigation which
helps to maintain business relationships between the parties.
10. The arbitration is more informal than litigation.
4.1.4 Dis-advantages of Arbitration

Arbitration has proved to have many advantages in the course expeditiously
dispute settlement out of the court room, on the other side of the coin,
Arbitration has been considered to have also drawbacks as expounded by
various scholars.
The following have often been said to constitute the disadvantages of

arbitration:214
214A. Mazirow., “The Advantages and Disadvantages of Arbitration as Compared to Litigation.”

Los Angeles, California – USA, 2008. p. 2.
73
1. There is no right of discovery unless the arbitration agreement so
provides or the parties stipulate to allow discovery or the arbitrator
permits discovery.
2. The arbitration process may not be fast and it may not be inexpensive,
particularly when there is a panel of arbitrators.
3. Unknown bias and competency of the arbitrator unless the arbitration
agreement set up the qualifications or the organization that administers
the arbitration, has pre-qualified the arbitrator.
4. There is no jury and from the claimant’s point of view that may be a
serious drawback.
5. An arbitrator may make an award based upon broad principles of

“justice” and “equity” and not necessarily on rules of law or evidence.
6. An arbitration award cannot be the basis of a claim for malicious

prosecution.
7. Except in certain circumstances, non-signatories of the arbitration

agreement cannot be compelled to arbitrate. (An arbitration clause in a
lease ban be enforced against an assignee or sublesee in possession and
also be enforced by such persons. See in the case of Kelly vs. Tri Cities
Broadcasting215 and Melchor Investment Co. vs. Rolm Systems.216
8. The possibility of compromise or splitting of baby awards.
4.1.5 Advantages of a Lawsuit over Arbitration
When the advantages and disadvantages of the arbitration process are

discussed what is being weighed is the advantages and disadvantages over a
lawsuit which litigates the dispute between the parties at the public
courthouse.
215 (1983) 147 CA 3d 666.

216 (1992) 3 CA 4th 587.
74
Mr. Arthur Mazirow of ‘Real Estate Arbitrator, Mediator, Expert Witness and
Consultant’ from Los Angeles, California – USA, provide the following
advantages of a Lawsuit over Arbitration:217
1. There is a large body of substantive law and procedure that exists which
automatically controls the lawsuit and the parties don’t have to create
the rules that will govern the lawsuit.
2. The judge, by law, must be impartial and the judge’s paycheck is not
dependent upon whether the parties ever use that particular judge in
another matter. The judge is not personally affected by the outcome of
the case.
3. The place of the trial is in the courthouse and therefore neutral territory.
4. If a litigant is unhappy with a decision of the judge or the jury the

possibility of an appeal exists.
4.1.6 Disadvantages of a Lawsuit over Arbitration

After showing some of advantages of law suit over arbitration, then the
following are the disadvantages of a Lawsuit over Arbitration.218
1. The time that it takes to get to trial, which while much better than the
one year (CC) or five years (HCT), can still take a substantial time.219
2. The fear of lawyers of being accused of malpractice by their clients in not

being 100% prepared, leaving nothing to chance, and thus have a
possible liability for not taking the deposition of everyone who ever
touched a piece of paper in the litigation all of which leads to overkill and
abuse of the discovery process; this is commonly referred to as the
scorched earth approach to litigation.
217 A. Mazirow., “The Advantages and Disadvantages of Arbitration as Compared to Litigation.”

Op. Cit at p, 3.
218 V R. Makaramba, “Arbitration as a Mechanism to Speed up Delivery of Justice.” Op Cit. p. 3-
4.
219 ibid
75
3. The paper war between lawyers relating to motions on an infinite variety
of topics.
4. The large cost of legal fees in litigating a dispute.
5. The reasonable probability that you will not be able to go to trial on the
date that is set by the judge because the judge’s prior case is not over, or
there is no courtroom available due to the priority of criminal matters, all
of which results in the trial of the case being continued from time to
time.
6. The ability of parties to appeal to a higher court after losing at the trial
court level and the lack of finality;
7. The fact that neither the jury or the judge may not have any knowledge
nor experience with the subject matter of the dispute between the parties
which results in the parties having to educate the judge as to the law and
custom and practice.
8. The ability to appeal to a higher court adverse ruling on procedural
issues.220
Author summary on Advantages of Arbitration

Therefore, after passing through various literatures on the advantages and
comparison of arbitration with other forms of dispute resolution then it can be
summarized here as follows.
Its common in our knowledge that the primary advantage is that the parties to
arbitration have an almost free reign to determine the structure and procedure
applicable to the proceedings. As compared to a law suit, arbitration is
relatively inexpensive, brief and confidential. The following are some of
advantages of arbitration:
220 A. Mazirow.,” Op. Cit. at p, 4.

76
Full control of the process – the parties can, by agreement, determine the
conduct of the proceedings. This can lead to a streamlining of the procedure to
suit the specific requirements of the case at hand.221
Finality – the decision of the arbitrator is agreed to be final which can bring
proceedings222 which could have continued for years through the court system
to a swift conclusion. the grounds for challenging an arbitrator’s decision are
severely limited by the Arbitration Act.223
Privacy – arbitrations are closed whereas court proceedings are open to the
public. If the subject matter is sensitive such as proprietary technology or trade
secrets it would benefit the parties to limit the number of persons who would
have access to the evidence before the arbitration tribunal. Section 36A of
Arbitration Act requires arbitral proceeding to be conducted in camera. Thus,
this bring confidentiality of information.
Convenience – in litigation the dates for trials are determined by the Court
with little regard for the convenience of the parties. There can often be a long
wait for trial dates particularly where a matter requires a number of court
days. In the arbitration process dates can be agreed between the parties to
those most suitable to them and their witnesses.224
4.1.7 The Law governing Arbitration in Tanzania
According to Sir John Salmond defines Law as the body of principles

recognized and applied by the state in the administration of justice. It consists
of the rules recognized and acted on by Courts of justice.225 Here the word ‘Law
governing’ stand to mean those Laws which are enacted purposely to
accommodates matters on arbitration.
221 See section 36 (1) of the Act No. 02 of 2020.

222 Section 60 (1) of the Arbitration Act No. 02 of 2020.
223 Section 72 (2) and (3) ibid.
224 See section 14 ibid.
225 O. Issa., Legal System of Tanzania Law and Courts. 2nd edn, Mbeya-Tanzania: Printed by
Wazo Communication, 2015. At p, 23.

77
Those Laws are Principle Legislations enacted by Parliament and Subsidiaries
(Regulations and Rules) enacted by Ministers responsible by the power vested
from the parent Act. The laws governing arbitration in Tanzania can be
categorizing into two groups, these are:
Main Laws governing Arbitration in Tanzania

The main Laws governing arbitration in Tanzania are Arbitration Act and the
Civil Procedure Code Act. These laws specifically provide for the manner of
conducting arbitration, and it provides for the room to challenges arbitral
award provided by arbitrators. These laws also allow the enactment of
Regulations and Rules. Both Acts, Rules and Regulations are described
hereunder.
i. Arbitration Act, No. 02 of 2020

The Arbitration Act was enacted purposely to regulate arbitration matters
commences only where the parties agreed through arbitration clause to submit
their dispute (s) to Arbitral Tribunal for resolution.226 The Act also provides for
the commencement of arbitral proceedings.227 Moreover it provides for the
Jurisdiction of the Arbitral Tribunal.228
The Act also amends some provisions of Laws, include Civil Procedure Code,
among other things, it added section 64B, 64C and 64D which provide for
Accreditation matters.229 However, the Act allows enactment of some
Regulations so as to support the operation of the Act,230 these includes;
226 See section 9 of the Act No. 02 of 2020.

227 See section 14 ibid
228 See Part VI ibid.
229 See section 98 ibid.
230 See section 90 (1) ibid.
78
ii. Arbitration (Rules of Procedures) Regulations, G.N No. 146/2021
This Regulation was made under section 90 of the Arbitration Act.231 These
regulations have been articulated with the aim to govern arbitration
proceedings, considering the general conduct of arbitration, conditions for
arbitration, notices, submissions, the commencement of arbitration
proceedings, and the provision of awards and decisions from Arbitrator or
Arbitration Centre.
The regulations are deemed to form part and parcel of any contract that
provides for arbitration as such all arising disputes from such contract are to
be settled in accordance to the regulations.232 The regulations also require and
only recognizes arbitrators who are accredited or provisionally registered in
terms of the Reconciliation, Negotiation, Mediation and Arbitration
(Practitioners Accreditation) Regulations of 2021.
Moreover, the regulations provide for the qualification of the person (s) to be
appointed as arbitrators.233 Furthermore, under the regulations an Arbitral
tribunal is established which includes a sole arbitrator or a panel of arbitrators
who shall preside over the matter. The regulations also set out a special clause
or a standard clause to be incorporated into the contracts of any parties who
may wish to resolve their matter through the Arbitration Centre.
iii. Tanzania Arbitration Centre (Management and Operations) Regulations

G.N No. 149/2021
This Regulation was made under section 90 (2) (d) of the Arbitration Act.234
These regulations have been articulated for the management and operations of
the Tanzania Arbitration Centre which is established under Arbitration Act,235
the regulation provides the organizational Structure of Centre,236 and for the
231 See section 90 (1) of the Act No. 02 of 2020.

232 See regulation 3 of the GN No. 146/2021.
233 See regulation 14 ibid.
234 Act No. 02 of 2020.
235 See Section 77 (1) - (7) of the Arbitration Act [Act No. 02 of 2020].
236 See Regulation 3 of the GN. No. 149/2021.
79
manner within which the Tanzania Arbitration Centre will conduct its day-to-
day activities.
2. Civil Procedure Code Act, Cap 33 R:E 2019

The CPC also has provisions provides for arbitration. See section 64 of the CPC
and Order VIIIC rule 35 of CPC, which reads as follows;
“Any matter in dispute referred to arbitration under a court order shall be
dealt with as provided for under the Second Schedule to this Code.”
Second Schedule of CPC provide rules regulating arbitration in Tanzania: this

rule called as, the Civil Procedure (Arbitration) Rules. These rules applicable in
circumstances where in any suit all the parties interested agree that any
matter in difference between them shall be referred to arbitration they may, at
any time before judgment is pronounced, apply to the court for an order of
reference.
i. Civil Procedure (Arbitration) Rules

Unlike in the Arbitration Act, the Civil Procedure (Arbitration) Rules,
arbitration commences after a suit is filed and is pending in court.237 It takes
place where the parties have agreed to go to arbitration in the course of the
court proceedings, subsequent to which the court should permit them to resort
to arbitration under the Second Schedule to the CPC.238
In practice, the court supervises the arbitration process, whereby the award
ensuing from this process must be communicated to the court for it to mark
the dispute formally concluded. Where arbitration in this regard fails, the
matter would proceed for full trial. For further clarification go and read the
whole Regulation. Civil Procedure Code also allow enactment of other
237 See rule 1 (1) and (2) of the Civil Procedure (Arbitration) Rules under Second Schedule of
CPC.
238 C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Law and Practice.
Mkuki na Nyota Publishers Ltd, 2014. p, 118.

80
Regulations and Rules to implement and support arbitration,239 these
regulations includes the following;
ii. Reconciliation, Negotiation, Mediation and Arbitration (Practitioners

Accreditation) Regulations, G.N No. 147/2021
This Regulation was made under sections 64B (1) and 64D (4)(e) of the Civil
Procedure Code.240 This Regulation govern the accreditation process which
means the recognition and registration of persons competent to perform the
functions and duties as reconciliators, reconciliatory, negotiators, mediators or
arbitrators in Tanzania. For example, regulation 5 of this G.N provides for
qualifications for registration as reconciliator, negotiator and mediator.
The regulations also provide for the Accreditation Panel formulated to

determine the application for the Certificate of Accreditation.241 The Panel shall
consist of the Attorney General who shall sit as the Chairman; the Solicitor
General; the Chairman of the Governing Board of the Tanzania Arbitration
Centre; the President of the Tanzania Institute of Arbitrators; the President of
Tanganyika Law Society; and one representative appointed by the Minister
from the National Construction Council; and Public Procurement Regulatory
Authority.
iii. Code of Conduct and Practice for Reconciliators, Negotiators,

Mediators and Arbitrators Regulations, G.N No. 148/2021
This Regulation was made under sections 64D (4)(c) of the Civil Procedure
Code.242 This regulation provides the Code of Conduct and Practice for
Reconciliators, Negotiators, Mediators and Arbitrators under the First Schedule
to these Regulations. The Code serves as guidance to accredited persons in the
performance of their professional responsibilities, duties and acceptable
behaviours and is intended to assist them in attaining the desired level of
239 See section 98 of the Act No. 02 of 2020.

240 Cap 33 R:E 2019.
241 See regulation 3 of the GN No. 147/2021.
242 Cap 33 R:E 2019.
81
conduct and ensuring the integrity of the reconciliation, negotiation, mediation,
and arbitration process.
To ensure that the Code of Conduct is upheld the regulation creates the
Accreditation Panel which will deal with complaints of misconduct and provide
sanction for breach of Code.243
Arbitration under Arbitration Act and under Civil Procedure (Arbitration)

Rules
a. Arbitration under the Arbitration Act
Under the Arbitration Act, arbitration is almost entirely done without court
intervention, because there is no case from which arbitration proceedings may
commence. In this regard, the matter is handled by the parties themselves and
their arbitrator. As a cardinal rule, the foundation of arbitration is the
Arbitration Agreement or Clause, contained in the founding contract requiring
the parties to refer any dispute arising in the course of the performance of the
contract to arbitration. When an arbitral award is granted, it should be
registered in the High Court and given force of law as a decree of the court.244
b. Arbitration under the Civil Procedure (Arbitration) Rules

As we have seen above, arbitration under the Civil Procedure (Arbitration)
Rules (contained in the Second Schedule to the CPC) is usually put in motion
by one party filing a case in a court, and if both parties agree that the matter
had better be referred to arbitration, the parties make an application in writing
to the court in which the case has been filed for an order of reference to
arbitration.245 Should the court grant the application, it will refer the case to
arbitration. Thereafter, the procedure to be followed is similar to the procedure
of arbitration under the Arbitration Act, mutatis mutandis. When the award
243 See Regulation 5 of the GN. 148/2021.

245 See rule 1 (1) and (2) of the Civil Procedure (Arbitration) Rules under Second Schedule of
CPC.
82
has been rendered, the arbitrator files it in the court and it becomes a court
decree in the case.
Other Laws governing Arbitration matters in Tanzania

i. Employment and Labour Relations Act [Cap 366 R:E 2019]
The Employment and Labour Relations Act, has established a mechanism for
resolution of disputes through mediation, arbitration and adjudication. Section
92 of the Act246 ousts the application of the Arbitration Act, on arbitration
under the CMA in which resolution of disputes by arbitration is mandatory.
However, section 93 of the same Act permits voluntary arbitration, in which
case the provisions of the Arbitration Act may be applied.
ii. Labour Institutions Act [Cap 300 R:E 2019]

The Labour Institutions Act has specifically established the Commission for
Mediation and Arbitration (CMA), which is empowered to appoint arbitrators,247
to hear and determine disputes with reference to that Act.
4.1.8 Tanzania’s Compliance with International Arbitration Law

As we have already seen, the Arbitration Act was enacted in 1931 during
British colonial rule. Then there were only two international instruments on
arbitration that were in place: the 1923 Geneva Protocol on Arbitration and the
1927 Geneva Convention on the Execution of Foreign Awards.248
So, the Arbitration Act predates some of the modern principal international
arbitration instruments: i.e., the 1958 New York Convention on the Recognition
and Enforcement of Foreign Awards and the 1985 UNCITRAL Model Law on
International Arbitration. As such, the Arbitration Act “formally” incorporates
two of the international arbitration instruments, which are thus made part of
the schedules to the Act.249
246 [Cap 366 R:E 2019].

247 See Section 15 (1) (a), 19 (1) and (2) of Cap 300 R:E 2019.
249 Ibid.
83
It has to be noted that, Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of 1958, famous known as ‘the New York Convention’
and Model Law on International Arbitration had no influence in Arbitration
Act,250 but after coming of new Arbitration Act of 2020 these International
Conventions are recognized. This is according to long title of Arbitration Act,251
which reads as follows;
“An Act to provide for conduct relating to domestic arbitration, international
arbitration and enforcement of foreign arbitral awards, repeal of the
Arbitration Act and to provide for matters relating to or incidental thereto.”
Thus, it can be concluded here that, International Conventions have a lot of

influence in Arbitration Act of Tanzania. As it’s already pointed out that the
Arbitration Act incorporated several multilateral agreements like the Geneva
Protocol on Arbitration Clauses of 1923, the Geneva Convention on the
Execution of Foreign Arbitral Awards of 1927. And Arbitration Act of 2020
incorporates Conventions on the Recognition and Enforcement of Foreign
Arbitral Awards of 1958 and UNCITRAL Model Law of 1985. See section 4 (a) (ii)
and section 78 of Arbitration Act,252 these sections recognize and enforce the
foreign arbitral award.

251 Act No 02 of 2020.
252 Ibid.
84
4.2 The Arbitration Agreement
The Arbitration agreement is provided under Part III of the Arbitration Act.
Section 3 of the Act provides the meaning of arbitration agreement as follows;
“An agreement by the parties to submit to arbitration all or certain disputes
which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.”
Basing on this provision, it seems that arbitration agreement refers to the

desire of the parties to the dispute to waives their rights of bringing the dispute
before the Court instead take it to arbitral tribunal for resolution.
Arbitration agreement also is defined under Article 7 (1) of the United Nation
Commission on International Trade Law Model Law,253 which provides that;
“… ‘Arbitration agreement’ is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.”
Moreover, Harvard University defined Arbitration agreement as;

“A clause in a broader contract in which parties agrees to settle their
dispute out of court through arbitration proceeding. Arbitration agreement
are common in consumer contracts and employment contract. The essence
of doing so is to reduce the costs and to improve the efficiency of dispute
resolution.”254
It’s to be noted that the arbitration agreement or clause has to be incorporated

in the main contract or as a separate written agreement ‘by which the parties
to a contract agree that disputes between them which have arisen or may arise
in the course of the execution of the contract between them shall be referred to
253 UNCITRAL Model Law of 1985.

254 https://www.pon.harvard.edu/blog/?amp accessed on April 8, 2021.
85
arbitration and that the arbitrator’s decision (referred to as “award”) arising
from such reference shall be final and binding upon the parties.’255
The above contention is found in the case of G.K. Hotels Limited & Resort
(Pty) vs. Board of Trustees of the Local Authorities Provident Fund,256
from this case petitioner pleaded that their dispute fallen under the ambit of
clause 41.2 and 42.3 of the Lease Agreement. The clauses were signified
intention of parties to the Lease Agreement to submit dispute or difference
arising between them as to interpretation and construction of the Lease
Agreement or rights, duties or obligations, to arbitration if such a dispute or
difference is not settled amicably. Imploring the clause on arbitration, the
petitioner served the respondent with the latter notifying him of his intention to
proceed to arbitration. He proposed that Hon Mr. Justice Lameck Mfalila, a
retired justice of appeal, be nominated as an arbitrator. Warema, J., said;
“it should be noted here that the respondent has not expressed any
objection to the proposed arbitrator. Having expressed no objection to the
proposal, I assume he would not mind, should I find it fit to grant the
petition, the appointment of the proposed arbitrator.”
4.2.1 Construction of the Arbitration Agreement

Section 9 of the Act provided for the construction of the arbitration agreement,
i.e. a reference in an agreement to a written form of arbitration clause or to a
document containing an arbitration clause constitutes an arbitration
agreement if the reference is such as to make that clause part of the arbitration
agreement.
Every arbitration agreement has to be in writing. The arbitration agreement

shall be in writing. An agreement is in writing if it is contained in a document
256 Misc. Civil Cause No. 1 of 2008 (High Court Commercial Division) (unreported).
86
signed by the parties.257 This is a requirement of law under express provision of
section 8 (1) of the current Arbitration Act, which reads as follows;
“The provisions of this Act shall apply only where the arbitration
agreement is in writing, and any other agreement between the parties as
to any matter is effective for the purposes of this Act only if it is in writing.”
Where parties agree, otherwise than in writing, by reference to terms which are
in writing, they are considered to have made an agreement in writing.258 And
an agreement shall be evidenced in writing where the agreement made
otherwise than in writing is recorded by one of the parties, or by a third party,
with the authority of the parties to the agreement.259
Hon. Nchimbi, J (as he then was) in Wembere Hunting Safaris Limited vs.
Registered Trustees of Mbomipa Authorized Association,260 said:
It is also significant to state with emphasis that for a matter to be referred
to arbitration there must be an arbitration agreement ordinarily in writing,
which illustrates or expresses the intention of the parties to submit
themselves to that process of dispute resolution."
In addition, such a clause usually must set out the number of arbitrators to be
appointed, the manner of appointing them, the powers of the arbitrators, their
qualifications, the place and language of the arbitration, the applicable law,
and so on.261 See also Form No. 03 under Fourth Schedule of the Regulation.262
257 Article 7 (2) of the UNCITRAL Model Law of 1985.

258 Section 8 (4) of Act No. 2020.
259 Section 8 (5) ibid.
260 Supra.
262 GN. No. 146 of 2021.
87
4.2.1 Mandatory Requirement to Refer the Proceeding to the Arbitral
Tribunal
As general principle, in Tanzania it is mandatory to refer a dispute to
arbitration where there is an arbitration clause in a contract.263 It’s mandatory
requirement to take a dispute to the Arbitral Tribunal. This is the court's
position that where there is existence of an agreement between the parties for
them to refer the dispute to arbitration regardless of the nature of the
complaint the parties have to go before the Tribunal and not the Court. This
was seen in the case of Mandani vs. Suchale,264 it was held that;
“where there is an arbitration clause in a contract, parties to that contract
must first refer any dispute arising from its performance to arbitration.”
However, this requirement was discussed in Shamji vs. Treasury Registrar

Ministry of Finance,265 Nsekela J., said;
“It is mandatory that where there is an arbitration clause the dispute
should refer to the Court. Where a dispute between the parties has by
agreement to be referred for the decision of a tribunal of their choice the
Court would direct that the parties should go before the tribunal and not
resort to court.”
Also, was discussed in the case of Harbour Assurance Company (UK) vs.
Kansa General International Assurance Company Limited.266
“There are no hard and fast rules as to how judicial discretion should be
exercised in determining whether to excuse a party from submitting to
arbitration. But all the surrounding circumstances should be considered.
Where any dispute is to be referred to arbitration, the clause should not be
read to exclude fraud and misrepresentation.”
263 C. J Mashamba., Op. Cit. at, p. 125.

264 (1971) HCD no. 10.
265 [2002] 1 EA 273.
266 [1993] 3 All ER 897.
88
Exception of the Requirement to Refer the Proceeding to the Arbitral
Tribunal
Where any persons agree in writing that any difference between them shall be
referred to arbitration, the parties to the agreement or any of them may apply
to any court having jurisdiction in the matter to which the agreement relates,
that the agreement be filed in court.267
The application shall be in writing and shall be numbered and registered as a

suit between one or more of the parties interested or claiming to be interested
as plaintiff or plaintiffs, and the others or other of them as defendants or
defendant if the application has been presented by all the parties or, if
otherwise, between the applicant as plaintiff and the other parties as
defendants.268
On such application being made, the court shall direct notice thereof to be
given to all the parties to the agreement, other than the applicants, requiring
such parties to show cause, within the time specified in the notice, why the
agreement should not be filed.269 Where no sufficient cause is shown, the court
shall order the agreement to be filed.270
267 See rule 17 (1) of the Civil Procedure (Arbitration) Rules under Second Schedule of CPC.
268 Rule 17 (2) ibid.
269 Rule 17 (3) ibid.
270 Rule 17 (4) ibid.
89
4.2.3 Doctrine of Separability of the Arbitration Agreement
In Tanzania this doctrine is found under section 10 of the Arbitration Act,271
which reads as follows;
“Unless otherwise agreed by the parties, an arbitration agreement which
forms or was intended to form part of another agreement, whether or not in
writing, shall not be regarded as invalid, non-existent or ineffective
because that other agreement is invalid, did not come into existence or has
become ineffective, and the arbitration agreement shall for that purpose, be
treated as a distinct agreement.”
Also, the doctrine of separability is found under regulation 36 (3) of the

Arbitration (Rules of Procedures) Regulations,272 which reads as follows;
“An arbitration clause which forms part of a contract and which provides
for arbitration under these Regulations shall be treated as an agreement
independent of the other terms of the contract.”
Doctrine of separability treats an arbitration clause as separate and severable

from the contract in which it is contained. This is evidenced in the decision of
Tanzania Motor Service Ltd and Presidential Parastatal Sector Reform
Commission vs. Mehar Singh t/a Thaker Singh,273 from this cases fact were
as follows;
The 1st appellant, Tanzania Motor Services Limited, entered into a contract
with the respondent, Mehar Singh t/a Thaker Singh, under which the 1st
appellant was to build a house on Plot No. 6, Central Business Park, Dodoma
Municipality. The contract contained an arbitration clause whereby the parties
agreed to refer any dispute or difference arising between them to the arbitration
and final decision of a person chosen according to a procedure. The 2nd
appellant, the Presidential Parastatal Sector Reform Commission, was joined as
the statutory Official Receiver of the 1st appellant. A dispute having arisen
271 Act No. 02 of 2020.

272 G.N No. 146/2021.
273 Civil Appeal No. 115 of 2005.
90
between the parties, the respondent instituted in the High Court Civil Case No.
20 of 2002 seeking to recover from the appellants outstanding monies under
the contract. The appellants, instead of filing a written statement of defence,
applied by way of petition for a stay of the proceedings.
Lubuva, J. A., Mroso, J. A. and Nsekela, J.A., held that;

“We pointed out before that an arbitration clause in a contract is distinct
from the other clauses and that its breach can be specifically enforced by
the machinery of the Arbitration Act. This is the decision we are concerned
with.”
Arbitration clause is independent and separate from the main contract, this is
a common law principle, in USA this principle was declared in the case Prima
Paint Corporation vs. Conklin Manufacturing Co,274 it was stated that;
“Arbitration clause as a matter of federal law are ‘separable’ from the
contracts in which they are imbedded, the concept is sometime referred to
as a question of ‘severability.’
The arbitration clause may have this separate existence not only when the
contract has come to an end by performance (that is to say, when it has been
executed) but also when it has come to an end prematurely, as a result of a
supervening event such as force majeure or illegality. It is important in practice
that an arbitration clause should be capable of this separate existence as it is
the base on which the arbitration if founded. The agreement to arbitrate is
contained in the arbitration clause, without such an agreement there can be no
valid arbitration.275
An arbitration clause, from the above scholarly point of view, is survived by a

terminated agreement. The arbitration clause in a contract of any kind is
separable from the agreement in which such a clause is in. Termination of the
main contract does not invalidate the arbitration clause.
274 [1967] 338 US 395.

275 A. Redfern & M. Hunter., International Commercial Arbitration. Op. Cit. at p, 174-75.
91
This was also said by Nchimbi J., in Wembere Hunting Safaris Limited
(supra). He went on by saying:
"Equally important is the underlying tenet that an arbitration agreement is
an independent agreement it stands on its agreement even if it is just a
clause in a contract. That means even if for example, the contract is not
enforceable it has to be independently determined. It survives an illegality
in the contract."
For further and more clarification go and see the case of Tanzania Electric
Supply Co Ltd v Dowans Holding SA (Costa Rica) & Dowans Tanzania Ltd
(Tanzania) HC of Tanzania at DSM, Misc. Civil Application No 8 of 2011
(Unreported). This available at https://uk.practicallaw.thomsonreuters.com/6
510-6588?transitionType=Default&contextData=(sc.Default)&firstPage=true.
If a contract has been terminated, the arbitration clause will still be valid. It
does make a lot of legal sense because most claims, are brought to the
arbitration following termination of contract. It would cause a lot of injustices if
for some reason the arbitration clause is held to be have been terminated. Let
us resort to the wisdom of our elders in law to cement the point. As way back
in the history as in 1942, Lord MacMillan in Heyman vs. Darwins Ltd,276
stated this as follows;
“If, for example, one party claims that there a total breach of contract by
the other this does not abrogate the contract, though it may relieve the
injured party of the duty of the further fulfilling the obligations which he
has by the contract undertaken to the repudiating party. The contract is
not put out of its existence, though all further performance of the
obligations undertaken by each party in favour of the other may cease.”
276 [1942] A.C 374-375.

92
He went further by saying that;
“I venture to think that not enough attention has been directed to the true
nature and function of an arbitration clause in a contract. It is quite distinct
from other clauses. The other clauses set out the obligations which the
parties undertake towards each other but the arbitration clause does not
impose on one of the parties an obligation in favour of the other. It
embodies the agreement of both parties that if any dispute arises with
regard to the obligation which the one party has undertaken to the other,
such dispute shall be settled by a tribunal of their own constitution. And
there is this very material difference, that whereas in an ordinary contract
the obligation of the parties to each other cannot in general be specifically
enforced and breach of them results only in damages, the arbitration
clause can be specifically enforced by the machinery of the Arbitration
Acts. The appropriate remedy for breach of the agreement to arbitrate is
not damages, but is enforcement.”
It survives for the purpose of measuring the claims arising out of the breach,
and the arbitration clause survives for determining the mode of their
settlement. The purposes of the contract have failed, but arbitration clause is
not one of the purposes of the contract.
4.2.2 Stay of Legal Proceeding

Section 13 of the Act,277 provides as follows;
“A party to an arbitration agreement against whom legal proceedings are
brought, whether by way of claim or counterclaim in respect of a matter
which under the agreement is to be referred to arbitration may, upon notice
to the other party to the proceedings, apply to the court in which the
proceedings have been brought to stay the proceedings so far as they
concern that matter.”
277 Act No. 02 of 2020.

93
Where a party to a submission (arbitration clause), or a person claiming under
him, commences a legal proceedings against any other party to the submission
or any person claiming under him in respect of any matter agreed to be
referred, a party to the legal proceedings may, at any time after appearance and
before filing a written statement or taking any other steps in the proceedings
apply to the court to stay the proceedings; and the court, if satisfied that there
is no sufficient reason why the matter should not be referred in accordance
with the submission and that the applicant was, at the time when the
proceedings were commenced, and still remains, ready and willing to do all
things necessary for the proper conduct of the arbitration, may make an order
staying the proceedings.278
Condition for the Stay of Proceedings

The conditions for stay are provided in the case of Wembere Hunting Safaris
Limited vs. Registered Trustees of Mbomipa Authorized Association,279
conditions were laid down for an application for stay of legal proceedings to be
maintainable as follows that:
1. There are Legal proceedings commenced by the respondent and pending

in court.
2. There is an arbitration agreement.
3. No written statement of defence has been filed in response to the

proceedings commence or taking any other steps in the proceedings.
Another condition was added by V. L. Makani J., in the case of Travelport

International Ltd vs. Precise Systems Ltd,280 where the petitioner filed a
petition for stay of proceedings pending reference to arbitration, hence, Makani
J., said that;
278 See rule 18 of the Civil Procedure (Arbitration) Rules under Second Schedule of CPC.
279 Commercial Case No. 40 of 2013 (High Court Commercial Division-DSM) (unreported).
280 Misc. Commercial Application No. 359 of 2017.
94
“I should hasten to add to these conditions another condition that the
petitioner has to show his willingness and readiness to do things
necessary for proper conduct of the arbitration.”
Any party who wants to obtain an order of the court for stay of the proceedings
he or she required to obey the above-mentioned conditions, clarification of
these conditions discussed here under as follows;
1. There are Legal proceedings commenced by the respondent

It must be proved by petitioner that there is a legal proceeding instituted in the
court of law where parties agreed to settled their dispute in the arbitration. It
must be also proved that such legal proceeding involves same parties from
arbitration agreement, if parties are different then stay of proceeding can’t be
granted. See section 13 (1) of the Arbitration Act.281
2. There is an arbitration agreement

In order stay of proceeding to be granted by court the petitioner (applicant)
must prove that their contract contained a specific clause which shows that
they were agreed to refer their differences to the arbitration for resolution. This
means that where a contract contains an arbitration clause or a submission to
arbitration clause the clause cannot be revoked, unless the High Court gives
leave to revoke it.
Order for revocation of arbitration clause was seen in the case of Azania
Bancorp Ltd. vs Frederick Oldenburg,282 In this petition the petitioners
sought the revoking of the requirement for submission to arbitration as
provided for in the main contract because, they alleged, the contract was
procured by fraud and misrepresentation. The High Court rejected this
contention, dismissed the petition and ordered the matter to be referred to
arbitration as per the founding contract. In reaching this finding, the High
Court was fortified by the reasoning of Hoffman, L.J., in Harbour Assurance
281 Act No. 02 of 2020.

282 High Court of Tanzania at Dar es Salaam, Civil Case No. 234 of 2001 (Unreported).
95
Co. (UK) vs. Kansa General International Assurance Co. Ltd,283 who stated
that;
“As a matter of general principle, it has been stated that where a dispute
between the parties has by agreement to be referred to the decision of a
tribunal of their choice, the court would direct that the parties should go
before the specified tribunal and should not resort to the courts. The
parties herein very clearly chose arbitration to be the modality of setting
their disputes but the petitioners want to [run away] from what was
previously agreed upon on the pretext that there was fraud and
misrepresentation. These allegations of fraud and misrepresentation have
been levelled against the first; third; fourth and fifth respondents, who are
not interested so far to clear reputation in an open court of law. They have
instead chosen to honour the sanctity of the arbitration agreement should
need arise. One would have expected that the respondents whose
character has been impeached would be the ones to rush to court to clear
their names! One would also have expected that the petition would contain
allegations that complicated questions of law are involved in which case it
would not be prudent to leave such issues to the arbitrators, but there is
nothing of that sort.”
So, from this judicial reasoning it can be gathered that the courts would only in
few cases revoke the requirement to submit to arbitration disputes arising from
a contract that contains a submission to arbitration clause. Otherwise, the
court would require parties to refer their dispute (s) to arbitration whenever
there is a submission to arbitration clause.284
3. No written statement of defence has been filed in response to the

proceedings commence
It’s a requirement that a party to proceedings before the court who wants to
have a matter referred to arbitration must do so at the earliest stage possible
283 (1993) 3 All ER 897.

284 C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” p. 124.
96
‘and at any rate, before the filing of the Written Statement of Defence.’ He has
to apply to such court and such application should be made by way of
petition.285
In Ashak Kabani & Another v Ayisi Makariani & seven (7) Others,286 the
High Court held;
“…requires a party to take appropriate steps for the recourse to arbitration
before he files his Written Statement of Defence. There are several pre-
requisites that should be complied with and or considered. The first such
pre-requisite is the presence of a submission to arbitration inter-partes.
And such an application should be made by way of petition.”
Jurisdiction of the Court where the Parties are from different Countries
Which court will have a power to handle a dispute where parties to the contract
are from different countries? And where should a defendant file a leave of stay
of proceeding?
Illustration;
On 06th day of December, 1996 A and B were entered into Operators Agreement.
Their agreement contract composed arbitration clause in paragraph 25. A is a
resident of country C and B is a resident of country D, and doing their business
in country E where both are ordinary resides. In wake of 2020 A breached a
contract (operator agreement) and refused a matter to be referred to Court in
country D. Which forum will have jurisdiction to try the matter?
From the above scenario court (where the dispute referred for the first instance)
will look at the best forum, considering the parties involved by applying the
doctrine of ‘Forum non Conveniens.’
285 See Regulation 63 (1) (a) of G.N No. 146/2021.

286 High Court of Tanzania (Commercial Division) at Dar es Salaam, Commercial Case No 265
of 2001 (Unreported).
97
An answer to the above illustration found in the case of Travelport
International Ltd vs. Precise Systems Ltd,287 where from this case some
parties from the contract were residents of U.K and others were Tanzanian,
both carrying their business in Tanzania, then Makani J decided that the best
forum is a court in Tanzania, i.e. suit should be instituted in Tanzania,
considering interest of the both parties and availability of witnesses.
Doctrine of Forum Non Conveniens

This is a common law doctrine that ‘allows a court to dismiss a civil action,
(even though the forum or venue is proper and the court has jurisdiction over
the case and the parties) where an appropriate and more convenient alternative
forum exists in other country.
This doctrine is supported by the decision in the case of Spiliada Maritime

Corp vs. Consulex Limited,288 where it was stated that;
“An application for a dismissal of proceedings falling within the proper
jurisdiction of the court. A stay will only be granted where the court is
satisfied that there is some other available forum in which the case may be
tried more suitably for the interests of all the parties and the ends of
justice.
The burden of proof rests on the claimant to persuade the court to exercise
its discretion to grant a stay, but if the court is satisfied that there is
another available forum which is prima facie the appropriate forum for the
trial of the action, the burden will then shift to the plaintiff to show that
there are special circumstances by reason of which justice requires that
the trial should nevertheless take place in this country.
Where there is some other forum which is the appropriate forum for the
trial of the action, the burden resting on the defendant is not just to show
that England is not the natural or appropriate forum for the trial, but to
287 Supra.
288 [1987] AC 640.
98
establish that there is another available forum which is clearly or distinctly
more appropriate than the English forum.”
Where there exists some other forum, which is clearly more appropriate for the
trial of the action, the court will look first to see what factors there are which
point in the direction of another forum. Such factors may include the
availability of witnesses, the law governing the relevant transaction, and the
places where the parties respectively reside or carry on business.
If the court concludes at that stage that there is no other available forum which
is clearly more appropriate for the trial of the action, it will ordinarily refuse a
stay. If, however the court concludes at that stage that there is some other
available forum which prima facie is clearly more appropriate for the trial of the
action, it will ordinarily grant a stay unless there are circumstances by reason
of which justice requires that a stay should nevertheless not be granted.
4.2.3 Death of One Party in the Arbitration Agreement

What is the consequence when one party to the arbitration agreement dies
before the completion of the arbitral proceeding? Does the death of one-party
amount to breach of arbitration agreement by way of frustration?
Section 11 of the Act,289 gives position toward the above questions, the section
reads as follows;
“Unless otherwise agreed by the parties, an arbitration agreement is not
discharged by the death of a party and may be enforced by or against the
personal representative of that party.”
This means that the arbitration proceeding cannot be invalid by a reason of the
death of one party, the dispute will continue by the assistance of the third
party either relative of the deceased or his legal counsel [if any]. It can be
concluded that ‘death of one party cannot invalidate the arbitral proceeding.’
289 Act No. of 2020.

99
But where the arbitrator dies or become incapable to perform his duty during
the proceedings, it’s immaterial as whether such proceeding was composed by
two arbitrators or sole arbitrator, in such occurrence a substitute arbitrator
shall be appointed by parties or Centre.290
4.2.4 Matters referable to arbitration
The Arbitration Act does not prohibit any particular type of dispute from being
resolved by arbitration. However, disputes concerning with land matters must
be heard by the superior courts and specific statutory tribunals as laid out in
section 167 of the Lands Act.291 Therefore, apart from land disputes, all other
disputes are arbitrable.292
Apart from above observation also its to be noted that arbitration falls within
the category of Commercial Dispute Resolution (CDR).293 Therefore, matters
referable to the arbitral tribunal are those of commercial in nature.
4.3 Arbitral Tribunal

The parties may agree on the number of arbitrators to form the arbitral
tribunal and whether there is to be a chairman or umpire.294
Arbitrator; means, a person who handles arbitration disputes.295 It can be also

defined as a person who will preside over the proceedings and issue an award.
The skill, experience, and knowledge of the arbitrators will have a significant
impact on the quality of the process and of the award.296
Umpire; means, a person selected by two or more arbitrators. When they are
authorized to do so by the submission of the parties, and they cannot agree as
290 Regulation 26 of GN No. 146/2021.

291 [Cap 113 R:E 2019].
292 Kapinga, W., et. al., ‘Getting the Deal through - Arbitration- Tanzania,’ Op. Cit. at p. 407.
293 “Commercial Law Harmonization and Bilateral Assistance” by Charles A. Schwartz available
at http://www.uncitral.org/pdf/english/congress/Schwartz.
294 See section 17 of Act No. 02 of 2020.
295 Section 3 ibid.
296 M. L. Moses., “The Principles and Practice of International Commercial Arbitration.”
Cambridge University Press, New York U.S, 2008. At p, 116.

100
to subject matter referred to them, whose duty it is to decide the matter in
dispute. 297 Sometime a term is applied even for those who are selected by the
parties themselves.298
4.3.1 Appointment of arbitrator and procedural issues
There are several different methods of appointing an arbitrator. In Tanzania

most usual are two, by agreement of parties and by Courts. But it has to be
noted that as a general rule that parties have to appoints arbitrators of their
own choices, but in a case where they fail to reach an agreement then arbitral
institution or court may help them to appoint arbitrator (s) who will stand as
neutral party or third party acting as a referee in a game.
Arbitrator will be selected purposely to assist both parties in solving their

dispute and not to fovour one party and punish the other, i.e. arbitrator should
be impartial and his decision will bind both parties, but aggrieved party may
have a right to challenge it before the court, see Chapter five of this Manual.
Appointment of arbitrator by agreement of parties

A major attraction of arbitration is that it allows parties to submit a dispute to
judges of their own choice rather than requiring that choice to be exercised by
a third party on their behalf. Where an arbitral tribunal is to consist of more
than one arbitrator, it is usual for each party to nominate one arbitrator.299
Where there is no clause in the arbitration agreement as to who will be

arbitrator then before referring the matter for arbitration, parties should
confirm appointment of their arbitrator in respect of Form No. 6 as prescribed
in the Fourth Schedule.300 Or the following circumstances shall take place;
297 J. Bouvier., “A Law Dictionary, adapted to the Constitution and Laws of the United States,”
1856.
298 Section 17 (1) and 18 of the Act No. 02 of 2020.
299 See section 18 (1) of Act No. 02 of 2020. See also Rule 2 of the Civil Procedure (Arbitration)
Rules.
300 Regulation 3 (3) of the GN No. 146/2021.
101
1. Where an arbitral tribunal is to consist of more than one arbitrator, it is
usual for each party to nominate one arbitrator, this should be done
within twenty-eight days (28) after service of a written request by either
party.301
2. Where the parties agreed that their dispute should be handled by two
arbitrators, then in such case each party shall appoint one arbitrator.
They should do so with fourteen days (14) after service of a written
request by either party.302
3. Where arbitral tribunal is to be composed of three arbitrators, and

parties did not agree who will appoint such arbitrators.303
i. each party shall appoint one arbitrator not later than fourteen
days after service of a written request by either party.
i. the two arbitrators appointed by the parties shall forthwith appoint

a third arbitrator who shall be the chairman of the arbitral
tribunal. This may take reference in the following case,
Vodacom Tanzania Limited vs FTS Service Limited,304 From this case the
facts were as follows,
In compliance with the arbitration clause, the respondent appointed the Hon.
Mr. Justice Thomas Bashite Mihayo, Judge of the High Court (Retired), as one
arbitrator while the appellant appointed Mr. Charles R.B. Rwechungura as the
other arbitrator. With the consent of the parties, the said arbitrators, in turn,
appointed the Hon. Mr. Justice John A. Mroso, Justice of Appeal (Retired), as
the third arbitrator to preside over the matter instead of acting as an umpire.
4. Where the arbitral tribunal is to be composed by two arbitrators and an

umpire;305
301 See section 18 (2) (a) ) of Act No. 02 of 2020.

302 See section 18 (2) (b) ibid.
303 See section 18 (2) (c) ibid.
304 Civil Appeal No. 14 of 2016.
102
i. each party shall appoint one arbitrator not later than fourteen days after
service of a written request by either party, and
ii. the two appointed arbitrators may appoint an umpire at any time after
their appointment, and shall do so before any substantive hearing or
forthwith where they cannot agree on a matter relating to the
arbitration.306
Appointment of arbitrator by order of Court

Here there are three circumstances where court may appoint arbitrator. These
circumstances used only where Civil Procedure (Arbitration) Rules are
applicable.
1. First, is where, the parties are unable to reach agreement upon the
appointment of an arbitrator and where no one is expressly empowered
to make the appointment for them, or the person appointed refuses to
accept the office of arbitrator, then in such cases Court may intervene
the process and appoint an arbitrator.307
2. Second, is where an arbitrator or umpire dies, refuses or neglects to act

or becomes incapable of acting; or leaves Tanzania in circumstances
showing that he will probably not return at an early date, then the court
may appoint arbitrator.308
3. Third, is where the arbitrators are empowered by the order of reference to

appoint an umpire and fail to do so.309 Then at any time any party may
serve the other party or the arbitrators, as the case may be, with a
written notice to appoint an arbitrator or umpire.
305 See section 18 (2) (d) ibid.

306 See section 18 (2) (d) (ii) ibid.
307 Rule 5 (1) (a) of the Civil Procedure (Arbitration) Rules under Second Schedule of CPC.
308 Rule 5 (1) (b) ibid.
309 Rule 5 (1) (c) ibid.
103
4.3.2 Default to appoint sole arbitrator
Where parties did not negotiate in arbitration clause that who will be arbitrator
(s) then they will have another room of selecting arbitrator, and this is during
Commencement of arbitral proceeding and before hearing of arbitration
proceeding, they have to appoint arbitrator within days that they will agree.310
And if one party refuses or fails to do so within the time specified, the other
party, having duly appointed his arbitrator, may give a written notice to the
party in defaults that he proposes to appoint his arbitrator to act as a sole
arbitrator.311
Where the defaulting party does not within seven days of the notice make the
required appointment; and notify the other party of the appointment, the other
party may appoint his arbitrator as a sole arbitrator whose award shall be
binding on both parties as if he had been appointed by the two parties.312
But when Centre decides that arbitrator who appointed by one party to the
dispute to be sole arbitrator then if default party has a reasonable ground as to
why he failed to appoint his arbitrator he may, upon notice to the appointing
party, apply to the Centre to set aside the appointment.313
4.3.3 Qualifications of an arbitrator
Choosing arbitrators who will preside over the proceedings and issue an award
is perhaps the most important thing a lawyer does with respect to resolving the
client’s dispute. The skill, experience, and knowledge of the arbitrators will
have a significant impact on the quality of the process and of the award.314
The ability to be fluent in a particular language, or sometimes in two

languages, may be important to the parties. An arbitrator lacking fluency in the
language of the arbitration may not understand some of the critical issues
310 See section 20 (1) of Act No. 02 of 2020.

311 See section 19 (1) ibid. See also regulation 20 of GN No. 146/2021.
314 M. L. Moses., “The Principles and Practice of International Arbitration.” Op. Cit. at p. 116.
104
necessary to the resolution of the dispute.315 In Tanzania the qualification of
one to be appointed as arbitrators are provided under various laws dealing with
arbitration issues.
1. Accredited person by the Registrar for accreditation

Current position in Tanzania, requires that, one to be appointed as arbitrator
he has to be accredited or registered by register of accredited mediators,
negotiators, reconciliators and arbitrators. This is per regulation 14 (a) of the
“be an arbitrator who is accredited or registered in terms of the
Accreditation) Regulations.”
This means, a person who intends to practice as an accredited arbitrator shall

apply to the Registrar for accreditation using form TAF No. 1 as prescribed in
the First Schedule of Reconciliation, Negotiation, Mediation and Arbitration
(Practitioners Accreditation) Regulations.317
Process of accreditation of arbitrator

The process of accreditation of arbitrators are provided under Part IV of the
Accreditation) Regulations, GN No 147/2021, here below are some of the steps
to be taken by the person who intends to be accredited.
i. Application for accreditation

Application for accreditation that intended person has to file an application to
the registrar of accreditation so as to be accredited or registered as practicing
arbitrator. See regulation 8 (1) of the Reconciliation, Negotiation, Mediation and
Arbitration (Practitioners Accreditation) Regulations.318
315 M. L. Moses., “The Principles and Practice of International Arbitration.” Op. Cit. at p. 119.
316 G.N No. 146/2021
317 GN. No. 147/2021.
318 Ibid.
105
The application shall be supported by necessary certificate as proof of
academic qualifications, necessary documentation as proof of nationality,
curriculum vitae, reference from three persons, one of whom shall be the Mtaa
chairman of the respective local government authority, or as the case may be,
an allied association to which the applicant is affiliated, proof of payment of
application fee and any other relevant document or information as the
Registrar may deem appropriate.319
ii. Determination of application

The Registrar shall, within seven days upon receiving an application for
accreditation of a reconciliator, negotiator, mediator or arbitrator, determine
whether the application is complete.320 Where the Registrar is satisfied that an
application is complete, he shall inform the applicant of the date and time for
which the application shall be brought before an Accreditation Panel.
Accreditation Panel shall consist of the Attorney General who shall sit as the
Chairman; the Solicitor General; the Chairman of the Governing Board of the
Tanzania Arbitration Centre; the President of the Tanzania Institute of
Arbitrators; the President of Tanganyika Law Society; and one representative
appointed by the Minister from the National Construction Council; and Public
Procurement Regulatory Authority.321
Upon a call of meeting by the Registrar, the accreditation Panel may, after
consideration of the application together with the brief report of the Registrar,
then the Panel shall register the applicant permanently or provisionally as the
case may be; and Panel shall issue a certificate of registration to a registered
applicant.322
319 See Regulation 8 (2) ibid.

320 Regulation 9 (1) of the GN. No. 147/2021.
321 Regulation 3 (1) (a) – (f) ibid.
322 Regulation 11 ibid.
106
Where the Registrar considers that an application is incomplete or does not
meet the necessary requirements, he shall reject the application and notify the
applicant in writing with reasons thereof.323
2. Named in the arbitration agreement by the parties

Once a person is accredited as arbitrator that is not enough, he must be a
person who appointed or selected by parties to act as arbitrator and his name
has to be named in arbitration agreement.324
But if arbitration clause does not provided name of arbitrator, then parties may
have another room for selection of arbitrator, and this can be done in
accordance with section 18 of the Arbitration Act,325 and Rule 2 of the Civil
Procedure (Arbitration) Rules.326 Or one party may propose name of arbitrator,
as was shown in the case of G.K. Hotels Limited & Resort (Pty) vs. Board of
Trustees of the Local Authorities Provident Fund,327 where applicant
proposed retired judge Lameck Mfalila, to be arbitrator, and Warema J said.,
“it should be noted here that the respondent has not expressed any
objection to the proposed arbitrator. Having expressed no objection to the
proposal, I assume he would not mind, should I find it fit to grant the
petition, the appointment of the proposed arbitrator.”
3. Person with no conflict of interest

The arbitrator (s) should not possess financial interest or anything whatsoever
on the result of arbitration resolution.328 It is well-settled that as regards
pecuniary interest “the least pecuniary interest in the subject-matter of the
litigation will disqualify any person from acting as a Judge.”329 Griffith and

324 Regulation 14 (d) ibid.
325 Act No. 02 of 2020.
326 Under Second Schedule of Civil Procedure Code Act [Cap 33 R:E 2019].
327 Supra.
328 Regulation 14 (d) of the GN No. 146/2021.
329 C. K. Takwani., “Lectures on Administrative Law.” 3rd edn. Eastern Book Company Lucknow
publishers, 2005-06. At, p. 50.

107
Street rightly state that “a pecuniary interest, however slight, will disqualify,
even though it is not proved that the decision is in any way affected.”330
This is due to the Principle of Natural Justice in the rule of ‘Nemo debe: esse
judex in propria causa,’ or ‘Nemo Judex in causa sua,’ which means that No
man shall be a judge in his own cause, or the deciding authority must be
impartial and without bias. This principle was developed in 1610 (411 years
ago), by Coke, C.J in Dr. Bonham vs. Cambridge University;331
Dr Bonham, a doctor of Cambridge University was fined by the College of

Physicians for practicing in the city of London without the licence of the
College. The statute under which the College acted provided that the fines
should go half to the King and half to the College. The claim was disallowed by
Coke, C.J. as the College had a financial interest in its own judgment and was
a judge in its own cause.
4. Holder of Bachelor Degree and person of High Moral Character

The person intended to be arbitrator must be a holder of bachelor degree or its
equivalent from a recognized institution having at least ten years’ experience in
field of telecom, information technology, intellectual property rights or any
other specialized areas in the public service or private sector.332 Also, a person
intending to be arbitrator must be a persons of high moral character and
recognized competence in the fields of law, commerce, industry or finance, who
may be relied upon to exercise independent judgment.333
4.3.4 Acceptance of appointment as arbitrator (s)

The Secretary-General shall, as soon as he has been informed by a party or the
Chairman of the appointment of an arbitrator, seek an acceptance from the
330 J. A. G. Griffith and H. Street., “Principles of Administrative Law.” 4th edn. Pitman Publisher,
1967. at p. 156.
331 (1610) 8 Co. Rep. 113 h: 77 ER 646.
332 Regulation 6 (f) of GN No. 147/2021.
333 Regulation 14 (e) of the GN No. 146/2021.
108
appointee.334 An arbitrator candidate shall submit to the Centre curriculum
vitae and a written statement of willingness to act as arbitrator within a period
of seven days from the date of his designation, in which statement he shall
disclose any circumstances likely to give rise to justifiable doubts as to his
impartiality or independence.335
Where an arbitrator fails to accept his appointment within fifteen days, the
Secretary-General shall promptly notify the parties, and if appropriate the
Chairman, and invite them to proceed to the appointment of another arbitrator
in accordance with the method followed in the previous appointment.
NOTE; as a rule of practice a sitting judge may not be appointed as an

arbitrator. While there are no specific restrictions for retired judges to act as
arbitrators, active judges may not do so.
4.3.5 Jurisdiction of Arbitral Tribunal

Once arbitrators have been duly constituted they will constitute an Arbitral
Tribunal. Before it assumes its duties, functions and powers vested in it, the
Arbitral Tribunal must have jurisdiction so to act.336
Powers and role of Arbitral Tribunal

Unless otherwise agreed by the parties, the arbitral tribunal may rule on its
own substantive jurisdiction, as to whether there is a valid arbitration
agreement, whether the arbitral tribunal is properly constituted; and what
matters shall be submitted to arbitration in accordance with the arbitration
agreement.337
The appointment of an arbitrator confers upon such arbitrator power to hear

and determine the matter that has been referred to him or her. The Arbitrator

335 Regulation 23 (2) ibid.
336 Global Justice Solutions, “Alternative Dispute Resolution (ADR) Training Manual.” Dar es
Salaam: Project for the Court of Appeal of Tanzania, 2010. at p, 50-61.

337 Section 32 of the Act No. 02 of 2020.
109
is required to determine matters faithfully: i.e. fairly, impartially and without
fear or favour. In respect of faithfulness, it can be stated that,
“…sometimes Parties are under a mistaken belief that because the
Arbitration Clause gives them power to appoint an arbitrator, that means
that he is their Arbitrator in the Reference and so will act in their interest.
That is totally wrong. A party appoints an Arbitrator under the Arbitration
Agreement because he believes that the Arbitrator so appointed has the
requisite qualifications, such as education, training in a given field,
experience as an arbitrator and unquestionable integrity.”338
Accordingly, the jurisdiction of an arbitral tribunal ‘may be defined as the

extent to which, or the limits within which, such tribunal may exercise its
powers, and what powers.’339 The jurisdiction of an Arbitral Tribunal is
conferred upon it by its appointment on the basis of the Arbitration Agreement
by the parties. As was seen Mvita Construction Co. vs. Tanzania Harbours
Authority,340
“…the Court of Appeal of Tanzania held that, Under the law of Tanzania,
an arbitrator’s authority, power and jurisdiction are founded on the
agreement of the parties to a contract to submit present or future
differences to arbitration.”
Generally, Arbitral Tribunal have the following jurisdictions;

1. To resolve dispute between disputants in amicable way i.e. to assist
parties in reaching into conclusion of the differences.
2. To regulate any objection that it does not have jurisdiction, including any
objection with respect to the existence or validity of the agreement to
arbitrate.341
338 Global Justice Solutions. Op. cit.

339 Global Justice Solutions, “Alternative Dispute Resolution (ADR) Training Manual.” Op. Cit. at
p, 50-61.
340 Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 94 of 2001 (Unreported).
341 Regulation 28 (1) and 36 (1) of GN No. 146/2021.
110
3. To determine the existence of validity of an agreement in which the
arbitration clause constitutes a part.342
4. To determine the admissibility, relevance, materiality and weight of

evidence.343
Objection to Substantive jurisdiction

If a party wishes to raise an objection to the effect that the arbitral tribunal has
no substantive jurisdiction, he must raise such objection within reasonable
time. An objection that the tribunal is exceeding its authority must be made as
soon as the matter alleged to be beyond the scope of the tribunal arises during
the arbitral proceedings, though the arbitral tribunal may accept such a plea at
a later stage if it considers, and must be satisfied, that the delay was
justified.344
An objection that the arbitral tribunal lacks substantive jurisdiction at the

outset of the proceedings shall be raised by a party not later than the time he
takes the first step in the proceedings to contest the merits of any matter in
relation to which he challenges the arbitral tribunal’s jurisdiction: Provided
that, a party shall not be precluded from raising such an objection by the fact
that he has appointed or participated in the appointment of an arbitrator.345
4.11.6 The Law Applicable to the Arbitration

The law governing the substance of the dispute shall be the law that has been
designated so to govern in the underlying commercial agreement between or
among the parties in connection with which the dispute has arisen.346
In the absence of any prior agreement by the parties as to the governing law,
the parties shall be free to choose the governing law on their mutual
agreement. In the absence of any agreement under the arbitral tribunal shall
342 Regulation 28 (2) and 36 (2) ibid.

343 Regulation 39 (2) ibid.
344 C. J. Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Op. Cit. at p. 130.
345 Section 33 of Act No. 02 of 2020. Also read sec. 34 for the determination of the Objection.
346 See regulation 41 (1) of the GN No. 146/2021. Also, read s. 48 (1) – (3) of Act No. 02 of 2020.
111
have the authority to apply such law as it deems appropriate, considering the
circumstances of the matter. In applying the law governing agreement, the
arbitral tribunal shall consider the provisions of the underlying agreement as
well as relevant trade practices and usage. 347
Where the dispute is governed by laws of Tanzania, at least one arbitrator,

preferably but not necessarily the Chairman, and according agreement, be a
lawyer who resides in and is acquainted with the laws of Tanzania.348
4.3.6 Challenging and changing of arbitrator

Like any other appointed person that can be challenged and removed from the
office, also arbitrator can be challenged by the parties and may be removed by
Centre. An arbitrator may be challenged only if circumstances exist that give
rise to justifiable doubts as to his impartiality or independence, or if he does
not possess qualifications agreed to by the parties.349
Revocation of arbitrator’s by agreement of parties

A party may challenge an arbitrator appointed by him, or in whose
appointment he has participated, only for reasons of which he becomes aware
after the appointment has been made.350 The challenge shall be notified to the
other party, to the arbitrator who is challenged and to the other members of
the arbitral tribunal. The notification shall be in writing and shall state the
reasons for the challenge.351
Parties themselves may agree to discharge appointed arbitrator from the

arbitral tribunal, as per regulation 27 (2) of Arbitration (Rules of Procedures)
Regulations ,352 which reads that;
347 See regulation 41 (2), (3), (4) and (5) of GN No. 146/2021.
348 See regulation 16 of GN No. 146/2021.
349 See regulation 24 ibid.
350 See Article 12 (2) of the UNCITRAL Model Law of 1985.
351 See section 25 (3) of Act No. 02 of 2020.
352 GN No. 146/2021.
112
“The parties may, irrespective of any request by the arbitrator, jointly
discharge the arbitrator from appointment as arbitrator and promptly
notify the Center of such discharge.”
Power of Centre to remove arbitrator

A party to arbitral proceedings may, upon notice to the other party, to the
arbitrator concerned and to any other arbitrator, apply to the Centre to remove
an arbitrator on any of the following grounds:353
1. That there are circumstances which give rise to justifiable doubts as to

his impartiality;
2. That he does not possess the qualifications required by the arbitration

agreement;
3. That he is physically or mentally incapable of conducting the proceedings

or there are justifiable doubts as to his capacity to do so; or
4. That he has refused or failed to-

i. properly conduct the proceedings;
ii. use all reasonable dispatch in conducting the proceedings; or
iii. make an award and substantial injustice has been or will be
caused to the applicant.
Then after Centre receiving notice form one party or on its motion may remove
arbitrator from the appointment, this is provided under regulation 28 of
“The Centre may, at the request of a party or on its own motion, discharge
the arbitrator from appointment as arbitrator if the arbitrator has become
de jure or de facto unable to fulfill, or fails to fulfill, the duties of an
arbitrator, in which case, the parties shall be offered the opportunity to
express their views thereon.”
353 Section 26 ibid.

354 GN No. 146/2021.
113
Unless otherwise agreed by the parties, the death of the person by whom an
arbitrator was appointed shall not revoke the arbitrator’s appointment, this is
per section 28 (2) of the Arbitration Act.355
4.3.7 Immunity of Arbitrators

Immunity means any exemption from a liability which is granted to a public
official. It is a defense to liability which is conferred upon group or class of
persons or entities under circumstances where public policy requires special
protection for the person or entity in question at the expenses of those injured
by its acts.356
In arbitration, immunity means a protection which arbitrators are given to

protect them from liability for any act or omission done in the course of their
duty and if it is done honest belief of law. Legal system of Tanzania recognizes
the importance of arbitrators to exercise their duties without fear of being
liable. For that there is immunity of the arbitrators who act in the course of
their duties. This immunity is provided for under section 31 (1) of the
Arbitration Act,357 section reads that;
“…an arbitrator shall not be liable for anything done or omitted in the
discharge or purported discharge of his functions as arbitrator unless the
act or omission is proven to have been done in bad faith or professional
negligence.”
The immunity given to the arbitrators does not deprive any party from the right
to challenge an arbitral award made by arbitrators. In a case any one feels that
he has been infringed of his right by the act or omission of the arbitrator, he
may challenge the decision (arbitral award),358 act or omission of arbitrator
through appeal, review or revision.
355 Act No. 02 of 2020.

356 Black’s Law Dictionary, 4th Edition.
357 Act No. 02 of 2020.
114
The immunity granted to the arbitrators is not warranted to the act done in
bad faith ‘malafide’ or professional negligence. It is devised to ensure that
arbitrators dispense their duties with full degree of independence and free from
fear. Arbitrators therefore are under duty to discharge their duties with great
degree of competence and correct interpretation and application of laws.
4.4 Arbitral Proceedings

Where the arbitrator is named or designated in the arbitration agreement,
arbitral proceedings are commenced in respect of a matter when one party
serves on the other party or parties a notice in writing requiring him or them to
submit that matter to the person so named or designated.359
Where the arbitrator or arbitrators are to be appointed by the parties, arbitral

proceedings are commenced in respect of a matter when one party serves on
the other party or parties notice in writing requiring him or them to appoint an
arbitrator or to agree to the appointment of an arbitrator in respect of that
matter.360
Where the arbitrator or arbitrators are to be appointed by a person other than

a party to the proceedings, arbitral proceedings are commenced in respect of a
matter when one party gives notice in writing to that person requesting him to
make the appointment in respect of that matter.361
Similarly, the arbitral tribunal has jurisdiction to determine or rule whether or

not it has exceeded its scope of authority. The tribunal also should determine
the place of arbitration and the language of arbitral proceedings if these
matters are not set out in the Arbitration Agreement.
359 Kapinga, W., et. al., ‘Getting the Deal through - Arbitration- Tanzania,’ Op. Cit. at p. 408.
360 Ibid.
361 Ibid.
115
4.4.1 General duty of Arbitral Tribunal
In exercising the powers arbitral tribunal shall have the following general
duties; these are the statutory duties as provided under section 35 of the
Arbitration Act362 where it reads as follow;
35. The arbitral tribunal shall-

(a) act fairly and impartially as between the parties, giving each party a
reasonable opportunity of putting his case and dealing with that of his
opponent; and
(b) adopt procedures suitable to the circumstances of the particular case,
avoiding unnecessary delay or expense, so as to provide a fair means for
the resolution of the matters to be determined.
4.4.2 Commencement of Arbitral Proceedings

A person who wishes to commence or institute an arbitration proceeding shall
submit a request in writing to that effect to the Centre.363 A person who request
for arbitration shall use Form No.3 as prescribed in the Fourth Schedule
Arbitration (Rules of Procedures) Regulations.364
Unless the parties otherwise agree, the arbitral proceedings in respect of a

particular dispute shall commence on the date on which the request for the
dispute to be referred to arbitration is received by the other party.365
After the request of one party to the Arbitral Tribunal then, the Secretariat
shall, upon receiving the request for arbitration and without undue delay, send
an acknowledgement to the requesting party and submit the request to the
Secretary-General for scrutiny after ensuring that all required fees are dully
paid. The Secretary-General shall as soon as possible, scrutinize the request to
determine whether or not the arbitration agreement or arbitration clause in the
362 Act No. 02 of 2020.

363 See regulation 5 (1) G.N No. 146/2021
364 G.N No. 146/2021
365 Section 14 of Act 02 of 2020.
116
contract is adequate to provide a basis for registration by the Centre for further
examination process.366
4.41.3 Limitation of Time in filing Arbitral Proceeding

The Law of Limitation Act shall apply to arbitral proceedings as it applies to
other legal proceedings.367 See section 40 of the Law of Limitation Act.368 This
means that arbitration proceedings are like any other suit. As a general rule
that if Law in a particular subject does not provide for limitation of time then
Law of Limitation Act will apply. And item 21 of the Law of Limitation Act will
take over, i.e 60 days.
Accountment of the days for commencement suit shall start on the date on
which the cause of action arises, this may take reference under section 5 of the
Limitation Act,369 as reads hereunder,
“…the right of action in respect of any proceeding, shall accrue on the date
on which the cause of action arises.”
4.4.4 Conduct of Arbitral Proceedings

The parties shall be treated with equality and each party shall be given a full
opportunity of presenting his case.370 The arbitral tribunal may conduct the
arbitration in such manner as it considers appropriate, provided that the
parties are treated with equality and that at any stage of the proceedings each
party is given a full opportunity of presenting his case.371 the parties are free to
agree on the procedure to be followed by the arbitral tribunal in conducting the
proceedings.
If either party so requests at any stage of the proceedings, the arbitral tribunal
shall hold hearings for the presentation of evidence by witnesses, including
expert witnesses, or for oral argument. In the absence of such a request, the
366 Regulation 6 (1) and (2) GN No. 146/2021.

368 [Cap 89 R:E 2019].
369 [Cap 89 R:E 2019].
370 Article 18 of the UNCITRAL Model Law of 1985.
371 See Article 15 (1) – (3) of the UNCITRAL Arbitration Rules, 31/98.
117
arbitral tribunal shall decide whether to hold such hearings or whether the
proceedings shall be conducted on the basis of documents and other materials.
All documents or information supplied to the arbitral tribunal by one party
shall at the same time be communicated by that party to the other party.372
Modes and process of conducting arbitration

As soon as an arbitrator has been appointed and has duly accepted the
appointment, she or he will conduct arbitration process and he may call for a
meeting: called a Preliminary Meeting or a Meeting of conference.
Preparatory or first Conference

The arbitral tribunal shall, within fifteen days after its establishment, conduct
a preparatory conference with the parties in any suitable format for the
purpose of organizing and scheduling the subsequent proceedings in a time
and cost-efficient manner.373 The purpose of that meeting is to define and agree
on:374
i. Procedures to be used in the Arbitration proceedings;
ii. Timetable for various events;
iii. The venue;
iv. Sitting times;
v. The manner of recording the evidence; and
vi. Arbitrator’s interim costs, and other incidental matters.
Agenda for the Conference

Before the Preliminary Meeting or conference, the arbitrator must prepare an
Agenda for the Meeting, which should preferably be sent out to the Parties
before the date of the meeting and may contain:375
1. Ascertainment of the parties and their representation;
2. Perusal of the original arbitration agreement;
372 See Article 15 (1) – (3) of the UNCITRAL Arbitration Rules, 31/98.
373 See regulation 32 (1) of GN No. 146/2021.
375 Ibid.
118
3. Identification of Items in dispute (Issues);
4. Whether or not parties want a reasoned award;
5. Timetable for presentation of pleadings;
6. When discovery should take place;
7. Whether there shall be an oral hearing or written presentations;
8. Venue (or place of hearing) and procedure;
9. Expert witnesses;
10. Communications with the arbitrator;
11. Figures, plans, photographs and correspondence;
12. Common bundle;
13. Transcript of hearing;
14. Arbitrator’s interim costs;
15. Scott Schedule;
16. Oath and Affirmation;
17. Textbooks and Law Reports or Periodicals.
18. Final speeches.
19. Any other business (A.O.B.); and/or
20. Close of meeting.
Statements of claim and defence

Within the period of time agreed by the parties or determined by the arbitral
tribunal, the claimant shall state the facts supporting his claim, the points at
issue and the relief or remedy sought, and the respondent shall state his
defence in respect of these particulars, unless the parties have otherwise
agreed as to the required elements of such statements.376 The parties may
submit with their statements all documents they consider to be relevant or may
add a reference to the documents or other evidence they will submit.
376 Article 23 (1) of the UNCITRAL Model Law of 1985.

119
Regulation 33 (1) of the Arbitration (Rules of Procedures) Regulations,377
provides for statement of claim as follows;
“Unless the claimant has made his statement of claim in the request for
arbitration, the request for arbitration which includes statement of claim
submitted to the Centre shall be distributed to each member of the arbitral
tribunal and to the other party or parties within fourteen days from the
day of the establishment of the composition of the arbitral tribunal or any
other time determined by the arbitral tribunal.”
Where the request for arbitration submitted to the Centre does not include a
statement of claim, the claimant shall communicate its statement of claim in
writing to the Respondent and to each of the arbitrators within a period of time
to be determined by the arbitral tribunal after consultation with the parties.

provides for statement of defence to the respondent that;
“The Respondent shall communicate its statement of defence in writing to

the Respondent and to each of the arbitrators within a period of time to be
determined by the arbitral tribunal after consultation with the parties.”
Hearing in Arbitral Proceedings

Where after completion of preliminary meeting or conference arbitrator or
arbitrators shall proceed with hearing of the dispute. Subject to any contrary
agreement by the parties, the arbitral tribunal shall decide whether to hold oral
hearings for the presentation of evidence or for oral argument, or whether the
proceedings shall be conducted on the basis of documents and other materials.
However, unless the parties have agreed that no hearings shall be held, the
arbitral tribunal shall hold such hearings at an appropriate stage of the
proceedings, if so requested by a party.
377 GN No. 146/2021.

378 GN No. 146/2021.
120
The hearing procedure in arbitral proceedings is conducted in two ways: First,
it may be conducted by filing documents only, in which case the parties or
their advocates may present all relevant documents on which they rely and
may further be asked to file submissions to elaborate them. Or, Second, it may
be by way of oral evidence; that is, where the parties will call witnesses who
will be examined in the same way as in an ordinary court of law.379
(a) Getting Started

Usually the arbitrator will start by briefly giving an outline of events leading to
his appointment and acceptance, the arbitration agreement and the occurrence
of the dispute. Thereafter, the claimant or his advocate will make an opening
speech in which he introduces himself and those on his side; and then gives a
short background and nature of the dispute and the relief being claimed.
Thereafter, he starts to call his witnesses one after another. Each of these
witnesses will take the oath or affirm to tell the truth and nothing but the truth.
It should be noted that Christians must take oath, and others must affirm –
just as in conventional courts of law.380
(b) Examination of Witnesses: Claimant’s Case

The examination of witnesses in arbitral tribunals is not different from
examination of witnesses in a court of law. After taking the oath or affirming to
tell the truth, a witness is examined first by the claimant or his advocate: i.e.
the person for whom the witness is called to testify (i.e. examination-in-chief).
Thereafter, the witness is cross-examined by the opposite party. At the end, the
witness may be re-examined by the party calling the witness. After that
process, the arbitrator too may ask questions if he or she so wishes. When the
claimant has called all his witnesses, he or she will rest his case – i.e. he or she
will inform the arbitral tribunal that his or her case has come to an end.
379 C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Op Cit. at p 138.

380 C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Op Cit. at p 138.
121
As in courts of law, the object of examination of witnesses in arbitral tribunals
serves a purpose. That is, for examination-in-chief the object is to let the
witness adduce material facts which he or she knows and which the case of the
party calling him wholly depends.
Thus, the party calling the witness must extract as much of the material facts
in his or her favour as the witness knows or remembers. For cross-
examination, the purpose is to test the accuracy and truthfulness of the
witness, to destroy or weaken his or her evidence or show that the witness is
unreliable, or to extract evidence that favours the cross-examining party. For
re-examination, the object is to repair the damage done by cross-examination.
This is the last opportunity a witness has to clarify on vague statements or
apparent contradictions revealed in cross-examination.381
(c) Examination of Witnesses: The Respondent’s Case

After the claimant’s case is closed, the respondent or his/her advocate will
open his or her case, in the same way as the claimant did, by making a short
speech introducing himself or herself and those on his or her side, and then
give a substance of the respondent’s case. Thereafter, he or she will start
calling his or her witnesses who are examined in the same way as those for the
claimant, mutatis mutandis.382
(d) Taking Evidence

As there is no procedure for taking evidence of witnesses in the Arbitration Act
and the Arbitration Rules, evidence of witnesses present in the arbitral tribunal
must be taken on oath and orally in the presence and under personal direction
of the presiding arbitrator (s). Like in courts of law, evidence in an arbitral
tribunal may be in narrative form, not necessarily in question-and-answer
format, unless it is necessary to so record.
381B. D, Chipeta., “Civil Procedure in Tanzania: A Student’s Manual.” Dar es Salaam: Dar es
Salaam University Press, 2002, pp. 192-9.
C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Op Cit. at p 139.
122
(e) Closing Speeches or Final Submissions
At the close of the respondent’s case, that is, after all witnesses for the defence
have been examined, the respondent or his or her advocate will make a closing
speech in which he or she will highlight strong points in his or her favour and
plays down the claimant’s strong points while highlighting its weak points.
Then the claimant or his advocate will make his or final speech also in which
he or she will do the opposite of his or her opponent: he or she will highlight
strong points in favour of the claimant and will play down the claimant’s weak
points while highlighting the respondent’s weak points.383
At the end of those final speeches or submissions, the arbitrator may either fix
a date when the award will be made or published; or he or she may give some
indication as to when it will be published.384
Powers of the Arbitral Tribunal during Hearing

During hearing of the arbitration proceeding arbitral tribunal shall have the
following powers
1. To order a claimant to provide security for costs of the arbitration.385
2. To give directions in relation to any property which is the subject of the

proceedings or as to which any question arises in the proceedings, and
which is owned by or is in the possession of a party to the proceedings386
i. for the inspection, photographing, preservation, custody or

detention of the property by the arbitral tribunal, an expert or a
party; or
ii. ordering that samples be taken from, or any observation be made

of or experiment conducted upon the property.
383 Ibid, at p 140.

384 Kapinga, et al. Op. cit. P. 239.
385 Section 40 (2) (a) of Act No. 02 of 2020.
386 Section 40 (2) (b) ibid.
123
3. To direct a party or witness to be examined on oath or affirmation as the
case may be, and may for that purpose administer an oath or take
affirmation.
4. For the purposes of the proceedings, to give directions to a party to

preserve any evidence in his custody or control.
4.4.5 Language of arbitration

The language or languages to be used in the proceedings shall be agreed by
parties themselves.387 Unless otherwise agreed by the parties, the language of
the arbitration shall be the language of the arbitration agreement, subject to
the power of the arbitral tribunal to determine otherwise after having regard to
any observations of the parties and the circumstances of the arbitration.388
The arbitral tribunal may order that any documents submitted in languages
other than the language of arbitration be accompanied by a translation in
whole or in part into the language of arbitration.389 Where the arbitral tribunal
or any party requires the assistance of an interpreter during the proceeding,
such interpreter shall be provided by the Centre at the request of the arbitral
tribunal, and the fee of the interpreter shall be borne by the parties as deemed
appropriate by the arbitration tribunal.390
The award shall be prepared in the language of the Arbitration Agreement and
in case the original award document is prepared in the language other than
that of the arbitration agreement, an official translation shall be provided by
Centre for registration purposes, and the cost for this shall be borne by the
parties as instructed by the arbitral tribunal.391
387 Section 36 (2) (b) of Act No. 02 of 2020.

388 See regulation 31 (1) of the GN No. 146/2021.
389 See regulation 31 (2) ibid.
124
4.4.6 Consequence for non-appearance of one party
Where one party from the proceeding fails to attend or be represented at an
oral hearing of which due notice was given, the arbitral tribunal may continue
the proceeding in the absence of that party or, as the case may be, without any
written evidence or submissions on his behalf, and may make an award on the
basis of the evidence before it.392
4.5 Impartiality in Arbitration

Regulation 15 of the Arbitration (Rules of Procedures) Regulations,393 provides
for the statement of independence and impartiality of the arbitrator, that an
Arbitrator who appointed to determine the dispute shall sign a Statement of
Independence in Form No.1 prescribed in the Regulations.394
Every arbitrator shall be impartial and independent of the parties at the time of
accepting an appointment to serve and shall remain so during the entire
arbitration proceeding until the final award has been rendered or the
proceeding has otherwise finally terminated.395
The Arbitral Tribunal is guided by the fundamental principle in international

arbitration and domestic arbitration that each arbitrator must be impartial and
independent of the parties at the time when he or she accepts an appointment
to act as arbitrator and must remain so during the entire course of the
arbitration proceedings. This take reference via section 4 of the Arbitration
Act,396 which reads as follows;
4. The provisions of this Act are founded on the following principles, and
shall be construed accordingly:
(a) the object of arbitration is-
392 Section 43 (2) (b) of Act No. 02 of 2020.

393 GN No. 146/2021.
394 Ibid.
395 See General Principle 1 of the International Bar Association Guidelines on Conflicts of
Interests in International Arbitration., Approved on 22 May 2004.

396 Op. cit.
125
(i) to obtain the fair resolution of disputes by an impartial arbitral
tribunal without undue delay or incurring of unreasonable expense.
(ii) to promote consistency between domestic and international

arbitration.
Also, duty to act impartial in arbitration is provided under 35 of the Arbitration

Act, the provision provides as follows;
35.-(1) The arbitral tribunal shall-
(a) act fairly and impartially as between the parties, giving each party a
reasonable opportunity of putting his case and dealing with that of his
opponent.
An arbitrator shall decline to accept an appointment, or if the arbitration has

already been commenced, refuse to continue to act as an arbitrator, where he
or she has any doubts as to his or her ability to be impartial or independent.
It is the main ethical guiding principle of every arbitrator that actual bias from
the arbitrator’s own point of view must lead to that arbitrator declining his or
her appointment. This standard should apply regardless of the stage of the
proceedings. This principle is referred under Article 12 (2) of UNCITRAL Model
Law.397
397 UNCITRAL Model Law of 1985.

126
CHAPTER FIVE
FINALITY, RECOGNITION AND ENFORCEMENT OF AN
ARBITRAL AWARDS
5.1 Introduction
This chapter is concerning with general arbitration award. Parties who go to
the trouble and expense of taking their disputes to arbitration do so in the
expectation that, unless a settlement is reached along the way, the process will
lead to an award. They also expect that, subject to any right of appeal or
recourse, the award will be final and binding upon them.
Both international and domestic rules of arbitration reflect this expectation.

Article 34 (2) of the Arbitration Rules of the United Nations Commission on
International Trade Law (UNCITRAL) states simply:
“All awards shall be made in writing and shall be final and binding on the
parties. The parties shall carry out all awards without delay.”
The Rules of the International Chamber of Commerce (ICC), recognizing the

possibility of some form of challenge to an award at the place of arbitration
under the lex arbitri, are more circumspect:
“Every award shall be binding on the parties. By submitting the dispute to
arbitration under the Rules, the parties undertake to carry out any award
without delay and shall be deemed to have waived their right to any form
of recourse insofar as such waiver can validly be made.”
There may be more than one award in any given dispute. An arbitral tribunal
may be called upon to decide procedural issues, or to make partial awards that
decide certain issues between the parties on a partial or final basis.398 For
example, the tribunal may make a preliminary decision on its jurisdiction,
rather than take the risk of proceeding to the merits of the case and then,
perhaps, deciding later that it lacks jurisdiction. Alternatively, it may make a
398 A. Redfern & M. Hunter., “International Commercial Arbitration.” Op. Cit. at p 508.
127
partial award of a sum of money that it considers to be indisputably due and
payable by one party to the other.
5.2 The Arbitration Awards

There is no internationally accepted definition of the term ‘award’. Indeed, no
definition is to be found in the main international conventions dealing with
arbitration, including the Geneva treaties, the New York Convention, and the
Model Law.399 Although the New York Convention400 is directed to the
recognition and enforcement of arbitral awards, the nearest that it comes to a
definition is in Article I (2): reads as follows;
‘The term “arbitral awards” shall include not only awards made by
arbitrators appointed for each case but also those made by permanent
arbitral bodies to which the parties have submitted.’
In Tanzania the term ‘arbitral award’ is defined under section 2 of the

Arbitration Act,401 as a decision of the arbitral tribunal on the substance of a
dispute, and includes any interim or interlocutory. However, arbitration award
is defined by different textbooks.
“Award” means a final award which disposes of all issues submitted to the
arbitral tribunal and any other decision of the arbitral tribunal which finally
determines any question of substance or the question of its competence or any
other question of procedure but, in the latter case, only if the arbitral tribunal
terms its decision an award.402
5.3 Effects of Arbitral Award

An award made by the arbitral tribunal pursuant to an arbitration agreement
shall, unless otherwise agreed by the parties, be final and binding to both
399 A. Redfern & M. Hunter., “International Commercial Arbitration.” Op. Cit. at p 509.
400 Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.
401 Act No. 02 of 2020. See also, Regulation 2 of G.N No. 146/2021.
402 Broches, ‘Recourse against the award; Enforcement of the award: UNCITRAL’s Project for a
Model Law on International Commercial Arbitration’ (1984) 2 ICCA Congress Series 201, at 208.
128
parties and to any person claiming through or under them. This is per section
60 of the Arbitration Act.403
Rule 50 of the Arbitration (Rules of Procedures) Regulations,404 requires that,

the award shall be final and binding on the parties. The parties shall undertake
to carry out the award without delay. In the award, the arbitral tribunal, may
fix a time limit for the losing party to comply with the award and impose
penalty and or interest at commercial rates for failure so to do.
Parties generally expect an arbitration to result in an award that will be final

and binding. The widely accepted meaning of “award” is that it is the final
decision by the arbitrators, dispositive of the issues in the case. Tribunals may,
however, issue “partial awards” or “interim awards,” which also may be final
and binding on the parties. In addition, arbitrators may issue certain directions
and orders during the course of the proceedings, which may be reviewable by
the tribunal, and which do not constitute awards.
As Mushi, J. stated in Tanzania Electric Supply Co. Ltd. vs. Dowans

Holdings SA (Costa Rica) & Dowans Tanzania Limited (Tanzania), [supra].
“Both pieces of legislation provide for arbitration, as an alternative
mechanism for dispute (especially commercial disputes) resolution, out of
court litigation, with the view that, parties, on their own agreement, would
reach an amicable and speedy solution to their disputes, and that the
solution would be final and binding upon them.”
The award must be communicated promptly to both parties, so that if there are
any corrections to be made, they can be done forthwith. In some jurisdictions
[e.g. TZ, see. Regulation 49 of GN No. 146/2021], the parties, rather than the
tribunal, must register or file the award with the appropriate national
authority.
403 No 02 of 2020.
404 GN No. 146/2021.
129
5.4 Difference between “Orders” and “Awards”
Various laws, rules, and tribunals may use the terms “orders” and “awards”
differently, but there are some generally accepted distinctions. The main
difference between orders and awards is that orders are not usually reviewable
by a court prior to the rendering of the final award, although they may be
subject to review by the tribunal.405 Orders that are considered sufficiently final
to permit judicial review, however, can in some instances be challenged in
courts.406 In particular, orders for prehearing security have been found to be
reviewable by some courts because of sufficient finality.407
Even when a party cannot appeal an order to a court, if it believes the order is
improper, it should express forthwith its objection to the tribunal. It must do
this to preserve the right to challenge the final award if it believes that the
order caused an unfair, inappropriate, or biased procedure that prevented it
from fairly presenting its case. If a party does not object to an order when
issued, it may later be held to have waived any right to challenge the final
award based on that ground.408
Orders usually pertain to procedural issues that must be resolved so that the
arbitral process can move forward. Orders may, for example, deal with
discovery issues, evidence issues, or places and times of hearings. They
essentially deal with the conduct of the proceedings. Awards, on the other
hand, generally resolve substantive rights of the parties. Awards are normally
enforceable under the New York Convention, and can be challenged on limited
405 M. L. Moses., “The Principles and Practice of International Commercial Arbitration.” Op. Cit. p
179.
406 See, e.g., France, Braspetro Oil Servs. Co. v. Mgmt and Implementation Auth. of the Greater
Man-Made River Project (“Brasoil”), XXIVa YBCA 296 (1999) (Although the tribunal’s ruling was
characterized as an order, the court determined it was in fact an award, which it then set
aside.).
407 See Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255 (2d Cir. 2003).
408 M. L. Moses., Op. Cit. p 180.
130
legal grounds in the courts at the seat of the arbitration. Several different kinds
of awards will be discussed below.409
5.5 Forms of arbitral award (formality)
The parties may agree on the form of an award. Where there is no such
agreement the award shall-410
a. be in writing signed by all the arbitrators or all those assenting to the
award;
b. contain the reasons for the award unless it is an agreed award or the
parties have agreed to dispense with the reasons; and
c. state the seat of the arbitration and the date when the award is made.
In order to be valid, an award must conform with the parties’ agreement, the
chosen rules, and the applicable law. Certain formalities must be met, which
are generally set forth in the rules. Under Article 32 of the UNCITRAL Rules,411
for example, an award must be:-
1. in writing,
2. final and binding,
3. supported by reasons,
4. signed by the arbitrators (if one arbitrator’s signature is missing, reason
5. for absence must be stated),
6. dated, and place of arbitration named,
7. made public only if both parties consent,
8. communicated to both parties,
9. filed or registered by the tribunal with appropriate authorities, if required
by law.
Arbitrators need to verify the rules under which the arbitration is conducted, to
make sure that their award conforms in all respects. Although failing to meet
409 M. L. Moses., Op. Cit. p 180.

410 See section 54 (1) and (2) of the Arbitration Act, No 02 of 2020.
411 United Nations Commission on International Trade Law., UNCITRAL Arbitration Rules of
1998.
131
some of the requirements as to form, such as not stating the date and place of
arbitration, would not necessarily invalidate the award, there is no reason to
give a disgruntled party any basis to begin an attack on the award.
5.6 Types of Awards

There is no agreed classification of arbitral awards, but the Acts and
International Conventions provides the common types of award as follows;
5.5.1 Final Award

The term “final award” is generally used to refer to the award by the tribunal
that resolves all of the remaining disputes between the parties. There are
significant consequences that flow from a final award. First, a final award
challengeable by the losing party, who may attempt to have it annulled or
vacated under the laws of the seat of the arbitration.412

provides that, unless otherwise agreed by the parties, the arbitral tribunal,
shall issue its final award within thirty days of the conclusion of the hearings,
except in such case in which the arbitral tribunal or the sole arbitrator,
considers that the period may be extended adequately.
In addition, assuming the award is made in a New York Convention State, it

may be enforced under that Convention. And finally, issuance of the award
terminates the duties of the tribunal, which becomes functus officio – without
further jurisdiction subject in some instances to review, and to any necessary
corrections or interpretation.414
180.
413 GN No. 146/2021.
414 Black’s Law Dictionary explains that “functus officio” means “having fulfilled the function,
discharged the office, or accomplished the purpose, and therefore of no further force or
authority.” Black’s Law Dictionary 673 (6th ed. 1990). See also, Green v. Ameritech Corp., 200
F.3d 967, 977 (6th Cir. 2000) (“A remand is proper . . . to clarify an ambiguous award or to
require the arbitrator to address an issue submitted to him but not resolved by the award”).
132
In Tanzania, parties may agree that the arbitral tribunal shall have powers to
order on a provisional basis any relief which it would have powers to grant in a
final award.415
5.5.2 Partial and Interim Awards

The term “interim award” is sometimes used synonymously with partial award.
However, some commentators distinguish between the two by saying that
partial awards refer to substantive claims, while interim awards refer to issues
such as jurisdiction or applicable law.416 Such awards do not resolve all of the
issues in dispute between the parties. Depending upon the jurisdiction,
however, in some cases parties may either challenge or seek to confirm the
partial or interim award in court, without waiting for the final award, which
resolves the entire dispute.
Regulation 37 of the Arbitration (Rules of Procedures) Regulations,417 provides

that;
“the arbitral tribunal shall make resolution on a plea concerning its
jurisdiction as a preliminary question. (2) Notwithstanding sub regulation
(1) the arbitral tribunal may, if it deems appropriate, proceed with the
arbitration and resolution on such a contention in their final award.”
Various arbitral rules tend to refer to partial and interim awards without
defining them, thereby perhaps contributing to the confusion about any
distinction between them, as well as to their sometimes-interchangeable use.
The UNCITRAL Arbitration Rules, for example, provide that “in addition to
making a final award, the arbitral tribunal shall be entitled to make interim,
interlocutory, or partial awards.”
415 See s. 41 (1) of Act No. 02 of 2020.

416 See Final Report on Interim and Partial Awards, 2 ICC International Court of Arbitration
Bulletin 26 (1990).
417 GN No. 146/2021.
133
The UNCITRAL Rules also provide that the tribunal may take “interim
measures,” for example, “measures for the conservation of … goods … such as
ordering their deposit with a third person or the sale of perishable goods.”418
This suggests that the tribunal’s decision would constitute an order as to the
interim measure. The Rules also note, however, that “such interim measures
may be established in the form of an interim award.”419 Thus, it appears that
the tribunal has some discretion to determine whether the decision it renders
is an order or an award.
In some instances, however, courts have determined that what a tribunal

designated as an order was in fact an award. In Publicis Communication vs.
True North Communications,420 for example, the U.S. Seventh Circuit Court
of Appeals affirmed a lower court’s ruling that a tribunal’s order to turn over
tax records, although designated as an “order,” was a final award, ripe for
confirmation. The appellate court held that;
the “award” had been properly confirmed by the lower court under the
New York Convention. It found that the tribunal’s decision was more than
“just some procedural matter” because “it was the very issue True North
wanted arbitrated.”
Thus, even though there were other issues yet to be decided, and even though
the decision was denominated an “order,” the substance and impact of the
tribunal’s decision demonstrated finality and made it a final award. The
substantive content and effect of the decision were the determining factors.421
A decision designated as an “interim award,” dealing with interim relief, is

generally not considered a final award enforceable under the New York
Convention. In some jurisdictions, however, an interim award can be confirmed
418 UNCITRAL Rules, Art. 26(1).

419 UNCITRAL Rules, Art. 26(2).
420 206 F.3d 725 (2000).
421 M. L. Moses., Op. Cit. p 182.
134
under local arbitration laws,422 if the award dealt with a “separate, discrete,
independent, severable issue.”423 Enforcement of such awards is viewed as
“essential to the integrity of the arbitral process.”424
5.5.3 Consent Award

The parties may at any time during the proceedings decide to resolve their
dispute by consent, without the benefit of an arbitral decision. Most rules
specifically refer to this possibility, and permit the parties, if they so request, to
enter an award upon agreed terms.425
Parties may have no need to have their settlement agreement recorded as a

consent award, if, at the time they sign the agreement, all monies are paid and
any other disputes completely resolved. If, however, any obligation remains to
be performed after the signing of the agreement, parties are well advised to
convert their settlement agreement into an award. If they do not, and one party
does not perform its obligations under the agreement, it would constitute a
breach of contract.426
The other party would then have to go to court and prove the breach before it
could begin enforcement proceedings. Enforcement would probably be more
difficult because the judgment obtained for breach of contract would not be
enforceable under the New York Convention. If the agreement has been
converted into an award, however, enforcement would be more readily available
by means of the New York Convention.
422 See s. 41 (2) (b) of the Arbitration Act No. 02 of 2020.

423 Island Creek Coal Sales vs. City of Gainesville, Florida, 729 F.2d 1046, 1049 (6th Cir. 1984).
(Court upheld an interim arbitration award that required the defendant to continue
performance of a contract until the arbitration panel issued its final award.)
424 Pacific Reinsurance v. Ohio Reinsurance, 935 F.2d 1019, 1023 (9th Cir. 1991). (Court upheld
tribunal decision establishing an escrow account with the money a plaintiff claimed to be due
under its contract with the defendant.)
425 See UNCITRAL Rules, Art. 34(1), ICC Rules, Art. 26. See also, UNCITRAL Model Law, Art.
30.
183.
135
Another reason for converting the agreement into a consent award would be if
the other party is a sovereign state or state agency. From a political
perspective, the imprimatur of the arbitral institution and the signatures of the
arbitrators could make a particular state system more willing to pay the
amount of the award, than if there was only a settlement agreement.427
5.5.4 Default Award

A default award is one made despite the failure of one party to participate in
the proceedings. If a respondent does not participate, or withdraws, the
tribunal cannot automatically make an award in favor of the claimant. Rather,
it must still carefully review the evidence before it and decide on the merits. In
some ways, this puts a heavier burden on the tribunal, which must ensure at
each point in the process that the missing party has been notified, and has had
every opportunity to participate, both orally and in writing, in the arbitral
process.428
In order to render an enforceable award, the tribunal must show that it has
made reasonable, continuing and even substantial efforts to permit the other
party to present its case. It would be wise for the tribunal to note these efforts
in its final award, and to provide thoughtful and clear reasons in the award for
how it reached its decisions on the merits of the case.429
5.7 Grounds for challenging an Award

The court can interfere with the conduct of the arbitral proceedings and the
ensuing award if it is satisfied that (i) there has been misconduct on the part of
the arbitral tribunal; or (ii) that the award has been improperly procured by the
respondents.
427 A. Redfern & M. Hunter., “International Commercial Arbitration.” Op. Cit. at p 8-49.
183.
429 Ibid.
136
5.6.1 Challenging on Misconduct of Arbitrator or Umpire
Where an arbitrator or umpire has misconducted himself or an arbitration or
award has been improperly procured, the court may set aside the award.’430
In the English case of Taylor & Son Ltd. vs. Barnett Trading Co,431 it was
held that,
“… an arbitrator is guilty of “misconduct” if he knows or recognizes that a
contract is illegal and thereafter proceeds to make an award upon a
dispute arising under the contract.”
Provided that, the court shall not exercise its power to set aside an award, in
whole or in part, unless it is satisfied that it would be inappropriate to remit
the matters in question to the arbitral tribunal for reconsideration.432
It should be noted, however, that such court intervention does not amount to
an appeal against the decision of the arbitral tribunal because the law relating
to arbitration in Tanzania does not provide for the right of appeal to the losing
party. It simply amounts to overturning of the arbitration outcome.433
5.6.2 Challenging Award on Substantive Jurisdiction

A party to arbitral proceedings may, upon notice to the other parties and to the
arbitral tribunal, apply to court challenging any award of the arbitral tribunal
as to its substantive jurisdiction; or for an order declaring an award made by
the arbitral tribunal on the merits to be of no effect, in whole or in part, on
grounds that the arbitral tribunal did not have substantive jurisdiction. This is
according to section 69 of the Arbitration Act.434
5.6.3 Challenging Award on Serious Irregularity

A party to arbitral proceedings may, upon notice to the other parties and to the
arbitral tribunal, apply to the court challenging an award in the proceedings on
431 (1953) 1 WLR. 563.
432 Section 71 (5) (e) proviso of the Arbitration Act, No. 02 of 2020.
434 Act No. 02 of 2020.
137
the ground of serious irregularity affecting the arbitral tribunal, the
proceedings or the award.435
Section 70 (2) of the Arbitration Act provides that, for the purpose of this
section, “serious irregularity” means an irregularity of one or more of the
following kinds which the court considers has caused or is likely to cause
substantial injustice to the applicant:
a. failure by the arbitral tribunal to comply with general duty of arbitral

tribunal as provided under section 35;
b. the arbitral tribunal has exceeded its powers otherwise than by
exceeding its substantive jurisdiction;
c. failure by the arbitral tribunal to conduct the proceedings in accordance
with the procedure agreed by the parties;
d. failure by the arbitral tribunal to deal with all the issues that were raised
before it;
e. any arbitral institution or other institution or person vested by the
parties with powers in relation to the proceedings or the award exceeding
its powers;
f. uncertainty or ambiguity as to the effect of the award;
g. the award being obtained by fraud or procured in a manner that is
contrary to public policy;
h. failure to comply with the requirements as to the form of the award; or
i. any irregularity in the conduct of the proceedings or in the award which
is admitted by the arbitral tribunal or by any arbitral or other institution
or person vested by the parties with powers in relation to the proceedings
or the award.
5.6.4 Challenging award on error of law

The general rule that courts can set aside an award if it contains an “error of
law on the face of the award” The test of “error of law on the face of award” was
435 See Section 70 (2) of the Arbitration Act, ibid.

138
described in Champsey Bhara & Co. v Kuvraj Ballow SPG & WVG Co.
Ltd.436 as an ‘erroneous legal proposition stated in the award and which forms
its basis.’ In that case, the court further held that,
“… an error of law on the face of the award means, in their Lordships’
view, that you can find it in the award or a document actually incorporated
thereto, as, for instance, a note appended by the arbitrator stating the
reasons for his judgment, some legal proposition which is the basis of the
award and which you can say it is erroneous.”
5.6.3.1 Exception to the “Error on the Face of the Award” Test

The general rule that courts can set aside an award if it contains an “error of
law on the face of the award” does not apply if the point of law in question has
been specifically referred to the arbitral tribunal for determination.
This exception was developed by the House of Lords in F.R. Absalom Ltd. v
Great Western (London) Garden Village Society,437 and applied in the Indian
Supreme Court in Alopi Parshad & Sons Ltd. vs. Union of India.438 It has also
been canvassed by the recent Tanzanian cases of D.B. Shapriya & Co. Ltd. v
Bish International BV,439 and Tanzania Electric Supply Co. Ltd. v Dowans
Holdings SA (Costa Rica) & Dowans Tanzania Limited (Tanzania),440 as well as
the recent English decision in Dowans Holding SA & Dowans Tanzania Ltd. v
Tanzania Electric Supply Co. Ltd.
This exception is to the effect that where specific questions concerning error on
the face of the award are submitted to the arbitrator for his decision, his
decision on the issues could not be interfered with merely on the ground of its
being wrong.441
436 (1923) AC 480.

437 [1933] AC 592.
438 AIR 1960 SC 588.
439 (No 2) [2003] 2 East Africa Law Rep 404 (HCT).
440 Supra.
441 See particularly Government of Kelantan v Duff Development Co. [1923] AC 396.
139
5.6.3.2 Rationale of the Exception to the “Error on the Face of the Award”
Test
The “old” test of entitlement to challenge an arbitral award by reference to error
on the face of the award has been subjected to a “modern” approach adopted
internationally in the context of the New York Convention.
In modern international arbitration law, and in the context of the Tanzanian

High Court decision in Shapriya’s case, Tanzanian courts should have ‘full
regard to the international approach to the undesirability of interfering with the
careful decisions by arbitrators on issues which, by virtue of an arbitration
agreement such as in this case, have been referred to those arbitrators in order
for them to make a final and binding decision.’ In the phraseology of Mushi, J.
in Tanzania Electric Supply Co. Ltd. v Dowans Holdings SA (Costa Rica) &
Dowans Tanzania Limited (Tanzania),442
“The rationale [of this exception] is that, in such circumstances, the parties
have agreed between themselves that the tribunal, and not the court,
should resolve the relevant question of law, and therefore, the court cannot
interfere with the tribunal’s conclusion, even if it takes a different view of
the law. [Emphasis in the original text].”
In addition, this rationale is premised in the well-established principle of law

underlying both the Tanzania Civil Procedure Code and the Arbitration Act to
the effect that it is public policy that litigation (including arbitration) should
come to finality by avoiding unnecessary delays and re-opening or re-arguing of
issues already resolved by a tribunal or court of law.443 This principle is clearly
elaborated in the following regards,
“… just as an award prevents a party from raising a second time a claim
on which he has succeeded, so also the award prevents him from
disputing a second time an issue he has failed. The losing party cannot be
permitted to try again, just because he believes that on the second
442 Supra.
443 C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Op. Cit. p, 151.
140
occasion he may have a more sympathetic tribunal, more convincing
witnesses, or a better advocate. There must be an end to disputes.”444
In Shapriya one of the issues that the arbitrator had been asked to determine
was relating to construction of a statute thus: ‘whether the assumption of a
position of an architect under the contract by the Respondent which is not
registered as an architect under the Architects, Quantity Surveyors and
Building Contractors Regulation Act, Number 35 of 1972, was irregular and/or
unlawful.’ In the High Court, the petitioners sought to challenge the arbitrator’s
conclusion in relation to this issue. Msumi, J. (as he then was) held that;
“…they were not entitled to do so on the basis of the principle that it is not
open to an unsuccessful party to challenge the arbitrator’s conclusion on a
point of law that had been specifically referred to him for decision. It is
was his Lordship’s view that, rather than submitting it to the arbitrator,
the issue ought to have been referred to the High Court for its opinion by
way of special stated case…”
5.8 Procedure in Challenging an Arbitral Award

There are no express provisions in current Arbitration Act and even in the
Arbitration (Rules of Procedures) Regulations GN 146/2021 which provides for
procedure for challenging an arbitral award. Rather regulation 63 of the
Arbitration (Rules of Procedures) Regulations provides for the general modes of
application, thus, the procedures for challenging an Arbitral Award follow into
the same Rules.
Regulation 63. -(1) of the Arbitration (Rules of Procedures) Regulations,445

provides that;
Regulation 63. -(1) ‘Save as is otherwise provided, all applications made under
the provisions of the Act or these Regulation shall:
444 Mustill, M.J. and S.C. Boyd, Commercial Arbitration. London. 2 nd edn. Butterworths, 1989,
p. 413.
445 GN 146/2021.
141
(a) be made by way of petition and be titled “In the matter of the
arbitration and in the matter of the Act” and reference shall be made in the
application to the relevant section of the Act;
(b) contain a brief statement, in summary form, of the material facts, shall
be divided into paragraphs numbered consecutively and shall state the
nature of the relief sought or the questions of law for the determination of
the Court as the case may be;
(c) annexed to it the submission, the minutes or proceedings of the arbitral

tribunal award or the ruling to which the petition relates, or a copy of it
certified by the petitioner or his advocate to be a true copy;
(d) annexed to it the submission, the minutes or proceedings of the arbitral

tribunal award or the ruling to which the petition relates, or a copy of it
certified by the petitioner or his advocate to be a true copy;
(e) specify the persons affected by it and upon whom notice is required to
be given as provided in these Regulations and shall state the address, in
detail, of each of them.’
The wording of this rule indicates that non-compliance with the requirements
of the rule is fatal. This was also the view of the court in Legal and Human
Rights Centre. In Legal and Human Rights Centre & 3 Others vs. Dowans
Tanzania Ltd. & 2 Others,446 the court held that: “It is enough to state that
the compliance with the provisions of Arbitration Rules are mandatory.” Failure
to comply with this requirement renders the petition fatally defective.
5.9 Remedies Available in Challenging an Arbitral Award

Remedies which are available in challenging an award are usually in the
following forms, as per Section 70 (3) (a) – (c) of the Arbitration Act;447
446 High Court of Tanzania at Dar es Salaam, Misc. Civil Application No. 8 of 2011 (Unreported)
[Ruling dated 6th September 2011]. p. 43.
447 Act No. 02 of 2020.
142
i. setting aside the award in whole or in part, under section 69 (3) (c) of the
Arbitration Act;448
ii. remitting the award to the arbitral tribunal, in whole or in part, for
reconsideration; or
iii. declaring the award to be of no effect either in whole or in part.
Declaring an award to be of no effect or setting it aside has the effect, in fact, of

allowing the petition with the result that the winner in the Arbitral Tribunal
loses completely. Remitting an award happens where the court remits the
award to the arbitrator for reconsideration by him.449
5.10 Remedies, Interests and Costs for Arbitral Award

The parties may agree on the powers exercisable by the arbitral tribunal as
regards to remedies. Unless otherwise agreed by the parties, the arbitral
tribunal shall have powers to make a declaration as to any matter to be
determined in the proceedings; or order the payment of a sum of money, in any
currency.450
5.9.1 Monetary Damages

provides for monetary damages that, Monetary amounts in the award may be
expressed in any currency. The arbitral tribunal may award simple or
compound interest to be paid by a party on any sum awarded against that
party and shall be free to determine the interest at such rates as it considers to
be appropriate, without being bound by legal rates of interest and the period
for which the interest shall be paid.452
The most common remedy sought in international commercial arbitration is

the payment of monetary damages. The tribunal, if it finds one party has not
448 Ibid.
449 C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Law and Practice. Op.
Cit. at p 154.
450 Section 49 of the Arbitration Act No. 02 of 2020.
451 GN No. 146/2021.
452 Regulation 42 (2) Ibid.
143
performed its contractual obligations, may award “make whole” relief, that is,
relief that will put the nonbreaching party back in the position it would have
been if the breach had not occurred.453
5.9.2 Interest
The parties may agree on the powers of the arbitral tribunal as regards the
award of interest.454 A tribunal is also likely to include an award of interest.
This is fairly routine in an international arbitration, but the arbitrators must
pay attention to the law of the place of arbitration, which may impose some
limits or even prohibitions. The laws of the place of enforcement may also affect
whether interest can be awarded.455
Jurisdictions vary widely in their approach to interest awards. Some laws

specifically grant arbitrators the power to award not just simple interest but
compound interest.456 Other jurisdictions, however, either limit or prohibit the
award of compound interest. The rate of interest, and who determines the rate
of interest, will also vary by jurisdiction: the rate may be within the discretion
of the arbitrators, or it may be prescribed by statute.457
5.9.3 Other Remedies

Arbitrators generally have discretion to award a variety of remedies. The
tribunal can make a declaratory award, simply setting forth what the rights of
the parties are. It may grant injunctive relief, either as preliminary or interim
relief, or in the final award. It may, in some instances, award specific
performance, but the effectiveness of such an award may depend upon the
willingness of the enforcing court to enforce it.458
186.
455 Ibid.
456 See, e.g., English Arbitration Act of 1996, section 49.
187.
458 Ibid.
144
Punitive damages are rarely awarded in arbitrations, but may be awarded if
permitted by law. They are not recoverable in most civil law countries, and may
only be recoverable in tort law, not contract law, in many common law
countries. Even if punitive damages were awarded, however, there could be
problems of enforcement.
If awarded by a tribunal in the United States, for example, punitive damages

might be refused at the place of enforcement, if the enforcing court was in a
jurisdiction which considered punitive damages to be contrary to public
policy.459
5.9.4 Costs
While the fees and costs of the arbitral tribunal and the arbitral institution are
usually determined in advance, the arbitrators will have discretion as to the
allocation of those costs between or among the parties, unless the parties
predetermined the allocation in their arbitration agreement.460 “Costs” will
usually refer to both administrative costs (including fees and expenses of the
tribunal), and legal fees for the parties. If parties are allocating these costs by
agreement, however, they should make clear whether they are referring to
administrative costs, legal fees, or both.461
If the parties have not agreed otherwise, the arbitrators have the discretion to
award all of the reasonable costs, including the prevailing party’s legal fees,
against the losing party.462
5.11 Enforcement of Domestic Arbitral Awards

In Tanzania, foreign arbitral awards can be enforced if there is a reciprocal
enforcement of judgment or awards arrangements with the country in which it
was awarded.463
459 See Redfern & Hunter et al., Op. it, at p, 651.

460 Ibid.
188.
462 Ibid, at. p 188.
145
According to Regulation 66 (1) and (2) of the of the Arbitration (Rules of
Procedures) Regulations,464 a foreign award shall, subject to the provisions of
the Act, be enforceable in the High Court either by action or under the
provisions of sections 73, 83 and 84 of the Arbitration Act.465
Any foreign award which would be enforceable under the Act and this
regulation shall be treated as binding for all purposes on the persons as
between whom it was made and may accordingly be relied on by any of those
persons by way of defence, set-off or otherwise in any legal proceedings; and
any reference in this Part to enforcing a foreign award shall be construed as
including references to relying on an award.
Section 78 (1) of the Arbitration Act, provides that; upon application in writing
to the court, a domestic arbitral award or foreign arbitral award shall be
recognized as binding and enforceable.
Ordinarily, a party against whom an arbitral award has been made should obey
it without further ado. This is so because that is the purpose of an arbitral
agreement. But, in many cases, unsuccessful parties do not do so; hence the
need arises for the successful party to execute the award.466
Under the provisions of section 78 of the Arbitration Act, an arbitral award may
be executed by a court of law; i.e. the High Court, as if it were a decree of the
court. An arbitral award is a decree capable of being enforced in a court of law.
In Tanzania Electric Supply Co. Ltd. vs. Dowans Holdings SA (Costa Rica)
& Dowans Tanzania Limited (Tanzania),467 Mushi, J., held that:
“…it is hereby ordered that … the ICC’s Final Award filed in this Court, be
formally registered and should be a decree of this court and enforceable as
such.’ [Emphasis in the original text].”

464 GN No. 146/2021.
465 Act No. 02 of 2020.
466 C. J Mashamba., “Alternative Dispute Resolution (ADR) in Tanzania:” Law and Practice. Op.
Cit. at p 143.
467 Supra.
146
5.12 Grounds for Refusing Recognition and Enforcement of an Award
Section 78 (2) of the Arbitration Act,468 provides that; a domestic arbitral award
shall be refused if-
1. At the request of the party against whom it is invoked, that party furnishes
to court proof that-
(a) The parties to the arbitration agreement, pursuant to the applicable law,
lack capacity to enter into agreement, or the said agreement is not valid
under the law to which the parties have subjected it or, failing any
indication thereon, under the law of the country where the award was made;
or
(b) The party against whom the award is invoked was not given proper
notice of the appointment of the arbitrator or of the arbitration proceedings
or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling
within the terms of the submission to arbitration, or it contains decisions on
matters beyond the scope of the submission to arbitration, provided that, if
the decisions on matters submitted to arbitration can be separated from
those not so submitted, that part of the award which contains decisions on
matters submitted to arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure was
not in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where the
arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set
aside or suspended by a competent authority of the country in which, or
under the law of which, that award was made.
468 (New York, 1958).

147
2. Recognition and enforcement of an arbitral award may also be refused if the
competent authority in the country where recognition and enforcement is
sought finds that:
(a) The subject matter of the difference is not capable of settlement by

arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the

public policy of that country.
5.13 Filing of Arbitration Award

So, the successful party who is desirous of executing the award is required to
request the arbitral tribunal to file the award or cause it to be filed in court.
After paying the requisite fees and any other expenses of the arbitral tribunal,
the tribunal will file the award or cause it to be filed in the court which will
then execute it as an ordinary decree of the court – if there is no petition
challenging the validity of the award on any ground of misconduct by the
arbitrator.469 But it’s not necessary that this be done by arbitrator himself, this
was seen in Tanzania Cotton Marketing Board vs. Cogecot Cotton
Company Sa,470 the facts were as follows;
The appellant appealed against the decision of the High Court which had
granted an application for the formal filing of an arbitration award. The
appellant contended (a) that the court had erred in allowing the filing as there
had not been compliance with s 11 (2) of the Arbitration Ordinance Chapter 15
[repealed] in that the arbitrator had not filed the award but had had it filed by
a firm of advocates; and (b) that the filing was irregular as the award had been
forwarded by DHL courier and not by registered post as required by rule 4 of
the Arbitration Rules, 1957 [repealed]. It was stated that;
469 C. J Mashamba., Op. Cit. at p 143.

470 1997 TLR 165 (CA).
148
(i) There was no reason for a restrictive interpretation of the provisions of s
11(2) which allowed the arbitrator to `cause the award, or a signed copy of
it to be filed in the court'. The import of this was that the arbitrator could
either file the award himself in court or could cause the award to be filed
by instructing somebody else to do it on his behalf;
(ii) the words ‘registered post’ had to be interpreted widely enough in order
to consider the current development in communication technology, such as
courier postal services, that had taken place since 1957 when the rules
were enacted. In the circumstances the award had been properly filed.
149
CHAPTER SIX
INTERNATIONAL COMMERCIAL ARBITRATION
6.1 Introduction
This chapter presents a brief overview of some of the basic characteristics of
International Commercial and how it works. Arbitration thus gives the parties
substantial autonomy and control over the process that will be used to resolve
their disputes. This is particularly important in international commercial
arbitration because parties do not want to be subject to the jurisdiction of the
other party’s court system. Each party fears the other party’s “home court
advantage.” Arbitration offers a more neutral forum, where each side believes it
will have a fair hearing.
Moreover, the flexibility of being able to tailor the dispute resolution process to
the needs of the parties, and the opportunity to select arbitrators who are
knowledgeable in the subject matter of the dispute, make arbitration
particularly attractive. Today, international commercial arbitration has become
the norm for dispute resolution in most international business transactions.
6.2 Complexity of legal regime / Complex interaction of laws

International arbitration, unlike its domestic counterpart, usually involves
more than one system of law or of legal rules. Indeed, it is possible, without
undue sophistication, to identify at least five different systems of law that, in
practice, may have a bearing on an international arbitration:471
1. the law governing the arbitration agreement and the performance of that
agreement;
2. the law governing the existence and proceedings of the arbitral tribunal
(the lex arbitri);
471 A. Redfern & M. Hunter, International Commercial Arbitration. Op. Cit. at p, 158.
150
3. the law, or the relevant legal rules, governing the substantive issues in
dispute (generally described as the ‘applicable law’, the ‘governing law’,
‘the proper law of the contract’, or ‘the substantive law’);
4. other applicable rules and non-binding guidelines and recommendations;

and
5. the law governing recognition and enforcement of the award (which may,
in practice, prove to be not one law, but two or more, if recognition and
enforcement is sought in more than one country in which the losing
party has, or is thought to have, assets).
This chapter deals with: the law governing the agreement to arbitrate; the law
governing the arbitration itself (the lex arbitri); the law governing the
substantive matters in dispute (the substantive law); the law or rules governing
conflicts of law; and certain non-national guidelines and rules that are
increasingly relied upon in international arbitration.
6.2 Agreement to Arbitrate under International Perspective

An ‘agreement to arbitrate’ is usually expressed in an arbitration clause in a
contract. Arbitration clauses are discussed in more in chapter four of this
Manual. Arbitration clauses are drawn up and agreed as part of the contract
before any dispute has arisen, and so they necessarily look to the future. The
parties naturally hope that no dispute will arise, but agree that if it does, it will
be resolved by arbitration, and not by the courts of law.472
Law applicable to the arbitration agreement

The foundation stone of modern international arbitration is (and remains) an
agreement by the parties to submit any disputes or differences between them
to arbitration.473 Before there can be a valid arbitration, there must first be a
valid agreement to arbitrate. This is recognized both by national laws and by
473 Ibid.
151
international treaties. Under both the New York Convention,474 and the Model
Law,475 recognition and enforcement of an arbitral award may be refused if the
parties to the arbitration agreement were under some incapacity or if the
agreement was not valid under its own governing law.476
Geneva Protocol of 1923 and Geneva Convention 1927

The 1923 Geneva Protocol and the 1927 Geneva Convention dealt with the
recognition and enforcement of international arbitration agreements and the
execution of foreign arbitral awards. These were then followed by various
regional conventions, until eventually the most important convention in the
field of international commercial arbitration, the New York Convention, was
promulgated in 1958.
The 1923 Geneva Protocol had two objectives. Its first and main objective was
to ensure that arbitration clauses were enforceable internationally, so that
parties to an arbitration agreement would be obliged to resolve their dispute by
arbitration rather than through the courts. This was done, in effect, by
requiring national courts to refuse to entertain legal proceedings brought in
breach of an agreement to arbitrate. The second and subsidiary objective of the
1923 Geneva Protocol was to ensure that arbitration awards made pursuant to
such arbitration agreements would be enforced in the territory of the states in
which they were made.
Convention on the Recognition and Enforcement of Foreign Arbitral

Awards of 1958, famous known as ‘the New York Convention’
The New York Convention, which provides for the international recognition and
enforcement of arbitration agreement, as well as of arbitration awards, insists
that arbitration agreements should be ‘in writing’.
474 New York Convention, Art. V.

475 UNCITRAL Model Law, Art. 35.
476 New York Convention, Art. V(1)(a); see also, Art. 36(1) (a) (i) of the UNCITRAL Model Law.
152
Indeed, references to the need for ‘writing’ occur throughout the New York
Convention. Article II (1)477 requires each state party to the Convention to
recognize ‘an agreement in writing’ under which the parties have undertaken to
submit to arbitration disputes that are capable of being settled by arbitration.
Article II (2) defines an ‘agreement in writing’ to include arbitration clauses and
submission agreements; Article IV states that to obtain enforcement of an
arbitral award the winning party must produce the written agreement to
arbitrate or a duly certified copy.
When the New York Convention was drawn up, the position was relatively
simple: arbitration, for the purposes of the Convention, was to be based either
on a written arbitration clause in a contract or on a signed submission
agreement. This is how things were done when the Convention was concluded
in 1958. But much has changed since then.
First, modern methods of communication have moved beyond the ‘letters and
telegrams’ to which the Convention refers. Secondly, the Convention assumes
that only parties to the agreement to arbitrate will become parties to any
resulting arbitration. However, the increased complexity of international trade
means that states, corporations, and individuals who are not parties to the
arbitration agreement might wish to become parties, or, indeed, might find that
they have been joined as parties, irrespective of their wishes. The idea that
arbitration involves only two parties—one as claimant and the other as
respondent is no longer valid.
United Nation Commission on International Trade Law Model Law of 1985,

commonly known as UNCITRAL Model Law.
The Model Law, which came into force many years after the New York
Convention, also envisages arbitration as taking place only between parties
477 The New York Convention, 1958.

153
who are parties478 to a written arbitration agreement. Article 7(1) states that an
arbitration agreement:
… is an agreement by the parties to submit to arbitration all or certain
disputes which have arisen or which may arise between them in respect of
a defined legal relationship, whether contractual or not. An arbitration
agreement may be in the form of an arbitration clause in a contract or in
the form of a separate agreement.
However, the Model Law did move beyond ‘letters’ and ‘telegrams’ by extending
the definition of ‘in writing’ to include ‘an exchange of letters, telex, telegrams
or other means of telecommunication which provide a record of the
agreement.’479
6.3 Law Applicable to the Arbitration Proceedings

An international arbitration usually takes place in a country that is ‘neutral’, in
the sense that none of the parties to the arbitration has a place of business or
residence there. This means that, in practice, the law of the country in which
territory the arbitration takes place —that is, the lex arbitri—will generally be
different from the law that governs the substantive matters in dispute. An
arbitral tribunal with a seat in the Netherlands, for example, may be required
to decide the substantive issues in dispute between the parties in accordance
with the law of Switzerland or the law of the State of New York or some other
law, as the case may be.
Nevertheless, the arbitration itself, and the way in which it is conducted, will
be governed (if only in outline) by the relevant Dutch law on international
arbitration.480 This difference between the lex arbitri (the law of the place, or
‘seat’, of the arbitration) and the law governing the substance of the dispute
478 In case of Ad Hoc Arbitration.

479 UNCITRAL Model Law, Art. 7 (2).
154
was part of the juridical tradition of continental Europe, but is now firmly
established in international arbitration.481
Law Governing the Arbitration

If the parties do not make an express choice of the place of arbitration, the
choice will have to be made for them, either by the arbitral tribunal itself or by
a designated arbitral institution. Article 19 (1) of the United Nations
Commission on International Trade Law,482 for instance, states: ‘If the parties
have not previously agreed on the place of arbitration, the place of arbitration
shall be determined by the arbitral tribunal having regard to the circumstances
of the case.’ Article 18 (1) of the ICC Rules leaves the choice to the ICC Court:
‘The place of arbitration shall be fixed by the Court, unless agreed upon by the
parties.’
Indeed, Article 19 of the Model Law483 expressly provides that:

1. Subject to the provisions of this Law, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the
proceedings.
2. Failing such agreement, the arbitral tribunal may, subject to the

provisions of this Law, conduct the arbitration in such manner as it
considers appropriate. The power conferred upon the arbitral tribunal
includes the power to determine the admissibility, relevance, materiality
and weight of any evidence.
481 Savage and Gaillard (eds) Fouchard, Gaillard, Goldman on International Commercial
Arbitration (Kluwer Law International, 1999), para. 1428. Early recognition of this principle in
English law may be seen in Compagnie Tunisienne de Navigation SA v Compagnie d’Armament
Maritime SA [1971] AC 572, at 604.
482 UNCITRAL Model Law, 1985.
483 ibid.
155
What is the lex arbitri?
It is appropriate, at this stage, to consider what is meant by the lex arbitri. The
question was posed rhetorically by a distinguished English judge:
What then is the law governing the arbitration? It is, as the present authors
trenchantly explain, [39] a body of rules which sets a standard external to the
arbitration agreement, and the wishes of the parties, for the conduct of the
arbitration. The law governing the arbitration comprises the rules governing
interim measures (eg Court orders for the preservation or storage of goods), the
rules empowering the exercise by the Court of supportive measures to assist an
arbitration which has run into difficulties (eg filling a vacancy in the
composition of the arbitral tribunal if there is no other mechanism) and the
rules providing for the exercise by the Court of its supervisory jurisdiction over
arbitrations (eg removing an arbitrator for misconduct).484
The content of the lex arbitri

Each state will decide for itself what laws it wishes to lay down to govern the
conduct of arbitrations within its own territory. Some states will wish to build
an element of consumer protection into their law, so as to protect private
individuals. For example, section 6 of the Swedish Arbitration Act 1999,485
provides that an arbitration agreement with a consumer involving goods or
services for private use is invalid if made before a dispute arises.
Again, for example, the Swedish Act provides that the arbitral tribunal may
order the parties to pay the arbitrators’ fees and, if it does so, must set out in
its final award its decision as to the fees payable to each of the arbitrators.486
The arbitral tribunal must also provide clear instruction to the parties of the
steps that must be taken to appeal to the district court against this decision.
484 Smith Ltd v H International [1991] 2 Lloyd’s Rep 127, at 130.

485 Swedish Arbitration Act 1999.
486 Swedish Arbitration Act 1999, s. 37.
156
In recognition of the distinction between domestic arbitration and international
arbitration— in which the sums at issue are likely to be larger and the parties
better able to look after themselves—some states have (sensibly, it may be
thought) introduced a code of law specifically designed for international
arbitrations. Such a code of law is usually fairly short: the French Code, for
example, comprises only twenty-four articles, some of which consist of a single
sentence, and the Swiss PIL, comprising only sixteen articles, is even more
concise.487
Procedural rules and the lex arbitri

The preceding discussion about the content of the lex arbitri indicates that
most, if not all, national laws governing arbitration deal with general
propositions, such as the need to treat each party equally, rather than with
detailed rules of procedure, such as the time for exchange of witness
statements or the submission of pre-hearing briefs.
6.4 Law applicable to the substantive merits of the dispute

When questions of procedure have been settled, the principal task of the
arbitral tribunal is to establish the material facts of the dispute. It does this by
examining the agreement between the parties, by considering other relevant
documents (including correspondence, minutes of meetings, and so on), and by
hearing witnesses, if necessary. The arbitral tribunal then builds its award on
this foundation of facts, making its decision either on the basis of the relevant
law or exceptionally, and then only if expressly authorized by the parties, on
the basis of what seems to be fair and reasonable in all of the circumstances.488
Once the relevant facts have been established, the arbitral tribunal may not
need to go outside the confines of the agreement originally made between the
parties in order to determine the dispute. This agreement, particularly in
international commercial transactions, will generally be quite detailed. For
488 A. Redfern & M. Hunter., Op. Cit. at p, 185.
157
example, international construction contracts run to many hundreds of closely
printed pages, accompanied by detailed drawings and specifications. Properly
understood, such an agreement will generally make clear what the parties
intended, what duties and responsibilities they each assumed, and therefore
which of them must be held liable for any failure of performance that has
occurred.489
Autonomy of the Parties

It is generally recognized that parties to an international commercial agreement
are free to choose for themselves the law (or the legal rules) applicable to that
agreement. The doctrine of party autonomy, which was first developed by
academic writers and then adopted by national courts, has gained extensive
acceptance in national systems of law:490
Despite their differences, common law, civil law and socialist countries have all
equally been affected by the movement towards the rule allowing the parties to
choose the law to govern their contractual relations. This development has
come about independently in every country and without any concerted effort by
the nations of the world; it is the result of separate, contemporaneous and
pragmatic evolutions within the various national systems of conflict of laws.491
Does an International Arbitral Tribunal have a Lex Fori?

As already stated, conflict-of-law rules differ from one country to another. A
judge or arbitral tribunal in one country may select the applicable law by
reference to the place where the contract was made, whereas in another
country it may be selected by reference to the law with which the contract has
the closest connection. In short, the same question may produce different
489 Ibid.
490 See, e.g., Brazilian Arbitration Act 1996, s. 2; China New Interpretation, s. 16; English
Arbitration Act 1996, s. 46(1); French Code of Civil Procedure, Art. 1511; German ZPO 1998,
Art. 1051(10); Indian Arbitration and Conciliation Act 1996, s. 28(10)(b); Russian International
Arbitration Law 1993, s. 28; Swiss PIL, s. 187(1).
491 Lew., “Applicable Law in International Commercial Arbitration” (Oceana/Sigthoff & Noorthoff,
1978), p. 75.
158
answers, depending upon where the judge or arbitral tribunal happens to be
sitting.
In the context of international arbitration, this is plainly unsatisfactory. The

seat of the arbitration is invariably chosen for reasons that have nothing to do
with the conflict rules of the law of the place of arbitration. This has led to the
formulation of a doctrine that has found support in both the rules of arbitral
institutions and the practice of international arbitration—namely, that, unlike
the judge of a national court, an international arbitral tribunal is not bound to
follow the conflict-of-law rules of the country in which it has its seat.
A leading commentator has spoken of ‘the almost total abandonment of the

application of the rules of conflict of the so-called arbitral forum’,492 and the
point was emphasized in the Sapphire arbitration,493 in which the tribunal
commented that, unlike the judge of a national court, an international arbitral
tribunal has no lex fori:
Contrary to a State judge, who is bound to conform to the conflict law rules
of the State in whose name he metes out justice, the arbitrator is not bound
by such rules. He must look for the common intention of the parties, and
use the connecting factors generally used in doctrine and in case law and
must disregard national peculiarities.494
This was an early enunciation of what has come to be known as the ‘direct
choice’ (voie directe) method of choosing the substantive law, which in reality
gives arbitrators the freedom to choose as they please.
492 Goldman, ‘La lex mercatoria dans les contrats et l’arbitrage internationaux: Réalité et
perspectives’ [1979] J du Droit Intl 475, at 491.
493 Sapphire International Petroleum Ltd vs. The National Iranian Oil Co. (1964) 13 ICLQ 1011.
494 Ibid.
159
6.5 Delocalization and Territoriality
Delocalization, means to be free from the limitations of locality specifically. In

its most simplistic form, delocalization involves freeing an international
arbitration from the constraints of the lex loci arbitri (procedural law of the
place of arbitration), thereby leaving it to ‘float’ free of national jurisdiction,
irrespective of where the arbitration takes place.495
The delocalization theory is an attractive one from the perspective of both

arbitrators and parties to an arbitration. Very often the place of arbitration is
selected for reasons of convenience or neutrality, with neither party desiring to
submit the arbitration to the procedural norms of that forum, especially those
that permit the intervention of the local court system.
In addition, failure to comply with the local procedural law could result in the
final award being set aside by a local court, which may jeopardize any chances
of enforcement elsewhere. Delocalization of the arbitral process and the final
award would mean that parties remain unaffected by unforeseen and
undesired local procedural law, and do not face the risk that non-compliance
with such law would render their award unenforceable.496
The arguments for delocalization begin to wane, however, as national

arbitration laws become more liberal in a desire to attract international
arbitration. The growing acceptance of the UNCITRAL Model Law for Arbitration
and the amendment of many other national arbitration laws has meant that
the risk of parties being subjected to procedural laws peculiar to the place of
arbitration has lessened.497
495 R. Pippa., “Delocalization of International Commercial Arbitration:” its Relevance in the New
Millennium – Vol. 10 No. 2. (1999).
496 aria.law.columbia.edu/issues/10-2/delocalization-of-international-commercial-arbitration-
its-relevance-in-the-new-millennium-vol-10-no-2/
497 Ibid.
160
6.5.1 Arguments Favoring Delocalization
A number of years ago, primarily in the 1980’s, there were some rather
passionate arguments made in favor of delocalization of international
arbitration.498 Delocalization is also referred to as stateless, floating, or a-
national arbitration. It is based on a theory that international arbitration
should not be fettered by the local law of the place where the arbitration
occurs. Parties frequently choose a seat of arbitration in a country where
neither party’s business interests are located. In addition, the seat may be
chosen simply because it is convenient to both parties.499
The concern is that the local peculiarities of a law and a court system, which
might impede the effectiveness of the arbitration proceedings, should not be
imposed on an international arbitration just because the proceedings happen
to be located in the jurisdiction. A matter of particular concern is that the local
court might find a way to vacate the arbitral award under its local law when a
party moves to set aside the award, possibly rendering the process a waste of
the parties’ time and resources.500
The proponents of delocalization argued that a State should not have any
concern about a dispute between two parties who are not its citizens over a
matter that has no connection to the State. They viewed international
arbitration as self-regulating, and they opposed court interference with the
arbitration process. From their perspective, international arbitration should be
detached from the law of the seat; there was no reason, for example, why the
conflicts of law rules of the seat of arbitration should necessarily be the ones
applied when an arbitrator had to choose the governing law.501
498 See, e.g., Jan Paulsson, Delocalisation of International Commercial Arbitration: When and
Why it Matters, 32 ICLQ 53 (1983).
56.
500 Ibid.
501 M. L. Moses., Op. Cit. p 56.
161
Under the proponents’ view, there should not be two legal systems supervising
the arbitration process – first at the place of arbitration and then at the place of
enforcement (i.e., the place where the losing party’s assets are located). Rather,
the only pertinent law should be the law applied by the court at the place of
enforcement of the award.502
6.5.2 Arguments Opposing Delocalization

The counter argument to delocalization is that every arbitration takes place in
a specific territory, and must conform to the laws – at a minimum to the
mandatory laws – of that territory. Moreover, there may be times when the
assistance of the court is needed during the arbitral process, for example, to
appoint arbitrators, for emergency relief, for preserving evidence, or for
enforcing arbitral orders. Most States also want to exercise a supervisory
function to ensure that the private system of dispute resolution in their
territory is not being used to defraud, and is not tainted by corruption. When a
party moves to set aside an award, the State where the arbitration takes place
can exercise this supervisory function.503
One response to the delocalization movement was a law passed in Belgium in

1985.504 It provided that parties to an arbitration in Belgium, who were not
Belgian citizens and did not have a business located in Belgium, would not be
permitted to apply to a Belgian court to set aside an arbitral award. There
would thus be no judicial review of the award in Belgium. It was believed at the
time that this would increase the number of arbitrations in Belgium. In fact,
however, the law had the opposite effect. Businesses were not drawn to a
system with no possible court review. It appeared instead that businesses were
avoiding Belgium as a place of arbitration. As a result, Belgium amended its
law in 1998 to provide that parties lacking a Belgian link could enter into an
56.
503 Ibid.
504 Article 4 of the Belgian Judicial Code, 1717.
162
agreement opting out of court review, but otherwise, the court would accept an
application from a party to set aside an award.505
Some Modern Approaches to Delocalization

The Belgian experience suggests that parties are not very interested in
completely delocalized arbitrations, and that they prefer having the possibility
of court supervision at the place of arbitration. Today, the territorial approach
prevails over delocalization, largely because it is easy to comprehend and
apply, and because it promotes certainty. Some commentators have referred to
the movement toward delocalization as “having run into the ground,”506 while
others have viewed it as a partial failure and partial success.
No matter how the trend may be characterized, today there are a number of
developments that deal in a new way with some of the issues raised in the
delocalization debate. Moreover, as more modern kinds of arbitration take
place, such as sports arbitration and online arbitration, the role of the law at
the place of arbitration is likely to become less significant.507
6.6 Sports Arbitrations

The Court of Arbitration for Sport (CAS), which operates under the aegis of the
International Council of Arbitration for Sport, conducts arbitrations in many
areas related to sports, including arbitration related to commercial sponsorship
contracts, disciplinary actions of athletes by sports organizations, and other
complaints, such as complaints of unfair treatment or lack of due process by
athletes against sports organizations.508
CAS has ad hoc divisions that provide for arbitrations at various international
sports competitions, including the Olympics. The Code of Sports-related
Arbitration (the “Code”) provides that the seat of the arbitration is Lausanne,
57.
507 M. L. Moses., Op. Cit. p 57-8.
508 See, e.g., www.tas-cas.org.
163
Switzerland, although hearings may be held elsewhere. At the Olympic games,
for example, the hearings are held at the site of the games, but the “seat” is
nonetheless Lausanne.509
The law of the seat applies to procedural issues, to the extent they are not dealt
with by the Code. Because the seat is always Lausanne, regardless of where the
arbitration hearings are actually held, the arbitration to some extent is a
delocalized arbitration, detached from the procedural law at the actual place of
arbitration. If a party wishes to apply to a court to set aside the arbitration, it
must do so before the court of the seat in Switzerland. The seat of the
arbitration is thus in some ways a mere fiction, because hearings do not and
are not even expected to occur there. Rather, declaring the seat to be Lausanne
is a way of ensuring that a uniform law will be applied to all sports arbitrations
conducted by the CAS, and that an arbitration-friendly regime will not be likely
to overturn an arbitration award.510
6.7 Recognition and enforcement of foreign awards

According to the Protocol on Arbitration Clauses of 1923 (Third Schedule to the
Arbitration Act), contracting states, including Tanzania, are bound to recognize
the validity of arbitration clauses agreed between parties across national
borders. In the same vein, Tanzania is also bound by the 1927 Convention on
the Execution of Foreign Arbitral Awards (Fourth Schedule to the Arbitration
Act), which provides that:
“… an arbitral award made in pursuance of an agreement, whether
relating to existing or future differences (hereinafter called “a submission
to arbitration”) covered by the Protocol on Arbitration Clauses, opened at
Geneva on 24th September, 1923, shall be recognized as binding and shall
be enforced in accordance with the rules of the procedure of the territory
509 See Gabrielle Kaufmann-Kohler, Arbitration and the Games or The First Experience of the
Olympic Division of the Court of Arbitration for Sport, 12–2 Mealey’s Int’l Arbitration Report (Feb.
1997).
58.
164
where the award is relied upon, provided that the said award has been
made in a territory of one of the High Contracting Parties to which the
present Convention applies and between persons who are subject to the
jurisdiction of one of the High Contracting Parties.”511
The Convention on the Execution of Foreign Arbitral Awards,512 provides that

in order to obtain such recognition or enforcement, it shall, further, be
necessary;
(a) that the award has been made in pursuance of a submission to
arbitration which is valid under the law applicable thereto;
(b) that the subject-matter of the award is capable of settlement by

arbitration under the law of the country in which the award is sought to be
relied upon;
(c) that the award has been made by the Arbitral Tribunal provided for in
the submission to arbitration or constituted in the manner agreed upon by
the parties and in conformity with the law governing the arbitration
procedure.
(d) that the award has become final in the country in which it has been
made in the sense that it will not be considered as such if it is open to
opposition, appel or pourvoi en cassation (in the countries where such
forms of procedure exist) or if it is proved that any proceedings for the
purpose of contesting the validity of the award are pending;
(e) that the recognition or enforcement of the award is not contrary to the
public policy or to the principles of the law of the country in which it is
sought to be relied upon.
511 Article I of the 1927 Convention on the Execution of Foreign Arbitral Awards (Fourth
Schedule to the Arbitration Act).
512 The Convention on the Execution of Foreign Arbitral Awards, 1927.
165
Article IV of the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards,513 provides that; to obtain the recognition and enforcement of
an award, the party applying for recognition and enforcement shall, at the time
of application, supply:
(a) The duly authenticated original award or a duly certified copy thereof;
(b) The original agreement referred to in Article II or a duly certified copy

thereof.
2. If the said award or agreement is not made in an official language of the

country in which the award is relied upon, the party applying for recognition
and enforcement of the award shall produce a translation of these documents
into such language. The translation shall be certified by an official or sworn
translator or by a diplomatic or consular agent.
6.8 Grounds for Refusing the Recognition and Enforcement of Arbitral

Award
Recognition and Enforcement of Foreign Arbitral Awards, irrespective of the
country in which it was made, may be refused only;514
1. At the request of the party against whom it is invoked, only if that party
furnishes to the competent authority where the recognition and enforcement is
sought, proof that:
i. The parties to the arbitration agreement, pursuant to the applicable
law, lack capacity to enter into agreement, or the said agreement is not
valid under the law to which the parties have subjected it or, failing any
indication thereon, under the law of the country where the award was
made; or
513New York, 1958.

514Article V (1) of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York, 1958). See also, Article 36 of UNCITRAL Model and Section. 78 (2) (a) of
Arbitration Act No. 02 of 2020.
166
ii. The party against whom the award is invoked was not given proper
notice of the appointment of the arbitrator or of the arbitration
proceedings or was otherwise unable to present his case; or
iii. The award deals with a difference not contemplated by or not falling
within the terms of the submission to arbitration, or it contains
decisions on matters beyond the scope of the submission to arbitration,
provided that, if the decisions on matters submitted to arbitration can
be separated from those not so submitted, that part of the award which
contains decisions on matters submitted to arbitration may be
recognized and enforced; or
iv. The composition of the arbitral authority or the arbitral procedure was
not in accordance with the agreement of the parties, or, failing such
agreement, was not in accordance with the law of the country where
the arbitration took place; or
v. The award has not yet become binding on the parties, or has been set
aside or suspended by a competent authority of the country in which,
or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if

the competent authority in the country where recognition and enforcement is
sought finds that:515
i. The subject matter of the difference is not capable of settlement by

arbitration under the law of that country; or
ii. The recognition or enforcement of the award would be contrary to the

public policy of that country.
If an application for the setting aside or suspension of the award has been
made to a competent authority referred to in Article V (1) (e) of the Convention
515
Article V (2) of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York, 1958).
167
on the Recognition and Enforcement of Foreign Arbitral Awards,516 the
authority before which the award is sought to be relied upon may, if it
considers it proper, adjourn the decision on the enforcement of the an award
and may also, on the application of the party claiming enforcement of the
award, order the other party to give suitable security.517
516 Article V (2) of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York, 1958).
517 Article VI (2) of New York, 1958.
168
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ALTERNATIVE DISPUTE RESOLUTION

Writers: Daudi B. Mswahela., LLB Mzumbe University

Contributors: Paul S. Zachalia., LLB - Mzumbe University

Mzumbe University, Tanzania - 2021.

We are indebted to a great number of people who aided us in one way or

Thank you all and may God bless you.

The Civil Procedure Code Act, [Cap 33 R:E 2019].

The Evidence Act [Cap 6 R:E 2019].

The Labour Institutions Act [Cap 300 R:E 2019].

The Law of Marriage Act, Cap. 29 [R.E 2019].

The Tanzania Investment Act of 1997.

The Ward Tribunals Act of 1985 [Cap 206 R.E 2002].

The Code of Conduct and Practice for Reconciliators, Negotiators, Mediators

The Reconciliation, Negotiation, Mediation and Arbitration (Practitioners

The Tanzania Arbitration Centre (Management and Operations) Regulations,

UNCITRAL Arbitration Rules on Arbitration, UN Resolution 31/98, adopted by

Azania Bancorp Ltd. vs Frederick Oldenburg, High Court of Tanzania at Dar es

Dispute between Torgindi of Mba Yar and Mtswen of MbaGishi, 1950.

Kigoma/Ujiji Municipal Council vs. Nyakirang’ani Construction Ltd

Mandani vs. Suchale, (1971) HCD No. 10.

Mvita Construction Co. vs. Tanzania Harbours Authority Court of Appeal of

Rex vs. Palamba s/o Fundikira 14 E A C A 96 (Tanganyika, 1947).

Shamji vs. Treasury Registrar Ministry of Finance, [2002] 1 EA 273.

Tanzania Motor Service Ltd and Presidential Parastatal Sector Reform

The Kadume’s Case.

Travelport International Ltd vs. Precise Systems Ltd, Misc. Commercial

Wembere Hunting Safaris Limited vs. Registered Trustees of Mbomipa

Heyman vs. Darwins Ltd [1942] A.C 374-375.

Kelly vs. Tri Cities Broadcasting (1983) 147 CA 3d 666.

Melchor Investment Co. vs. Rolm Systems (1992) 3 CA 4th 587.

Prima Paint Corporation vs. Conklin Manufacturing Co [1967] 338 US 395.

Spiliada Maritime Corp vs. Consulex Limited, [1987] AC 640.

Werner vs. Hendricks (1936) 121 Pa. Super. 46.

CHAPTER THREE .....................................................................................................49

CHAPTER FOUR .......................................................................................................66

CHAPTER FIVE....................................................................................................... 127

Conflict resolution can be solved through the processes of negotiation,

Today, ADR processes are being applied worldwide to a universality of

1.1 What is hidden by the Acronym “ADR”?

"Resolution" has a number of technical meanings relating to the quality of an

4 Fiadjoe, A., Alternative Dispute Resolution: A developing World Perspective; Cavendish

In contradistinction to the process of litigation, ADR is founded on three

An unlikely coalition in a practical setting, yet coordinated within the system of

Evaluation based on the characteristics of the primary processes is useful yet

1.2 Meaning of Alternative Dispute Resolution

Whatever the phrase used to describe the alternatives, it is important to

House: India, p.10.

1.3 Forms of Alterative Disputes Resolution Systems

Though ADR evolves the private’s system of solving dispute, considerably we

1.3.1 Private System

Private ADR solves interoffices conflicts, Matrimonial conflicts as well as

Ombudsman Schemes. MSc dissertation, Strathclyde University.

Ombudsman Schemes. MSc dissertation, Strathclyde University.

1.4 History of Alternative Disputes Resolution

King Solomon is regarded as one of the most famous practitioner of dispute

International, Vol. 25, No. 3, (2009).

Publishing Co. Pvt Ltd: New Delhi,India.

The following is an example of a dispute in which the conflicting parties had

The Kadume’s Case

20 R. V. Makaramba., “Legal Method Patr Two.” Open University. At p, 36.

Kirevi stood up and advanced three principles:22

22 R. V. Makaramba., “Legal Method Patr Two.” Open University. At p, 37.

Drumming the Scandle