THE ARBITRAL PROCESS:

SUMMARY

Practical Aspects Of Rbitration Practice In

Tanzania
TIAC Training
By Dr. Julius Clement Mashamba
(Advocate, Senior Lecturer, Accredited Arbitrator &
Mediator)

SIT DOLOR AMET

“The primary function of the law is the
orderly resolution of disputes”
 The Arbitral Process

Arbitration Request for

Agreement Arbitration Reply to Request Constitutio Initial Prep.
n of
Tribunal Conference

Pleadings
Document
Production Post-Award
Evidentiary
Proceedings
(enforcement &
challenging awards)
 Multi-tier Process

Engineer Adjudication Arbitration

 Evidentiary Hearing Triad

Hearing:
Opening
statement,
Evidentiary Pre-hearing Testimony of
witnesses,
Hearing & conference/Init Admission,
Award ial hearing Closing
arguments, &
post-hearing
briefs
 Pre-Hearing Conference

 It is held prior to the holding of the main Evidentiary Hearing.

 It involves the parties’ counsel, arbitrators, and the case manager or tribunal secretary.
 At this conference, parties and the tribunal agree on the procedure that will be most
appropriate and efficient for the case, including the hearing date(s), and how document
discovery/disclosure will be handled, together with the resolution on admissibility of
exhibits.
 The conference also agrees on the location and the day-to-day starting and finishing time
for the hearing, and for the exchange of information regarding witness and exhibit
lists.
 At the end, the conference results in a case management order that records all the agreed
elements of the main Evidentiary Hearing.
 The Legal Basis of Evidentiary Hearing

The right to be heard? Art. 13(6) of the URT Constitution & S. 50 AA

This is a session where the parties orally present their respective cases by particularly
proffering their witnesses, producing exhibits and adducing all necessary evidence in
support of their cases.
Reg. 39(1) GN No. 146/2021:
“Each of the parties shall have the burden to-
(a) explain its respective position;
(b) submit evidence substantiating such position; and
(c) prove the facts relied upon it in support of its claim or defense.”
 The Main Evidentiary Hearing
Parties should appear either in person or by advocate or agent at this session
(S. 43 of Cap. 15).
Note:
1. Non-appearance at the Evidentiary Hearing may have adverse effect on a
defaulting party.
2. In arbitration’s Evidentiary Hearing, counsel for both parties should
ensure that they present their clients’ cases in an efficient and effective
manner during the hearing in order to have a favourable outcome at the
end of the arbitral proceedings.
 Typical Procedural Steps in Evidentiary Hearing

Making opening Adducing evidence Making closing

statements • Examination of arguments
• Claimant goes Witness • Claimant goes first
first • Examination of • Respondent follows
documents & suit
• Respondent exhibits
follows suit
Attendance of Witnesses
S. 50 AA
• With permission
of the tribunal
Authority • By agreement
with the other
party

• Same as in court
Procedure
• Secure attendance

• To give oral
testimony
Purpose
• To produce
documents
Types of Witnesses in Arbitration
Witnesses • Persons with
of Facts knowledges/facts about the
S. 50
dispute

Experts
S. 44
• Quantum, lawyers, etc.
Examination of Witnesses and Experts

Re-Ex.
Cross-
Ex.
Ex. in
chief
 Post-Hearing Briefs

Parties in arbitration may also have such an opportunity to present hearing

briefs after the hearing & closing arguments have been concluded.
Post-hearing briefs may be used to draw the arbitral tribunal’s attention to
relevant facts that have emerged at the hearing & place them in the context
of the parties' claims & defences.
These are usually crafted in a manner that assists the arbitral tribunal
with drafting the arbitral award.
In some cases, the arbitral tribunal may identify key issues to be
addressed by the parties in their post-hearing briefs.
 Closing the Arbitral Proceedings

After the post-hearing briefs are submitted (or in case only closing arguments are
submitted) by the parties, the tribunal will inform the parties that the arbitral
proceedings have been closed.
This marks the moment after which, unless there are compelling reasons, arbitrators will
no longer receive any evidence or argument; instead, arbitrators will proceed to the
deliberations before rendering their award.
 NB: Only in rare cases and for compelling reasons, the tribunal may request the
parties to furnish it with further evidence, clarifications or additional arguments on
certain issues concerning the dispute.
The Arbitral Award
 What is an Arbitral Award?

S. 3 Cap. 15:
“a decision of the arbitral tribunal on the substance of a
dispute, and includes any interim or interlocutory
(award)

Award

Final & binding Capable of being

(S. 65(1) Cap. 15 enforced
(Ss. 73 & 83)
 Types of Arbitral Awards
Domestic & • Provisional, interim
Foreign Arbitral • Final
Awards

Domestic & • Agreed (consent)

Foreign Arbitral • Partial
Awards
 Attributes of an Arbitral Award
1) It must be written, dated and signed by the arbitrator(s).
2) It should state the tribunal’s final decision on particular claims, issues or disputes.
3) It must contain reasons for the award, unless the parties have agreed to dispense with the
giving of reasons.
4) In passing the award, the arbitral tribunal should base it ‘on the legal stipulations’ or
‘justice and propriety’.

S. 54(1) & (2) of the Tanzania Arbitration Act; Reg.’s 47(1) & (2) and 48(1) of GN. No. 146/2021; Rule 12.1 of
the NCC Arbitration Rules; Article 31(2) of the UNCITRAL Model Law
 Other Attributes of an Arbitral Award
In particular, an arbitral award must:
1) resolve all issues in dispute (or, where it is provisional award, the particular issue(s)
relating to the provisional award);
2) not contain extraneous issues which go beyond the jurisdiction of the arbitral tribunal
or matters which were not referred to it;
3) be final and unconditional;
4) set out the relief(s) sought by the wining party;
5) be certain and capable of performance by the parties; and
6) be capable of enforcement by the parties.
◦ Ss. 59(2), 65, 73, 83 of Cap. 15; and Reg. 48(1) of GN. No. 146/2021.
 Reliefs Granted in Arbitral Awards

Monetary Reliefs Non-Monetary Reliefs

Monetary Compensation Restitution, specific performance

Punitive or exemplary damages & Declarator reliefs, perpetual

other fines/financial penalties injunctions

Interests & costs Rectification, etc.

 The Legal Effects of the Arbitral Award
S. 65, Cap. 15

• Unless otherwise agreed by the

Final
parties!
(S. 65(1)

Binding & • S. 73(1): Award enforced by leave of the court in the same manner as a
judgment/order of the court;

Enforceable
• Ss. 65, 83(1): Award recognised as BINDING & ENFROCEABLE
s. 84: Deemed decree; unless:
1.The court refuses to recognise & enforce it under Ss. 73(3), 83(2), (4)

(Ss. 73, 83-84)

2. The court sets aside on grounds set out in Ss. 74-75
 Enforcement of an Arbitral Award
“Once an award is issued, unless the other party pays the amount awarded to the
Claimant immediately thereafter without further hustles, it is the duty of the party in
whose favour it was decided to cause the Arbitrator to have the award filed in court of
competent jurisdiction, if that party wants to have it enforced as a Decree of the Court. “
Claus Bremer Associates Ltd. v. The Office of Chief Court Administrator, Judiciary of
Tanzania, Misc. Commercial Application No. 50/2020: High Court of Tanzania (Commercial Court)
(Unreported)
 Where to Commence Enforcement of
an Arbitral Award:
(a) Foreign Arbitral Awards

S. 6(1)(b): The term “court” –

“(b) in relation to
international arbitration ,
means the High Court in
exercise of its ordinary
original civil jurisdiction.”
 Where to Commence Enforcement of
an Arbitral Award:
(b) Domestic Arbitral Awards

S. 6(1)(a): The term “court” –

“in relation to domestic arbitration,
means the district court, RM’s court, the
High Court in exercise of its ordinary
original civil jurisdiction.”
NB: S. 6(3): “For the purpose of
subsection (1)(a), jurisdiction of court
shall be in accordance with the MCA and
any other written laws” (on pecuniary
jurisdiction).
 Procedural Steps
on Enforcement
of Awards

1. Filing the Award in

Court
2. Registration of the
Award
3. Rendering the award
a decree of the court
 Who may file an award in court for enforcement to the court in arbitration
matters?
Voltalia Portugal S.A. v. Nextgen Solawazi Ltd., Misc. Commercial Cause
No. 7/ 2020: High Court of Tanzania (Commercial Division).

Under both the repealed and current arbitration laws, there are two
alternative ways of filing the award in court for registration:
1) The arbitral tribunal, at the request of any party to the award or
any person claiming under him is obliged to cause to be filed in
court an arbitral award for registration as a court decree [s. 12(2)
of the repealed law; and Regulation 51(4) of GN. No. 146/2021];
or
2) The arbitral tribunal may in the letter transmitting the award to the
parties, allow any party to the proceedings to file a certified
copy of the award together with the proceedings thereof with the
court for the purposes of registration of the same [Regulation
51(5) of GN. No. 146/2021].
Tanzania Cotton Marketing Board v. Cogecot Cotton Co. SA
[1997] TLR 165.
 Mode of filing an award in court for enforcement to the court
in arbitration matters
Voltalia Portugal S.A. v. Nextgen Solawazi Ltd.

The manner of filing an arbitral award in court for registration under the 2020
Arbitration act is similar to the one that was provided in the repealed law.

The filing of an award is done by writing a LETTER to the
Registrar accompanied with the certified copies of the award
together with the evidence on reference and the minutes of the
proceedings.
The filing of an award is done upon payment of the fees and charges due in
respect of the arbitration and award and of the costs and charges of filing the
award.
Notice of the filing must be given to the parties by the arbitrators [Regulation
51(4) of GN. No. 146/2021).
 Time limit for filing an arbitral award
Kigoma/Ujiji Municipal Council v. Nyakirang’ani & Construction Ltd., Misc. Commercial Cause No 239/2015:
High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported)

Period of limitation for filing an award procured through arbitration without intervention of the Court is six
months (see para. 18 of part III of the Law of Limitation Act, Cap 89 of the Revised Edition, 2002). 

However, a party may apply for extension of time to for registering an arbitral award out of time upon
sufficient cause - Claus Bremer Associates Ltd. v. The Office of Chief Court Administrator, Judiciary
of Tanzania, Misc. Commercial Application No. 50/2020: High Court of Tanzania (Commercial Court)
(Unreported); Lyamuya Construction Company Ltd. v. Board of Registered Trustees of Young
Women’s Christian Association of Tanzania, Civil Appl. No. 2/2010, (CAT) (Unreported).
◦ NB: Financial constraint is not a sufficient ground for extension of time to file an arbitral award out of time.
(Wambele Mtimwa Shahame v. Mohamed Hamis, CAT, Civil Ref. No. 8/2016 (Unreported); Yusufu Same & Another
v. Hadija Yusufu, Civil Appeal No. 1/2002 (Unreported); and Zabitis Kawuka v. Abdul Karim (EACA) Civil Appeal No.
A8/1937).
 Execution
Decree of the
Court
(S. 84 AA)

“Where the court is

satisfied that the
award is enforceable
under this Part (i.e.,
XI), the award shall
be deemed to be a
decree of the court.”
 S. 74(4) AA: appeal by leave of the court.
Reg. 65(1) GN. No. 146/2021: Leave to appeal
by way of Chamber summons supported with
an affidavit - filed within 15 days upon delivery
Appeals against of any orders stated under section 69(3).
decisions of the  Reg. 65(2) GN. No. 146/2021: The
Court on Respondent shall be entitled to reply on the
enforcement application for leave by filing counter
proceedings affidavit within 15 days upon being served
with the application by the Applicant.
Reg. 65(3) GN. No. 146/2021: “Any
appeal to the Court of Appeal shall be
governed by the existing laws regulating
appeals to the Court of Appeal.”
 Caselaw on procedure
for filing & registering
arbitral awards

Voltalia Portugal S.A. v. Nextgen Solawazi Ltd.

Tanzania Cotton Marketing Board v.

Cogecot Cotton Co. SA [1997] TLR 165.

Regional Manager, TANROADS – Simiyu v.

M/S Nyanguruma Enterprises Co. Ltd., Misc.
Commercial Cause No. 39/2018: High Court of
Tanzania (Commercial Division) (Unreported)].

Ardhi University v. Kiundo Enterprises (T)

Ltd., Misc. Commercial Cause No 272/2015:
High Court of Tanzania (Commercial Division)
at   Dar es Salaam (Unreported).

Ketankumar Vinubhai Patel (Sole Arbitrator)

v. Ramanlal Motibhai Patel, Misc. Civil Cause
No. 444 of 2020: High Court of Tanzania at Dar
es Salaam (Unreported).
 Group A3: Assignment
Your clients, Jamaa Publishers Ltd, have obtained an arbitral award
against Mpakani Stationery Ltd. three months ago. However,
Mpakani Stationery have not honoured the award. Jamaa Publishers
have engaged your law firm, Sisi Wasomi Attorneys to assist them to
enforce the award.
1. advise them on the procedure for enforcing the award.
2. draw the necessary document.