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Print articleNavigating Post-Arbitral Aaward Procedures in Tanzania
April, 2017 - Sinare Zaharan and Jacqueline Kapinga
Post-arbitral award procedures in Tanzania are governed by a number of pieces of legislation, including the Arbitration Act, the Arbitration Rules, 1957 and the Civil Procedure Code (the “CPC”). The High Court of Tanzania is the only forum for the enforcement of arbitral awards. Below, we summarise the process for the filing, registration, enforcement and possible challenge to post-arbitral awards.
Filing and registration
Upon making an award, and at the request of a party in arbitral proceedings or any other person claiming an interest under the arbitration, the arbitrator or arbitral tribunal must cause the filing of a certified copy of the award, including evidence of the reference, the minutes of the proceedings and a copy of each notice given to the parties. These documents are put in a sealed envelope addressed to the Registrar of the High Court of Tanzania, with a letter requesting the Registrar to have the award filed in court.
At this stage, all outstanding fees and costs must have been paid to the arbitrator before he/she can be requested or compelled to file the award in court. This applies to both domestic and foreign awards. The filing may be done by the arbitrator himself/herself or any other person appointed by the arbitrator to do so. Notice of the filing must be sent to the parties in the arbitration.
The law has not only provided for the sealed envelope to be dispatched by registered post, but has also expanded the scope and manner of filing. In the Tanzania Cotton case, Judge Lubuva expanded the provisions of section 11(2) of the Arbitration Act, which mandate an arbitrator “upon request to cause the award to be filed in Court” to mean that the arbitrator can either file the award in court himself, or by instructing somebody else to do it on his or her behalf. This means that the arbitrator’s act of filing the award in the court transforms the private unenforceable arrangements (arbitration proceedings) into a fully enforceable decree of the High Court capable of being executed.
Enforcement proceedings
Formal proceedings subsequent to making the award start with filing the award. Upon filing the award in court, the Registrar of the High Court will notify the parties to show cause why the award should not be registered as a decree of the court.
In the absence of a challenge by any of the parties, the award, upon registration in court, will be enforceable as if it were a decree of the court. Upon a proper petition, the award may be enforced as a decree under the CPC or may be challenged and set aside where the person against whom it is sought to be enforced shows that the arbitrator or umpire has misconducted himself/herself or an arbitration or award has been improperly procured and serious irregularities affected the tribunal, the proceedings or the award. Misconduct and serious irregularities include the negligent conduct of the proceedings by the arbitrator and behaviour that causes one or all of the parties involved to lose confidence in his or her abilities to settle the dispute out of court. If any of these grounds are proved, the court may set aside the award.
When an award is incapable of execution or leaves some points undecided or undetermined, or where the award has determined matter not referred to arbitration and the agreement to refer disputes to arbitration provided for giving reasons, the award can be remitted if reasons are not given. In these situations, the court is empowered to remit an award that cannot be separated from other matters in the arbitration to the arbitrator for reconsideration. Where the court has ordered such remittance, an arbitrator or umpire is required to make a fresh award within three months after the date of the order remitting the award. In this situation, the court’s jurisdiction is confined to remitting the award for reconsideration. The court cannot take upon itself the duty to fill the gap left undetermined by the award while passing the decree on the award. If it does, the decree will be invalid.
In principle, there are no other legally accepted methods that an aggrieved party may use to challenge an award, other than making an application to set it aside or remit it. As a rule of law and practice, an arbitral award is final and binding; it cannot be appealed against, reviewed or revised. It may only be set aside or remitted, as set out above.
For more information, please contact:
Filing and registration
Upon making an award, and at the request of a party in arbitral proceedings or any other person claiming an interest under the arbitration, the arbitrator or arbitral tribunal must cause the filing of a certified copy of the award, including evidence of the reference, the minutes of the proceedings and a copy of each notice given to the parties. These documents are put in a sealed envelope addressed to the Registrar of the High Court of Tanzania, with a letter requesting the Registrar to have the award filed in court.
At this stage, all outstanding fees and costs must have been paid to the arbitrator before he/she can be requested or compelled to file the award in court. This applies to both domestic and foreign awards. The filing may be done by the arbitrator himself/herself or any other person appointed by the arbitrator to do so. Notice of the filing must be sent to the parties in the arbitration.
The law has not only provided for the sealed envelope to be dispatched by registered post, but has also expanded the scope and manner of filing. In the Tanzania Cotton case, Judge Lubuva expanded the provisions of section 11(2) of the Arbitration Act, which mandate an arbitrator “upon request to cause the award to be filed in Court” to mean that the arbitrator can either file the award in court himself, or by instructing somebody else to do it on his or her behalf. This means that the arbitrator’s act of filing the award in the court transforms the private unenforceable arrangements (arbitration proceedings) into a fully enforceable decree of the High Court capable of being executed.
Enforcement proceedings
Formal proceedings subsequent to making the award start with filing the award. Upon filing the award in court, the Registrar of the High Court will notify the parties to show cause why the award should not be registered as a decree of the court.
In the absence of a challenge by any of the parties, the award, upon registration in court, will be enforceable as if it were a decree of the court. Upon a proper petition, the award may be enforced as a decree under the CPC or may be challenged and set aside where the person against whom it is sought to be enforced shows that the arbitrator or umpire has misconducted himself/herself or an arbitration or award has been improperly procured and serious irregularities affected the tribunal, the proceedings or the award. Misconduct and serious irregularities include the negligent conduct of the proceedings by the arbitrator and behaviour that causes one or all of the parties involved to lose confidence in his or her abilities to settle the dispute out of court. If any of these grounds are proved, the court may set aside the award.
When an award is incapable of execution or leaves some points undecided or undetermined, or where the award has determined matter not referred to arbitration and the agreement to refer disputes to arbitration provided for giving reasons, the award can be remitted if reasons are not given. In these situations, the court is empowered to remit an award that cannot be separated from other matters in the arbitration to the arbitrator for reconsideration. Where the court has ordered such remittance, an arbitrator or umpire is required to make a fresh award within three months after the date of the order remitting the award. In this situation, the court’s jurisdiction is confined to remitting the award for reconsideration. The court cannot take upon itself the duty to fill the gap left undetermined by the award while passing the decree on the award. If it does, the decree will be invalid.
In principle, there are no other legally accepted methods that an aggrieved party may use to challenge an award, other than making an application to set it aside or remit it. As a rule of law and practice, an arbitral award is final and binding; it cannot be appealed against, reviewed or revised. It may only be set aside or remitted, as set out above.
For more information, please contact:
Sinare Zaharan
ENSafrica Tanzania advocate partner [email protected] +255 74 677 6767
Jacqueline Kapinga
ENSafrica Tanzania advocate associate [email protected] +255 74 618 4326
