Wanasheria, hukumu ya DOWANS na doctrine ya RES JUDICATA

[Mimibaba]

Katika hili la Dowans hakuna anaeweza kuzuwia award ya ICC. Simpo.

Naomba nifahamishe maana sielewi anayesajili hiyo tozo/tuzo mahakama kuu ni nani? Kwa akili yangu ni Dowans ila hofu yangu ofisi ya mwanasheria mkuu nayo inaweza ikajiingiza kusajili maana imeafikiana na hukumu. Ebu nisaidieni.

 

[ALLY KILUNGUZO SALUM]

Wanajamii naomba mtuwekee hiyo hukumu ya icc kwa dowans tuisome,kwani haiwezi kupatikana?

 

[KAUMZA]

Hivi kuandika kwako kote hapa ni kuogopa wahisani kutukatia Misaada??? Du!! kweli tunasafari ndefu sana ya kwenda huko miguu yetu itupelekako.

Si kwamba nawaogopa wahisani. La hasha!! Ninachosema ni kuwa Sheria inasimama kama sheria. Tusiingize siasa ktk sheria. Uamuzi ulewa ICC kwa Tanzania ni kama vile mtu aliyekabwa shingoni na mwiba wa samaki. I mean, kila unapofanya jitihada za kuutoa unapata maumivu makali na ukitaka kuumeza unapata maumivu makali vile vile na unapochelewa kuutoa, ndo maumivu yanazidi.
Msomi yeyote wa sheria ambaye ameweka siasa pembeni analijua hili. Tutapiga sana kelele lakini mwisho tutalipa. Kama si 94bl basi itakuwa 94bl+7.5%

 

[Buchanan]

Si kwamba nawaogopa wahisani. La hasha!! Ninachosema ni kuwa Sheria inasimama kama sheria. Tusiingize siasa ktk sheria. Uamuzi ulewa ICC kwa Tanzania ni kama vile mtu aliyekabwa shingoni na mwiba wa samaki. I mean, kila unapofanya jitihada za kuutoa unapata maumivu makali na ukitaka kuumeza unapata maumivu makali vile vile na unapochelewa kuutoa, ndo maumivu yanazidi.
Msomi yeyote wa sheria ambaye ameweka siasa pembeni analijua hili. Tutapiga sana kelele lakini mwisho tutalipa. Kama si 94bl basi itakuwa 94bl+7.5%

Sijajua kwa nini Kaumza unashabikia sana mambo ya DOWANS kwamba LAZIMA tulipe! Hebu tuambie uhalali wa kampuni hewa (Richmond) kuirithisha majukumu kampuni halisi (DOWANS)! Inaonekana wewe uko kwenye siasa zaidi kuliko wale unaowalaumu!

 

[KAUMZA]

Sijajua kwa nini Kaumza unashabikia sana mambo ya DOWANS kwamba LAZIMA tulipe! Hebu tuambie uhalali wa kampuni hewa (Richmond) kuirithisha majukumu kampuni halisi (DOWANS)! Inaonekana wewe uko kwenye siasa zaidi kuliko wale unaowalaumu!

Mi ninaongelea sheria zaidi huku siasa na ushabiki vikiwa pembeni. Na hata kama ulimsikia Sitta alichosema recently ni kuwa "kwa siku nyingine tuwe makini katika mikataba". Sentensi yake inaonesha kuwa kwa sasa hatuna njia zaidi ya kulipa. Hofu yangu ni kuwa, tusipolipa, inawezekana tukalipa zaidi na zaidi. Ingawa ni chungu kwetu, lazima tuimeze. Wametushika pabaya

 

[ngoshwe]

Wajomba"nchi wahisani" wataweza kutukatia misaada na pia uwekezaji utashuka nchini kwa kuwa tutaonekana wahuni. Tatizo hapa ni kwamba, wanasiasa waliingilia sheria. Inatugharimu na itatugharimu

This is a private matter between Tanesco (Legal entity) and Dowans (private Company), hao wahisani wanatokea wapi kwenye hili? .

Katika utaratibu wa kawaida, maamuzi ya mahakama au usuluhishi yakishindwa kutekelezwa kutokana na upande ulioshindwa kuleta vizuizi, hatua zilizosahihi ni kuiomba Mahakama kutoa amri ya kulazimisha utekelezaji wake vinginevy inakuwa ni kudharau amri ya mahakama (contempt of court). Katika hili ni kuwa Uamuzi wa Usuluhishi ni lazima kwanza usajiliwe katika Mahakama yetu (Mahakama Kuu) ili utambuliwe kwa mujibu wa Sheria zetu kama uamuzi halali uliotolewa na Mahakama yenye mamlaka kwa kuzingatia makubaliano ya usuluhishi ambayo yaliingiwa kwa hiyari kati ya pande zote mbili.
Mazingira ambayo yanakubalika kisheria kwa uamuzi wa msuluhishi kutotambuliwa na Mahakama Kuu ni yale tu yaliyobainishwa katika sheria yetu ya Usuhishi (Arbitration Act, Cap.15) ambayo ni:

Kifungu cha 16: Where an arbitrator or umpire has misconducted himself or an arbitration or award has been improperly procured, the court may set aside the award.

Kwa uamuzi uliotolewa katika usuluhishi wa Nje (Foreign Award) Mahakama Kuu inaweza kuutambua uamuzi huo kwa mujibu wa Kifungu cha 30 cha Sheria ya Usuluhishi ambacho kinabainisha yafuatayo:

(1) In order that a foreign award may be enforceable under this Part, it must–
(a) have been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed;
(b) have been made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties;
(c) have been made in conformity with the law governing the arbitration procedure;
(d) have become final in the country in which it was made; and
(e) have been in respect of a matter which may lawfully be referred to arbitration under the law of Tanzania,
and its enforcement must not be contrary to the public policy or the law of Tanzania.

Kifungu cha 30 (2) cha Sheria kinaendelea kubainisha mazingira ambayo uamuzi wa wasuluhishi toka nje unaweza kutokukubalika na Mahakama yetu kama ifutavyo:

(2) Subject to the provisions of this subsection, a foreign award shall not be enforceable under this Part if the court is satisfied that–
(a) the award has been annulled in the country in which it was made; or
(b) the party against whom it is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case or was under some legal incapacity and was not properly represented; or
(c) the award does not deal with all the questions referred or contains decisions on matters beyond the scope of the agreement for arbitration:
Provided that if the award does not deal with all the questions referred the court may, if it thinks fit, either postpone the enforcement of the award or order its enforcement subject to the giving of such security by the person seeking to enforce it as the court may think fit.

Ikiwa kuna upande wowote wa uamuzi unataka kupinga uamuzi huo sheria inataka ubainishe kwa vigezo sababu za kupinga kwake na kwa mujibu wa sheria, uamuzi unaweza kupingwa tu mara baada ya Uamuzi huo kuwasilishwa Mahakama Kuu kwa lengo la kusajiliwa kuwa sehemu ya uamuzi wa Mahakama na Mahakama kuwajulisha wahusika uwepo wa uamuzi huo (Kifungu cha 12 cha Sheria ya Usuluhishi, "The Arbitration Act, Cap. 15)

Aidha, ikumbukwe kuwa kwa mujibu wa Sheria yetu ya Usuluhishi, usuluhishi unachukuliwa kama shauri binafsi (private matter) ambapo tofauti na sheria za nchi nyingine, inaweza kuwa vigumu kwa mtu asiekuwa sehemu ya mkataba wa usuluhishi (a party to the arbitartion Agreement), kuweza kuruhusiwa kuingilia au kufanywa sehemu ya mgogoro kwa maana ya "third party au "interested party".isipokuwa kama Mkataba wa usuhishi unabainisha hilo. Vinginevyo inaweza kuwa vigumu kwa wanaharakati kuruhusiwa kuingizwa katika mgogoro katika hatua ya kupinga uamuzi wa wasuluhishi kwa kuwa wao hawakuwa sehemu ya makubaliano ya usuluhishi wala Mkataba mama wa kutoa huduma kati ya Tanesco na Dowans......(lakini yote yatategemea sheria iliyotumika katika suala zima i.e applicable law).

 

[EMT]

Mimi siko kisheria zaidi:

Hapa ni kwmba halipwi mtu hata shillingi moja, kama serikali watafanya unyemela, hakuna siri tutagundua tu. hapo sasa ndipo tutaanzia hapo. Baba wa taifa alimwambia Kabila (marehemu) kwamba ana roha ngumu sana, kulipa madeni ambayo hayana kichwa wala miguu, akamwambia asilipe, nadhani kweli hakuwalipa, kwani walimfanya nini.

Sisi hapa kupitia Ngeleja anasema lazima tulipe, lakini hasemi wale waliosababisha hadi tulipe hayo mabilioni yetu serikali inawachukulia hatua gani, huu ni zaidi ya uhujumu uchumi, lazima waseme watawafanya nini, na siyo kusema tu, lakini wote tuone wanafanya hayo watakayosema. kidogo hata tunawalipa angalau tunaona waliosababisha wananyea ndoo.

Mambo ya siasa peleka kwenye threads za siasa. Tena ziko nyingi zinazozungumzia Dowans

 

[EMT]

In my opinion all argument going around about not to pay Dowan are largely based the doctrine of public policy. In an ideal world, once parties pursuant to their agreement decide to submit their disputes to an arbitral tribunal, they have invariably agreed to be bound by the tribunal's decision. However, in reality the unsuccessful party may wish to evade carrying out the award. To this end the New York Convention to which Tanzania is a party provides a remedy for the successful party.

Under the New York Convention, a foreign arbitration award is enforceable in a similar way to an award issued in Tanzania (that is, by depositing the award with the High Court and obtaining a writ of execution). If the award is not registered with the High Court, it cannot be executed. The successful party can enforce his award not only in the courts of the seat of arbitration but also in the courts where the unsuccessful party has its assets.

The crucial is whether once an award has been issued by a recognised arbitral tribunal, such award be appealed or challenged in the local courts.

Arbitration awards are final, binding and subject to no appeal on the merits. However, awards can be challenged in actions of nullity. They can also be declared null and void. Grounds for nullity include:

1) Lack of jurisdiction.
2) Breach of public policy.
3) Failure to grant a party a right of defence.
4) Excluding the application of the agreed law governing the merits of the claim.

I am more interested on the doctrine of breach of public interest and whether it apply to dowan case. For the successful party to an arbitral agreemnet to enforce his award, the award must pass the public policy test of the enforcement state in order for it to be enforced in that state. The New York Convention provides that an enforcement State may refuse to recognize and enforce an award if it contravenes the public policy of that state. Under our Arbitration Act, one of the conditions for enforcement of foreign award is that its enforcement must not be contrary to the public policy or the law of Tanzania.

However, the problem is what constitutes the public policy of the enforcement state? Can the doctrine of public policy as provided by these provisions be used successfully to nullify the Dowan award? The public policy exception is a highly controversial exception to the enforcement of an award. The proper scope and application of the public policy exception is still debatable. Our Arbitration Act does not even define this phrase.

In addition, the doctrine of public policy had be interpreted narrowly in many jurisdictions. In Egerton, Justice Truro wrote: "No subject can lawfully do that which has a tendency to be injurious to the public or against the public good which must be termed, as it sometimes has, the policy of the law or public policy in relation to the administration of the law." However, in Fender, Justice Atkin admonished judges to exercise extreme caution in regards to the doctrine: "the doctrine (of public policy) should be invoked only in clear cases, in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds."

In an English case of Westacre Investment Inc V Jugoimport-SPDR Holding Co Ltd, the parties entered into a contract governed by Swiss law, for the purpose of selling military equipment to Kuwait. The respondent contended in the arbitral proceedings that the contract was a legal nullity because it involved the claimants bribing different Kuwaiti representatives.

This contention was rejected by the arbitrators and an award was rendered in favour of the claimants. The respondent sought to set aside the award upon an application to the Swiss court. Upon refusal of the Swiss court to set aside the award, the respondent sought to have the award set aside in England.

The respondent contended in the lower court that since the contract involved the applicant trying to buy influence from Kuwaiti representatives, it contravened English public policy. Upon rejection at the lower court, the respondent appealed. The appeal court held that a contract involving
buying of influence would only be contrary to English domestic public policy if the contract will contravene the domestic public policy of the country where it is to be performed.

It is universally accepted that contracts seeking to enforce a contract obtained by fraud is against public policy. I believe this is the same in Tanzania, so basiing on the evidence available for the alleged bribe and/or corruption one could argue that alleged contract between Tanesco and Dowan was obtained by bribe and/or fraud and ask the court to nulify it. Evidence will be needed to substantiate this.

The next issue is who can challenge the registration and enforcement of the award in the Hight Court?

As party to the agreement, Tanesco can challenge the enforecement. Whether wanaharakati will be able to rely on public policy to challenge the enforcement is doubful, because they are not privy to the agreement. Third parties can be bound by an arbitration clause under general principles of agency and contract law.

The general law is that an arbitral award cannot be challenged by a third party to the arbitral proceedings by way of a third-party recourse. Only a party to the arbitration may bring proceedings to obtain the setting-aside of an award or to challenge the recognition of a foreign award by local courts.

However recent trend in others countries appears to allow third parties to challenge the award. In Russia, for example, the views taken by the Constitutional Court (likely prompted by an evidently corrupt procedure) opened the door for third parties to challenge arbitral awards by claiming that the outcome affects their rights. According to the rulling, ‘an interested party may appeal to the court for protection of its rights' and ‘a person whose rights are affected by a court decision may challenge such decision'. However, I don't this represents the Tanzanian law.

However, how about wanaharakati using the '‘traditional principles' which allow enforcement against non-parties to the contract through ‘assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel? Can these be used to challenge the award?

 

[LordJustice1]

Hapa sio public policy, ni mambo ya kisheria zaidi, maana Kampuni ya Richmond iliyoacha majukumu kwa DOWANS ilikuwa hewa, kwa maana hiyo kulikuwa na udanganyifu, sijajua kwa nini watz hawataki kuliona hili, nani ametuloga wandugu?

 

[Kibori]

Katika hili la Dowans hakuna anaeweza kuzuwia award ya ICC. Simpo.

HAPANA. Nianze kwa kutokubalina na ushauri ambao bwana Zombe. Kisheria nchi kama Tanzania pamoja na kwamba imeridhia mikataba ya kimataifa kama mkataba wa ICC bado ni nchi ambayo ni Soverein State. Kwa hili la downs na ICC Award Tanzania ina njia za kupinga kama ifuatavyo

1. Passive: Hii maana nchi inaweza kama inataka kupinga Award ya ICC ikasubiri kwanza isajiliwe katika mahakama kuu ya nchi kama ambavyo sheria ya Usuluhishi wa ya Tanzania inavyosema: The Abritration Act 2002 R.E
Tanzania kisheria inauweza wa kukataa kutekeleza Tozo hii kama itaweza kutoa ushahidi wa kutosha kwamba kwa mfano kama tozo yenye itavunja katiba au sheria yeyote nchini kama tenda ya Richmond mwazoni imeenda kinyume na sheria hii this is good reasons for Tanzania to rise in court, one posibility.

2. Kama kwa mfano Mkataba huu kwanza ulianza na Richmond na kama kuna hoja kwamba Richmond is non existance co then in law is not a legal entity there can no in law transfer or contract ....hii kimsingi nchi inaweza ikasema kwamba mkataba huu from the begin is invalid therefore should not have in the first place seen the door to ICC is another good and obvious reasons for Tanzania High Court to refuse enforcement of ICC Award

3. Kama tuzo ni kinyume na Public Policy in this case Majority wish this is another reasons to refuse or to object enforcement of any ICC award. Public Policy kwa lugha nyingi ni kama enda

Hapana kwa lugha nyingine The Arbitration Act 2002 RE, only regulate Arbitration conducted in Tanzania, lakini kama ni kuhusu sheria zinazohusu Award or Hukumu za Nje please read sheria inayohusu enforcement of foreign award or Judgment Act.

2. Active... Hii ni njia nyingine Tanzania inawezakupinga Tozo za ICC kwa kufungua kesi katika nchi ambayo Arbitration hii ya ICC ilifanyika. Yaani ni kwenda Paris kufungua keshi ya kupinga Tozo ya ICC kuhusu Dowans kwa kutoa sababu nilizozitaja hapo juu.

Lawyers please msichanganye mambo ....wote waliotoa vifungu vya Sheria, The Arbitration Act 2002 RE are right lakini unfortunately at this point in time, when we are first contesting on the legality of teh contract and parties in contract .....we have many options to consider including the KATIBA na Foreign Award or Judgements laws. Lakini only later when we are not contesting the formation of contract is when we talk of Arbitration Act ....

To sum up, if Richmond as part was not comptent in law, it can not enter into a valid contract forget about whether is can transfer the contract to Dowans. If this is the case, during the newly opened case, by LHRC, if I may suggest, please make sure the High Court is moved to anull the award since the ontract formation and parties intially involved were in law incomptent thus in law a void agreement, which dies with Arbitration clause forthwith. Legally speaking the case should not have seen the doors of ICC because it is an non-existed matter, by non -existed parties.

 

[Kibori]

Tanzania is not a member to UNCITRAL Model Law 1985- UN-Commission on International Trade Law which sets out clearly on the options to refuse ICC Award by Tanzania on the case of Dowans. Tanzania therefore, can actively challenge the enforcement of ICC Award on Dowans by filing a case in UNICTRAL Model Law member state, in this case, in France -Paris as the seat of ICC to challenge. Ground to refuse enforcement are set out in Article 30-36 Of the Model Law. Please read majibu ya haya yote mtayapata hapo.

 

[Chapakazi]

Sheria juu ya arbitrator Tz inasemaje? Maana a plausible argument ni kwamba hii simplly ni contractual term. Then unaweza ukai-break down kupitia njia hiyo na njia za kufuta terms za contract.
2. hayo mambo ya kusema decision ya arbitrator haiwezi kuwa appealed can be argued to mean an appeal to another arbitrator na sio mahakama kuu ambayo ndo mtoa hukumu wa nchi! Najua katika nchi kama Uingereza hakuna chombo kilipo nje ya mahakama kuu (outside its jurisdiction). Sina uhakika kama Tz is the same. Kwa hiyo unaweza kuleta a judicial review case. lakini jua kuwa mahakama itaamuru hicho chombo kuruduia hiyo case na decision yake.

3 Kama Dowans ni an illegal contract under Tz law...basi mahakama inaweza kuivunja hiyo contract kabisa!!

 

[artist]

Mi ninavyoelewa ni kwamba maamuzi ya msuluhishi yanakuwa ni ya mwisho. Kama ingekuwa ni hapa Tanzania ni kama vile kusema maamuzi ya mahakama ya rufaa. Ndipo mimi kwa uoni wangu nadhani hatutaweza kufanikiwa. Lakini kama mwenye kujua zaidi atupe darasa. Bado tunahitaji ufafanuzi juu ya jambo hili

Ukisoma hiyo hukumu hapo juu hizo excerpts utabaioni kuwa zinazuia hao parties kuappeal, lakini nadhani ipo kesi iliyotanzua tofauti ya appeal na judicial review. Mahakan a Kuu na ya Rufaa zinapower ya kufanyia review suala lolote. Nionavyo Tanesco ndio hawawezi kuappeal (wamejifunga) lakini mahakama hata bila wanaharakati kulalamika, inaweza kutumia inherent power zake kuchokonoa kama hiyo award was lawfully arrived at.

Kimsingi, nionavyo, hiyo award inalegal flows nyingi. Msuluhishi ametumia kesi nyingi za Kiingereza kuonesha kuwa a contract interred against the law sio lazima iwe void ab initio. Wakati msuluhishi akitumia pursuasive authority hizo hakuzingatia sheria ya mikataba ya Tanzania inasema nini kuhusu legal status ya a contract enterd against the law.

Sect 31 ya Procurement Act (kama sijakosea) inasema mtu wa mwishi kuruhusu contract iliypotia mchakato wa zabuni ni Mwenyekiti wa Bodi ya zabuni, mkataba wa Richmond pamoja na awali kufuata mchakato wa zabuni mwishowe ni Lowassa aliyesema "nimeridhia ichukuliwe Richmond" (Rejea viambatanishi ripoti ya Kamati ya Bunge).

Hapa ndipo akina Mvungi wanapoweza katika kesi yao kuikumbusha Mahakama itumie inherent power zake kuhoji weledi uliotumika kufikia tuzo hiyo.

 

[EMT]

Hapa sio public policy, ni mambo ya kisheria zaidi, maana Kampuni ya Richmond iliyoacha majukumu kwa DOWANS ilikuwa hewa, kwa maana hiyo kulikuwa na udanganyifu, sijajua kwa nini watz hawataki kuliona hili, nani ametuloga wandugu?

Sidhani kama umenielewa

 

[EMT]

HAPANA. Nianze kwa kutokubalina na ushauri ambao bwana Zombe. Kisheria nchi kama Tanzania pamoja na kwamba imeridhia mikataba ya kimataifa kama mkataba wa ICC bado ni nchi ambayo ni Soverein State. Kwa hili la downs na ICC Award Tanzania ina njia za kupinga kama ifuatavyo

1. Passive: Hii maana nchi inaweza kama inataka kupinga Award ya ICC ikasubiri kwanza isajiliwe katika mahakama kuu ya nchi kama ambavyo sheria ya Usuluhishi wa ya Tanzania inavyosema: The Abritration Act 2002 R.E
Tanzania kisheria inauweza wa kukataa kutekeleza Tozo hii kama itaweza kutoa ushahidi wa kutosha kwamba kwa mfano kama tozo yenye itavunja katiba au sheria yeyote nchini kama tenda ya Richmond mwazoni imeenda kinyume na sheria hii this is good reasons for Tanzania to rise in court, one posibility.

2. Kama kwa mfano Mkataba huu kwanza ulianza na Richmond na kama kuna hoja kwamba Richmond is non existance co then in law is not a legal entity there can no in law transfer or contract ....hii kimsingi nchi inaweza ikasema kwamba mkataba huu from the begin is invalid therefore should not have in the first place seen the door to ICC is another good and obvious reasons for Tanzania High Court to refuse enforcement of ICC Award

3. Kama tuzo ni kinyume na Public Policy in this case Majority wish this is another reasons to refuse or to object enforcement of any ICC award. Public Policy kwa lugha nyingi ni kama enda

Hapana kwa lugha nyingine The Arbitration Act 2002 RE, only regulate Arbitration conducted in Tanzania, lakini kama ni kuhusu sheria zinazohusu Award or Hukumu za Nje please read sheria inayohusu enforcement of foreign award or Judgment Act.

2. Active... Hii ni njia nyingine Tanzania inawezakupinga Tozo za ICC kwa kufungua kesi katika nchi ambayo Arbitration hii ya ICC ilifanyika. Yaani ni kwenda Paris kufungua keshi ya kupinga Tozo ya ICC kuhusu Dowans kwa kutoa sababu nilizozitaja hapo juu.

Lawyers please msichanganye mambo ....wote waliotoa vifungu vya Sheria, The Arbitration Act 2002 RE are right lakini unfortunately at this point in time, when we are first contesting on the legality of teh contract and parties in contract .....we have many options to consider including the KATIBA na Foreign Award or Judgements laws. Lakini only later when we are not contesting the formation of contract is when we talk of Arbitration Act ....

To sum up, if Richmond as part was not comptent in law, it can not enter into a valid contract forget about whether is can transfer the contract to Dowans. If this is the case, during the newly opened case, by LHRC, if I may suggest, please make sure the High Court is moved to anull the award since the ontract formation and parties intially involved were in law incomptent thus in law a void agreement, which dies with Arbitration clause forthwith. Legally speaking the case should not have seen the doors of ICC because it is an non-existed matter, by non -existed parties.

Umeraise points nzuri lakini kuna vitu vya kunote. Kwanza umesema the Arbitration Act 2002 RE, only regulate Arbitration conducted in Tanzania, lakini kama ni kuhusu sheria zinazohusu Award or Hukumu za Nje please read sheria inayohusu enforcement of foreign award or Judgment Act. Lakini Arbitration ya Dowans si ilifanyika Tanzania?

Even if the arbitration proceedings were not conducted in Tanzania, section 28 of the Arbitration specifically states (1) The provisions of Part IV apply to any award made after 28th July, 1924–

(a) in pursuance of an agreement for arbitration to which the Protocol set out in the Third Schedule applies; and

(b) between persons of who are subject to the jurisdiction of any State which is a party to the Convention on the Execution of Foreign Arbitral Awards which Convention is set out in the Fourth Schedule to this Act; and an award to which the provisions of this Part apply, is in this Part referred to as "a foreign award".

(2) This Part shall not apply to any award made on an arbitration agreement governed by the law of Tanzania.

Pili nafikiri grounds ulizotoa zilitakiwa kuwa raised na Tanesco wakati during the arbitral hearing hearing. If Tanesco cannot wait until the enforcement proceedings commence and then come to argue that the award should not be enforced because the ontract formation and parties intially involved were in law incomptent thus in law a void agreement. Why they did not raise thin point during the hearing.

As it stands, I can seen Tanesco contesting the enforcement of the award. They messed up during the arbitral hearing where they had a great opporunity to to raise the arguments you have mentioned above. So, the only avenue remains to a third party to stop the the enforcement of the award. However, since this is a contractual issue, can wanaharakatit like LHRC turns up at the High and successfully aske the the High Court to anull the award because the contract formation and parties intially involved were in law incomptent thus in law a void agreement? I am sure Dowans would simply raise a preliminary objection that LHRC does not have any locus stand because was not party to the contract.

As far as know our law does not allow third parties who were not party to the arbitral agreement to challenge arbitral awards by claiming that the outcome affects their rights. The only way I can see stopping the enforcement of the award is only and only if and if Tanesco raise the argument you mentioned above. But the chances of Tanesco would still be very minimal indeed because they the opportunity to raise them during the hearing but they did not bother to do so.

 

[mfianchi]

In my opinion all argument going around about not to pay Dowan are largely based the doctrine of public policy. In an ideal world, once parties pursuant to their agreement decide to submit their disputes to an arbitral tribunal, they have invariably agreed to be bound by the tribunal's decision. However, in reality the unsuccessful party may wish to evade carrying out the award. To this end the New York Convention to which Tanzania is a party provides a remedy for the successful party.

Under the New York Convention, a foreign arbitration award is enforceable in a similar way to an award issued in Tanzania (that is, by depositing the award with the High Court and obtaining a writ of execution). If the award is not registered with the High Court, it cannot be executed. The successful party can enforce his award not only in the courts of the seat of arbitration but also in the courts where the unsuccessful party has its assets.

The crucial is whether once an award has been issued by a recognised arbitral tribunal, such award be appealed or challenged in the local courts.

Arbitration awards are final, binding and subject to no appeal on the merits. However, awards can be challenged in actions of nullity. They can also be declared null and void. Grounds for nullity include:

1) Lack of jurisdiction.
2) Breach of public policy.
3) Failure to grant a party a right of defence.
4) Excluding the application of the agreed law governing the merits of the claim.

I am more interested on the doctrine of breach of public interest and whether it apply to dowan case. For the successful party to an arbitral agreemnet to enforce his award, the award must pass the public policy test of the enforcement state in order for it to be enforced in that state. The New York Convention provides that an enforcement State may refuse to recognize and enforce an award if it contravenes the public policy of that state. Under our Arbitration Act, one of the conditions for enforcement of foreign award is that its enforcement must not be contrary to the public policy or the law of Tanzania.

However, the problem is what constitutes the public policy of the enforcement state? Can the doctrine of public policy as provided by these provisions be used successfully to nullify the Dowan award? The public policy exception is a highly controversial exception to the enforcement of an award. The proper scope and application of the public policy exception is still debatable. Our Arbitration Act does not even define this phrase.

In addition, the doctrine of public policy had be interpreted narrowly in many jurisdictions. In Egerton, Justice Truro wrote: "No subject can lawfully do that which has a tendency to be injurious to the public or against the public good which must be termed, as it sometimes has, the policy of the law or public policy in relation to the administration of the law." However, in Fender, Justice Atkin admonished judges to exercise extreme caution in regards to the doctrine: "the doctrine (of public policy) should be invoked only in clear cases, in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds."

In an English case of Westacre Investment Inc V Jugoimport-SPDR Holding Co Ltd, the parties entered into a contract governed by Swiss law, for the purpose of selling military equipment to Kuwait. The respondent contended in the arbitral proceedings that the contract was a legal nullity because it involved the claimants bribing different Kuwaiti representatives.

This contention was rejected by the arbitrators and an award was rendered in favour of the claimants. The respondent sought to set aside the award upon an application to the Swiss court. Upon refusal of the Swiss court to set aside the award, the respondent sought to have the award set aside in England.

The respondent contended in the lower court that since the contract involved the applicant trying to buy influence from Kuwaiti representatives, it contravened English public policy. Upon rejection at the lower court, the respondent appealed. The appeal court held that a contract involving
buying of influence would only be contrary to English domestic public policy if the contract will contravene the domestic public policy of the country where it is to be performed.

It is universally accepted that contracts seeking to enforce a contract obtained by fraud is against public policy. I believe this is the same in Tanzania, so basiing on the evidence available for the alleged bribe and/or corruption one could argue that alleged contract between Tanesco and Dowan was obtained by bribe and/or fraud and ask the court to nulify it. Evidence will be needed to substantiate this.

The next issue is who can challenge the registration and enforcement of the award in the Hight Court?

As party to the agreement, Tanesco can challenge the enforecement. Whether wanaharakati will be able to rely on public policy to challenge the enforcement is doubful, because they are not privy to the agreement. Third parties can be bound by an arbitration clause under general principles of agency and contract law.

The general law is that an arbitral award cannot be challenged by a third party to the arbitral proceedings by way of a third-party recourse. Only a party to the arbitration may bring proceedings to obtain the setting-aside of an award or to challenge the recognition of a foreign award by local courts.

However recent trend in others countries appears to allow third parties to challenge the award. In Russia, for example, the views taken by the Constitutional Court (likely prompted by an evidently corrupt procedure) opened the door for third parties to challenge arbitral awards by claiming that the outcome affects their rights. According to the rulling, ‘an interested party may appeal to the court for protection of its rights' and ‘a person whose rights are affected by a court decision may challenge such decision'. However, I don't this represents the Tanzanian law.

However, how about wanaharakati using the '‘traditional principles' which allow enforcement against non-parties to the contract through ‘assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel? Can these be used to challenge the award?

Haya kwa muhatasari sasa ndio unasemaje?

 

[Mkora]

cha muhimu hapa ni kwamba pamoja na kujaribu kila njia kuepusha balaa hilo ila pia serikali ichukue hatua za madai dhidi ya REX ATTORNEY ambao walitoa muongozo batili,waliiruhusu serikali kuvunja mkataba na Dowans ilhali wakijua hatma hii na leo wanaishauri serikali kuilipa dowans,hii haiko sawa

Mkuu hapo tupo pamoja kwani kama hao rexp walikuwa Legal advisor wa Tanesco they should have Professional indemnity cover kama kitu chochote kitakwenda wrong kwa client wao wao ndio wapo responsible
In Europe and USA company of these kind must have professional indemnity insurance
Lakini cha kujiuliza all insiders GOVT are willing to pay that amount can outsiders do anything to stop it ?

 

[LordJustice1]

Sidhani kama umenielewa

Eleweka basi!

 

[EMT]

Tanzania is not a member to UNCITRAL Model Law 1985- UN-Commission on International Trade Law which sets out clearly on the options to refuse ICC Award by Tanzania on the case of Dowans. Tanzania therefore, can actively challenge the enforcement of ICC Award on Dowans by filing a case in UNICTRAL Model Law member state, in this case, in France -Paris as the seat of ICC to challenge. Ground to refuse enforcement are set out in Article 30-36 Of the Model Law. Please read majibu ya haya yote mtayapata hapo.

I think you're mixing things here. The UNCITRAL and ICC are completely different arbitration systems with their own arbitration rules. Basically, international arbitrations can be classified is as either ad hoc or institutional. The most popular rules for ad hoc arbitrations are the UNCITRAL Arbitration Rules (1976) ("UNCITRAL Rules"). The most popular institutional rules are the Rules of Arbitration of the International Chamber of Commerce, effective as of 1 January 1998. ("ICC Rules").

Now, in institutional, or administered arbitration there is a supervising institution which may exert a high level of administrative control of the arbitral process, the intention of which is to achieve a suitable procedure and maintain quality control rather than to obstruct or intrude upon the dispute resolution by the arbitrator(s). This is the case with ICC arbitrations which is probably the biggest dispute resolution institution in the world.

In ad hoc arbitrations the parties execute their own particular arrangement without reference to institutional rules on supervision. As UNCITRAL is not an arbitral institution the UNCITRAL Rules are used in ad hoc arbitrations and were designed with international disputes in mind. It should however be noted that it is possible to have the ICC as an appointing authority when using any ad hoc arbitration rules such as the UNCITRAL Rules. But this was not the case in Dowan.

Therefore, if the parties to the contract (i.e Dowan and Tanesco) chose any dispute to be decided under ICC Rules, then I cannot see how UNCITRAL Rules should apply here. In deed, the following clause would be in the contract:

"Any party to this contract shall have the right to have recourse to and shall be bound by the pre-arbitral referee procedure of the International Chamber of Commerce in accordance with its Rules for a PreArbitral Referee Procedure. All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration."

 

[EMT]

Eleweka basi!

Wewe unasema kuwa hapa sio public policy, ni mambo ya kisheria zaidi, simply because I mentioned the phrase public policy. Kama ulisoma sheria na hasa the law of contract in your first year, you will clearly know that a contract can be void on grounds of public policy. In deed, that is the law everywhere in the world. In order to be enforceable, a contract cannot violate "public policy". For example, if the subject matter of a contract is illegal, you cannot enforce the contract. A contract for the sale of illegal drugs, for example, violates public policy and is not enforceable. Therefore, arbitration awards are final, binding and subject to no appeal on the merits, unless they are in breach of public policy.