Wanasheria, hukumu ya DOWANS na doctrine ya RES JUDICATA

[ngoshwe]

Nilikuwa namaanisha kwamba Award isipokuwa registered DOWANS hawatakuwa na haki ya kulipwa? Na kama watakuwa na haki ya kulipwa bila registration, sasa maana ya registration ni nini?

Pursuant to section 12 of the Arbitration Act(Cap.15),an arbitral award has to be filed with the High Court of Tanzania for either enforcement or challenging its validity as a decree of the court.The filing can be done by the the award issuing tribunal or by either party to the dispute upon request and payment of all outstanding fees to the tribunal.Otherwise is to say that the High Court will have no mandates to issue any order over unregistered award and as such the bindingness and enforceability of the award will remain validity as contract between the parties but subject to the time limit allowed under the law of limitation Act for the same to be filed and dully enforced or challenged by either of the parties to the dispute.

 

[M-bongotz]

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

Labda hilo la uwekezaji lakini kama ni misaada wakate tu labda tutaweza kuachieve uwiano wa wenye nacho na wasionacho maana hii misaada ndio inayojaza mifuko ya baadhi ya watanzania na kuwaacha mamilioni wengine katika lindi kubwa la umaskini.,Nyerere aliwahi kusema na mimi naamini kauli hiyo kwamba nchi za kiafrika ikiwemo Tanzania kamwe hatuwezi kuendelea kwa misaada.

 

[Trustme]

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.

Kama Yona na Mramba, walitumia madaraka ya ofisi zao vibaya wakaigarimu Taifa bilioni 11 na wamefikishwa mahakamani! sasa hawa wanasheria walioishauri Tanesco kuvunja mkataba na wakijua fika kutaigharimu taifa bilioni 94! Viongozi walioingia mkataba na Richmond feki, na wakaona inauzwa kwa Dowans wakanyamaza kwanin wasifikishwe mahakamani? Hawa viongozi c wanajulikana jamani? Wanasheria na wanaharakati mnaoipenda Tz hamuwezi kutoa msaada kwenye hili ili muwawajibishe hawa wahujumu uchumi?

 

[BUBE]

Mkuu Ngoswe naomba ufafanuzi

Unaposema suala ni private na wanaharakati wanaweza wasiruhusiwe kuingilia jambo hili. Mimi nilidhani Tanesco au yeyote ambaye aliingia kwenye mkataba ilikuwa ni kwa niamba ya UMMA! Sasa endapo hao wanaharakati wanawakirisha umma (either kwa kukusanya saini zao au vinginevyo) wanawezaje kuzuiwa kuingilia kati?

 

[Kibori]

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/QUOTE]

Mr. EMT Please get me write. UNCTIRAL Model law is a UN Convention of the General Assembly Resolution 61/33 2006... UNCITRAL Modal law is therefore a Convention like UN-Convention International Sales of Goods (CISG) ... the major difference between the two is that UNCITRAL Model is designed to assist States in reforming and modernizing their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration. It covers all stages of the arbitral process from the arbitration agreement, the composition and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition and enforcement of the arbitral award. It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal or economic systems of the world. ....Please correct your assumption that UNCITRAL Modal Law is a system of arbitration like ICC .... having that said let me come back to the point that you seem not to understand.

ICC on the other hand is in the first place a PRIVATE but of course a World Busines Organization founded in 1919 with an overriding aim that remains unchanged: to serve world business by promoting trade and investment, open markets for goods and services, and the free flow of capital....please get these facts rights.

There are also other BIG institutions of this nature such as London Court International Arbitration commonly known as LCIA which has the same roles and fuctions as does ICC. For your informations ICC has only a consultative status or observer status if you like, with UN. Different to that, is ICC as an International Court of Arbitration which is among the most respected (not the only) and of course is the world’s leading institution for resolving international commercial and business disputes. This is where the famous case between TANESCO and DOWANS was decided. Now that these facts are clear, it is my humble submission to make a conclusion in view to remind Mr. EMT to differentiate UNICTRAL Model Law and ICC Arbitration Court. What I meant to say in my previous contribution, is that the Arbitration Act 15 2002 R.E is unfortunately an OLD Law with a new date. If our goverment is well advised it should bring an ammendent bill to amend this law immediately to accomodate the new and sound suggestion of under UNCITRAL Modal law a Convention which Tanzania is not a part.

The Advantage(s) of this Convention is that it sets out grounds and procedures for a State like Tanzania to easily refuse recognition and enforcement of ICC Award as long as the requirement can be proved. The reasons why many of our Lawyers icluding Mr. EMT (sorry if you are one) do not see a ground for a country like Tanzania to refuse the ICC Award, is because their bottomline and only reference is the OLD Arbitration Law currently in force in Tanzania. It is not they or his problem but it is all about a serious Capacity problem in international trade law issues. To sum up, it can therefoe be said that it is almost impossible in this line of thinking to find a provision which supports the majority wishful thinking to stop the ICC Award from enforcement. It is however VERY possible and the procedure for Tanzania to set aside ICC Award if this international instruments such as UNICTRAL Model Law are consulted. Some might say how ? Simple

The seat of Arbitration TANESCO V DOWANS was in Paris where the ICC was situated. France is member to UNICTRAL Model Law, therefore it would be easier for Tanzania to file a case to challenge the ICC Award in High Court in Paris or which ever court the Arbitration law of France gives mandate or which comptent for one to proceed against Arbitration claims or disputes. The grounds which are set out under the UNICTRAL model law as I said earlier are enough if prooved before such a court in France are enough to set aside and derecognize the Award which therefore will be the end of DOWANS Claims against TANESCO. This is what I said earlier as an ACTIVE approach which is a procedure to proceed against an ICC Award in country where the seat of Arbitration was conducted.

As I said earlier on, our Arbitration Act is not updated to UNCITRAL Model Law reuired Standards therefore may not ALONE be very helpful. I urge all lawyers to consult other international Trade Law instruments as the matter before us, the famous DOWANS is purportedly an International matter.

The second alternative for Tanzania is of course to look at the Provisions of The Convention on the Recognition and Enforement of Foreign Awards commonly known as The New York Conventions 1958, (which is also a UN Conventions) in which Tanzania is a party. In this Convention as pointed out earlier by Mr. EMT, grounds to set aside any international Award including in this case an ICC Award have been plainly stated. Tanzania is member State to this Convention since 13 October 1964. We are entittled to refuse recognition of the ICC Award under this instrument as long as of course grounds set thereunder are prooven well before the Courts of Law with of course jurisdiction to set aside such as Award, in our case The High Court of Tanzania, as per the Arbitration Act 2002 RE.

The New York Convention in the case of DOWANS is very important because it applies to the cross-border enforcement of arbitration awards, the New York Convention is by far the most important instrument. LHRC case filed before the High Court should take note of this. for purpose of clarity allow me to brief explain plainly as here under. BIG questions to ask as shaded black or bolded are for our lawyers and courts to determine. My personal critics are in bold.

"Under the Convention, an arbitration award issued in any other state can generally be freely enforced in any other contracting state (save that some contracting states may elect to enforce only awards from other contracting states - the "reciprocity" reservation), only subject to certain, limited defenses. These defenses are:

1. a party to the arbitration agreement was, under the law applicable to him, under some incapacity; Is Dowans under our laws comptent ? for lawyers refer your law of contract but for other refer the Mwakiembe Committe .
2. the arbitration agreement was not valid under its governing law; Can a party which is not comptent (RICHMOND) in law contract or make valid Agreements ?
3. a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present its case; What we do not know is how the parties arranged to deal with this matter and this is because we do not have the contract with us here. I am however doubtful that since the whole deal seem to be a ill-will, it is possible that every other grounds fits to be raised in this particular Dowans case.
4. the award deals with an issue not contemplated by or not falling within the terms of the submission to arbitration, or contains matters beyond the scope of the arbitration (subject to the proviso that an award which contains decisions on such matters may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those matters not so submitted); This is also an important issue to look at it and examine,I doubt the opposite was done. If the whole this is evil then there is a reason to doubt everything in this deal
5. the composition of the arbitral tribunal was not in accordance with the agreement of the parties or, failing such agreement, with the law of the place where the hearing took place (the "lex loci arbitri"); we have to see because our Arbitration Act talks about one Arbitrator but it seems three Arbitrators have presided the dispute, if we have the agreement it self we could easily also determine this point. The assumption is that on ill-will negotiated deal, often these procedural rules may easily be overlooked.
6. the award has not yet become binding upon the parties, or has been set aside or suspended by a competent authority, either in the country where the arbitration took place, or pursuant to the law of the arbitration agreement; If we did this in Paris as explained above it could have been easily. This is certainly nor done because our goverment has shown as interest to appeal. Please refer the advices by Hon. Attorney General.
7. the subject matter of the award was not capable of resolution by arbitration; or This is very possible by simply arguing that the whole deal not only violated the Procument Act (as others have contributed on this point ) but also involves an improperly procured ill-will with ill motive just as like a contract to kill someone which is unarbitrable even if parties had agreed to refer the same to an arbitration, it can just be done.
8. enforcement would be contrary to "public policy". This one is VERY Obvious, it is against Majority will, Maandamano angalia tu TV is enough but effecting this payments also is null and voild because the prior acts, decisions violated certain laws in Tanzania. It is a time BOM, lawyers can even rise a point that, our high court should intervene because the act of paying DOWANS, GOD forbid shall result into riots if not security concerns of the general public. It is another supportive reason, because if a problem occurs as failure our courts interventions thereafter, the judiciary will be a subject to blems and impunity as a result, once people have lost faith of Courts of Law and the goverment, serious reforms shall be unquestionable, which is of course a NEW Katiba. Tanzania HOYEE.

Another option availabe please read on the recommendations of the Task Force on Arbitration of March 2009 involving states or states entities like TANESCO....just google.

I will be more than happy to respond to any questions you may still have. I do not in any way intend to personalize this contribution rather to provoke a debate to help the general public from unnecessary riots in future.

I wish to humbly submit.

 

[Kibori]

Dear Colleaques !

Many of you have raised concerns regarding privity rule of contract. Surely as a general rule a party who is not part to the contract can not in law be a part to proceed or even attempt to seek claims in freely negotiated contract between other independent parties.

Fair enough, in the case of Dowans learned friends you must be able to differetiate between purely commercial arbitrations or private arbitrations and Investiment Arbitrations. To make it clear there is almost no difference but slight because in simple language public interest is like to appear in every case. If public interest is not found then the arbitrations remains as purely private and the privity doctrine stands to. If however the commercial or private or Investiment Arbitration involves public interest then the privity to contract becomes absolutely toothless. This is what is like, with TANESCO V DOWANS issue. Do not be supprised with LHRC case. Let's agree to disagree but I personally salute this move.

To make it more simpler if say Mr. X a business man in country A enters into agreement with Mr. Z in country B regarding a sale of maize, they may agree to choose an Arbitration as venue or institution say ICC to proceed shall a dispute arise.

vs.

Mr .T (DOWANS) a legal entity registered in country C enters into agreement with Mr. P a legal entity whole state owned (TANESCO) in country D regarding a suppy of electricty or clear water or gass, they may agree to choose an Arbitration as venue or institution say ICC to proceed shall a dispute arise.

Are these two questions one and the same ?

For me, the major difference apart from one involving legal entities which of course do not differ with individuals as far as legal personality is concerned is that state owned entities obviously involves a questions of public interest, as compared to purely private commercial arbitration in which case while other private or commercial arbitrations are predominatly confedential, commercial arbitrations where an element of public interest is raised, third parties in this case individuals or groups in that Republic have a stake to appeal or raise objections agaisnt payments of international arbitation or even purportedly international arbitration parties even though from the begining public element was never a direct part to the contract. Does it make any sense to you ?

Another example to look at is what is difference between an entity whole privately owned and entity whole state owned with regards to public interest? Can n't you easily stay goverments and state owned entities resembles principal/agency relationships, in which anything which the goverment enters or does its legitimacy comes from the poeple of this Great Republic ? So why are you confusing things ?

Besides what does the Constitution United Republic of Tanzania 1977 as amended states regarding public interest cases ? Must you directly affected or fall a victim for one to intervene ? Read Mtikila's case for more details on public interest cases. Furthernmore if you read about other international Trade Law instruments like UNCITRAL modal Law, ICSD and ICC LCIA new rules. You will gather some differences.

Please take sometimes read this piece ( Also available at Publicist: A Look At The Public Interest In Investment Arbitration: Is It Unique? What Should We Do About It?).

The Saipem v. Bangladesh award[6] is illustrative of the continuum between commercial and investment arbitration. It reveals how an ordinary commercial arbitration can evolve into an investment treaty arbitration. Saipem, an Italian company, entered into a contract to build a gas pipeline with Petrobangla, a state-owned company of Bangladesh. The contract was governed by the law of Bangladesh. The contract contained an ICC clause, designating Dhaka, Bangladesh, as the seat of the arbitration.
A dispute arose when, following completion of the pipeline and its takeover by Petrobangla, Petrobangla refused to repay the retention money stipulated in the contract, even though Saipem had released a warranty bond.[7] Saipem initiated ICC arbitration under the terms of the contract. The ICC tribunal held its hearings in Dhaka. After Petrobangla failed in a number of procedural requests before the ICC tribunal, it decided to resort to the courts of Bangladesh. In April 2000, a court of Dhaka issued a decision revoking the authority of the ICC tribunal, finding that a miscarriage of justice had taken place based on the way in which the ICC tribunal had handled evidence. Following the revocation of the ICC tribunal's authority, the ICC tribunal nevertheless proceeded with the arbitration.[8] Petrobangla continued to resort to the courts of Bangladesh to seek to set aside the ICC tribunal's orders. When the ICC tribunal finally handed down an award in which it found Petrobangla liable for damages, Petrobangla sought to have the award set aside. The High Court Division of the Supreme Court of Bangladesh denied the application, finding it "misconceived and incompetent inasmuch as there is no Award in the eye of the law, which can be set aside. […] A non-existent award can neither be set aside nor can it be enforced."[9]

Got anything ?

Cheers

 

[nyantella]

Learned Brothers & Sisters!!
Jamani Tengenzeni Dream Team ya Lawyers katika TZ mtusaidie katika hili if you can na kama sheria inaruhusu. wengine katika hili hatuna mchango wa maana wa kitaaluma tunawategemea zaidi nyinyi. otherwise thanx for a very constructive discussion and comments on this thread.

 

[EMT]

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/QUOTE]

Mr. EMT Please get me write. UNCTIRAL Model law is a UN Convention of the General Assembly Resolution 61/33 2006... UNCITRAL Modal law is therefore a Convention like UN-Convention International Sales of Goods (CISG) ... the major difference between the two is that UNCITRAL Model is designed to assist States in reforming and modernizing their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration. It covers all stages of the arbitral process from the arbitration agreement, the composition and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition and enforcement of the arbitral award. It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal or economic systems of the world. ....Please correct your assumption that UNCITRAL Modal Law is a system of arbitration like ICC .... having that said let me come back to the point that you seem not to understand.

ICC on the other hand is in the first place a PRIVATE but of course a World Busines Organization founded in 1919 with an overriding aim that remains unchanged: to serve world business by promoting trade and investment, open markets for goods and services, and the free flow of capital....please get these facts rights.

There are also other BIG institutions of this nature such as London Court International Arbitration commonly known as LCIA which has the same roles and fuctions as does ICC. For your informations ICC has only a consultative status or observer status if you like, with UN. Different to that, is ICC as an International Court of Arbitration which is among the most respected (not the only) and of course is the world's leading institution for resolving international commercial and business disputes. This is where the famous case between TANESCO and DOWANS was decided. Now that these facts are clear, it is my humble submission to make a conclusion in view to remind Mr. EMT to differentiate UNICTRAL Model Law and ICC Arbitration Court. What I meant to say in my previous contribution, is that the Arbitration Act 15 2002 R.E is unfortunately an OLD Law with a new date. If our goverment is well advised it should bring an ammendent bill to amend this law immediately to accomodate the new and sound suggestion of under UNCITRAL Modal law a Convention which Tanzania is not a part.

The Advantage(s) of this Convention is that it sets out grounds and procedures for a State like Tanzania to easily refuse recognition and enforcement of ICC Award as long as the requirement can be proved. The reasons why many of our Lawyers icluding Mr. EMT (sorry if you are one) do not see a ground for a country like Tanzania to refuse the ICC Award, is because their bottomline and only reference is the OLD Arbitration Law currently in force in Tanzania. It is not they or his problem but it is all about a serious Capacity problem in international trade law issues. To sum up, it can therefoe be said that it is almost impossible in this line of thinking to find a provision which supports the majority wishful thinking to stop the ICC Award from enforcement. It is however VERY possible and the procedure for Tanzania to set aside ICC Award if this international instruments such as UNICTRAL Model Law are consulted. Some might say how ? Simple

The seat of Arbitration TANESCO V DOWANS was in Paris where the ICC was situated. France is member to UNICTRAL Model Law, therefore it would be easier for Tanzania to file a case to challenge the ICC Award in High Court in Paris or which ever court the Arbitration law of France gives mandate or which comptent for one to proceed against Arbitration claims or disputes. The grounds which are set out under the UNICTRAL model law as I said earlier are enough if prooved before such a court in France are enough to set aside and derecognize the Award which therefore will be the end of DOWANS Claims against TANESCO. This is what I said earlier as an ACTIVE approach which is a procedure to proceed against an ICC Award in country where the seat of Arbitration was conducted.

As I said earlier on, our Arbitration Act is not updated to UNCITRAL Model Law reuired Standards therefore may not ALONE be very helpful. I urge all lawyers to consult other international Trade Law instruments as the matter before us, the famous DOWANS is purportedly an International matter.

The second alternative for Tanzania is of course to look at the Provisions of The Convention on the Recognition and Enforement of Foreign Awards commonly known as The New York Conventions 1958, (which is also a UN Conventions) in which Tanzania is a party. In this Convention as pointed out earlier by Mr. EMT, grounds to set aside any international Award including in this case an ICC Award have been plainly stated. Tanzania is member State to this Convention since 13 October 1964. We are entittled to refuse recognition of the ICC Award under this instrument as long as of course grounds set thereunder are prooven well before the Courts of Law with of course jurisdiction to set aside such as Award, in our case The High Court of Tanzania, as per the Arbitration Act 2002 RE.

The New York Convention in the case of DOWANS is very important because it applies to the cross-border enforcement of arbitration awards, the New York Convention is by far the most important instrument. LHRC case filed before the High Court should take note of this. for purpose of clarity allow me to brief explain plainly as here under. BIG questions to ask as shaded black or bolded are for our lawyers and courts to determine. My personal critics are in bold.

"Under the Convention, an arbitration award issued in any other state can generally be freely enforced in any other contracting state (save that some contracting states may elect to enforce only awards from other contracting states - the "reciprocity" reservation), only subject to certain, limited defenses. These defenses are:

1. a party to the arbitration agreement was, under the law applicable to him, under some incapacity; Is Dowans under our laws comptent ? for lawyers refer your law of contract but for other refer the Mwakiembe Committe .
2. the arbitration agreement was not valid under its governing law; Can a party which is not comptent (RICHMOND) in law contract or make valid Agreements ?
3. a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present its case; What we do not know is how the parties arranged to deal with this matter and this is because we do not have the contract with us here. I am however doubtful that since the whole deal seem to be a ill-will, it is possible that every other grounds fits to be raised in this particular Dowans case.
4. the award deals with an issue not contemplated by or not falling within the terms of the submission to arbitration, or contains matters beyond the scope of the arbitration (subject to the proviso that an award which contains decisions on such matters may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those matters not so submitted); This is also an important issue to look at it and examine,I doubt the opposite was done. If the whole this is evil then there is a reason to doubt everything in this deal
5. the composition of the arbitral tribunal was not in accordance with the agreement of the parties or, failing such agreement, with the law of the place where the hearing took place (the "lex loci arbitri"); we have to see because our Arbitration Act talks about one Arbitrator but it seems three Arbitrators have presided the dispute, if we have the agreement it self we could easily also determine this point. The assumption is that on ill-will negotiated deal, often these procedural rules may easily be overlooked.
6. the award has not yet become binding upon the parties, or has been set aside or suspended by a competent authority, either in the country where the arbitration took place, or pursuant to the law of the arbitration agreement; If we did this in Paris as explained above it could have been easily. This is certainly nor done because our goverment has shown as interest to appeal. Please refer the advices by Hon. Attorney General.
7. the subject matter of the award was not capable of resolution by arbitration; or This is very possible by simply arguing that the whole deal not only violated the Procument Act (as others have contributed on this point ) but also involves an improperly procured ill-will with ill motive just as like a contract to kill someone which is unarbitrable even if parties had agreed to refer the same to an arbitration, it can just be done.
8. enforcement would be contrary to "public policy". This one is VERY Obvious, it is against Majority will, Maandamano angalia tu TV is enough but effecting this payments also is null and voild because the prior acts, decisions violated certain laws in Tanzania. It is a time BOM, lawyers can even rise a point that, our high court should intervene because the act of paying DOWANS, GOD forbid shall result into riots if not security concerns of the general public. It is another supportive reason, because if a problem occurs as failure our courts interventions thereafter, the judiciary will be a subject to blems and impunity as a result, once people have lost faith of Courts of Law and the goverment, serious reforms shall be unquestionable, which is of course a NEW Katiba. Tanzania HOYEE.

Another option availabe please read on the recommendations of the Task Force on Arbitration of March 2009 involving states or states entities like TANESCO....just google.

I will be more than happy to respond to any questions you may still have. I do not in any way intend to personalize this contribution rather to provoke a debate to help the general public from unnecessary riots in future.

I wish to humbly submit.

Firstly, you said UNCTIRAL is a convention like other UN Conventions. This is completely wrong!!! For your information, UNCTIRAL stands for The United Nations Commission on International Trade Law. So, UNCITRAL is a UN Commission, not a Convention. In other words, UNCTIRAL is the core legal body of the United Nations system in the field of international trade law, which its mandate is to further the progressive harmonization and unification of the law of international trade. So, please stop confusing people who are following this thread!!

Secondly, I am afraid to say that although the current Tanzania arbitration law is old as you seem to have suggested, it is still the valid law applicable to Tanzania at the moment. You cannot go to the court and argue that the current law is too old so we should use the UNCITRAL Modal law. The law are made by the Paliament. Accordingly, it upon the Parliament to change the law if it thinks that it is too old.

Thirdly, you said Tanzania is not part to UNCITRAL Modal law Convention. As I have already said above, UNCITRAL is not a convention, so, no country can be a party to it. UNCITRAL is just like the UN Commission for Human Rights (UNCHR). The UNCITRAL deals with international Trade issues, the UNCHR deals with human human rights issues. However, the UNCITRAL has its own Arbitration Rules may that's what you were referring too. They can be accessed here: http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.pdf

Thirdly, your argument of filing the case in France instead of Tanzania because France is signatory of the UNICTRAL Model Law is plausible. If Tanzania wanted to enjoy the benefits of the UNICTRAL Model Law, then it should have adopted its Arbitrations Rules instead of waiting for others countries to sign it and then go there to files its cases.

Fourthly, you said that the seat of Arbitration between TANESCO and DOWANS was in Paris. I think this is wrong. The Arbitration for this case was held in Dar Es Salaam, Tanzania.

Fifthly, you seem to confuse if not contradict yourself on the the application of the New York Convention. On one hand, you said that our current Arbitration law (Arbitration Act) is too old. However, you forgot that the Arbitration Act is actullly based on the New York Convention. In deed, the New York Convention is annexed in the Arbitration Act and form part and parcel of the Act.

I suggest instead of copying and pasting from Wikipedia, you go and read the Arbitration Act, the UNCITRAL in general and its Arbitration Rules in particular, the New York Convention, the ICC in general and its Arbitration Rules in particular.

 

[Kibori]

Firstly, you said UNCTIRAL is a convention like other UN Conventions. This is completely wrong!!! For your information, UNCTIRAL stands for The United Nations Commission on International Trade Law. So, UNCITRAL is a UN Commission, not a Convention. In other words, UNCTIRAL is the core legal body of the United Nations system in the field of international trade law, which its mandate is to further the progressive harmonization and unification of the law of international trade. So, please stop confusing people who are following this thread!!

Secondly, I am afraid to say that although the current Tanzania arbitration law is old as you seem to have suggested, it is still the valid law applicable to Tanzania at the moment. You cannot go to the court and argue that the current law is too old so we should use the UNCITRAL Modal law. The law are made by the Paliament. Accordingly, it upon the Parliament to change the law if it thinks that it is too old.

Thirdly, you said Tanzania is not part to UNCITRAL Modal law Convention. As I have already said above, UNCITRAL is not a convention, so, no country can be a party to it. UNCITRAL is just like the UN Commission for Human Rights (UNCHR). The UNCITRAL deals with international Trade issues, the UNCHR deals with human human rights issues. However, the UNCITRAL has its own Arbitration Rules may that's what you were referring too. They can be accessed here: http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.pdf

Thirdly, your argument of filing the case in France instead of Tanzania because France is signatory of the UNICTRAL Model Law is plausible. If Tanzania wanted to enjoy the benefits of the UNICTRAL Model Law, then it should have adopted its Arbitrations Rules instead of waiting for others countries to sign it and then go there to files its cases.

Fourthly, you said that the seat of Arbitration between TANESCO and DOWANS was in Paris. I think this is wrong. The Arbitration for this case was held in Dar Es Salaam, Tanzania.

Fifthly, you seem to confuse if not contradict yourself on the the application of the New York Convention. On one hand, you said that our current Arbitration law (Arbitration Act) is too old. However, you forgot that the Arbitration Act is actullly based on the New York Convention. In deed, the New York Convention is annexed in the Arbitration Act and form part and parcel of the Act.

I suggest instead of copying and pasting from Wikipedia, you go and read the Arbitration Act, the UNCITRAL in general and its Arbitration Rules in particular, the New York Convention, the ICC in general and its Arbitration Rules in particular.

Mr. EMT is it very unfortunate that you still, do not seem to understand. We agree to disagree but if you are a lawyer give alternative or available options regarding Dowans this is what poeple here in the forum wants. You do not have to oppose dowans as I can see that it is not your area of interest. You can as well support Dowans we will not know you in person you should be affraid but give legal reasons so that we challenge each other in that regards.

Back to your comments above: You said...UNCITRAL is NOT a Convention but a UN Commission on International Trade Law. This is ABSOLUTELY RIGHT. If you THINK I said the opposite, YOU ARE ABSOLUTELY WRONG.... I can see you have a Serious Capacity Problem in International Trade Law which is OK. Please benefit from this for FREE.

There is a BIG difference between UNCITRAL and UNCITRAL Model Law. UNCITRAL you seem to have heard about it atleast therefore I will not touch this one. UNCITRAL Model Law is Convention of 1985 please find time and read through.( http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf)
read also
http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf

The similarity of UNCITRAL and UNICTRAL Model law is that the former is UN Commission and the later is convention adpoted by the UNCITRAL. I hope this helps you understand somehow. It is a pity I am trying to make one person Mr. EMT understand instead of addressing more legal issue against Dowans' case.

Regarding Arbitration Act Cap 15 2002, It is true an OLD law with a new date, this is in view to teach you that Tanzanian Legislation on Arbitration was first enacted in 1931 and was amended in 1971 away back before UNCITRAL Model Law was introduced in 1985. To break the ice, I am of the view that the new approaches to refuse recognizing and enforcement of unfriendly ICC Awards like the DOWANS can ONLY and easily be done with provisions of the UNICTRAL Model Law. Because Tanzania has not Ratified therefore not demosticated these new approaches into our law -Arbitration Act Cap 15 2002 R.E., it is certainly not be possible to fully attack the ICC Award by relying on the current law ALONE. THIS IS IT. I never said in my submission that because it is a OLD law therefore we must Ignore ...re-read my submissions again maybe glasses could help you a little more.

Regarding you point, that I maybe confusing the Arbitration Act with New York Convention, this is a wrong assumption what I am saying is that there are no declarations made by our dear law of Arbitration with regards to Articles I, X & XI of New York Convention.

You also mentioned that The New York Convention is Annexed to our Arbitration Act ? Are you sure ? Are you not confusing the New York Convention to The Geneva Convention on the Execution of Foreign Arbitral Awards of 1972 as embedded in the Act ...Fourth Schedule of the Arbitration Act Cap 15 R.E 2002 ?

For your own personal benefits re-correct these facts.

With regard to your third point, that I proposed we take advantage of France as UNCITRAL Mode Law members states, I am not sure if you rightly wanted PLAUSIBLE OR Instead of saying IMPLAUSIBLE. Do you want to suggest to agree with me in this point ? Anyway, my point is that Tanzania is urgently supposed to adopt and demosticate UNCITRAL Model Law ....In my early submission I made it clear that our goverment is better advised to amend its current law on Arbitration to the standard of UNCITRAL Model Law . It will help us against other future DOWANS if any. After all in the EAC region it is ONLY Tanzania which has not adopted the Model Law ( I am not sure about BURUNDI) Please help me see if Burundi is in the list here Status

In fact I fully agree with you that Tanzania need to adpot the Model Law insteady of wanting to benefit from other countries like France.... I agree with you but mind you I was only advising on the present case at hand that even though we have not adopted Model Law we can still use an Active approach by filing a case in States which has adopted the model law and if for instance the case before us was finally conducted in such a country.

Thank you for reminding me that TANESCO V. DOWANS case was conducted in Tanzania. However in the language of International Trade law seating of arbitration is very vague it may mean where the AWARD was finally signed instead of where the meetings were conducted during the hearings of disputes. Anyway maybe we have to wait and see where this is going to be done. Besides you also seem to be not very sure you said ... YOU THINK meaning you are not sure, whether Dar TZ or else where.

You last point that I should stop cutting and pasting from Wikipedia ...IRRITATES ...I do not know how to comment this one but I think I should control myself from loosing temper and to just let you know that your ill-attempt has ABOSULUTELY failed.

 

[EMT]

There is a BIG difference between UNCITRAL and UNCITRAL Model Law. UNCITRAL you seem to have heard about it atleast therefore I will not touch this one. UNCITRAL Model Law is Convention of 1985 please find time and read through.( http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf)
read also
http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf

The similarity of UNCITRAL and UNICTRAL Model law is that the former is UN Commission and the later is convention adpoted by the UNCITRAL. I hope this helps you understand somehow. It is a pity I am trying to make one person Mr. EMT understand instead of addressing more legal issue against Dowans' case.

There are lot of errors in your post but I am going to reply to the quote above, otherwise you will be misleading people. UNCITRAL Model Law is not and has never been adopted as a convention. UNCITRAL Model Law is a merely a comprehensive code for arbitration with a special focus on international commercial arbitration. UNCITRAL Model Law was created as a suggested pattern for law-makers to consider adopting as part of their domestic legislation. UNCITRAL Model Law aim is also to promote the unification of international commercial law.

Even the UNCITRAL itself specifically states that the Model Law is designed to assist States in reforming and modernizing their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration. It does not say or purport to say that the Model Law is a a convention adopted by UN Member States.

Please go and do your research on this matter. If you think I am wrong you email the UNCITRAL and ask them if their Model law is a Convention.

 

[Kibori]

There are lot of errors in your post but I am going to reply to the quote above, otherwise you will be misleading people. UNCITRAL Model Law is not and has never been adopted as a convention. UNCITRAL Model Law is a merely a comprehensive code for arbitration with a special focus on international commercial arbitration. UNCITRAL Model Law was created as a suggested pattern for law-makers to consider adopting as part of their domestic legislation. UNCITRAL Model Law aim is also to promote the unification of international commercial law.

Even the UNCITRAL itself specifically states that the Model Law is designed to assist States in reforming and modernizing their laws on arbitral procedure so as to take into account the particular features and needs of international commercial arbitration. It does not say or purport to say that the Model Law is a a convention adopted by UN Member States.

Please go and do your research on this matter. If you think I am wrong you email the UNCITRAL and ask them if their Model law is a Convention.

I am glad that finally you have understood and agreed with other issues except that your knowledge in international trade law is O . It is not supprising though because UNCITRAL vs. UNICTRAL Model Law is quite comprehensive and requires a one Year Mastery. Besides the discuss at hand is on Dowans case' and possible legal avenues to explore against corruption ...Please do not lose focus.

 

[EMT]

I am glad that finally you have understood and agreed with other issues except that your knowledge in international trade law is O . It is not supprising though because UNCITRAL vs. UNICTRAL Model Law is quite comprehensive and requires a one Year Mastery. Besides the discuss at hand is on Dowans case' and possible legal avenues to explore against corruption ...Please do not lose focus.

The fact that I have not responded to your other issues, does not mean that I agree with you. In your posts unajichanganya sana and I dont have time to argue with you on irrelevant issues. But I don't think it is right to mislead people especially on legal issues. Who told you UNICTRAL Model Law requires a one year master degree? Or because you underwent one year master degree then you think you understand everything on UNICTRAL Model Law?

My friend, may be I should remind you that being a lawyer or studying law is not about knowing the law. In deed, everyone is presumed to to know the law. Being a lawyer is about knowing where to find the law and its application. You should have been told this in your first year. I dont want to dig into this, but please do not mislead people by pretending that you know the law. You're not making any favour to the people who are following this thread.

We are here to just try to identify the law which may apply to Dowans case. You identified UNICTRAL Model Law as a convention. In my response I said UNICTRAL Model Law is not and has never been a convention. Accordingly, UNICTRAL Model Law cannot apply to Dowan case as a convention. And, you still saying that you're glad that finally I have understood and agreed with you. Well, I am not.

 

[Kibori]

My friend, may be I should remind you that being a lawyer or studying law is not about knowing the law. In deed, everyone is presumed to to know the law. Being a lawyer is about knowing where to find the law and its application. You should have been told this in your first year. I dont want to dig into this, but please do not mislead people by pretending that you know the law. You're not making any favour to the people who are following this thread.

We are here to just try to identify the law which may apply to Dowans case. You identified UNICTRAL Model Law as a convention. In my response I said UNICTRAL Model Law is not and has never been a convention. Accordingly, UNICTRAL Model Law cannot apply to Dowan case as a convention. And, you still saying that you're glad that finally I have understood and agreed with you. Well, I am not.

You must be VERY funny. So for you it is enough if one knows where to find law and its application for one to be a Lawyer. And it is something told in First Year. Therefore everyone becomes a Lawyer at FIRST YEAR ? IF YOU ARE A LAWYER ( I DOUBT) THEN YOU MUST BE ONE OF THOSE WE CALL BUSH LAWYERS. So for you everyone is presumed to know law therefore everyone is a LAWYER.

Mr. EMT Please be serious. Some of us like commedy and commedians but soory to say, not at this point in time, when we have serious issues at hand.

 

[George Jinasa]

LEARNED BROTHERS AND SISTERS!!!
Tuachane kidogo na majukwaa mengine, hasa jukwaa la siasa. Maana siasa hupandisha jazba hasa mnapotofautiana kimawazo na kimtazamo. Naombeni tuliangalie hili kwa umakini. Wasomi wetu wa sheria wanataka kwenda mahakamani kupinga serikali kuilipa Dowans mabilioni ya shilingi wakati Mahakama ya usuluhishi ya kimataifa ilishatoa hukumu, JE DOCTRINE YA RES JUDICATA na ESTOPPEL OF JUDGEMENT(RECORD) haita-function hapo na kuwa kizuizi?

Japo mimi si mtaalamu sana wa sheria na maombi yalipolekwa mahamani kupinga kusajiliwa kwa Tuzo ya Dowans sijayasoma, mimi naomba doctrine ya res-judicata haitakuwa na nafasi. Doctrine hiyo ingetumika kama wangekuwa wamefungua kesi kupinga uhalali wa mkataba wa Dowans. Kwa hapa, wanaharakati wamefungua maombi ya kupinga kusajiliwa kwa Tuzo pengine ili kusubilia maombi yao ya kutengua maamuzi ya ICC kwa sababu ilipatikana kinyume cha utaratibu bila kuzingatia sheria. Kama wana sababu za msingi au la hilo ni suala jingine ambalo halihusiani na doctrine ya res-judicata.

 

[Kibori]

Japo mimi si mtaalamu sana wa sheria na maombi yalipolekwa mahamani kupinga kusajiliwa kwa Tuzo ya Dowans sijayasoma, mimi naomba doctrine ya res-judicata haitakuwa na nafasi. Doctrine hiyo ingetumika kama wangekuwa wamefungua kesi kupinga uhalali wa mkataba wa Dowans. Kwa hapa, wanaharakati wamefungua maombi ya kupinga kusajiliwa kwa Tuzo pengine ili kusubilia maombi yao ya kutengua maamuzi ya ICC kwa sababu ilipatikana kinyume cha utaratibu bila kuzingatia sheria. Kama wana sababu za msingi au la hilo ni suala jingine ambalo halihusiani na doctrine ya res-judicata.

Mr. George.

Kwanza kabisa niseme mimi naungana na wewe katika hii lakini sababu zangu ni tofauti kidogo. The Doctrine of RES JUDICATA AND ESTOPPEL OF JUDGEMENT is not applicable in the TANESCO vs. Dowans case. I will start with few explanations first.

RES is a latin word meaning A THING

JUDICATA is also a latin word meaning ADJUDGED

RES JUDICATA therefore is a latin Maxim which mean A THING ADJUDGED. If a court which is comptent to try case for instance, once all facts have been disposed before it, the court is bound to make a rulling or judgment or make a conclusion. This conclusion is therefore final and complete and no one is allowed legally speaking to challenge or open such a case or matter in another court unless there are factul or lawful grounds to challenge.

ESTOPPEL is an english word meaning TO STOP, STOPING ..

JUDGEMENT is also an english word meaning verdict, pronoucement, Assessment, decision, rulling etc...

ESTOPPEL OF JUDGEMENT therefore is an english phrase comonly used to express reality that once agreeing on the decision of the court competent to make such a decision, a person is estopped from dying or challenging or refusing to recognize or enforce without lawfull or factual grounds.

Baada ya kusema hayo ni dhahiri kwamba kumbe hii doctrine is not in itself ABSOLUTE because factual issues or lawful grounds may still be applicable in which case a person may still open another case in another court to challenge a purportedly completed matter.

Sasa baada ya kutoa malezo hayo, issue ya LHRC kufungua case sio kupinga kusajiliwa kwa hukumu ya ICC bali ni kupinga malipo against DOWANS. Swala la kusajili TUZO ni mandatory yaani kisheria because ICC is foreign court if I may use this language, no foreign Jugdement is enforceable unless it has been registered in High Court if I may use the Arbitration Act for it to be enforcebale. The reasoning here is that, our court have the mandate to scrutinize the judgement to satisfy itself to pass the test of ALL laws and policies of the state in which the said TUZO holder is seeking to enforce the same.

Kwa lugha nyingine hata bila pingamizi la LHRC our High Court in its own motion bound to see to it that the TUZO meet required legal standards, short of that it may refuse to enforce the TUZO. Hivyo basi ieleweka kwamba LHRC and some of us are arguing that DOWANS claims are unfounded because the contract which is the base of all these is VOID ABINTIAL. We have both factual and Lawful grounds to challenge the ICC Award therefore no RES JUDICATA AND ESTPPEL OF JUDGEMENT would apply.

YAANI contracting with a non-existence person is in law illegal. Hata mahakama gani duniani itoe judegement ya aina hii, huwezi kusema kwamba a person is bound from opening the same case in another court simply because it has been decision by a competent court........HAIPO....Besides, when challenging a contract, sheria za nchi husika ndio zitakazo tumika kujudge whether or not the purportedly passed judgement is a judgement .....

Kwa lugha nyingine a Foreign Judgement is only a judgement once it has been recognized and re-passed by our courts for it to be enforceable. IN OTHER WORDS IT IS A FUNDEMENTAL PRINCIPLE TO SAY THAT A FOREIGN JUDGEMENT IS A DEEMED JUDGEMENT UNTIL WHEN OUR COURTS HAVE RECOGNIZED AND AGREED AS ENFORCEABLE.

Angalizo: LHRC walichokosea ni (my opinion) kufungua case ya kupinga kwenye HIGH COURT( COMMERCIAL DIVISION) swali: Is Commercial Division of the High Court a HIGH COURT ? Do not get me wrong, all commercial cases or matters are reefered to HIGH COURT ( COMMERCIAL DIVISION) for speeding business related matters or cases.

Lakini the Arbitration Act N0.15 2002 R.E specifically states in section 3 part II " All matters submitted to Arbitration formed the subject of the suit, THE HIGH COURT would only be COMPETENT TO TRY"...... SWALI: Is HIGH COURT ( COMMERCIAL DIVISION) A HIGH COURT in this case ?

Again the Arbitration act also states that whereever a court is refeered it should mean HIGH COURT of Tanzania as stated by section 2 Interpretation section ...now is HIGH COURT Commercial Division a HIGH COURT according to the Arbitration Act ?

Those are the issues to consider.

 

[Madela Wa- Madilu]

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%

Ni wewe ukiyeingiza suala la Wahisani hapa unaondoa Siasa na kuingiza masuala ya Wahisani kana kwamba Fedha za misaada ziko juu ya Siasa yetu.
Hivi kuna sheria za kufuata ili kupata misaada kutoka nje??
Madikteta wanasaidiwa na wahisani wao hata pale wakivunja sheria za kimataifa kama Uvunjaji wa Haki za Binadamu.
Madikteta wanapewa misaada na wahisani kwa sababu ya ku Fulfil interest za Wahisani hata kama ni za kushindisha njaa nusu ya wanchi.

MAtaifa yanayo simama kidete ili kulinda maslahi ya nchi zao kwa kufuta sheria mara zote yamekuwa yakinyimwa misaada kutokana na kiranga chao. Kama hulindi interest za Bwana wako sijui ni vipi atakupa kile wewe ukiitacho "misaada"

Wewe unaingiza suala la Wahisani kwenye Soo la Dowans Unalifanya suala la kukosa misaada ni kubwa sana kiasi cha kudiriki kuiweka siasa pembeni. Ukibanwa unajifanya eti huogopi wahisani. Blaza unaogopa wahisani na pengine unaInterest na malipo ya Dowans. Who knows??

Sasa nikikuuliza swali,Wewe sias unaiweka pembeni na kukumbatia wahisani na ICC ambayo si Mahakama kisheria.Je huogopi hasira ya Wananchi kuchukua sheria mikononi mwao na kuingia mitaani kwa nia moja ya kuwatimua viongozi wa CCM kama kule saga linaloendelea kule Tunisia??

Unaogoapa kunyimwa misaada kama kuogopa Gonjwa Sugu la kuambukiza na kudhani siasa ni cha mtoto???


Sheria inasimama kama sheria. Hivi Hujui kwamba Dowans Ililithishwa Mkataba FAKE wa Richmond??
Sheria unayoitetea ilikuwa nyumba ndogo wakati huo??
Kamwe Huwezi kupata Halali katika Haramu hiyo ni kanuni ya asili.
Chemchem moja haitoi maji barafu na maji moto kwa wakati mmoja.

Tanzania hatuna Sheria ya kuilinda kampuni ya kizushi kama DOWANS ila kuna Elite wa CCM wanao linda kampuni ya DOWANS kwa sababu zao za ubinafsi.

 

[Wacha1]

Hatuwalipi na hawatufanyi chochote. Wakilipa ama zao ama zetu. Wakati wa kuhesabiwa ndio huu.

 

[Mkuki]

watanzania wenzangu mm binafsi nimefurahishwa na kitendo cha wanasheria walioamua kwenda mahakamani kupinga hiyo tunzo cha msingi hapa tuwape moyo kwani wameonyesha uchungu walionao na nchi yetu tuko pamoja wataweza

 

[George Jinasa]

Mr. George.

Kwanza kabisa niseme mimi naungana na wewe katika hii lakini sababu zangu ni tofauti kidogo. The Doctrine of RES JUDICATA AND ESTOPPEL OF JUDGEMENT is not applicable in the TANESCO vs. Dowans case. I will start with few explanations first.

RES is a latin word meaning A THING

JUDICATA is also a latin word meaning ADJUDGED

RES JUDICATA therefore is a latin Maxim which mean A THING ADJUDGED. If a court which is comptent to try case for instance, once all facts have been disposed before it, the court is bound to make a rulling or judgment or make a conclusion. This conclusion is therefore final and complete and no one is allowed legally speaking to challenge or open such a case or matter in another court unless there are factul or lawful grounds to challenge.

ESTOPPEL is an english word meaning TO STOP, STOPING ..

JUDGEMENT is also an english word meaning verdict, pronoucement, Assessment, decision, rulling etc...

ESTOPPEL OF JUDGEMENT therefore is an english phrase comonly used to express reality that once agreeing on the decision of the court competent to make such a decision, a person is estopped from dying or challenging or refusing to recognize or enforce without lawfull or factual grounds.

Baada ya kusema hayo ni dhahiri kwamba kumbe hii doctrine is not in itself ABSOLUTE because factual issues or lawful grounds may still be applicable in which case a person may still open another case in another court to challenge a purportedly completed matter.

Sasa baada ya kutoa malezo hayo, issue ya LHRC kufungua case sio kupinga kusajiliwa kwa hukumu ya ICC bali ni kupinga malipo against DOWANS. Swala la kusajili TUZO ni mandatory yaani kisheria because ICC is foreign court if I may use this language, no foreign Jugdement is enforceable unless it has been registered in High Court if I may use the Arbitration Act for it to be enforcebale. The reasoning here is that, our court have the mandate to scrutinize the judgement to satisfy itself to pass the test of ALL laws and policies of the state in which the said TUZO holder is seeking to enforce the same.

Kwa lugha nyingine hata bila pingamizi la LHRC our High Court in its own motion bound to see to it that the TUZO meet required legal standards, short of that it may refuse to enforce the TUZO. Hivyo basi ieleweka kwamba LHRC and some of us are arguing that DOWANS claims are unfounded because the contract which is the base of all these is VOID ABINTIAL. We have both factual and Lawful grounds to challenge the ICC Award therefore no RES JUDICATA AND ESTPPEL OF JUDGEMENT would apply.

YAANI contracting with a non-existence person is in law illegal. Hata mahakama gani duniani itoe judegement ya aina hii, huwezi kusema kwamba a person is bound from opening the same case in another court simply because it has been decision by a competent court........HAIPO....Besides, when challenging a contract, sheria za nchi husika ndio zitakazo tumika kujudge whether or not the purportedly passed judgement is a judgement .....

Kwa lugha nyingine a Foreign Judgement is only a judgement once it has been recognized and re-passed by our courts for it to be enforceable. IN OTHER WORDS IT IS A FUNDEMENTAL PRINCIPLE TO SAY THAT A FOREIGN JUDGEMENT IS A DEEMED JUDGEMENT UNTIL WHEN OUR COURTS HAVE RECOGNIZED AND AGREED AS ENFORCEABLE.

Angalizo: LHRC walichokosea ni (my opinion) kufungua case ya kupinga kwenye HIGH COURT( COMMERCIAL DIVISION) swali: Is Commercial Division of the High Court a HIGH COURT ? Do not get me wrong, all commercial cases or matters are reefered to HIGH COURT ( COMMERCIAL DIVISION) for speeding business related matters or cases.

Lakini the Arbitration Act N0.15 2002 R.E specifically states in section 3 part II " All matters submitted to Arbitration formed the subject of the suit, THE HIGH COURT would only be COMPETENT TO TRY"...... SWALI: Is HIGH COURT ( COMMERCIAL DIVISION) A HIGH COURT in this case ?

Again the Arbitration act also states that whereever a court is refeered it should mean HIGH COURT of Tanzania as stated by section 2 Interpretation section ...now is HIGH COURT Commercial Division a HIGH COURT according to the Arbitration Act ?

Those are the issues to consider.

Bila kuingia katika undani wa doctrine ya resjudicata na estoppel, kama hoja ni kwamba Mkataba ulikuwa haramu toka katika mizizi yake, mimi naona doctrine ya estoppel itaapply. Maana, ili kuamua kama Mkataba ulikuwa haramu toka mwanzo au la Mahakama itabidi ipitie na kupembua upya ushahidi na hata kuja na findings za kimantiki tofauti na za ICC. Kwa maoni yangu, hilo linaweza kufanywa kwa njia ya Rufaa na sio maombi. Hoja pekee wanaharakati wanaweza kutumia kwa muelekeo wako (kwa maoni yangu) ni kudai kwamba ICC walishindwa kutimia mamlaka yao properly kwa kusindwa kufanya uchunguzi wa kimahakama. Hoja hii inaweza kuzaa matunda kama kwa mujibu wa ushahidi kuna errors apparent on the face of records. Kwamba tribunal yoyote iliyofanya uchunguzi kwa makini na usahihi ingefikia maamuzi tofauti na hayo. (I stand to be corrected kama nimeingilia fani ya watu)

 

[George Jinasa]

Kwamba Commercial Division of the High Court sio High Court mimi nitakuwa wa mwisho kukubari. Kwa ufahamu wangu neno Mahakama Kuu lina upana wa kutosha kumeza divisions zote za Mahakama Kuu ikiwemo Ardhi, Kazi na Biashara. Kwa mfano, kama TUZO ya ICC ingekuwa inahusiana na Ardhi, ingekuwa sahihi kama maombi ya kusajiliwa yangefanyika Mahakama Kuu, Kitengo cha Ardhi