GUIDING NOTES ON

ARBITRATION LAW AND

PRACTICE
Part Two
PLEADINGS AND WRITTEN
SUBMISSIONS
FIRST EDITION

Prepared by Dr. Julius Clement Mashamba

 Editorial Board
Chairperson
Prof. Dr. Alex B. Makulilo

Chief Editor
Dr. John Ubena.

Editors
Dr. Eugine E. Mniwasa
Mr. Clement Mubanga
Mr. Innocent Kibadu
Miss. Beatrice Cherdiel
Mr. Mackphason Buberwa
Mr. Kaleb Gamaya

Published By:
Tanganyika Law Society
Plot. No. 391 | House No. 21 | Chato Street | Regent Estate
P.O.BOX 2148 | Dar es Salaam | Tanzania
Telephone: +255 22 277 5313 | Fax: +255 22 277 5314
Email: [email protected]
Website: www.tls.or.tz
Copyright: Tanganyika Law Society, November 2020
FOREWORD
Among the objects of the Tanganyika Law Society (TLS) as enshrined
in the Tanganyika Law Society Act is to facilitate the acquisition of
legal knowledge to the members of legal profession and others. The
TLS through the Research and Publication Committee has pioneered
different legal materials for the legal professional, especially its
members. Through the years, the TLS has published thousands of
publications that are disseminated to the advocates, stakeholders and the
public for the purpose of creating and raising awareness of the legal
knowledge in different areas of law. With such a longstanding and
consistent background on publishing legal materials for the legal
profession and public, the TLS has now decided to develop and publish
Guiding notes for members of the legal profession especially young
lawyers to provide guidance in specific practice areas of law. It is my
strong belief that the Guiding Notes will be one of the means of
ensuring continued provision of legal education to the TLS Members
and the public at large.
My sincere thanks go to all contributors, the Editorial Board and the
Secretariat for the job well done.
Prof. Dr. Alex B. Makulilo
Chairperson
Research and Publication committee
Chapter One: Prerequisites to
Commencing Arbitral Proceedings
1.1 Introduction
The commencement of any arbitration proceedings depends very much on
whether the parties consensually chose to refer their dispute to arbitration; or
whether there is the requirement to act de jure (according to law) or ex aecquo
et bono (according to what it is just and fair). 1 This is because arbitration is a
dispute settlement mechanism that largely depends on the parties’ consensual
agreement to resort to it.2

Arbitration proceedings are commenced at the behest of the parties. This means
that, usually, the parties must have agreed to refer a dispute to arbitration either
by inserting an arbitration clause in a commercial or investment
agreement/contract, or in a bilateral or multilateral investment treaty (BIT or
MIT). Besides, for arbitration to take place, the parties should have failed to
resolve the dispute through other alternative mechanisms for resolving the
dispute such as conciliation and mediation.

This Chapter, therefore, considers key prerequisites to commencing arbitral

proceedings under Tanzanian arbitration law. These prerequisites include the
need for consent to arbitration, the constitution of the arbitral tribunal (i.e.
appointment, removal and replacement of arbitrators as well as the jurisdiction
of the tribunal), and the place or seat of arbitration.

1.2 Pre-Requisites to Commencement of

Arbitration Proceedings
Before referring a dispute to any international arbitral tribunal, the concerned
party must meet the following conditions precedent: consent to arbitration
(whether there is an arbitration agreement or a BIT); the law governing
arbitration proceedings; whether the tribunal has been specifically named or
not; and place or seat of arbitration. These prerequisites are considered in the
succeeding parts of this Chapter.

1
Max Planck Encyclopedias of International Law [MPIL], available at
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1402
(accessed 23 August 2020).
2
WIPO, “What is Arbitration?,” available at https://www.wipo.int/amc/en/arbitration/what-is-
arb.html (accessed 23 August 2020).
1.2.1 Consenting to Arbitration
The most profound prerequisite to arbitration is the requirement that parties
must have agreed/consented to refer a dispute to arbitration through:
(i) inserting an arbitration clause in a commercial or investment
agreement/contract;3
(ii) A provision in a BIT4 or an MIT5 requiring disputes to be
resolved by way of arbitration; or
(iii) inserting consent in a host state legislation.6
3
Schreuer, C., United Nations Conference on Trade and Development (UNCTAD): Dispute
Settlement - International Centre for Settlement of Investment Disputes (Module 2.3 Consent to
Arbitration) (Geneva/New York: United Nations, 2003), p. 7.
4
Martignoni, A., et al, “Australia’s Bilateral Investment Treaties: A Laid-Back Approach to
Consent?”, Journal of International Arbitration, Vol. 36 No. 2 (2019), pp. 277-290. See also
Schreuer, C., “Consent to Arbitration,” in Muchlinski, P., et al (eds.), The Oxford Handbook of
International Investment Law (Oxford, 2008). DOI: 10.1093/oxfordhb/9780199231386.03.0021.
For example, Article 8(1) of the Agreement for the Promotion and Protection of Investments
between the UK and Tanzania, signed at Dar es Salaam on 7 January 1995 (“the Tanzania-UK
BIT”) categorically provides that:
‘Each Contracting Party hereby consents to submit to the International Centre for the
Settlement of Investment Disputes (hereinafter referred to as “the Centre”) for settlement by
conciliation or arbitration under the Convention on the Settlement of Investment Disputes
between States and Nationals of Other States [_] any legal dispute arising between that
Contracting Party and a national or company of the other Contracting Party concerning an
investment of the latter in the territory of the former.’
5
Many multilateral investment treaties (MITs) [such as the Article 1122 of the North American
Free Trade Agreement (NAFTA) of 1992 between Canada, Mexico and the United States [32 ILM
605 (1993)]; Articles 17 and 18 of the 1994 Free Trade Agreement between Mexico, Colombia and
Venezuela; Article 49 of the 1994 Colonia and Buenos Aires Investment Protocols of the Common
Market of the Southern Cone (MERCOSUR); and the Energy Charter Treaty of 1994] do provide
for international arbitration jurisdiction through which States parties to them do offer to consent to
such jurisdiction. These offers may be taken up by investors who are nationals of other States
parties to the treaties.
6
Section 23 of the Tanzania Investment Centre Act, Cap. 38 R.E. 2002 provides expressly
that:
‘23. Settlement of disputes
(1) Where a dispute arises between a foreign investor and the [Tanzania Investment] Centre
or the Government in respect of a business enterprise, all efforts shall be made to settle the
dispute through negotiations for an amicable settlement.
(2) A dispute between a foreign investor and the Centre or the Government in respect of a
business enterprise which is not settled through negotiations may be submitted to arbitration
in accordance with any of the following methods as may be mutually agreed by the parties,
that is to say-
(a) in accordance with arbitration laws of Tanzania for investors;
(b) in accordance with the rules ofprocedure for arbitration of the International Centre
for the Settlement of Investment Disputes;
(c) within the framework of any bilateral or multilateral agreement on investment
protection agreed to by the Government of the United Republic and the Government of the
country where the investor originates. (Emphasis supplied).’
In terms of 22(1)(b) of this law, a foreign investor in Tanzania is guaranteed of the right to, inter
1.2.2 Law Governing the Arbitration Proceedings
(Lex Arbitri)
As well as being a consensual method of resolving commercial disputes,
arbitration is a party-driven process that is distinctly governed by different laws
chosen by the parties. Usually, there are three laws that are potentially
applicable to an arbitration agreement: The law of the arbitration agreement
(governing law),
(i) The proper law of the contract (substantive law); and
(ii) The law of the seat of arbitration.7

Therefore, the ideal arbitration clause normally specifies each of the above
aspects; but, if the governing law remains undefined, the substantive law is
normally the governing law as well.8 However, in exceptional circumstances
and if there is no substantive law defined, the law of the seat will be deemed to
be the governing law as the law bearing the “closest connection” to the dispute.
The choice of law to govern arbitration proceedings, therefore, is supposed to
be contained in the arbitration clause within the agreement of contract on which
it is based.

For that matter, Section 48 of the 2020 Arbitration Act allows the parties to
choose the law of the arbitration agreement (governing law), the proper law of
the contract (substantive law); and the law of the seat of arbitration. The
underlying general principle is that the arbitral tribunal must decide the dispute
before it ‘in accordance with the rules of law chosen by the parties as
applicable to the substance of the dispute.’ 9 In this regard, it is the law that, the

alia, arbitration ‘for the determination of the investor's interest or right and the amount of
compensation to which he is entitled’ in case of any expropriation.
7
Bhushan, A. and Gandhi, N., “The Ghost of the Governing Law Returns: Lex Arbitri v. Curial
Law in India”. Available at
http://arbitrationblog.kluwerarbitration.com/2014/02/26/the-
ghost-of-the-governing-law-returns-lex-arbitri-v-curial-law-in-
india/?
doing_wp_cron=1596399819.6802239418029785156250
(accessed 27 September 2020).
8
See, for example, the decision of Supreme Court of India (SCI) in NTPC v. Singer [AIR 1993 SC
998]. See also Arsanovia v. Cruz City [(2012) EWHC 3702] where the applicable substantive law
was Indian, and the LCIA was administering the arbitration and London was the seat of arbitration.
The English courts applied the provisions of the Indian Arbitration Act as the governing law to
determine whether or not the tribunals had the substantive jurisdiction to render the awards
challenged under Section 67 of the English Arbitration Act.
9
See especially Section 48(1) of the 2020 Arbitration Act.
parties’ choice of the law or the legal system of any designated State ‘shall be
construed, unless otherwise agreed by the parties, as directly referring to the
substantive law of that State and not to its conflict of laws rules.’10

However, where there is no choice of the law agreed by the parties, the arbitral
tribunal will be obliged to ‘apply the rules of law it considers being appropriate
given all the circumstances of the dispute.’ 11 Where this occurs, the arbitral
tribunal will be duty-bound to decide on the substance of the dispute according
to considerations of ‘justice and fairness without being bound by the rules of
law, except if the parties have expressly authorized it to do so.’ 12 And, in all
cases, the arbitral tribunal should decide in accordance with the terms of the
particular contract and it should take into account ‘the usages of the trade
applicable to the particular transaction.’13

1.2.3 The Arbitral Tribunal

In arbitration, an arbitral tribunal is normally constituted by the parties to deal
with a specific dispute arising out of an investment or commercial arrangement
concerning their investment, contractual or commercial relations. It is not a
permanent arrangement like a court. By so doing, the parties expect the tribunal
to do justice to their respective claims; and, as such, an emphatic tribunal
‘should do its best to make both litigants feel at home. ’14 As such, an “arbitral
tribunal” means ‘a sole arbitrator or a panel of arbitrators,’ 15 which is convened
by the parties and sits to resolve a dispute by way of arbitration. Where the
tribunal is composed of a panel of arbitrators one of them usually serves as the
chairperson or umpire.16

There are several prerequisites for the constitution of an arbitral tribunal:

parties’ autonomy in appointing arbitrators, qualifications of arbitrators,
removal/resignation/replacement of arbitrators, powers and duties of

10
Ibid, Section 48(2).
11
Ibid, Section 48(3).
12
Ibid, Section 48(4).
13
Ibid, Section 48(5).
14
Wilkey, M., “The Practicalities of Cross-Cultural Arbitration,” in Frommel, S.N. and B.A.K.
Rider (eds.), Conflicting Legal Cultures in Commercial Arbitration: Old Issues and New Trends
(The Hague/London/Boston: Kluwer Law International, 1999), pp. 79-98.
15
See, Section 3 of the 2020 Arbitration Act.
16
See generally Sidak, J.G., “Economists as Arbitrators,” 30 Emory International Law Review,
2105 (2016), available at https://www.criterioneconomics.com/economists-as-arbitrators.html
(accessed 24 September 2020).
arbitrators, and immunity of arbitrators.

(a) Appointment of Arbitrators

Because the arbitration process is a based on the consent of parties, the
appointment (in terms of procedure17 and number) of arbitrators is consensually
done by the parties, unlike in the conventional judicial process where parties do
not appoint the person who determines their dispute. 18 Ordinarily, the
procedure on appointment of arbitrators and their number is supposed to be set
out in an arbitration agreement. However, where an arbitration agreement does
not provide to appoint arbitrator (s), parties may agree on the modality of
appointment of arbitrator.19

(i) Number of Arbitrators

The law requires the parties should “freely” agree on the number of arbitrators
to form the arbitral tribunal and whether there is to be a chairman or umpire.20
As a matter of conventional practice, the number of arbitrators is odd, 21 which
is normally one or three arbitrators. It is a conventional practice that has now
been codified in some legislation to the effect that, unless otherwise agreed by
the parties, an agreement that the number of arbitrators shall be two or any
other even number ‘shall be understood as requiring the appointment of an
additional arbitrator as chairman of the arbitral tribunal.’ 22 Normally, where
there is no agreement as to the number of arbitrators, the arbitral tribunal shall
consist of a sole arbitrator.23

17
This means that the parties are free to agree on a procedure of appointing the arbitrator(s).
18
In a conventional judicial process, a magistrate or judge is an employee of the State whose main
traditional function is to preside over cases assigned to him or her by the judiciary administration,
not by the parties like it is the case in arbitration.
19
Section 20(1) of the 2020 Arbitration Act. Under subsection (2) of this law,
‘Where no agreement has been made under subsection (1), a party to the arbitration
agreement may, upon notice to the other party, apply to the Centre which may- (a) give
directions as to the making of any necessary appointment;
(b) direct that the arbitral tribunal shall be constituted by such appointment, or any one or
more of them, as has been agreed; or
(c) make any necessary appointment.’
Under subsection (3), an appointment made by the Tanzania Arbitration Centre under this section
‘shall have effect as if it was made by the agreement of the parties.’
20
Ibid, Section 17(1).
21
Ibid, Section 17(2) (stating expressly that: ‘Unless otherwise agreed by the parties, an agreement
that the number of arbitrators shall be two or any other even number shall be understood as
requiring the appointment of an additional arbitrator as chairman of the arbitral tribunal.’).
22
Ibid.
23
Ibid, Section 17(3).
(ii) Procedure of Appointing Arbitrators
As stated above, procedure for appointing an arbitrator or arbitrators is
normally freely agreed upon by the parties. 24 However, where the parties fail to
agree on the procedure or in the event that the agreement does not exist, the
following procedure will be applied:
(i) in an arbitration with three arbitrators, each party shall appoint one
arbitrator and the two arbitrators so appointed shall appoint the chair
or umpire;
(ii) In an arbitration with two arbitrators, each party shall appoint one
arbitrator; and
(iii) in an arbitration with one arbitrator, the parties shall agree on the
arbitrator to be appointed.25

However, there is a remedy for any party who defaults to appoint an arbitrator
as stipulated in the law or within the timeframe stipulated in the arbitration
agreement-i.e. the affected party to either appoint his arbitrator as a sole
arbitrator (“an arbitrator in default”). It should be noted that the award rendered
by a sole arbitrator appointed in default by one party is binding on both parties,
as if he had been appointed by the two parties. It should also be noted that a
decision to either appoint an arbitrator in default by one party or the one
appointed by an appointing authority may be set aside by a specified authority.
Normally, the decision to set aside or otherwise of the appointment of an
arbitrator in default is made upon the applicant showing “good cause” for the
failure or refusal of the party in default to appoint his arbitrator in due time.
Where the appointment is set aside, the specified authority doing so has to
appoint an arbitrator for the defaulting party upon consideration several
specified factors.26 This appointment by the specified authority may be made
by consent of the parties or on the application of either party.

(b) Qualifications of Arbitrators

Universally, there are no specific requirements for the qualifications of an
arbitrator; and, for that matter, the qualifications of an arbitrator can vary

24
Ibid, Section 18(1) (stating that: ‘The parties may agree on the procedure for appointing the
arbitrator or arbitrators, including the procedure for appointing any chairman or umpire.’).
25
Ibid, Section 18(2)(a) - (e).
26
Conversely, in appointing an arbitrator, the appointing authority should have due regard to any
qualifications required of an arbitrator by the agreement of the parties and to such considerations as
are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a
sole or third arbitrator, shall take into account the advisability of appointing an arbitrator of a
nationality other than those of the parties.
considerably. While some parties like to choose arbitrators, who have a long
list of arbitrations to their name and are very senior; others like to choose an
arbitrator of a particular background or nationality. Sometimes an arbitrator
may be chosen due to possession of expert knowledge in a particular field or
trade relating to the nature or subject matter of the dispute. The bottom-line is
that many corporations in dispute choosing an arbitrator will look at three key
considerations:
(i) the formal qualifications and affiliations of an arbitrator to assess
credibility and experience;
(ii) The institutions the arbitrator is associated with; and
(iii) whether an arbitrator has undergone any formal training.

As a general rule, the qualifications of arbitrators are set out in the arbitration
agreement. Where such qualifications are not set out in an arbitration clause,
the parties are free to determine any qualifications they require. Where an
arbitrator is to be appointed by the court or an appointing authority, such body
‘shall have due regard to any agreement of the parties as to the qualifications
required of the arbitrators.’27

(c) Revocation, Removal, Resignation and

Replacement of Arbitrators
As well as having the right to appoint an arbitrator freely, parties to arbitration
have the right to revoke, remove or replace an arbitrator. 28 They also have the
right to challenge the appointment of an arbitrator during the pendency of the
proceedings.

(i) Revocation and Removal of Arbitrator’s

Appointment
Under Section 25 (1) of the 2020 Arbitration Act, the parties ‘may agree the
circumstances upon which the appointment of an arbitrator may be revoked’.
However, where there is no agreement to that effect, the appointment of an
arbitrator may be revoked either by (i) the parties acting jointly; or (ii) the
decision of an arbitral tribunal or other institution or person vested by the
parties with powers in that regard.

27
Section 21 of the 2020 Arbitration Act.
28
See generally Team Legistify, “Law Regarding Appointment and Removal of and Arbitrator:
What are the Default Provisions Relating to the Appointment and Removal of Arbitrators?”.
Available at https://mail.google.Com/mail/u/0/ (accessed 27 September 2020).
It should be noted that where the parties agree the circumstances upon which
the appointment of an arbitrator may be revoked, such agreement must be
reduced into writing.29 It should also be noted, where circumstances warrant,
the court may revoke an appointment under Section 20 of the Tanzania
Arbitration Act;30 or remove an arbitrator on the grounds specified in Section
26 of the Arbitration Act.31

Concerning removal of an arbitrator, the Arbitration Act allows a party to

arbitration to apply to the TAC for removal of an arbitrator. 32 On making such
application, the applicant must furnish notice in relation to the application to
the other party. Such application may be made on any of the following
grounds:

(a) that there are circumstances which give rise to justifiable doubts as to
his impartiality;
(b) that he does not possess the qualifications required by the arbitration
agreement;
(c) that he is physically or mentally incapable of conducting the
proceedings or there are justifiable doubts as to his capacity to do so; or
(d) that he has refused or failed to-
(i) properly conduct the proceedings;
(ii) use all reasonable dispatch in conducting the proceedings; or
(iii) make an award and substantial injustice has been or will be
caused to the applicant.33

(ii) Resignation or Withdrawal of Arbitrator

It is universally accepted that an arbitrator is entitled to resign from his office
for any justifiable reason, particularly when there is a challenge to his
appointment. Although there is no express obligation placed on arbitrators
whether to resign upon a challenge to their appointment, the rationale is that:
whatever the actual merits of the challenge, it would be best ultimately for the
arbitrator to be replaced, in order to permit the arbitration to proceed in a better
climate of confidence and trust and to minimize the likelihood of recourse
against the arbitral award.

29
Ibid, Section 25(3).
30
Ibid, Section 25(4)(a).
31
Ibid, Section 25(4)(b).
32
Ibid, Section 26(1).
33
Ibid.
An arbitrator may also resign when he takes on new professional endeavours
that may conflict with arbitrating a particular case. In addition, an arbitrator
may resign because he has a conflict of interest with a party, particularly one
that becomes apparent after his appointment. Such conflict of interest may
relate to an issue in dispute.

One of the most permissible grounds for resignation of an arbitrator is

“personal reasons”, which are supposed to be genuine and through no one’s
fault. But, universally, personal reasons have been singled out to lead to
extensive delays like what happened in Vanessa Ventures v. Venezuela, where
the presiding arbitrator resigned ‘because of bad health five months before a
scheduled hearing, with the replacement processes leading to cancellation of
the hearing.’ Delay or disruption of arbitral proceedings are among the
ramifications that may be caused by resignation of an arbitrator. This so
particularly when the proceedings are at an advanced stage.

In order to deal with this challenge, many arbitration laws and rules discourage
“improper” resignations.34 In order to minimize any likely adverse
consequences of the resignation, for example, the 2020 Arbitration Act requires
the parties to agree with an arbitrator as to the consequences of his resignation
regarding (i) his entitlement to any fees or expenses; and (ii) any liability
incurred by him.35 Where the agreement does not exist, the resigning arbitrator
may, upon notice to the parties, apply to the Tanzania Arbitration Centre to-
(i) grant him relief from any liability incurred by him;
(ii) Issue such directives as it thinks fit regarding his entitlement to any fees
or expenses or the repayment of any fees or expenses already paid; and
(iii) direct on the appointment of another arbitrator under Section
18 of the Tanzania Arbitration Act to continue arbitration proceedings.

It should be noted that “improper” resignation may bring serious consequences

to the resigning arbitrator him/herself. Notably, improper resignation may have

34
Levine, ibid (arguing that: ‘some procedural rules require that the resigning arbitrator seek the
consent of the institution or co-arbitrators’ before doing so.). In addition, CSID has proposed new
rules clarifying that: ‘an arbitrator may resign by notifying the Secretary-General and the other
members of the Tribunal and providing reasons for the resignation,’ which increases
accountability. in International Centre for Settlement of Investment. Disputes, “Proposals for
Amendment of the ICSID Rules - Working Paper #2,” paras. 158-63 (2019).
35
Section 27(1) of the 2020 Arbitration Act.
consequences for his or her fees36 and liability issues that may arise against
him/her. In fact, a wrongful resignation may ‘expose the arbitrator to a loss of
immunity, damages claims, and other sanctions.’ 37 An improper resignation is
likely to impact reputation and future appointments of the concerned arbitrator
which may be exhibited by non-confirmation in his/her subsequent
appointments.38

(iii) Replacement of Arbitrator

Normally the appointment of an arbitrator is to be personal 39 and his/her service
ceases upon his/her death,40 resignation, revocation or removal, or at the end of
the proceedings. In addition, the mandate of an arbitrator may terminate if he or
she, according to the parties, cannot perform the functions of his or her office
or for any reason cannot act without undue delay. So, where the mandate of an
arbitrator is terminated, a substitute arbitrator should be appointed under the
procedure applicable to the appointment of the arbitrator being replaced.

In addition, where an arbitrator ceases to hold office, the parties may agree on:
(i) whether, and if so, how the vacancy is to be filled; (ii) whether, and if so, to
what extent the previous proceedings should stand; and (iii) what effect his
ceasing to hold office shall have on any appointment made by him. 41 Where
there is no such agreement, the following provisions shall apply:

(i) the provisions of Sections 18 and 20 of the Arbitration Act ‘shall

apply in relation to the filling of the vacancy as in relation to an
original appointment’;42
(ii) The arbitral tribunal, when reconstituted, ‘shall determine whether
and if so to what extent the previous proceedings shall stand, except
that any right of a party to challenge the proceedings on any ground
which had arisen before the arbitrator shall not be precluded’; 43 and
(iii) his ceasing to hold office shall ‘not affect any appointment made by

36
Ibid, Section 27(1). See also Section 25 of the English Arbitration Act, 1996; and Rule 1 of the
International Bar Association’s Rules of Ethics for International Arbitrators, 1987.
37
Levine, J., “Late-in-the-Day Arbitrator Challenges and Resignations: Anecdotes and Antidotes,”
op. cit. See also Born, G.B., International Commercial Arbitration ,1955 (2d ed. 2014).
38
Greenberg, S., et al., Secretariat’s Guide to ICC Arbitration (2012), para. 3-600.
39
Section 28(1) of the 2020 Arbitration Act.
40
Ibid, Section 28(1).
41
Section 29(1)(a)-(c) of the 2020 Arbitration Act.
42
Ibid, Section 29(2)(a).
43
Ibid, Section 29(2)(b).
 him, alone or jointly, of another arbitrator, in

particular any appointment of a chairperson or umpire.’44

(d) Jurisdiction and Powers of the Arbitral Tribunal

The question of jurisdiction and powers of the arbitral tribunal is well codified
in both international treaties and domestic arbitration legislation. Having been
expressly provided for in Article 16 of the UNCITRAL Model Law on
International Commercial Arbitration, today, the jurisdiction of the tribunal has
been universally contained in the doctrine of Kompetenz-Kompetenz. Now
considered being codified in many modern arbitration laws around the world,
including in Tanzania, the doctrine of Kompetenz-Kompetenz requires that
arbitrators should rule on their own jurisdiction at the very beginning of the
proceedings.

Therefore, now there is a ‘wide consensus that the arbitral tribunal has the
power to rule on all aspects of its own jurisdiction’ 45-i.e. in relation to: (i)
whether an arbitration agreement exists between the parties; 46 (ii) whether the
matter in dispute comes within the arbitration agreement; 47 (iii) what is the
proper interpretation of the arbitration agreement; 48 and (iv) whether the
arbitration agreement is valid or was terminated.49

This universal principle is well domesticated in Tanzanian arbitration law. For

example, under Section 32 (1) of the Arbitration Act, the arbitral tribunal may
rule on its own substantive jurisdiction in relation to: (i) whether there is a valid
arbitration agreement; (ii) whether the arbitral tribunal is properly constituted;
and (iii) what matters shall be submitted to arbitration under the arbitration
agreement. However, the parties may agree to the contrary.
44
Ibid, Section 29(2)(c).
45
Statement from the Draft Digest of Case Law on the UNCITRAL Model Law on International
Commercial Arbitration, Pre-publication presented at Cologne RIZ/DIS Conference on March 34,
2005, para. 99 (‘‘Draft Digest’’).
46
See, for example, Skandia International Insurance Co v. Mercantile & General Reinsurance
Co., Supreme Court (Bermuda), January 21, 1994.
47
Rio Algom Ltd. v. Sammi Steel Co., Ontario Court of Justice, General Division (Canada), March
1,1991; and Mind Star Toys Inc. v. Samsung Co. Ltd., British Columbia Supreme Court (Canada),
November 17,1995.
48
Continental Commercial Systems Corp. v. Davies Telecheck International Inc. (CLOUT case
357). Case law on UNCITRAL texts (CLOUT) is available inter alia on the UNCITRAL website,
www.uncitral.org.
49
Kanto Yakin Kogyo Kabushiki-Kaisha v. Can-Eng. Manufacturing Ltd., Ontario Court (Canada),
January 30, 1992, (CLOUT case 369).
Parties have the liberty to challenge the jurisdiction of the arbitral tribunal. An
objection that the arbitral tribunal does not have jurisdiction to determine the
matter should be raised at the time when the concerned party takes the first step
in the proceedings to contest the merits of any matter in relation to which he
challenges the arbitral tribunal’s jurisdiction. However, a party cannot be
precluded from raising such an objection because he has appointed or taken
part in the appointment of an arbitrator.

It is trite law that an objection raised during the arbitral proceedings that the
arbitral tribunal exceeds its substantive jurisdiction should be made as soon as
possible after the matter alleged to be beyond its jurisdiction is raised; 50 but the
tribunal may admit an objection at a later time ‘ if it considers the delay
justifiable.’51 As a general rule, where there is a jurisdictional challenge, the
tribunal should determine that issue as a preliminary objection. However, in
certain cases, the tribunal may reserve its ruling on a jurisdictional objection
and consider it in an award on the merits. In addition, parties may agree on the
timing on he the determination of the preliminary objection on substantive
jurisdiction of the tribunal.52

It is the law that where the arbitral tribunal rules as a preliminary question that
it has jurisdiction, any party aggrieved by the ruling may apply to the court,
within a prescribed time frame after having received notice of that ruling, to
decide the matter.53 The 2020 Arbitration Act provides some grounds to the
effect that an application to the court to challenge the tribunal decision on
jurisdiction should not be considered unless-

(a) it is made with the agreement in writing of all the other parties to
the proceedings; or

(b) it is made with the permission of the arbitral tribunal and the court
is satisfied that-
(i) the determination of the question is likely to produce
substantial savings in costs;
(ii) the application was made without delay; and

50
Ibid, Section 33(2).
51
Ibid, Section 33(3).
52
Ibid, Section 33(4).
53
Ibid, Section 34.
 (iii) there is a good reason the court should decide the matter.54

However, the 2020 Arbitration Act vests discretionary power in the court to
give leave to any aggrieved party to appeal to an appellate court, 55 where it
thinks the appeal involves a point of law based on want of substantive
jurisdiction by the arbitral tribunal.56

What will be the status of the proceedings in the arbitral tribunal while the
application is pending in the court? The legal position in Tanzania is that,
unless otherwise agreed by the parties, the arbitral tribunal ‘may continue the
arbitral proceedings and make an award pending determination of an
application’ made under Section 34.57

(e) Liabilities and Immunity of Arbitrators

Arbitrators’ liabilities and immunity has changed from how it was conceived in
the ancient epoch when arbitration emerged to the contemporary situation. In
the ancient times, arbitrators were considered being persons of good standing in
society whose peers had trust in them to help resolve their dispute and they
were paid nominally for their “part-time” engagement. But today, when the
arbitration has become an industry attracting huge sums of money that is dished
to arbitrators and arbitration counsel, and it is now involving complex issues, it
has become necessary to redefine the liabilities and immunity of arbitrators.

Then the question arising from this reality seems to be rather crucial: why then
should arbitrators be excluded from liability towards those parties? It is now
common ground arbitral immunity is well- established in international and
domestic arbitration58 such that many institutional arbitration rules and
domestic arbitration laws have codified this notion. One reason for the
excluding arbitrators from liability is to prevent frivolous lawsuits that may be
brought by parties ‘who are dissatisfied with the merits of the arbitral award.’ 59
Such immunity ‘limits the opportunity for aggrieved parties to hold the

54
Ibid, Section 34(2)(a) and (b)(i)-(iii).
55
Ibid, Section 34(5).
56
Ibid, Section 34(7).
57
Section 34(4) of the Tanzania Arbitration Act.
58
Hwang, M., et al, “Claims Against Arbitrators for Breach of Ethical Duties,” in Rovine, A.W.
(ed.), Contemporary Issues in International Arbitration and Mediation (The Fordham Papers,
2007) (Fordham Law School: Martinus Nijhoff Publishers, 2007), pp. 225-246, at p. 225.
59
Ibid.
arbitrators personally liable and claim damages against them.’60
However, the immunity of arbitrators is not absolute in that they have a duty to
act fairly, independently and impartially in the arbitration proceedings before
them. This duty is embodied in both international arbitration law and national
laws. It is for this reason that Section 31 (1) of the 2020 Arbitration Act
insulates an arbitrator from being liable for anything done or omitted in the
discharge or purported discharge of his functions as arbitrator ‘unless the act or
omission is proven to have been done in bad faith or professional negligence,’
or as provided for in Section 26 of this law.
Notably, this immunity also extends to ‘a servant or agent of an arbitrator
regarding the discharge or purported discharge by such a servant or agent, with
due authority and in good faith, of the functions of the arbitrator.’ It should be
noted that this provision does not affect any liability incurred by an arbitrator
by his resignation or withdrawal.

1.3 The Place or Seat of Arbitration

The place or seat of arbitration is one of the most important features of
international and domestic arbitration. It is clearly stipulated in Article 20 of
the UNCITRAL Model Law, as well as defined in Section 6 of the Tanzania
Arbitration Act to mean the “juridical seat of arbitration” designated-
(i) in accordance with the law applicable to matters that are subject of the
arbitration;61
(ii) by the parties to the arbitration agreement;62 or

(iii) by any arbitral tribunal or other institution or person vested by the

parties with powers in that regard.

In the main, the place or seat of arbitration is a key factor in any arbitration that
provides a “home” for the arbitration, and determines the law governing the
relationship between the tribunal and the courts. The seat also determines
which court has supervisory jurisdiction over the arbitration (giving them the
power to set aside an award). The seat determines where the award has been
made, which is significant when trying to enforce the award.
It should be noted that although the physical location of an arbitration does not
have the same legal significance, it is decided based on convenience of all

60
Ibid.
61
Ibid, Section 6(a).
62
Ibid, Section 6(b).
involved. For that matter, it does not need ‘to be (and frequently it is not) the
same as the legal seat of the arbitration.’ 63 Therefore, it is important that parties
should, and usually do, designate the legal seat of an arbitration in their
arbitration agreement.64 This ensures that the legal seat is ‘where the parties
intended and to avoid unnecessary procedural disputes.’65

In sum, the underlying universal principles and practice relating to the place or
seat of arbitration, as categorically stated in Article 20 (1) of the UNCITRAL
Model Law and domesticated in Tanzania, are:

(i) The parties are ‘free to agree on the juridical seat of arbitration and the
location of any hearing or meeting.’66 However, where the parties cannot
agree with this issue, the place of arbitration should be determined by
the arbitral tribunal having regard to the costs and the circumstances of
the case and to the convenience of the parties.67
(ii) Unless agreed by the parties, the arbitral tribunal may meet at any place
it considers appropriate for consultation among its members, for hearing
witnesses, experts or the parties, or for the inspection of documents, goods or
other property.68

Chapter Two: Pleadings and Written

Submissions in Arbitral Proceedings
2.1 Introduction
Where other alternatives to settle a dispute between the parties have failed to
bear fruits, any party (particularly the aggrieved party) is at liberty to resort to
arbitration under their previous agreement to go that route. It should be noted
from the outset that, unlike other ADR mechanisms, arbitration is more or less
similar to litigation in terms of formality and procedures. In fact, arbitration is
governed by clearly stipulated procedural rules, and the parties to arbitral
proceedings are required to follow certain procedural steps in pursuit of their
63
Morreau, op. cit.
64
See generally Born, G.B., International Arbitration: Law and Practice (2nd edn.) (Kluwer Law
International BV, The Netherlands, 2016), pp. 120-127.
65
Morreau, op. cit .
66
See particularly Section 6(b) of the Tanzania Arbitration Act.
67
See Article 20(1) of the UNCITRAL Model Law.
68
Ibid, Article 20(2).
rights through the arbitration process.

This Chapter, therefore, considers the underling documents (i.e. pleadings and
other written documents) that are conditions precedent in commencing and
conducting arbitral proceedings in Tanzania. In particular, the Chapter sets out
the major procedural steps for commencing arbitral proceedings. The Chapter
also considers the requirement for parties to make payments of advance on
arbitration costs or deposits; and the provision of interim measures and
provisional awards in arbitral proceedings.

2.2 Major Procedural Steps for Commencing

Arbitral Proceedings
Procedurally, there is no common procedural route that is followed by all
international and domestic arbitration institutions alike in the commencement
and necessary pleadings applicable in arbitral proceedings. This is because,
while institutional rules may provide for a certain step-based procedure, the
parties are at liberty to resort onto any procedural step of their choice in the
conduct of arbitration.

Looking at the existing international and domestic arbitration law in Tanzania,

there is a benchmark of common procedural steps that describe ‘the actual
practice of international arbitration’69 in the country. As such, the
major/common procedural steps that describe the actual practice of
international and domestic arbitration in Tanzania in relation to pleadings are:
1) Filing a notice of, or request for, arbitration;
2) Filing an answer or reply to the notice of/request for arbitration (and
counterclaim, which may also need a reply by the claimant);
3) Constitution of the arbitral tribunal;
4) Conducting early case management;70
5) Making and determining jurisdictional objection;
6) Pleadings (including memorials, written statements of claim and
defence, rejoinders, witness statements, etc.);

69
Born, G.B., International Arbitration: Law and Practice (2nd edn.) (Kluwer Law International
BV, The Netherlands, 2016), p. 166.
70
Early case management entails conducting initial procedural conferences - entailing issuing
procedural directions/orders/schedules, preparing terms of reference, determining the language of
arbitration if it is not indicated in the arbitration clause, case management teleconferencing, etc.
 7) Filing exhibits;
8) Disclosure, document production and discovery; and
9) Payment of advance arbitration costs.

2.3 Notice of Arbitration or Request for

Arbitration
Universally, arbitral proceedings are commenced by the filing of either a
Notice of Arbitration or a Request for Arbitration. It should be noted from the
outset that the name of this initial document depends on the rules of the
institution administrating the arbitration, with the primary difference being only
in the name because the required contents of requests and notices are
comparatively similar.71 Notably, the Tanzanian arbitration legal regime
requires arbitral proceedings to be commenced by a Request for Arbitration .72

A Notice of Arbitration or Request for Arbitration is a very crucial document in

both international and domestic arbitration in that it commences arbitral
proceedings.73 In the main, it serves the same basic functions as a plaint in civil
litigation. Functionally, it serves to inform the respondent that ‘arbitral
proceedings have been started and that a particular claim will be submitted for
arbitration’ and ‘to appraise the respondent of the general context of the claim
asserted against him.’74

Both in international and domestic arbitration law, there is no common format

and contents of the Notice of Arbitration or Request for Arbitration; because
it’s the form and contents largely depend on the parties’ arbitration agreement,
applicable institutional rules and national law. However, many institutional

71
Aceris Law LLP, “International Arbitration Information - Model Request for Arbitration,”
available at https://www.international-arbitration-attorney.com/model-request-for-arbitration/
(accessed 1 September 2020) (outlining that: ‘The initial document is named a Request for
Arbitration by the ICC, the LCIA, the ICSID, the DIAC and other arbitral institutions. It is named a
Notice of Arbitration under the SIAC, the HKIAC and the UNCITRAL Rules.’).
72
Section 14 of the Tanzania Arbitration; and Rule 4 of the National Construction Council (NCC)
Arbitration Rules, 2007 (‘NCC Arbitration Rules’).
73
Section 14 of the Arbitration Act states that arbitral proceedings in respect of a particular dispute
will commence on the date on which a request for that dispute to be referred to arbitration ‘is
received by the other party’.
74
Report oof the Secretary-General on Preliminary Draft Set oof Arbitration Rules for Optional
Use in Ad Hoc Arbitration Relating to International Trade, U.N. Doc. A/CN.9/97, VI UNCITRAL
Yearbook, 163, 167 (1975).
rules75 require this document to contain skeletal information pertaining to:
1) the identities of the parties (names, addresses76, legal status, etc);
2) the names of the parties’ representative(s);
3) specification of the arbitration agreement;
4) a description (in summary) of the dispute giving rise to claims;
5) a statement of the relief(s) sought;
6) the choice of one or more arbitrators;77
7) a description of the place of arbitration;
8) an indication of the applicable law governing the arbitration; and
9) an indication of the language of the arbitration (where appropriate).

It should be noted that parties may submit supporting documents with their
Request for Arbitration or Notice of Arbitration, although supporting
documents are not required under all rules of arbitration and are limited, as
evidence will be produced in full over the course of the arbitration. It should
also be noted that for the arbitral proceedings to start, the Notice of Arbitration
or Request for Arbitration should be served on the respondent or the other
party, unless the parties agree otherwise.

2.4 Answer or Reply to the Request for

Arbitration (and a Counterclaim, if any)
It is a cardinal principle of arbitration law and practice that once a claimant
files a Notice of or Request for Arbitration, the respondent may file a Reply,
Answer or Response, if it so wishes. In certain cases, the such reply may be
accompanied by a Counterclaim, together with some exhibits (which is
optional). Although the requirement to file a reply or response is not well
elaborated in the substantive arbitration law in Tanzania, the same is implicitly
inherent in arbitration practice, as canvassed below.

As noted above, the requirement to file a reply or response is not well

elaborated in the substantive national arbitration law, not only in Tanzania but
also in other East African countries. But it is expressly stated in most of the
institutional arbitration rules, which require the respondent to file a reply or
response within a prescribed time limit. It is a universal principle of arbitration
75
See, for example, Article 3(3)(a)-(f) of the EACJ Rules of Arbitration.
76
Conversely, address entails telephone numbers, facsimile, telex and e-mail address of the
respondent and/or its nominee or (legal) representatives.
77
See, for example, Rule 3 of the UNCITRAL Rules; and Rule 4 of the ICC Rules.
law and practice that, once an arbitration has been commenced against a
respondent, the respondent has a relatively short time in which to file an
Answer the Request for Arbitration under certain arbitral rules.

Universally, arbitration practices require the Reply or Response to contain the

following details:
1) The identities of the parties (i.e. names, descriptions, and address78 of
each of the parties, including same particulars of a third party, if need
be);
2) Respondent’s comments as to the arbitral tribunal’s jurisdiction;
3) A confirmation or denial of all or part of the claims stated by
the claimant in the Notice of, Request for Arbitration;
4) Respondent’s position regarding the dispute;
5) Respondent’s comments concerning the appointment of arbitrators
and composition of the arbitral tribunal;
6) Respondent’s comments as to the place of arbitration, the applicable
rules of law and the language of the arbitration;
7) Respondent’s counterclaims (if any); and
8) Respondent’s response to the relief(s) sought by the Claimant, or
relief(s) sought by the Respondent.

It should be noted that, where the Respondent raises counterclaim(s), such

should be part of the Reply or Response to the Notice or Request for
Arbitration. The part setting out the counterclaim should contain the following
details:
1) A description of the nature and circumstances of dispute giving rise
to the counterclaim and of the basis upon which the counterclaim is
made;
2) A statement of the relief sought together with the amount of any
quantified counter claimant, to the extent possible an estimate of
the monetary value of any other counter claims;
3) Any relevant agreement and in particular the arbitration agreement;
and
4) Where counterclaims are made under over one arbitration
agreement, a sign of the arbitration agreement under which each
counterclaim is made.

78
Conversely, address entails telephone numbers, facsimile, telex and e-mail address of the
respondent and/or its nominee or (legal) representatives.
It should be noted that failure to send a response shall not prohibit the
respondent from denying any claim or from advancing a counterclaim at a later
stage in the arbitration. However, if the Arbitration Agreement calls for party
nomination of arbitrators, failure to send an Answer or to nominate an
arbitrator within the time or at all constitutes an irrevocable waiver of that
party’s opportunity to nominate an arbitrator.

2.5 Constitution of the Arbitral Tribunal

It is a universal principle of arbitration law and practice that, as soon the
request for, or notice of, arbitration is instituted, parties should constitute the
tribunal. As such, the constitution of the arbitral tribunal is one of the major
and important procedural steps at the outset of any arbitral proceedings. Many
institutional arbitration rules recognise parties’ autonomy to constitute a
tribunal, which is usually expressed in the arbitration agreement. 79 Indirectly,
many such rules recognise the autonomy of the parties to select the means by
which this selection is to be made on their behalf.

An “arbitral tribunal” means ‘a sole arbitrator or a panel of arbitrators.’ 80

Conversely, the arbitral tribunal is one which is constituted by the parties and
sits to resolve a dispute concerning such parties by way of arbitration. There
are a variety of ways for the constitution of the tribunal (i.e. appointment of
arbitrators), which are considered in Chapter One above.

2.6 Early Case Management

Management of the arbitral proceedings is increasingly becoming a very
important feature of both international and domestic arbitration law and
practice, which strives to mitigate current difficulties associated with the
arbitration process (i.e. increasing costs and duration of the proceedings). 81
Although arbitration has been seen as less efficient than it promised (with many

79
See particularly Griffith, G., “Constitution of Arbitral Tribunals: The Duty of Impartiality in
Tribunals or Choose your Arbitrator Wisely,” CSID Review - Foreign Investment Law Journal,
Vol. 13, Issue 1, Spring 1998, pp. 36-50, https://doi.org/10.1093/icsidreview/13.1.36 (accessed 23
September 2020).
80
See Section 3 of the 2020 Arbitration Act.
81
Zachariasiewicz, M. and M., “Case Management in Arbitration: A View from Poland,” Kluwer
Arbitration Blog, 5 November 2019. Available at
http://arbitrationblog.kluwerarbitration.com/2019/11/05/case-management-in-arbitration-a-view-
from-poland/ (accessed 4 September 2020).
business people expressing dissatisfaction), efforts have been made by the
arbitration community ‘to improve the existing rules and practices in order to
tackle these inconveniences.’82 One of such efforts undertaken to improve
arbitration is the introduction and encouragement of the use of early case
management.83

So, in arbitration, case management concerns itself with the question: “how
things should be”, and not “how things are” in practice. Case management,
therefore, strives to ensure the following elements of international arbitration
are well managed and balanced:

1) duration of proceedings;
2) case management conferences;
3) first procedural orders and timetables of proceedings;
4) arbitrators’ competences with respect to active management of the
proceedings;
5) length of the written submissions;
6) expert reports;
7) written witness statements and the examination of witness at the
hearing;
8) organization of the hearings within the proceedings;
9) document production;
10) financial incentives for arbitrators to timely render an award; and
11) financial sanctions for parties employing dilatory tactics.84

2.7 Pleadings Commencing Arbitral

Proceedings
Traditionally, international and domestic arbitration law and practice reflect on
two major types of written documents setting out a claim and its opposite:

82
Ibid (pointing out that efforts improve the international arbitration system includes in particular
guidelines and rules prepared by various international organizations such as Arbitration Committee
of IBA, ICCA, UNCITRAL, the Chartered Institute of Arbitrators or international arbitration
courts.).
83
Thorpe, R.W., “Case Management and Cost Control for Commercial Arbitration,” JAMS
Neutral, available at https://www.jamsadr.com/files/uploads/documents/articles/thorpe-
casemanagement-aba-2012-06.pdf (accessed 11 September 2020).
84
Ibid (pointing out that efforts improve the international arbitration system includes in particular
guidelines and rules prepared by various international organizations such as Arbitration Committee
of IBA, ICCA, UNCITRAL, the Chartered Institute of Arbitrators or international arbitration
courts.).
“pleadings” and “memorials”. Whereas the term “pleadings” is more applicable
in the common law jurisdictions, the term “memorial” is common under the
civil law tradition.85 Despite their differences, pleadings and memorials are
documents that set out the claims, counterclaims and defence against such
claims in both international and domestic arbitration.

It should be noted from the outset that arbitration is a document-reliant method

of dispute settlement in that it requires the preparation and submission of
voluminous documents, most of which are mandatory - i.e. they must be filed
by the parties without fail and within the time limit prescribed either by the
relevant institutional rules or by the arbitral tribunal. Universally, arbitration
relies more heavily on documentary evidence than oral testimony86 to the extent
that it is proper to say that: ‘evidence in written form is the [general] rule and
direct oral evidence the exception.’87

The general rule is that where a party fails to file the documents or where the
respondent fails to submit a statement of defence or the claimant fails to submit
a statement of defence to a counterclaim, or where at any point a party fails to
avail himself of the opportunity to present his case in the manner specified
under the relevant arbitration rule, or directed by the arbitral tribunal, the
arbitral tribunal may proceed with the arbitration and make an award on the
basis of the available information/materials and on the peril of the defaulting
party.

In particular, many institutional arbitration rules recognise that if within the

time fixed by the Tribunal, the Claimant fails to communicate its claim without
sufficient cause, the Tribunal shall issue an order for the termination of the
arbitral proceedings. Again, if, within the period of time fixed by the Tribunal,
the Respondent has failed to communicate his statement of defence without
sufficient cause, the Tribunal shall order that the proceedings continue ex parte.

2.7.1 Claimant’s Written Statement of Claim

The Claimant’s Written Statement of Claim is normally filed after the Notice of
or Request for Arbitration is filed and after the arbitral tribunal has determined
85
Cywicki, K. and M. Grose, “Pleadings or Memorials: Which Are More Appropriate for
Construction Arbitrations?”, BCDR International Arbitration Review, Vol. 4, Issue 1,2017, pp. 43 -
52. Available at BCDR International Arbitration Review Vol. 4, Issue 1 (2017) pp. 43 - 52
(accessed 28 September 2020).
86
Born, International Arbitration: Law and Practice, op. cit, p. 173.
87
Sandifer, D.V., Evidence Before International Tribunals (Charlottesville, 1975), p. 197.
all preliminary matters, including jurisdictional objections (if raised). By
definition, a Statement of Claim is a written narrative that sets forth the facts of
the dispute, including:
(i) the parties’ names and all relevant dates, in a clear, concise

and chronological fashion;

(ii) a statement of facts supporting the claim;

(iii) clear explanation of the respondent(s)’ extent of liability;88

(iv) the legal grounds or arguments supporting the claim; and

(v) what relief(s) (e.g., the amount of money damages, specific

performance, interest, etc.) is/are requested, together with the amount
ofall quantifiable claims.89

It should be accompanied with all the documents, witness statements, expert

reports (if appropriate), exhibits, and legal authorities (where desirable).

It should be noted that the requirement to file Written Statement of Claims in

Tanzania is not expressly stated in the substantive arbitration laws Rather it is
explicitly (or implicitly) contained arbitration rules recognizing the essence of
written submissions on claim. Explicitly, Rule 9.0 of the NCC Arbitration
Rules recognizes the need for the parties to file their respective pleadings with
a prescribed time limit.

Usually, the timeframe within which the claimant is required to file its Written
Statement of Claim is prescribed in the arbitral rules of the relevant institution,
or it may be determined by the tribunal. In particular, Rule 9.2 of the NCC
Arbitration Rules obliges the claimant to send to the arbitrator the Statement of
Claim within 14 days of the notification of appointment of the arbitrator.

2.7.2 Respondent’s Written Statement of Defence

Upon receiving the claimant’s Written Statement of Claim, the respondent is
required to file its Written Statement of Defence in reply to the claim. In
principle, a Written Statement of Defence is a legal document that answers or

88
If the claim is filed against more than one respondent, the text of Statement of Claim should
contain an explanation of how and why each of the respondents is liable.
89
Rule 9.2 of the NCC Arbitration Rules.
replies to specific allegations that have been filed against the respondent in a
claimant’s Written Statement of Claim. It is usually prepared after the
respondent has thoroughly read the claim against him again, done wide
research on the legal and factual issues raised in the claim, and developed a
general defence strategy.

Both in principle and practice, the Written Statement of Defence in reply to the
claim is required to provide specific responses to each of the claims, deny each
allegation (by expressly saying “it is wrong”, “rejected”, “denied”,
“misconceived” or “misplaced”). In addition, the respondent should
categorically assert its legal defence(s). By doing so, the respondent should be
able to show how its actions were not in violation of the law and further that
the claimant is trying to mislead the arbitral tribunal.

Like the Written Statement of Claim, the Written Statement of Defence should
set forth the details of the dispute and the respondent’s line of defence on each
allegation, including stating:
(i) all parties’ descriptions (names, address, legal status, etc.) in the
respondent’s own version;
(ii) all relevant dates, in a clear, concise and chronological fashion;
(iii) clear explanation of the claimant in the respondent’s understanding
and the extent of liability or lack of it;90
(iv) the legal grounds or arguments supporting the defence;
(v) the respondent’s comments as to the place of arbitration, the
applicable law and the language of the arbitration; and
(vi) what relief(s) the respondent might request against the claimant (e.g.,
the amount of money damages, specific performance, interest, etc .).91

It should as well be accompanied with all the documents, witness statements,

expert reports, exhibits, and legal authorities upon which the respondent will
rely in its defence. It should be noted that, in certain circumstances, the Written
Statement of Defence may affirm certain facts presented in the Written
Statement of Claim, and it may also introduce additional facts, and defences,
other than those advanced in the Written Statement of Claim.

2.7.3 Counter-Claim
Where the respondent has specific claims against the claimant, it shall include a

90
See specifically Rule 9.3 of the NCC Arbitration Rules.
91
Ibid.
Counterclaim in the Written Statement of Defence.92 The Counterclaim usually
provides:
(i) a description of the dispute giving rise to the counterclaim(s); 93 and
(ii) a statement of the relief sought, including, to the extent possible, a
sign of any amount(s) counterclaimed.

It should be noted Rule 9.3 of the NCC Arbitration Rules requires the
respondent to send to the arbitrator(s) a copy of its defence within 21 days of
the receipt of the statement of case. Nevertheless, the respondent may be given
an extension of time within which to file its defence ‘for sufficient cause.’

2.7.4 Claimant’s Reply to the Written Statement of

Defence (and Counterclaim)
The practice in Tanzanian arbitration institutions relating to the filing of a
further reply by the claimant to the Written Statement of Defence mirrors the
inherent practice in many international arbitration institutions. It is an inherent
practice of international law that, where it desires to do so, the claimant may
file a reply to the defence, including a defence to counterclaim (if any). The
reply is limited to allegations or facts pleaded by the respondent that the
claimant deems important to make a response to or clarification on. Where the
claimant does not deem it to be desirable to file a reply to the defence, it may
do so.

In case of a counterclaim being raised by the respondent in his defence, the

claimant is required to file its defence against it 94 because a counterclaim is
both substantively and procedurally regarded as a fresh claim or as ‘if it were a
statement of case’ against the claimant. 95 Derived from civil litigation, the
counterclaim is commonly treated as a fresh claim against the claimant to
which a sufficient defence is required to be filed by the claimant. In principle, a
defence to a counterclaim is preferred ‘ as a defence is to be set out in the
statement of defence.’96 Specifically, the counterclaim should state, which of
the facts and contentions of law in the statement of counterclaim it admits or
denies on what grounds, and on what other facts or contentions of law it relies.

92
Ibid.
93
Ibid.
94
Rule 9.3-9.5 of the NCC Arbitration Rules.
95
Ibid, Rule 9.3.
96
Ibid.
Because a counterclaim is treated as a fresh claim against the claimant, once
the claimant files its defence, the respondent will also may submit a statement
of reply to counterclaim. The contents of this reply are essentially the same as a
reliability to the Written Statement of Defence.

2.7.5 Respondent’s Rejoinder

The practice of some international arbitral tribunals, including ICSIDbased
ones, the respondent may be given a further and last opportunity to file its reply
to the claimant’s reply. This is called a rejoinder which provides further and
additional explanation on facts, witness statements, documents, exhibits and
legal authorities advanced by the claimant. Although this is not explicit in
many arbitration rules in Tanzania, arbitral tribunals do still adopt such
procedural step where appropriate.

Chapter Three: Other Written

Documents in Arbitral Proceedings
3.1 Introduction
As noted above, international and domestic arbitration is a document- reliant
mode of dispute settlement. Because most of the commercial and investment
disputes settled through arbitration are based on voluminous documents (e.g.
international investment agreements, bilateral investment treaties, construction
contracts, etc.), the parties usually append to the pleadings or subsequent to the
pleadings a number of documents (e.g. witnesses statements, expert reports,
and exhibits). These documents are considered herein below.

3.2 Witness Statements and Expert Reports

One of the commonly salient features of arbitration is the filing of written
witness statements together with the pleadings. Although not traditionally and
historically common in many common law and civil law systems, witness
statements are widely recognised by international arbitration rules. Written
witness statements are usually statements that are written, signed and attested
by the respective witnesses. They set out the witness’ direct testimony ‘on the
issues to which the party proffering witness wishes to rely.’ To be more
precise, Article 4(5) of the IBA Rules on the Taking of Evidence sets out the
specific contents of a witness statement in international arbitration: (i) the full
name and address of the witness;
(ii) a statement regarding the witness’ present and past relationship (if any)
with any of the Parties;
(iii) a description of his or her background, qualifications, training and
experience (if such a description may be relevant to the dispute or to the
contents of the statement);
(iv) a full and detailed description of the facts, and the source of the
witness’s information as to those facts, sufficient to serve as that
witness’s evidence in the matter in dispute;
(v) where the witness relied on documents that have not already

been submitted, such documents should be attached to the witness

statement;
(vi) a statement as to the language in which the Witness Statement was
originally prepared and the language in which the witness anticipates
giving testimony at the Evidentiary Hearing;
(vii) an affirmation of the truth of the Witness Statement; and (viii) the
signature of the witness and its date and place.

Who is a witness in arbitration? According to Article 27(2) UNCITRAL

Arbitration Rules (2010), witnesses (including expert witnesses), who are
presented by the parties to testify to the arbitral tribunal on any issue of fact or
expertise ‘may be any individual, notwithstanding that the individual is a party
to the arbitration or in any way related to a party.

There are mainly two types of witnesses invited to give testimony in arbitral
proceedings in arbitration institutions: (i) fact witnesses; and (ii) expert
witnesses, who may either testify on liability or quantum involved in the claim
or counterclaim.

3.2.1 Fact Witness Statements

Fact witnesses are normally persons who possess factual knowledge of the
facts, allegations and issues concerning the dispute in arbitration. Like in civil
and criminal litigation, fact witnesses constitute the central feature in events
taking place in most evidentiary hearing in arbitration. At the evidentiary
hearing, fact witnesses are examined by the parties - mainly, through
examination-in-chief/direct examination, cross-examination, and re-
examination/redirect - in order for the parties to elicit relevant information or
facts concerning their 97 testimony.97

The common approaches and practice in arbitration are such that, before they
are called upon to appear before the arbitral tribunal for examination during
evidentiary hearing, fact witnesses should have filed their respective “ Witness
Statements”.98 These statements are normally filed together with the respective
party’s pleading(s), or at some other stage before evidentiary hearing upon the
permission of the tribunal. This assists many tribunals to avoid “surprise” or
“ambush” testimony by parties during evidentiary hearing. For that matter,
parties are required to provide ‘written witness statements or to identify
witnesses and the substance of their witness before the hearing.’ 99 Notably,
many arbitral tribunals and institutional arbitration rules do not permit a party,
except in extraordinary circumstances, to adduce testimony from a previously-
unidentified witness, during the evidentiary hearing. 100 Equally, significant
direct testimony not mentioned in a witness statement is viewed with caution.101

Although the manner in which fact witness evidence is presented at the hearing
depends on legal backgrounds of the tribunal and counsel for the parties, the
IBA Rules on the Taking of Evidence provide a common procedural approach.
Through these Rules, a party is at liberty to identify whatever witnesses it
wishes to support its case. 102 Then, a party will have to submit written witness
statements. Such written witness statements set forth the direct evidence of the
respective witnesses. The other party may also present written witness
statements in opposition of the opponent’s witnesses.

At the end, the witness will appear before the tribunal for examination. Where
a witness who submitted a written witness’ statement fails to appear during the

97
Examination of witnesses is a question-and-answer process whereby a witness, who is called to
testify in court or arbitral tribunal, is asked questions by both parties concerning his knowledge
about a fact or set of facts forming part of the (legal) dispute before the court or tribunal. For a
seminal discussion on this issue, see generally Lubet, S., Modern Trial Advocacy (2nd edn.)
(Indiana: National Institute of Trial Advocacy, 1997); and Mashamba, C.J., Advocacy Skills in
Civil Litigation (Dar es Salaam: Theophilus Enterprises, 2018), p. 79.
98
The IBA Rules on the Taking of Evidence define a “Witness
Statement” as ‘a written statement of testimony by a witness
of fact.’
99
Born, op. cit, p. 176.
100
Ibid.
101
Born, G.B., International Commercial Arbitration (2nd edn.) (2014), pp. 2253-54, and 275-77.
102
Rule 24(c) of the EACJ Arbitration Rules.
evidentiary hearing, the tribunal will disregard the statements.103

3.2.2 Expert Witness Reports

Because commercial and investment treaty arbitration concerns complex and
many claims arising out of different technical aspects of international
investment, business and commerce; it sometimes requires the help of expert
witnesses in their diverse areas of expertise. It is based on this reality that many
institutional arbitration rules and practice allow the participation of expert
witnesses, who may be appointed by either each party or the tribunal.

There are two approaches of securing expert witnesses in arbitration: (i) party-
appointed experts, and (ii) tribunal-nominated experts. So, in the course of the
arbitral proceedings, the arbitral tribunal may receive one or both of the two
types of expert reports: (i) party-appointed expert witness report; and (ii)
tribunal-appointed witness report, as considered below.

(a) Party-Appointed Expert Report

Unlike the fact witness, who presents a written Witness Statement, an expert
witness presents an Expert Report. So, a party-appointed Expert Report, in
terms of Rule 5 (2) (a)- (i) of the IBA Rules on the Taking of Evidence,
contains the following details:
(i) the full name and address of the Party-Appointed Expert, a statement
regarding his or her present and past relationship (if any) with any of
the Parties, their legal advisors and the Arbitral Tribunal, and a
description of his or her background, qualifications, training and
experience;
(ii) a description of the instructions under which he or she is providing his
or her opinions and conclusions;
(iii) a statement of his or her independence from the Parties, their legal
advisors, and the Arbitral Tribunal;
(iv) a statement of the facts on which he or she is basing his or her expert
opinions and conclusions;
(v) His or her expert opinions and conclusions, including a description of
the methods, evidence and information used in arriving at the
conclusions. Documents on which the Party- Appointed Expert relies
that have not already been submitted shall be provided;
(vi) if the Expert Report has been translated, a statement as to the language
in which it was originally prepared, and the language in which the
103
Rule 4(7) and (8) of the IBA Rules on the Taking of Evidence.
 Party-Appointed Expert expects giving testimony at the Evidentiary
Hearing;
(vii) an affirmation of his or her genuine belief in the opinions expressed in
the Expert Report;
(viii) the signature of the Party-Appointed Expert and its date and place; and
(ix) if the Expert Report has been signed by more than one person, an
attribution of the entirety or specific parts of the Expert Report to each
author.

In addition to the initial Expert Reports submitted to the tribunal, any party
may, within the time ordered by the arbitral tribunal, submit to the arbitral
tribunal and to the other parties revised or additional Expert Reports. Such
additional Expert Report may include reports or statements from persons not
previously identified as party-appointed experts, ‘so long as any such revisions
or additions respond only to matters contained in another Party’s Witness
Statements, Expert Reports or other submissions that have not been previously
presented in the arbitration.’104

(b) Tribunal-Appointed Witness Report

Tribunal-appointed expert witnesses are appointed by the tribunal after
consulting with the parties, with clear terms of reference being prepared and
sent to the parties. In so doing, the tribunal may appoint one or more
independent tribunal-appointed experts to report to it on specific issues
designated by the arbitral tribunal.105 It should be stressed here that tribunal-
appointed experts must be impartial and independent of the parties throughout
the arbitration proceedings in order to avoid compromising their objectivity and
integrity.
Like the party-appointed expert witness, a tribunal-appointed expert witness is

104
Article 5(3) of the IBA Rules on the Taking of Evidence.
105
Section 39(1) of the 2020 Arbitration Act provides that:
‘Unless otherwise agreed by the parties-
(a) the arbitral tribunal may-
(i) appoint experts or legal advisers to report to it and the parties; or
(ii) appoint assessors to assist it on technical matters, and may allow any such expert,
legal adviser or assessor to attend the proceedings; and
(b) the parties shall be given a reasonable opportunity to comment on any information,
opinion or advice offered by any such person.’
It should be noted, unlike most of the international arbitration rules, Section 39(2) of the Tanzania
Arbitration Act requires the fees and expenses of an expert, legal adviser or assessor appointed by
the arbitral tribunal for which the arbitrators are liable to ‘be expenses borne by the arbitrators for
the purposes of this Act.’
also required to submit his written report to the tribunal. 106 In the main, the
tribunal-appointed Expert Report should contain:

(i) the full name and address of the tribunal-appointed expert, and a
description of his or her background, qualifications, training and
experience;
(ii) a statement of the facts on which he or she is basing his or her expert
opinions and conclusions;
(iii) his or her expert opinions and conclusions, including a description of
the methods, evidence and information used in arriving at the
conclusions. Documents on which the tribunal- appointed expert relies
that have not already been submitted shall be provided;
(iv) if the Expert Report has been translated, a statement as to the language
in which it was originally prepared, and the language in which the
tribunal-appointed expert anticipates giving testimony at the
Evidentiary Hearing;
(v) an affirmation of his or her genuine belief in the opinions expressed in
the Expert Report;
(vi) the signature of the tribunal-appointed expert and its date and place;
and
(vii) if the Expert Report has been signed by more than one person, an
attribution of the entirety or specific parts of the Expert Report to each
author.107

It is common practice in many arbitral tribunals, including those seated under

the auspices of the Tanzanian arbitration institutions, that, after receiving the
Expert Report, the arbitral tribunal should send a copy of such report to the
parties.108 The Parties may examine ‘any information, documents, goods,
samples, property, machinery, systems, processes or site for inspection that the
tribunal-appointed expert has examined and any correspondence between the
arbitral tribunal and the tribunal-appointed expert.’ 109

After examining the Expert Report, any party shall have the opportunity to
respond to the Expert Report in a submission by the party or through a Witness

106
Rule 6(4) of the IBA Rules on the Taking of Evidence provides expressly that: ‘The Tribunal-
Appointed Expert shall report in writing to the Arbitral Tribunal in an Expert Report.’
107
Rule 6(4)(a)-(g) of the IBA Rules on the Taking of Evidence.
108
Ibid, Rule 6(5).
109
Ibid.
Statement or an Expert Report by a party- appointed expert. Such response
should be made and submitted to the tribunal within the time ordered by the
arbitral tribunal. Thereafter, the arbitral tribunal should send such response (i.e.
submission, Witness Statement or Expert Report) to the tribunal-appointed
expert and to the other parties. 110 Through inherent practice, many arbitral
tribunals adopt a flexible approach in receiving additional information or
evidence from the expert witness at any time during the proceedings.

3.3 Exhibits
Exhibits are “documents”111 or objects that very crucial in any litigation,
arbitration or criminal prosecution process in that they help the party relying
upon them to prove or disprove facts relevant to the dispute. Exhibits are
usually annexed to all written documents submitted by the parties and
witnesses to the arbitral tribunal - i.e. Written Statement of Claim, Written
Statement of Defence, Replies and Rejoinders, as well as written submissions.
They also include copies of legal authorities,112 expert witness reports, and
witness statements.

Exhibits are normally attached in copy form and should be numbered

individually, sequentially, and consecutively throughout the proceeding. 113 It is
now a common practice in many arbitration institutional rules to require the
numbers of exhibits to be typically preceded by the letter "C-" for the
claimant's exhibits and "R-" for the respondent's exhibits.114 Legal authorities
also are number in the same manner as other exhibits, but the numbers are
typically preceded by the letters "CL-" or "CLA-" for the claimant's authorities

110
Ibid.
111
The IBA Rules on the Taking of Evidence define a “document” to mean ‘a writing,
communication, picture, drawing, program or data of any kind, whether recorded or maintained on
paper or by electronic, audio, visual or any other means.’ Under Section 3(1) of the Evidence Act,
Cap. 6 R.E. 2002, a “document” means ‘any writing, handwriting, typewriting, printing, photostat,
photograph and every recording upon any tangible thing, any form of communication or
representation by letters, figures, marks or symbols or by more than one of these means, which may
be used for the purpose of recording any matter provided that such recording is reasonably
permanent and readable by sight.’
112
These are sources of law (text of law, doctrine or jurisprudence) that the parties ‘rely upon to
prove relevant points of law related to the dispute.’ https://icsid.worldbank.org/node/12271
(accessed 25 September 2020).
113
FINRA, Arbitration Claim Filing Guide (New York: FINRA Dispute Resolution, January
2017), p. 4. Available at https://www.finra.org/sites/default/files/arbitration-claim-filing- guide.pdf
(accessed 24 September 2020).
114
https://icsid.worldbank.org/node/12271 (accessed 25 September 2020).
and "RL-" or "RLA-" for the respondent's authorities.115

3.4 Discovery and Document Production

In the common law tradition, discovery is an essential part of a civil procedure
that encompasses document production. At the common law, discovery is a
prelude to an adversarial contest before a judge ‘whose role it is to see fair play
and then determine (either himself or with a jury) the victor.’ The rationale for
discovery proceeds on the premise that the adversarial contest ‘can only be fair
if both sides have access, as far as possible, to the same materials.’ A party
‘must produce documents not only that it intends to rely upon but also those,
which damage its own case.’ It is, therefore, perceived that ‘without this
advance exchange of materials the fundamental basis of the adversarial fight is
undermined.

In arbitration, document discovery is undertaken either pursuant to voluntary

agreement by the parties or by order of the arbitral tribunal. In arbitration, there
is no automatic right to disclosure in arbitration and parties usually seek leave
of the tribunal to obtain procedural orders providing for disclosure. Normally,
the timing for and format of any disclosure ‘will be set forth in advance in
procedural orders from the tribunal (or, less frequently, agreement(s) between
the parties).

When demanding disclosure or discovery of documents from their opponents,

the parties will have to explain, normally in a matrix form, the type of the
documents, its nature, relevance and materiality to the facts or defined issues.
The tribunal will then have to determine disclosure requests from and
objections by the parties - i.e. agreeing to the disclosure or upholding an
objection to the disclosure request. In certain cases, national law allows either
the parties or the tribunal116 to seek judicial assistance in obtaining coercive
discovery, or preservation of evidence.117

115
Ibid.
116
Section 46(3) (3) of the 2020 Arbitration Act provides that: ‘Where the case is one of urgency,
the court may, on the application of a party or proposed party to the arbitral proceedings, make
such orders as it thinks necessary for the purpose of preserving evidence or
assets.’
117
Ibid, Section 46(2)(b).
3.5 Payment of Advance on Arbitration Costs
or Deposits
Being voluntary and consensual, arbitration is an ADR process that is
embarked upon at the instance of the parties in a civil dispute. However, this
consensual pursuit of the arbitration process has cost implications, which are
borne by the parties.118 Basically, the costs cover fees for arbitrators and
tribunal administration; or any other incidental to the arbitration process.
It is a generally accepted that once a tribunal is duly constituted, the parties are
generally required to pay an advance on costs towards the fees of the arbitrators
and tribunal fees.119 Indeed, this payment is paramount ‘for the purpose of
securing in advance the financial resources necessary for carrying out the
arbitration procedure.’120 The advance on costs is a part of advance payments,
along with a filing fee and a provisional advance, which are usually deposited
by the claimant and recovered in due course on a pari passu basis amongst the
parties (i.e. at the same rate or on an equal footing). However, it is a generally
accepted practice that where one party fails to pay advance fees or deposits, the
other may do so on its behalf so that the arbitration will proceed and such
advance is recoverable in the final award.121

Chapter Four: Preliminary Proceedings

in Arbitration
4.1 Introduction
Like in civil litigation, in arbitral proceedings parties may make preliminary
applications or requests before the commencement of Evidentiary Hearing.
When such applications are made, the arbitral tribunal is required to first
determine such preliminary matters before proceeding to Evidentiary Hearing.
In this Chapter, therefore, we highlight some common preliminary issues raised
in arbitral proceedings: jurisdictional objections, and provisional, protective or
118
In particular, Section 30(1) of the Arbitration Act imposes liability, jointly and severally, on
the parties ‘to pay the arbitrators any reasonable fees and expenses as are appropriate in the
circumstances.’ This provision is also reflected in Rule 14.1 of the NCC Arbitration Rules, which
states that: ‘From the commencements of the arbitration, all the parties shall be jointly an severally
liable to the National Construction Council for [arbitration] costs until they are paid.’
119
Born, International Arbitration: Law and Practice, op. cit, p. 171.
120
Mitrovic, D., “Advance to Cover Costs of Arbitration,” ICC Bulletin, Vol. 7, No. 2, 1996, p.
88.
121
See, for example, Rule 36(5) of the 2012 ICC Arbitration Rules.
conservatory measures. After determining such applications, the arbitral
tribunal is required to decide or provisional award.

4.2 Jurisdictional Objection

4.2.1 Party’s Right to Raise Jurisdictional Objection

Like in domestic civil litigation, in arbitration, parties are entitled to challenge
the jurisdiction of the arbitral tribunal to arbitrate the concerned dispute. Such
challenge to jurisdiction is through preliminary objection and may either be
raised before the arbitral tribunal itself or to a domestic court of law.
Jurisdictional objection is always considered by the arbitral tribunal through the
universally accepted general rule of law requiring the tribunal to rule on its
own jurisdiction, under the principle of Kompetenz-Kompetenz, which is
almost embedded in Tanzania.

4.2.2 Tribunal’s Authority to Rule on Jurisdictional

Objection
Domesticating the Kompetenz-Kompetenz principle from international
arbitration law,122 the Tanzanian arbitration law confers power on the tribunal
to rule on its own jurisdiction on several grounds, including:
(i) whether there is an arbitration agreement;123
(ii) whether there is a valid arbitration agreement;124
(iii) Whether the arbitral tribunal is properly constituted;125 and
(iv) what matters shall be submitted to arbitration under the arbitration
agreement.126

4.2.3 Timing of Jurisdictional Objection

Generally, an objection that the arbitral tribunal lacks substantive jurisdiction is
raised by a party at the outset of the proceedings, not later than the time he
takes the first step in the proceedings to contest the merits of any matter in
122
For example, Article 23(1) of the 2010 UNCITRAL Rules provides that: ‘The arbitral tribunal
shall have the power to rule on its own jurisdiction, including any objections with respect to the
existence or validity of the arbitration agreement.’ In addition, the 2012 ICC Rules provide that: ‘In
all matters decided by the Court under Article 6(4), any decision as to the jurisdiction of the arbitral
tribunal, except as to parties or claims with respect to which the Court decides that the arbitration
cannot proceed, shall then be taken by the arbitral tribunal itself.’
123
See particularly Section 32(1)(a) of the Tanzania Arbitration Act.
124
Ibid
125
Ibid, Section 32(1)(b).
126
Ibid, Section 32(1)(c).
relation to which he challenges the arbitral tribunal’s jurisdiction. However, a
party shall not be precluded from raising such an objection because he has
appointed or taken part in the appointment of an arbitrator.

In addition, a plea that the arbitral tribunal is exceeding the scope of its
authority should be raised as soon as the matter alleged to be beyond its
authority is raised during the arbitral proceedings. Nonetheless, in both cases
above, the arbitral tribunal may admit a later plea of jurisdictional objection ‘if
it considers the delay justified.’

4.2.4 Tribunal’s Authority to Bifurcate

As a matter of general rule, the arbitral tribunal may rule on a plea of
jurisdictional objection either as a preliminary question (which is akin to
“bifurcation”) or in an arbitration award on the merits. In both international and
domestic arbitration, the tribunal’s decision on whether it has jurisdiction is
referred to as “bifurcation.” Bifurcation refers to splitting an arbitration into
two separate phases-i.e. splitting jurisdiction issues from the merits. Bifurcation
of arbitral proceedings helps in an efficient organization of arbitral
proceedings, serving time and costs in legal and arbitrators’ fees and
administrative expenses.

Usually, it is common practice for the parties to agree to bifurcate; but if they
do not agree, the tribunal may decide whether to bifurcate. 127 Bifurcation will
normally separate preliminary issues (such as jurisdiction and choice of law)
from the merits (i.e. liability and damages). The consequences of bifurcation
are such that: (i) where the tribunal bifurcates by dismissing the proceedings
for lack of jurisdiction, the matter will be end there and the party will not brief
the tribunal on the merit;128 but, (ii) where the tribunal bifurcates it has
jurisdiction, the parties ‘must then embark on new separate merits procedure,
extending the overall arbitral calendar and increasing costs sub substantially.’129

It should be noted that, it is a well-established principle and practice of

arbitration that where an arbitral tribunal bifurcates on whether it has
jurisdiction to determine the matter, an aggrieved party may raise such
127
Born, ibid (pointing out that: ‘Bifurcating a case requires particular care, to avoid ambiguity or
confusion about definitional issues (e.g., what exactly is included in a “liability” or a “damages”
phase?)’.)
128
Carlson and Childress, op. cit (pointing out that when the tribunal bifurcates by dismissing the
proceedings it serves time and costs on the parties).
129
Ibid.
grievance to a court for further determination.130

4.3 Interim Measures in Arbitral Proceedings

Like in civil litigation, in arbitration, “provisional, protective or conservatory
measures” play a very significant role in protecting a party to arbitral
proceedings from loss or damage during the pendency of arbitral
proceedings.131 Normally, provisional measures can be granted by either the
arbitral tribunal132 or the court.133 It should be noted that both the arbitral
tribunal and the court have limited authority to grant such measures in order to
avoid overriding the party’s autonomy in managing arbitral proceedings.134

130
Indeed, Article 5 of the UNCITRAL Model Law contains an exception to the general rule that
courts should not intervene in arbitral proceedings. This exception allows limited court intervention
in arbitral proceedings where it is so provided in this Law. For that matter, Article 6 of this Law
allows “specified courts” to perform the functions referred to in Articles 11(3), 11(4), 13(3), 14,
16(3) and 34(2) of the Model Law. Such functions are: (i) court’s intervention where parties fail to
freely to agree on a procedure of appointing the arbitrator or arbitrators [Article 11(3)]; (ii) where a
party fails to act as required under agreed procedure, or the parties/two arbitrators are unable to
reach an agreement expected of them under agreed procedure, or a third party, including an
institution, fails to perform any function entrusted to it under such procedure [Article 11(4)]; (iii)
where a challenge under any procedure agreed upon by the parties is not successful [Article 13(3)];
(iv) arbitrator’s failure or impossibility to act [Article 14]; (v) arbitral tribunal’s ruling that it does
not have jurisdiction [Article16(3); and (vi) tribunal’s ruling on a party’s request for it tribunal to
correct in the award any errors in computation, any clerical or typographical errors or any errors of
similar nature [Article 34(2)].
131
See generally Mohmeded, S., “A Critical Analysis of Arbitral Provisional Measures in England
and Wales,” Ph.D. Thesis, School of Law, Brunel University, 2014.
132
Article 17 of the UNCITRAL Model Law provides that
133
Born, op. cit, p. 209.
134
For example, the arbitrator’s authority to grant interim measures is limited to the parties only
because he cannot grant such measures against a third party to the proceedings. Whereas the court’s
authority to intervene in arbitral proceedings is limited for certain reasons, the arbitral tribunal
lacks direct authority to enforce its interim measures in which case it has to seek the intervention of
the court. Under the Tanzania Arbitration Act, the court’s authority to intervene in arbitral
proceedings is limited to: (i) extension of time in relation to commencement of arbitral proceedings
(Sections 15, 16 and 84); (ii) service of documents (Section 82); (iii) attendance of witnesses
(Section 46); and (iv) enforcement of arbitral awards (Sections 68-74 and 78-80). Inherently, the
court has authority to grant interim measures in terms of Section 2(3) of Judicature and Application
of Laws Act, Cap. 358 R.E. 2002. See, for example, Overseas Infrastructure Alliance (India) Pvt.
Ltd. v. Permanent Secretary, Ministry of Water and Irrigation & A.G., High Court of Tanzania at
Mtwara, Misc. Civil Application No. 2 of 2019; Monaban Trading & Farming Co. Ltd. v. The
Cereals and Other Produce Board of Tanzania, High Court of Tanzania at Arusha, Misc. Civil
Application No. 61 of 2019 (Unreported); Regional Manager, TANROADS v. DB Shapriya & Co.
Ltd., High Court of Tanzania (Commercial Division) Misc. Commercial Case No. 6 of 2010
(Unreported); Tanganyika Game Fishing & Photographing Ltd. v. The Director of Wildlife & A.G.,
High Court of Tanzania at Dar es Salaam, Misc. Civil Cause No. 42 of 1998 (Unreported); and
Tanzania Sugar Producers Association v. Minister of Finance, High Court of Tanzania
(Commercial Division) Misc. Civil Cause No. 25 of 2003 (Unreported).
4.3.1 The Scope and Purpose of Measures in Arbitral
Proceedings
Provisional measures are designed to protect parties or property during the
pendency of arbitral proceedings.135 In arbitration, “provisional, protective, or
conservatory measures” are orders issued for the purpose of protecting one or
both parties to a dispute from damage during the arbitral process. According to
Article 17 (2) (a)- (d) of the UNCITRAL Model Law, a provisional, protective
or conservatory measure is any temporary measure, whether in the form of an
award or in another form, by which prior to issuing the award by which the
dispute is finally decided, the arbitral tribunal or court orders a party to:
(i) Maintain or restore the status quo136 pending determination of
the dispute;
(ii) Take action that would prevent, or refrain from taking action likely to
cause current or imminent harm or prejudice to the arbitral process
itself;
(iii) Provide a means of preserving assets out of which a subsequent award
may be satisfied;137 or
(iv) Preserve evidence that may be relevant and material to resolving the
dispute.

Most often, provisional measures are ‘intended to preserve a factual or legal

situation to safeguard rights the recognition of which is sought from the
[tribunal] having jurisdiction as to the substance of the case.’ 138 Provisional
measures can extend beyond merely preserving the factual or legal status quo,
to require restoring a previous state of affairs or taking new actions.139

135
Some of the institutional arbitration rules providing for provisional or interim relies are
Article 26 of the UNCITRAL Rules; Article 28 of the ICC Rules; and Article 25 of the LCIA
Rules.
136
In Overseas Infrastructure Alliance (India) Pvt. Ltd. v. Permanent Secretary, Ministry of Water
and Irrigation & A.G., op. cit (at pp. 12-3 of the typed judgment), Dyansobera, J., defined the term
“status quo” to mean ‘the existing state of affairs; specifically the last, actual and uncontested state
of affairs that preceded a controversy and which is to be preserved by an order of the court.
Maintenance of status quo [_] is geared at preventing irreparable damage or change [to the subject
matter] before the legal questions are determined.’
137
Under Section 46(2)(b) of the Tanzania Arbitration Act, the court has power to make an
interim order for the preservation of evidence pending determination of arbitral proceedings.
138
https://lawexplores.com/10-provisional-measures-in-international-arbitration/ (accessed 28
September 2020).
139
Ibid.
4.3.2 Conditions Precedent for Granting Interim
Measures
Article 17A(1)(a) and (b) of the UNCITRAL Model Law sets out the
conditions precedent for granting interim measures. 140 In particular, this
provision stipulates that a party requesting an interim measure should satisfy
the arbitral tribunal or court that:
(i) Harm not adequately reparable by an award of damages is likely to
result ‘if the measure is not ordered’;
(ii) Such harm ‘substantially outweighs the harm likely to result to the
party against whom the measure is directed if the measure is granted’;
and
(iii) There is a reasonable possibility that the requesting party will

succeed on the merits of the claim.141

4.3.3 Legal Basis of Granting Interim Measures

The 2020 Arbitration Act expressly provides for the court’s authority to
provide provisional measures such as preservation of evidence or assets and the
grant of injunction or the appointment of a receiver pending the determination
of arbitral proceedings. In addition, the parties’ arbitration agreement may
confer such authority. Such authority may be applied as part of the law
applicable to the arbitration (i.e. the arbitration law of the arbitral seat). Case
law in Tanzania has also allowed for courts to issue interim or conservatory
orders pending the determination of arbitral proceedings based on Order
XXXVII Rule 2 of the CPC and Section 2(3) of Judicature and Application of
Laws Act.

4.4 Interim or Provisional Awards

Simply defined, an “interim award” or “provisional award” is an award subject
to a final determination at a later stage, 142 and it is intended to be effective for a
140
Notably, these conditions precedent to the grant of interim measures in arbitration are akin to
those applicable in the grant of interlocutory/injunctive orders in our civil litigation as were
profoundly stated in Atilio v. Mbowe [1969] HCD n. 248; and restated in a number of subsequent
authorities.
141
Article 17A(1) (b) of the UNCITRAL Model Law (providing that: ‘’The determination on this
possibility should not affect the discretion of the arbitral tribunal in making any subsequent
determination.’).
142
Hope, J., “Awards: Form, Content, Effect,” in Rowley, J.W. (ed.), The Guide to Challenging
and Enforcing Arbitration Awards (1st edn.) (Law Business Research, 2019). Available at
https://globalarbitrationreview.com/edition/1001323/the-guide-to-challenging-and-enforcmg-
arbitration-awards-first-edition (accessed 29 September 2020).
limited period.143 It is an award that is frequently granted in arbitration disputes
arising from industries such as construction that require immediacy of remedies
in order to give parties an opportunity to perform other contractual obligations
while the dispute is pending.

Section 41 (1) of the Tanzania Arbitration Act allows the parties to agree that
the arbitral tribunal should have powers ‘to order on a provisional basis any
relief which it would have powers to grant in a final award.’ It should be noted
from the outset that where the parties do not agree to confer such powers on the
arbitral tribunal, the arbitral tribunal ‘shall not have powers to grant provisional
award.’144 Such relief includes making: (i) a provisional order for the payment
of money or the disposition of property as between the parties; 145 or (ii) an
order to make an interim payment on account of the costs of the arbitration. 146
Therefore, the arbitral tribunal’s last award in relation to merits or cost shall
take into account the provisional order made during the pendency of the arbitral
proceedings.147

One of the practical questions raised quite often is: can an interim or
provisional award be enforced during the pendency of the arbitral proceedings?
While Article V(1)(e) of the New York Convention requires an arbitral award
to have become binding, an interim award is generally considered to be
unenforceable.148 However, courts in common law jurisdictions have held that
an interim order by an arbitral tribunal, can be enforced as an award if it finally
and definitely disposed of a self-contained issue.149

143
See a decision of the Singapore High Court in PT Perusahaan Gas Negara (Persero) TBK v.
CRW Joint Operation (Indonesia) & Another Matter [2014] SGHC 146 (‘PGN v. CRW).
144
Section 41(4) of the Tanzania Arbitration Act.
145
Ibid, Section 41(2)(a).
146
Ibid, Section 41(2)(b).
147
Ibid, Section 41(3).
148
Hope, op. cit.
149
See, for example, PGN v. CRW, op. cit; Island Creek Coal Sales Company v. City of
Gainesville Florida (1985), 729 F2d 1046, USCA, 6th Circuit; and Yahoo! v. Microsoft
Corporation, 983 F. Supp 2d 310 (SDNY 2013).