Since arbitration is a consent-based dispute resolution mechanism, parties consensually agree in an arbitration clause to resort to arbitration and to be bound by the decision of the arbitral tribunal they have consensually appointed to arbitrate their dispute. This view implies that, once an arbitral award is rendered by the arbitral tribunal, an award-debtor should immediately honour it in order to signify that party’s sincere respect for the sacrosanct autonomy to consensually agree to go to arbitration. However, where the award-debtor does not voluntarily and immediately honour the arbitral award, the award-creditor is at liberty to commence recognition and enforcement proceedings in the court of competent jurisdiction. As this article contends, both under the repealed and the current arbitration legal regimes in Mainland Tanzania, there have been uncertainties as to what is the proper procedure for filing in court arbitral awards for recognition and enforcement. However, the article highlights that the current arbitration legislation, practice and caselaw have rectified this anomaly and now the procedure is clearly spelt out in the following sequence: a party should file the arbitral award in court for registration, the court should issue notice to the parties to show course why the award should not be recognised and subsequently enforced, and when the parties appear in court: (i) when they do not contest, the award should be recognised and enforced as a decree of the court, and (ii) where a party wants to challenge the award, such party will have to file a petition for challenging the same and the court would stay the proceedings for recognition and enforcement of the award pending the outcome of the petition for challenging the award. The article further notes that applications for recognition and enforcement of arbitral awards must be filed within the timeframe set out in the relevant law, otherwise the court will dismiss such application for being time-barred. Nevertheless, the article examines exceptional circumstances where an application for recognition and enforcement of an arbitral award may be entertained and granted by the court but only in its judicial discretion. Therefore, the article urges award-creditors to be mindful of both the prerequisite procedure and time-frame for filing applications for recognition and enforcement of arbitral awards, lest the same would be held incompetent and thereby prejudicing their right to realize the fruits of their respective arbitral awards.
Julius Clement Mashamba (Fri,) studied this question.