ENFORCEMENT OF FOREIGN MONEY JUDGMENTS AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN TANZANIA

The enforcement of foreign judgments in Tanzania is governed by the Reciprocal Enforcement of Foreign Judgment Act [Cap 8 R.E. 2002], the Act stipulates the registration and execution of foreign money judgments with countries that have been listed in the Act which Tanzania has reciprocal enforcement arrangements, these countries are Australia (New South Wales), Botswana, Lesotho, Mauritius, Seychelles, Somalia, Sri Lanka, Swaziland, United Kingdom and Zambia.

ENFORCEMENT OF FOREIGN MONEY JUDGMENTS

Tanzania is not a party to international treaties in regards to enforcement of foreign money judgments. The listed countries above are designated for reciprocal enforcement as provided under the Reciprocal Enforcement of Foreign Judgments Act. The enforcement of a foreign judgment in Tanzania emanating from a country that Tanzania has reciprocal enforcement arrangement is through the registration of the foreign judgment in the High Court of Tanzania.

A foreign judgment will be enforced in Tanzania, once the following requisite requirements are met:-

Foreign judgment is final and conclusive between the parties and is not subject to any pending appeal;

Enforcement of the foreign judgment must not be in conflict with Tanzanian public policy;

It will be enforced if the court that pronounces the foreign judgment reciprocally enforces Tanzanian judgments;

Foreign judgment should be authenticated by the court of its origin and certified by the Ministry of Foreign Affairs of the country of origin, foreign judgment in a language other than English should be translated into English by a certified translator; and

The defendant should receive notice of the proceedings in the foreign court, the modality of service of the notice should be in conformity with the laws of the foreign court.

The Tanzanian Court will not be in the capacity to review merits of the case originating from the foreign court, its mandatoy that enforcement shall take effect after all appeals avenues have been exhausted. The process for enforcement is through filing an application for registration of the judgment at the High Court of Tanzania. The application is supposed to be supported by an affidavit stating out the facts to prove that the requirements for enforcement have been met. Upon registration, the said judgment becomes a decree capable of being executed in Tanzania.

ENFORCEMENT OF FOREIGN ARBITRAL AWARDS

In Tanzania, a foreign arbitral award is enforceable in the High Court of Tanzania in accordance with the Arbitration Act [Cap. 15]. It is treated as binding for all purposes on the parties between whom it was made. Tanzania is a party to the Geneva Convention on Execution of Foreign Awards of 1923 which is a Schedule to the Tanzania Arbitration Act and the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards having acceded to the same in 1964, however the New York Convention is yet to be domesticated into the Tanzanian laws.

In order for a foreign arbitral award to be enforceable in Tanzania, it should met the following requisite criteria:

It must be final, and is not subject to any pending appeal, it shall not deemed to be final if there is a proceedings contesting on the validity of the award in the country in which it was pronounced;

It has been made under an agreement for arbitration which was valid under its governing law;

It must have been made by the tribunal provided for in the agreement or constituted in a manner agreed upon by the parties;

It was made in conformity with the law governing the arbitration procedure;

It must have been in respect of a matter which may lawfully be referred to arbitration under the laws of Tanzania;

It must not be contrary to the public policy or the law of Tanzania;

A foreign arbitration award cannot be enforceable in Tanzania if the Court is satisfied that:

The award has been set aside in the country in which it was made;

The party against whom enforcement is sought to enforce the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case or was under some legal incapacity and was not properly represented;or

The award does not deal with all the questions referred to, or contains decisions on matters beyond scope of the agreement for arbitration. In the latter case, the High Court of Tanzania, if it thinks, either to postpone the enforcement of the award or order its enforcement subject to the person seeking enforcement giving security.

Enforcement is by way of petition to the High Court of Tanzania, the process is initiated by the filing of the original award, or a certified copy in the High Court by the arbitrator, or a person appointed by the arbitrator.

In a landmark case of Dowans vs. TANESCO, the defendant, TANESCO applied to the High Court to have an ICC arbitration award set aside. The High Court dismissed the application, stating that once parties had submitted themselves to the arbitral process one party could not challenge an arbitral award simply it did not yield a favourable result; it could do so only if the arbitral award contained errors. TANESCO appealed to the Court of Appeal, where the Court of Appeal upheld the High Court’s decision to enforce the foreign arbitral award which was issued by the International Chamber of Commerce, England.

CONCLUSION

The Dowans vs. TANESCO case sets out a notable precedent in Tanzania which to the large extent has increased and promoted Foreign Direct Investor’s confidence on the Tanzania Judicial system, the fact that the International Chamber of Commerce award was enforced by the Court of Appeal of Tanzania, any foreign arbitral award that is filed in Tanzanian Court if not set aside and meets the mentioned pre-requisites criteria is enforceable and can be duly executed as a decree, however the Arbitration legislation and rules are excessively outdated and there is a need for the same to be amended and incorporate the latest development on the alternative dispute resolution.

FURTHER INFORMATION:

This editorial is intended to give you a general over view of the Law. If you would like further information on any issue
raised in this column, please contact.

Patrick Sanga
Partner
E: p.sanga@vemmaattorneys.co.tz
M: +255 686 999 993

Bernard Nkwabi
Legal Officer
E: b.nkwabi@vemmaattorneys.co.tz
M: +255 653 374 414