APPLICATION OF THE PUBLIC POLICY EXCEPTION TO THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN TANZANIA IN COMPARISON WITH SELECTED COMMON LAW JURISDICTIONS.

Abstract

The purpose of an arbitration agreement is that the parties should resolve their dispute amicably and through arbitration, in which case, they should readily comply with the arbitral award rendered in that arbitration process.

When parties to a dispute resort to arbitration they uphold the doctrines of  finality in its bindingness and enforceability of the arbitral award – i.e., they demonstrate a clear  intention that the arbitral tribunal will fairly and expeditiously determine the dispute and such  determination is conclusive, final, binding and enforceable. However, where the award-debtor fails to comply with the arbitral award in good faith, the award-creditor should embark on court proceedings for enforcing the arbitral award. In some instances, the court may refuse to recognise and enforce a domestic or foreign arbitral award. Such instances include where the court finds that the concerned  award was made contrary to “public policy” of a given country.

This article examines refusal of recognition and enforcement of foreign arbitral awards in Tanzania on the ground of public policy as entrenched in Section 83(5)(b) of the Arbitration Act, Cap. 15 R.E. 2020. It considers the public policy exception to the enforcement of foreign arbitral awards in Tanzania by specifically looking at the scope and applicability of this exception in domestic and international arbitration law. It draws comparative cases on public policy exception to recognition and enforcement of foreign arbitral awards as applied in other selected common law countries.

The article concludes that, courts should only interfere with arbitral awards when faced with extreme  violations of the public policy exception; and should not use the public policy exception as an excuse  to dig into the merits of the arbitral award.