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

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 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 arbitrators, and immunity of arbitrators.

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 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 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 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 it⁹⁴ 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.

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.

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 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.

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 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 grievance to a court for further determination.¹³⁰

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

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.

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).

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 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.

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).

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).

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.

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).

29 Ibid, Section 25(3).

30 Ibid, Section 25(4)(a).

31 Ibid, Section 25(4)(b).

32 Ibid, Section 26(1).

33 Ibid.

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.

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).

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).

50 Ibid, Section 33(2).

51 Ibid, Section 33(3).

52 Ibid, Section 33(4).

53 Ibid, Section 34.

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.

60 Ibid.

61 Ibid, Section 6(a).

62 Ibid, Section 6(b).

63 Morreau, op. cit.

64 See generally Born, G.B., International Arbitration: Law and Practice (2^nd 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).

69 Born, G.B., International Arbitration: Law and Practice (2^nd 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.

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).

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.

78 Conversely, address entails telephone numbers, facsimile, telex and e-mail address of the respondent and/or its nominee or (legal) representatives.

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).

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.).

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.

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.

90 See specifically Rule 9.3 of the NCC Arbitration Rules.

91 Ibid.

92 Ibid.

93 Ibid.

94 Rule 9.3-9.5 of the NCC Arbitration Rules.

95 Ibid, Rule 9.3.

96 Ibid.

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 (2^nd 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 (2^nd edn.) (2014), pp. 2253-54, and 275-77.

102 Rule 24(c) of the EACJ Arbitration Rules.

103 Rule 4(7) and (8) of the IBA Rules on the Taking of Evidence.

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.’

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.

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).

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).

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.

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).

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.

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).

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.

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 (1^st 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).

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).