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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM MISC. COMMERCIAL CAUSE NO.4217 OF 2024 IN THE MATTER OF ARBITRATION ACT [CAP 15 R.E 2020] (THE ACT) AND THE ARBITRATION (RULES OF PROCEDURE) REGULATIONS 2021 (THE REGULATIONS)

AND

IN THE MATTER OF AN APPLICATION FOR REVOCATION OF AN

ARBITRATION CLAUSE

BETWEEN TANZANITE CONSTRUCTION COMPANY LIMITED...................... PETITIONER

VERSUS RASHMEAR DEVELOPER LIMITED............................................... RESPONDENT

RULING Date of Last Order: 10/07/2024 Date of Judgment: 02/08/2024 GONZI, J. The Petitioner prayed for Orders against the Respondent that: a) Declaration that the Arbitration Clause between the Petitioner and the Respondent herein is null 1 and void, inoperative and incapable of being performed. b) Any other relief the Court may deem fit andjust to grant. c) Costs of the Petition. The Petitioner alleged that they entered into a construction contract with the Respondent dated 27th September 2012 for the construction of a residential building situated on Plot No.570/572 Mindu Street, Upanga, Dar es Salaam styled as Elite Tower at the consideration of United States Dollars Six Million Two Hundred and Seventy-Three Thousand One Hundred and Ninety-nine (USD 6,273,199). The Petitioner duly executed its part of performance coupled with the other contractual obligations including completion of the construction and handover of the building to the Respondent. Thereafter the Petitioner issued an invoice to the Respondent for payment of the outstanding balance of United States Dollars Five Hundred and Seven Thousand (USD 507,000) VAT inclusive. The Petitioner stated that the Respondent has failed to pay the outstanding balance despite several reminders by the Petitioner. It was stated that as the Construction Contract between the parties contained an arbitration clause, the

Petitioner through its lawyers, Aymak Attorneys, issued Notice of Request for 2 Arbitration to the Respondent but the Respondent refused to acknowledge receipt of the said Notice of Arbitration and directed that the Notice be served upon its Lawyers, Victory Attorneys and Consultants whom the Petitioner duly served on 18th October 2023. However, no response thereto was made so as to initiate the arbitration proceedings. The Petitioner stated that due to lack of cooperation from the Respondent in the arbitration proceedings, the Petitioner looked thoroughly at the Arbitration Clause which is Clause 15 of the Construction Contract and found that the same indicates that the arbitration shall be in accordance with "the Arbitration Ordinance, CAP 16 of the Arbitration Laws of Tanzania". The Petitioner formed an opinion that such a clause is inoperative and hence the present Petition to have the Arbitration Agreement revoked by the Court. In their Reply to Petition, the Respondent stated that the Petitioner never completed the construction works and that no certificate of completion was issued by the Respondent pursuant to their Construction Agreement. It was stated that the Respondent took over the site with a lot of defects including incomplete basement, non-allocation of parking spots, leaking swimming pool and other defects and therefore the Respondent had to engage other

contractors namely Kams Construction to complete the 3 construction works. The Respondent stated that it had actually overpaid the Petitioner for the works done. On not cooperating in the arbitration, the Respondent stated that it was the duty of the Petitioner to initiate the arbitration in the responsible institute of arbitration and not merely serving notice. It was stated by the Respondent that the Arbitration Clause is enforceable and valid hence parties are duty bound to attend the arbitration as the jurisdiction of ordinary courts is ousted. The Respondent prayed for dismissal of the petition with costs. Both parties filed skeleton arguments and on the date the matter came for hearing, Mr. Norbert Mlwale, learned Advocate adopted for the Respondent adopted his Skeleton arguments and prayed that the same constitute his submissions in respect of the petition. Mr. Athanas Wigan, learned Advocate for the Petitioner, also adopted his Skeleton arguments and prayed that the same be considered as his submissions in respect of the petition. I thank both counsel for their useful arguments and guidance to the Court. Mr. Wigan, learned Advocate, submitted that the Petitioner is seeking for revocation of the Arbitration Agreement because the law named in the Arbitration Clause namely the Arbitration Ordinance, Cap 16 does not exist 4 and never existed thereby making the arbitration

agreement null and void, inoperative and incapable of being performed. In this regard, Mr. Wigan, learned Advocate, submitted that even the saving provision under section 96 of the Arbitration Act, 2020 does not apply to the arbitration agreement between the parties herein as the same was not made under the repealed Arbitration Ordinance CAP 15 but it was purportedly made under the Arbitration Ordinance CAP 16 which does not exist and never existed. Mr. Athanas Wigan, learned Advocate submitted that there are procedural shortcomings making enforcement of the Arbitration agreement impossible. He quoted Alan Redfern& Martin Hunter et al in Law and Practice of International Commercial Arbitration, 6th Edition at paragraph 44.4 of page 250 where it was observed that: "A clause that fails to provide either for an effective method of constituting the arbitral tribunal or for the place of arbitration may turn to be inoperable. It is likely to lead to the claimant being unable to enforce the arbitration agreement.” Mr. Wigan, learned Advocate, also submitted that under section 15 of the Arbitration Act, CAP 15, R.E 2020 the court has discretion to stay proceedings pending arbitration but that where the court is satisfied that the 5 arbitration agreement is null and void, inoperative or incapable of being performed, the Court shall not stay the suit. He cited the case of Hass Petroleum

(T)Limited versus UKOD International Company Limited, Commercial Case No.68 of 2022 for the same rule. Mr. Athanas Wigan, learned Advocate for the Petitioner therefore, prayed for the petition to be allowed with costs. Mr. Norbet Mlwale, learned Advocate for the Respondent submitted that despite the repeal of the Arbitration Ordinance which was replaced by the Arbitration Act, 2020, the arbitration agreement between the parties which was made under the repealed law, remains valid. He argued that arbitration stems from a contract between the parties and therefore, for it to be valid, it must be certain. He argued that the need for certainty of alternative dispute resolution clauses can be derived from case laws. He cited the case of Halifax Financial Services Ltd versus Institute Systems Limited, (2002) CLC 1319 where the court held that: "An alternative dispute resolution (ADR) clause is sufficiently certain and thus enforceable if it falls within the ambit of the following requirements: (a) the process must be sufficiently certain in that there should be no need for an agreement at any stage 6 before the matter can proceed, (b) the administrative process for selecting party to resolve the dispute and to pay thatperson should be defined, and (c) the process or at least mode! of the process is sufficiently certain." Mr. Norbert Mlwale, learned counsel, argued further that in the

case of Pitout versus North Cape Livestock Co-op Ltd (1977)4SA 842 (A) 850 the Court opined that: "Clauses are void where it is difficult to assess the specific rights or obligation of the parties, and therefore the law may reject to enforce those clauses when it is proved that there is vagueness on certain matters to be agreed in the future". Mr. Mlwale, learned Advocate for the Respondent, submitted that the Arbitration Clause in the Construction Contract was valid for all purposes as it was clear, unambiguous, and certain. All the relevant terms of the agreement were stipulated therein hence making it capable of being enforced. He argued that the reference "Cap 16" was a typing error. He submitted that though the Arbitration Ordinance is now repealed and replaced by the Arbitration Act 2020, section 96 of the Arbitration Act, 2020 carters as the saving provision for the repealed Arbitration Ordinance 7 validating all that was done under the repealed Ordinance. He cited the case of Thomas Lugumba@Macha versus the Republic, Criminal Appeal No.400 of 2017 decided by the Court of Appeal at Mwanza, for the rule that repeal of a statue does not cease its operation where there is a saving provision in the repealing Act. He also referred to section 32 of Interpretation of Laws Act, CAP 1 of the Laws of Tanzania, for the same rule. Mr. Norbert Mlwale, learned Counsel, argued that so

long as parties have valid arbitration agreement, the court should compel them to attend the arbitration pursuant to their agreement. He relied on Jovet Tanzania Limited versus Bavaria N.V., Civil Appeal No.207 of 2018 decided by the Court of Appeal of Tanzania, for that rule. Mr. Norbert Mlwale, learned Advocate for the Respondent argued that in this case, it was the duty of the Petitioner to institute the intended arbitration proceedings in the arbitral tribunal. He cited Regulations 5(1), (3) and (6) of GN 146/2021 on how arbitration is instituted that is by a person who wishes to commence the arbitration proceedings to' submit a request in writing to that effect to the center. He submitted that in the present case the Petitioner has not instituted the request for arbitration in the center and therefore, he cannot complain that the Respondent has 8 refused to cooperate in the arbitration. Mr. Norbert Mlwale, learned Advocate for the Respondent, therefore prayed for dismissal of the Petition with costs. I looked at the Arbitration Agreement in the Construction Agreement between the parties herein. Clause 15.1 of the Construction Contract, Annexture TCL 1 to the Petition, stipulates that: "15.1 Any dispute or difference arising out of, or relating to, this contract shall be resolved in an amicable manner where the parties fail to solve the dispute amicably then either party

shall refer the matter to Arbitration in accordance with the Arbitration laws of Tanzania under the Arbitration Ordinance Cap.16. 15.2 Arbitration shall take place in Dar es salaam, Tanzania and allproceedings and documents thereto shall be in English language. 15.4 Under this Contract, costs of the Arbitration shall be borne equally by the Contractor and the Employer". The prayer in the Petition is for the Court to declare the above arbitration Agreement null and void hence unenforceable and incapable of being performed for the shortcomings advanced by Mr. Athanas Wigan, 9 learned Advocate. The pertinent question is whether the above stated arbitration agreement is valid or not. This takes me to the issue of validity of an arbitration agreement which in turn leads to the issue of which law governs the validity of the arbitration agreement for the purposes of determining whether or not the arbitration agreement is valid. In essence the validity of an arbitration agreement is determined by the law that is applicable to the arbitration agreement. The law applicable to the arbitration agreement is the law that governs the formation, validity, enforcement and termination of the arbitration agreement. It deals with such aspects as the formal requirements of the arbitration agreement, the arbitrability of its subject matter, its autonomy in relation to the contract in which it is

contained, and whether or not the submission agreement is ultimately required upon occurence of the dispute. The question of the existence and validity of the arbitration agreement may chiefly arise in two different situations: a) Initially, when one of the parties requests a court to recognize the arbitration agreement (for instance, by requesting the court to decline its jurisdiction or to appoint an arbitrator); or 10 b) At the end of the arbitration, when it is raised as a defense to challenge recognition or enforcement of the arbitral award. Section 83(2) (a)(i)(aa),(bb), (ii) and (4)(a) of the Arbitration Act, CAP 15 (R.E 2020) of the Laws of Tanzania which incorporates verbatim the provisions of Article V (1) and (2) of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958, provides two rules of choice of law applicable to the Arbitration Agreement for the second situation, but is silent about the first situation. When a dispute regarding the existence or validity of the arbitration agreement arises at the stage of enforcing an award,the New York Convention provides under Article V.l that: "recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that: (a) The parties to

the agreement referred to in Article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made..." ii The Arbitration Act, CAP 15 (R.E 2020) also provides under section 83(2)(a)(i)(aa),(bb) and (ii) that: "83 (2) Notwithstanding subsection (1), a domestic arbitral award or foreign arbitral award shall be refused if- (a) at the request of the party against whom it is invoked, that party furnishes to court proof that- i) parties to the arbitration agreement, pursuant to the law appiicabie- (aa) lacked capacity to enter into the agreement; or (bb) were not properly represented; (ii) the arbitration agreement is not valid under the law to which the parties have subjected it. (4) Enforcement of a foreign award may be refused at the request of the party against whom it is invoked, only if that party furnishes to the court proof that- (a) the parties to the agreement referred to in section 88 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made;" 12 The New York Convention and the Arbitration Act, CAP 15

therefore determine validity of the Arbitration Agreement "pursuant to the law applicable" The law applicable to the arbitration agreement, itself, is a matter of uncertainty as there are in turn several tests and legally prescribed hierarchical criteria used to determine the law applicable to the arbitration agreement. Choice of the Law applicable to the arbitration agreement, in terms of Article V.l of the New York Convention and section 83(2)(a)(i)(aa),(bb), (ii) and (4)(a) of the Arbitration Act, 2020 is given in hierarchical alternatives that: (a) The law governing capacity to enter into contract which applies to the parties to the arbitration agreement. This is captured from the phrase," under the law applicable to them, under some incapacity". It refers to the law that regulates the capacity to contract of the parties to the arbitration agreement like the Law of Contract Act for individuals, the Companies Act for companies, the Age of Majority Act (in some jurisdictions) and the like. This is the first port of calling in determining validity of the arbitration Agreement. The phrase "applicable to them" envisages the possibility of different laws or laws of different states which provide differently on the 13 issue of capacity to contract may regulate the capacity of the parties to enter into the arbitration agreement in question. Capacity to contract may vary among

states and within the same state depending on the particular field the particular law regulates. (b) The second consideration in determining the law applicable to the arbitration agreement is the law to which the parties have subjected the said agreement. Here, the second option in choice of the law governing the arbitration agreement is the one which the parties have subjected the arbitration agreement to. Under party autonomy, parties are free to agree on the law to govern their arbitration agreement and that can be any law of any country as the parties may agree to subject the arbitration agreement to. That law therefore will determine the validity or otherwise of the arbitration agreement. (c) Where the parties have not chosen the law to govern their arbitration agreement, the third criterion comes in and that is the law of the country where the award was made. As a rule, an arbitral award is deemed to have been made at the seat of arbitration. Therefore, where the parties have not chosen or indicated any specific law which the arbitration agreement is governed by, the arbitration will be governed by the law of the seat of 14 arbitration where the award was made. According to Lexis Nexis (https://www.lexisnexis.co.uk/legal/glossary/seat-of-arbitration): " a seat of arbitration is the jurisdiction in which an arbitration is deemed legally to take place and the award issued,

regardless of the geographical location of the tribunal and/or any hearings. The seat also determines the legal system that, generally, provides the arbitration's procedure and which courts have supervisoryjurisdiction over the arbitration." After choice of the law governing the arbitration agreement is done and there exists a definite "law applicable to the arbitration agreement" then the law supplies the grounds for consideration in order to determine validity of the Arbitration Agreement "pursuant to the law applicable". Once the law applicable to the arbitration agreement is sorted out then under that law "law applicable to the arbitration agreement" the following grounds can be used to test the validity of the arbitration agreement in question. These grounds are mentioned under section Article V.l of the New York Convention and section 83(2)(a)(i) (aa), (bb), (ii) and (4)(a) of the Arbitration Act, 2020 that: 15 (aJ parties to the arbitration agreement lacked capacity to enter into the agreement; (b) parties to the arbitration agreement were not properly represented; (c) the arbitration agreement is not valid under the law to which the parties have subjected it. It is the effect of the above stipulated grounds and other similar vitiating factors which may be raised before the arbitrator, or the Court which can, in turn, make the arbitration agreement null and void in terms

of section 15 of the Arbitration Act. There are other factors which may make an otherwise valid arbitration agreement inoperative or incapable of being performed. Where the arbitration agreement is attacked on the ground of invalidity for any one or more of the above reasons, the attack must be directed to the arbitration agreement specifically and distinctly from the main agreement of which it forms part. The House of Lords (United Kingdom) in Premium Nafta Products Limited v. Fili Shipping Co. [2007] 4 All ER 951, which addressed, inter alia, the issue of whether a party could be bound by submission to arbitration when the party alleged that, but for an 16 act of bribery, he would not have entered into the contract containing the arbitration clause, the House of Lords concluded that: (i) the principle of separability required that the arbitration agreement must be treated as a 'distinct agreement" that "can be void or voidable only on grounds which relate directly to the arbitration agreement"; (ii) there may be cases where the grounds for invalidity of the main contract are identical to the grounds of invalidity for the arbitration agreement, e.g., forgery, but in this case the ground ofattack still must be that the signature to the arbitration agreement was forged; (Hi) an allegation that an agent exceeded his authority by entering into the main agreement is not necessarily

an attack on the arbitration agreement, as it would still need to be alleged and shown that the agent had no authority to enter into the arbitration agreement; and 17 (iv) an allegation that an agent was bribed to enter into the main agreement does not necessarily constitute an allegation that he was bribed to enter into the arbitration agreement: "the arbitration agreement can be invalidated only on a ground which relates to the arbitration agreement and is not merely a consequence of the invalidity of the main agreement." With that legal background, I now assess the present arbitration agreement to answer the question as to whether or not the same is invalid as argued by Mr.Athanas Wigan, learned Counsel for the Petitioner. I will examine the validity of the arbitration agreement contained in clause 15 of the construction contract between the parties herein pursuant to the law applicable to this particular arbitration agreement and taking into account the vitiating factors prescribed under Section 83(2)(a)(i)(aa),(bb), (ii) and (4)(a) of the Arbitration Act, 2020 as well as other relevant factors. The first question is which law governs the arbitration Agreement contained in the construction Contract between the parties herein. The hierarchical rules of choice of law governing the Arbitration Agreement as stipulated 18 under Article V.l of the New York Convention, 1958 and

Section 83(4)(a) of the Arbitration Act are that: (a) The law governing capacity to enter into contract which applies to the parties to the arbitration agreement; (b) The law to which the parties have subjected the said agreement; (c) Where the parties have not chosen the law to govern their arbitration agreement, the law of the seat of arbitration. Which law governed the arbitration agreement between the parties to the arbitration agreement in the construction contract between the parties herein? Clause 15.1 of the Construction Contract, annexture TCL 1 to the Petition which constitutes the Reading the Arbitration agreement stipulates that: "15.1 Any dispute or difference arising out of, or relating to, this contract shall be resolved in an amicable manner where the parties fait to solve the dispute amicably then either party shall refer the matter to Arbitration in accordance with the Arbitration laws of Tanzania under the Arbitration Ordinance Cap.16. 19 15.2 Arbitration shall take place in Dar es salaam, Tanzania and allproceedings and documents thereto shall be in English language. 15.4 Under this Contract, costs of the Arbitration shall be borne equally by the Contractor and the Employer". In the circumstances of the present case, parties intended the validity of their arbitration agreement to be governed by the laws of Tanzania. Choice of the Arbitration Act of Tanzania

as the curial law, signified choice of Tanzania as the seat of arbitration. In the above arbitration agreement, Tanzania was chosen as both the seat and the venue of the arbitration. Both parties to the arbitration agreement are decribed as Tanzanian Companies incorporated in Tanzania and having their places of business in Tanzania. In his work "Determining the seat of arbitration", posted on the International Bar Association website (https://www.ibanet.org/determining- seat-of-arbitration) on Wednesday 20th December 2023, the learned author, Gagan Anand, has this to say about a seat of arbitration: "One of the recently trending choices, which has been witness to a plethora of open lawsuits, is that of determining the seat of arbitration. Not to be confused with the physical place or venue, the 'seat' 20 is predominantly referred to as the "situs' of arbitration, owing to its consequence of governing the entire arbitral procedure or the lex arbitri.... There is a discernible difference between the terms "seat'and "venue', even though the same have been used and sometimes, even interpreted, interchangeably. In common parlance, while the venue or physical place of arbitration may only refer to the mere geographical location of the tribunal, the "seat', on the other hand, is a legal concept that has a much larger impact of ascertaining the "curial'role of the tribunal... It is

necessary to reiterate that the seat is the situs and, consequently, the fundamental determining factor of the arbitral procedure. Any ambiguity in relation to the seat will thus have inadvertent effects over the rights of the parties involved. Under the laws of Tanzania,validity of the arbitration agreement is determined by the Law of Contract Act as well as the Arbitration Act, CAP 15 (R.E 2020). The Law of Contract Act CAP 345 provides that: ""10. AH agreements are contracts if they are made by the free consent ofparties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void: 21 Provided that, nothing herein contained shall affect any law in force, and not hereby expressly repeated or disappiied, by which any contract is required to be made in writing or in electronic form or in the presence of witnesses, or any law relating to the registration of documents." The Arbitration Act CAP 15 provides under section 3 that: "Arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not; The Arbitration Act CAP 15 provides under section 11 that: "The reference in an agreement to a written form of arbitration clause or to a document containing

an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the arbitration agreement." Section 83 (4)(a) of the Arbitration Act 2020, also applies here. I have considered whether or not the arbitration agreement between the parties herein in view of the laws of Tanzania regulating arbitration agreements fails in any of the three grounds of invalidity namely: 22 (a) Parties to the arbitration agreement lacked capacity to enter into the agreement; (b) Parties to the arbitration agreement were not properly represented; (c) The arbitration agreement is not valid under the law to which the parties have subjected it. My answer is in the negative. The Petitioner did not allege nor prove that in terms of section 83 (4) (a) of CAP 15, the parties to the arbitration agreement contained in clause 15 of the Construction Contract had any incapacity to enter into the arbitration agreement in terms of sections 10 and 11 of the Law of Contract Act, CAP 345 of the Laws of Tanzania. I have gone through the entire arbitration agreement and I have seen that the same was signed by duly incorporated limited liability companies hence competent to enter into the agreement. The agreement was signed by principal officers of the Petitioner and the Respondent Companies in the presence of other Principal Officers of the companies and was sealed. The

companies were represented properly in executing the arbitration agreement. There is nothing that would make the arbitration agreement signed void under the laws of Tanzania. The arbitration Agreement at hand fits perfectly well within the definition of an arbitration agreement in terms of section 3 of the 23 Arbitration Act. Also, it fits well within the ambit of valid agreements under section 10 of the Law of Contract Act of Tanzania CAP 345. Mr. Wigan, learned Advocate submitted that the law named in the Arbitration Clause namely "the Arbitration Ordinance, Cap 16" does not exist and never existed thereby making the arbitration agreement null and void, inoperative and incapable of being performed. The allegations advanced by Mr. Athanas Wigan, learned Advocate for the petitioner, on the validity of the arbitration agreement, are not relevant as they are not the relevant factors under arbitration laws of Tanzania for determination of validity or invalidity of arbitration agreements. The relevant factors are capacity of the parties to enter into the arbitration agreement, validity of the arbitration agreement under the law to which the parties have subjected it and, where parties have not indicated the law to which the arbitration agreement is subjected, then the alternative factor for consideration is the validity of the arbitration agreement under the law of the seat of

arbitration. The fact that the Arbitration Ordinance was titled as Capl6 instead of CAP 15 of the Laws of Tanzania, by any stretch of imagination did not invalidate the arbitration agreement entered between the Petitioner and the Respondent. Mentioning the correct Chapter number is not among the requirements or tests for 24 determining validity of the arbitration agreement. At most that was a curable typing error which did not occasion failure of justice to either part to the agreement. That error did not make the arbitration agreement inoperative or incapable of being performed, either. I accept the argument by Mr. Norbet Mlwale, learned counsel for the Respondent when he argued that section 96 of the Arbitration Act, 2020 carters as the saving provision for the repealed Arbitration Ordinance validating all that was done under the repealed Ordinance. The present petition therefore is bound to fail. I find that the Petitioner and the Respondent have valid arbitration agreement between them and since there is a pending dispute with regard to the matters envisaged by the arbitration agreement, it is incumbent that parties should be held to their bargain. The Court of Appeal of Tanzania in Civil Appeal No. 115 OF 2005, between Tanzania Motor Services Ltd & Presidential Parastatal Sector Reform Commission Versus Mehar Singh T / A Thaker Singh quoted with approval the case of Heyman

v. Darwins Ltd. (1942) A C356at page 375as follows:- "I venture to think that not enough attention has been directed to the true nature and function of an arbitration clause in a contract. It is quite distinct 25 from other clauses. The other clauses set out the obligations which the parties undertake towards each other but the arbitration clause does not impose on one of the parties an obligation in favour of the other. It embodies the agreement of both parties that if any dispute arises with regard to the obligation which the one party has undertaken to the other, such dispute shall be settled by a tribunal of their own constitution. And there is this very material difference, that whereas in an ordinary contract the obligation of the parties to each other cannot in general be specifically enforced and breach of them results only in damages, the arbitration clause can be specifically enforced by the machinery of the Arbitration Acts. The appropriate remedy for breach of the agreement to arbitrate is not damages, but is enforcement." Enforcement of the Arbitration Agreement is compelling the parties to attend the agreed arbitration process. If the Respondent does not 26 cooperate in participating in the alleged arbitration, the petitioner should have sought an order to enforce the agreement to arbitrate rather than seeking to nullify the arbitration agreement between them.

Once arbitration procedings are instituted, if the Respondent will be uncooperative, the Arbitral Tribunal will be entitled to seek assistance of the Court to compel the Respondent to attend and participate in the arbitration. As it stands, the arbitral proceedings have not yet been commenced. Mr. Ml wale, learned Advocate, argued that there is no letter of request filed at the center to commence the arbitral proceedings. It is true that there is no proof in this case for the Petitioner to commence arbitration. The Arbitration agreement enshrined under Clause 15 of the Construction Contract, is not institutional to any particular arbitration center. This means parties to the arbitration agreement herein are at liberty to institute their arbitration proceedings in any arbitral institution of their own choice that is suitably placed to administer arbitration services given the nature of the dispute involved. Each arbitral institution has its own arbitration Rules of procedure which will provide guidance on how to institute the arbitral proceedings before it and the next steps to finality. GN 146/2021 is not the only procedural law regulating institution and conduct of arbitration in the arbitral institutions in 27 Tanzania. The parties are also at liberty to pursue an ad-hod arbitration before their own chosen qualified arbitrator. As it stands the arbitration agreement between

the parties herein is valid and not inoperable or incapable of being performed. I therefore decline the petition and proceed to dismiss it with costs. It is so ordered. F A. H. GONZI ----- judge 02/08/2024 Ruling delivered in Court this 02nd day of August, 2024 before Hon. Deputy Registrar J. M. Minde, in the presence of Mr. Moshi for the Respondent who also holds brief of Mr. Athanas Wigan Advocate for the Applicant.

INDE

DEPUTY REGISTRAR 02/08/2024 28