THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS AND THE ARBITRAL AWARDS IN THE INTERNATIONAL LEVEL AND IN TANZANIA.

Prepared by HAMIS T. HAMISI.*

1.0 GENERAL OVERVIEW.

Generally, this paper intends to give a detailed discussion on recognition and enforcement of foreign judgments and arbitral awards in international level and in Tanzania. It focuses on the legal requirements both procedurally and substantively. In nutshells, the recognition and enforcement of foreign judgments and arbitral awards is an aspect of private international law, and concerns situations where a successful party to litigation or arbitration seeks to rely on a judgment or an arbitral award obtained in one court or arbitral tribunal situated in another jurisdiction or country. Both foreign judgments and foreign arbitral awards have distinct requirements for their recognitions and enforcement but to the higher extent contain common processes and procedures.

Furthermore, under the principle of territorial sovereignty, the effect of a judgment or an award rendered by one court or arbitral tribunal in a sovereign state cannot be extended into another sovereign state and bind that state. However, courts in one sovereign state may exercise foreign laws or give effect to foreign judgments or award as a matter of convenience and utility. Therefore, for the recognition and enforcement of a foreign judgment or arbitral award to become effective a judgment creditor or party whose arbitral award is in his favor must obtain the approval of the court within the country where enforcement is sought.

1.1 DEFINITIONS AND CONCEPTS.

1.1.1 Foreign Judgment.

Simply put, a foreign judgment is a judgment that has been pronounced by a foreign court of competent jurisdiction.  It entails a judgment rendered by a court of a state or country different from that where the judgment or its effect is at issue.  In the other words, the foreign judgment is one with foreign elements rendered by one court and enforced by another court in another country.

1.1.2 Foreign arbitral award.

According to the provision of Section 3 of the Tanzanian Arbitration Act of December 2020, the term foreign arbitral award entails an award where the juridical seat of arbitration is in a territory or state other than the United Republic. Hence, a foreign arbitral award is an award which has been issued by a tribunal whose seat is outside one`s country. Generally, foreign arbitral award is one which is made or deemed to be made in the territory of another state.

1.1.3 The recognition and enforcement of foreign judgments and arbitral awards.

The recognition and enforcement of foreign judgments and foreign arbitral awards is one of the three aspect of private international law. The other two are jurisdiction and choice of law. Therefore, it concerns situations where a successful party to litigation or arbitration seeks to rely on a judgment or an award obtained in a court or arbitral tribunal situated in another jurisdiction. Consequently, a party who has obtained a favorable judgment or award in one state or country may need to have the judgment or the award being recognized and enforced in another state or country for the purpose of execution without the need for re-litigation.

Enforcement depends on recognition, thus if any foreign judgment or foreign award is not recognized, then such judgment or award cannot be enforced, that is to say, recognition is pre-requisite to enforcements. However, there are instances where there can be recognition without enforcement of such foreign judgment or award. Thus, it is not necessary that to every recognition be automatic enforcement. This demonstrates that recognition and enforcement are different though they work together in some instances.

    2.0 Rationale for recognition and enforcements of foreign judgments and arbitral awards.

Professors of law at Harvard Law School, by then, Von Mehren and Trautman suggested that the ultimate justification for enforcing judgments of foreign states is that “if in our highly complex and interrelated world each community exhausted every possibility of insisting on its parochial interests, injustice would result and the normal patterns of life would be disrupted.” 

Therefore, from the purview of the quoted statement, the importance of recognition and enforcement of foreign judgment is based on;  

(i) A need to avoid injustice; and

(ii) A need to protect vested rights.

2.1 LAWS GOVERNING THE RECOGNITION AND ENFORCEMENTS OF FOREIGN JUDGMENTS AND FOREIGN ARBITRAL AWARDS.

The recognition and enforcements of foreign judgments and foreign arbitral awards is regulated by the followings laws both international conventions and domestic legislations;

2.1 International Conventions and rules.

 Brussels Convention. 

Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, opened for signature 27 September 1968, 1262 UNTS 153 (entered into force 1 February 1973) (hereinafter ‘Brussels Convention’). Brussels Convention has its regulation called Brussels I Regulation, aiming to facilitate the recognition and enforcement of judgments among the European Community Member States.

In order for a judgment to qualify for the recognition and enforcement purposes under the Brussels I Regulation, it must be a judgment granted by a court or tribunal of a Member State. In other words, the Brussels I Regulation will not apply to judgments granted by a court in a non-Member State. Under the Brussels I Regulation.381 Once the judgment has been recognized, it may be enforced in a Member State on the condition that it is enforceable in the Member State where it was originally given.

 Lugano Convention.

The Lugano Convention, is substantially similar to the Brussels Convention but was concluded in 1988, facilitating the recognition and enforcement proceedings within the European Free Trade Associations (EFTA). The Lugano Convention was revised and adopted in 2007 in order to be more in line with the Brussels I Regulation Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, signed 30 October 2007, entered into force 1 January 2010) (‘New Lugano Convention’).

 New York Convention for the Enforcement and Recognition of Foreign Arbitral Awards, 1958. Pursuant to the New York Convention, arbitral award made in the territory of one contracting state shall be recognized as binding and enforced in another contracting state, subjected to the limited grounds for the refusal of recognition and enforcement.

 The Geneva Convention on the execution of Foreign Arbitral Awards, 1927 read together with the Geneva Protocol on Arbitration Clauses 1923.

 Arbitration rules.

Such as Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, those under the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the International Centre for Dispute Resolution (ICDR), the Stockholm Chamber of Commerce (SCC) and the Singapore International Arbitration Centre.

2.2.3 Domestic laws.

 The Reciprocal Enforcement of Foreign Judgment Act, Cap 8 R.E 2019 and its rules.

 The Civil Procedure Code, Cap 33 R.E 2019.

 The Arbitration Act of 2020 and its Regulations.

3.0 PRINCIPLES AND THEORIES UNDERLYING THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS AND AWARDS.

Generally, the judgments or awards of one state's courts or arbitral tribunal have no force by themselves in another State. Therefore, there are principles or theoretical basis underlying the foundation upon which recognition and enforcement of foreign judgments and awards rest. 

3.1 The Doctrine of Comity.

 The doctrine of comity was introduced in the 17th century, through the work of Dutch scholar, Ulrich Huber.  Comity is the legal principle where each state, nation or courts from different jurisdiction will mutually recognize the jurisdiction or judicial acts of another country. Comity implies consent that a sovereign state applies to the foreign laws or gives effect to foreign judgments or awards. Therefore, the comity of nations derives from the voluntary consent of the court where enforcement is sought, unless doing so would be contrary to its known policy, or prejudicial to its interests or its subject. Accordingly, the comity doctrine provides a basis, allowing courts in one sovereign state to give effect to foreign judgments while still preserving state sovereignty. However, the notion of comity is to rest on ‘mutual interest and utility and from a sort of moral necessity to do justice and not obligatory.

The comity doctrine was considered by the United States Supreme Court in the case of Hilton v Guyot,  which involved a suit brought by a French company against its American trading partners operating in France, for sums owed by the American defendants. The matter was tried in a French court and a final judgment was awarded to the French plaintiffs. The French plaintiffs sought to have the French judgment recognized and enforced in the United States because the American defendants liquidated their assets in France. In the action for the recognition and enforcement of the French judgment, the court considered the comity doctrine and imposed a requirement that the French judgment should be given effect only if the French court gave effect to an equivalent decision of the United States court. However, the court held that since the French court would not have given effect to an equivalent judgment by a United States court, the court was under no obligation to enforce the French judgment. In reaching its decision in the Hilton, court stated that;

Comity is “neither a matter of absolute obligation on the one hand nor of mere courtesy and good will… it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”  

This is to means, when a United States court consents to give effect to a foreign judgment, it does so not as a matter of obligation, but as a matter of taking into account common convenience and mutual necessities between the United States and the sovereign state which rendered the judgment. Accordingly, the recognition and enforcement of a judgment rendered by a foreign country will be denied in the United States if that foreign country does not give conclusive effect to judgments rendered by the United States courts. Also, in the case of Travers vs Holley,  Hudson L.J stated that the principles of comity may be used as long as one country recognizes the other court`s judgment.

Despite the notion of comity providing a justification upon which foreign judgments may be recognized and enforced, it is non-obligatory in nature and short of a legal binding effect. As such, the problem with the comity doctrine is that it may create uncertainty since courts are under no obligation to give conclusive effects to foreign judgments and whether a court will or will not do so may depend on the familiarity and the degree of trust and confidence it has in another sovereign state.  In the case of Johnston v Compagnie General Trans atlantique,  the New York Court of Appeal while examined the effect of a French judgment in the State of New York, the court held that “comity is not a rule of law, but it is a rule of “practice, convenience and expediency”. Therefore, the doctrine of comity rest upon the persuasiveness of the court.

3.2 Doctrine of Reciprocity. 

This is a principle that the states will and should grant others recognition of judicial decisions only if and to the extent that their own decisions would be recognized. That is to say, doing in return. As far as the recognition and enforcement of foreign judgments is concerned, the notion of reciprocity can take one of two forms. On the one hand, it may be used positively so that a state will accept foreign judgments and give them effect within the limits of its territory. This is done with the anticipation that foreign states will give similar reception for its judgments in return.  Reciprocity in this sense may have the effect of inducing courts to honor foreign judgments. On the other hand, reciprocity can be used in a negative sense. For example, if a court in a state refuses to recognize and enforce a judgment rendered by another state, a court in the latter state may do likewise by refusing to give effect to the former state’s judgment, even if that judgment has satisfied all the requirements for enforcement. (Read section 11 of Tanzania Reciprocal Enforcement of Foreign Judgment Act, Cap 8 R.E 2019. Reciprocity in this sense can therefore be used as a tool for revenge against states that do not return the same favor of recognizing and enforcing foreign judgments. 

The notion of reciprocity is endorsed as a condition for the purposes of recognition and enforcement of foreign judgments in many jurisdictions, including Tanzania and some countries in East Africa. Section 3 (1) of the Tanzanian Reciprocal Enforcement of Foreign Judgment Act18 provides to that effects. Nevertheless, the notion of reciprocity has been the subject of criticisms. This is because, reciprocity requirement can create an unwelcome situation in which each country waits for the other to act first; it is also problematic because it punishes private litigants for the omissions of States. It is argued that if a foreign judgment is refused recognition due to a lack of reciprocal arrangement with the state asked to recognize and enforce the judgment, the litigants are being punished unfairly for a governmental policy that he or she has no control of.  However, there are some who view reciprocity as a means of persuading other countries to enter into reciprocal agreements for the recognition and enforcement of foreign judgments. They also argue that reciprocity can provide a means for the co-operative behavior.

3.3 Obligation Theory. 

Another basis recognized to support the recognition and enforcement of foreign judgments is the obligation theory. Particularly, this theory was relied upon by the English authorities to justify the recognition and enforcement of foreign judgments since the 19th century.  The obligation theory was first stated by Parke, B in Russell vs Smyth  and Williams vs Jones  and later approved in Godard vs Gray  and Schibsby vs Westenholz in the following words;

“Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial courts are supported and enforced. And taking this as the principle, it seems to follow that anything which negatives the existence of that legal obligation, or excuses the defendant from the performance of it, must form a good defence to the action.” 

It follows from the passage that under the obligation theory, what is in fact recognized and enforced under the obligation theory is not the judgment itself but the obligation it produced. The key theme is that obligation theory provides for the mandatory requirement of the foreign court to recognize and enforce the judgment made by the court with competent jurisdiction with the intention of imposing the obligation or duty to be performed by the defendant as the results of his or her default. Thus, the application of obligation theory has led the English courts to lay down certain conditions for the recognition and enforcement of foreign judgments. Likewise, some states have enacted laws to the effects that, a foreign judgment must satisfy some conditions in order to be recognized and enforced.

Despite the obligation theory being as the basis upon which foreign judgments are recognized and enforced, it has been criticized as an inadequate basis. According to Professor Ho, the obligation theory fails to address the fundamental questions as to why foreign judgments are treated as legal obligations and why the obligations should be given extra-territorial effects.25 Also, given that not all judgments would impose obligations, the obligation theory has difficulty explaining why judgments on status and declaratory judgments are recognizable and enforceable.  However, even though the obligation theory has left a number of issues unaddressed, its simplicity has provided a means for reaching certain conclusions. For instance, by relying on the obligation theory, there is no need for a court asked to recognize and enforce a foreign judgment, to give regard as to how the court that rendered the judgment would treat foreign judgments as it is required under the notion of reciprocity.

    3. 4 Policy Considerations. 

In searching for the policy basis, it is believed that the doctrine of res judicata is the real basis underlying and supporting the recognition and enforcement of foreign judgments. Res judicata is a common law doctrine which is grounded on the policy that where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. The doctrine of res judicata therefore requires that there should be an end to litigation and that no person should be proceeded twice for the same cause of action which has been substantially and conclusively decided by the competent court of law. 

Thus, under policy consideration it is argued that there should be an end to a litigation and that a judgment obtained in one proceeding should be final and conclusive in the second proceeding. As far as the recognition and enforcement of foreign judgments is concerned, the finality of litigation plays an important objective as it encourages courts to recognize and enforce judgments foreign to them and therefore prevent re-litigation of the same claim and issue which has already been tried once elsewhere. 

However, under the public policy, a judgment-enforcing court will not recognize and enforce a foreign judgment if to do so would be contrary to the public policy of the state where recognition and enforcement is sought. Thus, the public policy defence may arise in a number of situations. For instance, if a judgment was found on the law or practice of the judgment-rendering state which is contrary to the public policy of the judgment-enforcing state, or the manner upon which the judgment is obtained is unacceptable and violate the public policy of the judgment-enforcing state, the judgment-enforcing court may therefore refuse to recognize and enforce the foreign judgment on the public policy basis.

4.0 CONDITIONS FOR RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS UNDER THE INTERNATIONAL LAW.

The issue of enforcement of foreign judgments it goes together with the issue of recognition of judgment. However, the rules concerning the recognition and enforcement of foreign judgments vary from country to country and even from state to state. Thus, the court cannot enforce judgment of another jurisdiction if it cannot recognize it as a judgment. Therefore there are several common conditions or requirements which can be used to determine if the court can recognize a certain judgment to be enforced.  This mean that not all foreign judgment can be enforced in the expected country. These conditions are;

4.1 Jurisdiction of the court. 

The term ‘jurisdiction’, though it carries a number of different meanings, is referred to the adjudicatory competence of one court to hear and determine a matter brought before it. The jurisdiction of the court being in personam or rem is very important to determine before the recognition of the foreign judgment. The first and overriding essential for the effectiveness of a foreign judgment is that the adjudicating court should have had jurisdiction in the international sense over the defendant. 

Therefore, recognition and enforcement of a foreign judgment requires that the rendering court to have had jurisdiction, but how to determine jurisdiction is not always clear however it is generally reached on the basis of enforcing state's own rules with respect to jurisdiction.  In the case of Adams vs Cape Industries plc,  it was stated that, “…In deciding whether a foreign court was one of competent jurisdiction, the courts will apply not the law of the foreign court itself but English rules of private international law. The competence of the foreign court is the competence of the court in an international sense, that is, its territorial competence over the subject matter and the defendant. Its competence or jurisdiction in any other sense is not material...” Thus, the determination of jurisdiction depends on the law of the state where recognition and enforcement is sought. Therefore, the onus will be on the plaintiff seeking to enforce the foreign judgment to prove the competence of such court to assume jurisdiction.

Generally, jurisdiction is confirmed if the cause of action arose within the jurisdiction of the foreign court, if the defendant voluntarily submitted to the court’s jurisdiction or if he resided there or had a place of business there, or where the matter is contractual the contract was substantially performed in the country of that court. Thus, if a foreign court has jurisdiction to adjudicate on the case, the forum court will generally recognize and enforce the foreign judgment. 

4.2 The judgment must be final and conclusive.

 In order to enforce a judgment, the judgment must be final and conclusive. It must be final and conclusive in the sense that it must have determined all controversies between the parties to the extent of having effect of res judicata by the law of the country where it was given. Interlocutory decision or order, such as temporary injunction pending trial, are not final and conclusive. Generally, to be considered as final and conclusive, it must have determined all controversies between the parties on merit and the matter cannot be challenged or reheard by the same court.

 

4. 3 Judgment not to be obtained by fraud. 

If the judgment was based on fraud or abuse of process, recognition will usually be denied. As a practical matter, defendant who suspect some element of fraud should ensure that he or she takes all reasonable steps to investigate the suspicions and raise any such allegations within the proceedings. In the case of Owens Bank Ltd v Bracco,  a judgment obtained by fraud was set aside after the defendant pleaded that the judgment had been obtained by fraud.

4.4 Public Policy and natural justice.

One important foundation of the law of recognition and enforcement is that the requested court will not normally review the foreign judgment either under its own law or some other law. In consequence, foreign judgments are recognized even when a domestic court would have decided differently. However, there are limits to this liberal approach. All legal systems and virtually all more recent convention s allow States to deny recognition to foreign judgments that violate the enforcing State's public policy. The judgment must be with conformity with public policy in the state where the judgment is sought to be recognized and enforced. Likewise, the foreign judgment must be in conformity with the principle of natural justice.  That is to mean, a foreign judgment will not be enforced if its enforcement would result in the denial of natural justice to the defendant. For example, in Adams v. Cape Industries,  the English Court of Appeal held that natural justice was not confined to its two traditional requirements; “notice” and “opportunity to be heard”.

5.0 Defenses available against the recognition and enforcements of foreign judgments.

In Beals vs Saldanha,  the Supreme Court of Canada addressed the available defenses to enforcement of foreign judgments. The court identified the defenses of fraud, public policy and denial of natural justice as the most recognizable situations in which injustice may arise, but these were not exhaustive and that unusual situations may arise that might require the creation of a new defense. Some of the available defenses are;

5.1 Foreign judgment obtained by Fraud.

 A foreign judgment will be denied recognition and enforcement if it was obtained by fraudulent means. The fraud could be on the part of the foreign court in which it acted on a bribe or on the part of the claimant in misleading the foreign court to give the judgment in his favor. However, a party may be precluded from invoking this defense in enforcement proceedings if he or she had a chance to use them to void the judgment in the rendering State. For example, in Israel Discount Bank Vs Hadjipatreas,  Court said that if matter could have been raised in the foreign court, was not raised in the foreign court but raised now strategically as a defense, the court will not accept that fraud as a fraud that is used to defend the enforcement action .

5.2 The foreign judgment had been obtained in breach of natural Justice.

The recognition and enforcement of a foreign judgment can also be refused on the ground that there was a debtor denial of    natural justice in the foreign proceedings when the judgment was delivered. The natural justice defense applies as a safeguard to ensure that there would be no procedural irregularity in the original proceedings when the judgment was delivered. For the purposes of recognition and enforcement, the natural justice defense aims to safeguard two aspects, to ensure that the defendant was given due notice and a proper opportunity to be heard.

5.3 Judgment which is contrary to forum` Public Policy.

 Generally, judgment will not be recognized or enforced domestically where to do so would be contrary to the forum’s conception of basic morality. The defense of public policy guards against the recognition of a judgment rendered by a foreign court proven to be given under corrupt or bias. The defense of public policy has only been successfully invoked under quite exceptional circumstances and therefore it has a narrow application.

5.4 Incompatible or conflicting Judgments.

 If two different courts in two countries deal with the same issue, conflicting judgments might result. And if there are two conflicting decisions between the parties relating to the same issue, as the general rule incompatibility of judgment is settled according to prior temper rule, that is the judgment rendered first in time prevail and the first judgment creates an estoppel against the recognition and enforcement of the later judgment.  

In the case of Showlag vs. Mansour,  “S” went to a court in England and succeeded against “M”, ‘M’ went to a court in Egypt and succeeded against S, S tried to enforce the English judgment in Jersey, ‘M’ tried to use the Egyptian judgment as a defense to the enforcement of the English judgment. In rendering decision, Court looked at both judgments and held that both are enforceable since two different courts exercised international jurisdiction. However, the court further held that where there are two competing foreign judgments each of which is pronounced by a court of competent jurisdiction and is final and not open to impeachment on any ground then the earlier in time to enforce the judgment must be recognized and given effect to the exclusion of the other. Likewise, this defense will arise and resist the recognition and enforcement of foreign judgments if the foreign judgment is in conflict with an earlier judgment of the forum state where recognition is sought between the same parties relating to the same cause of action.

6.0. THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN TANZANIA: PROCESSES AND PROCEDURES.

 In Tanzania, the recognition and enforcement of foreign judgment is principally regulated by two statutes; namely, Reciprocal Enforcement of Foreign Judgment Act,  (hereinafter to be referred to as “the Act”) and Civil Procedure Code,  the later regulates the execution of judgments. The jurisdiction of Tanzanian courts in enforcing foreign judgment is created by the registration of the foreign judgment in the High Court of Tanzania. Once a foreign judgment is recognized, the party who was successful in the original case can then seek its enforcement in Tanzanian courts. 

6.1 Conditions for the Recognition of foreign Judgment in Tanzania.

For a foreign judgment to be recognized in Tanzania, it should meet the following conditions;

6.1.1 The foreign court must have had jurisdiction over the defendant. 

Jurisdiction is confirmed if the cause of action arose within the jurisdiction of the foreign court, if the defendant voluntarily submitted to the court’s jurisdiction or if he resided there or had a place of business there, or where the matter is contractual the contract was substantially performed in the country of that court. Thus, in Tanzania, the High court will look whether the foreign court had a jurisdiction to determine the matter. This is provided under Section 6(1) (a)(ii) of the Reciprocal Enforcement of Foreign Judgments Act 44 whereby the court will not register the judgment if the original court found to lack of jurisdiction. Section 6(2) (a) and 6(3) respectively, of the Act provides circumstances to which foreign court will be deemed to have had jurisdiction or not.

6.1.2 The judgment must be final and conclusive. 

In order to enforce a judgment, the judgment must be final and conclusive as provided under Section 3(2) (a) of the Act. In Tanzania, in relation to the requirement of the judgment being final and conclusive provides that “For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.” 

6.1.3 The foreign judgment must not be contrary to Tanzanian public policy. 

Anything inconsistent with the Tanzanian domestic laws, morality and sense of justice or national interests will be deemed contrary to Tanzanian public policy. Thus, foreign judgment to be recognized in Tanzania, the judgment must not conflict with Tanzania public policy. The meaning of public policy in relation to judgments depends on the context and circumstances involving in the recognition and enforcement of a particular judgment.

6.1.4 Adherence to the principles of natural justice.

The foreign judgment must be in conformity with the principle of natural justice as provided for under Section 6(1) (iii) of the Reciprocal Enforcement of Foreign Judgments Act.

6.1.5 The judgment must not be obtained by fraud. 

If the judgment is obtained by fraud, then the court will deny it`s enforcement. This is provided under Section 6(1) (iv) of the Act.

6.1.6 The judgment must be of a fixed sum and not fine, penalty or tax as provided for under Section 3(2) (b) of the Reciprocal Enforcement of Foreign Judgments Act.

N.B; The foreign judgment is only enforceable within six years of the date of judgment or six years after the last judgment where there may have been appeals from the original judgment as provided for under Section 4 (1) of Reciprocal Enforcement of foreign judgment Act. 

7.0 PROCESSES AND PROCEDURES FOR ENFORCEMENTS OF FOREIGN JUDGMENTS IN TANZANIA.

In Tanzania the enforcement of foreign judgment is a procedural matter where by both civil procedure code and Reciprocal Enforcement of foreign judgment Act and its rules are governing the process. Therefore, a foreign judgment will only be enforced in Tanzania if the procedures are met. The procedures are as follows;

7.1 The judgment holder has to make an application to the High Court of Tanzania.

The judgment holder has to apply to the High court through chamber summons and affidavit to have the judgment registered at any time within six (6) years after the date of judgment or where there have been proceedings by way of appeal against the judgment, within six years after the date of the last judgment given in those proceedings.  The application is in form of an originating summons supported by an affidavit setting out the facts which prove that the requirements for enforcement have been met together with a certified copy of the judgment issued by the origin court and authenticated by its seal.  

The application for recognition and enforcement under Section 4 of the Act may be made ex parte to a judge in chambers.  The respondent during the proceedings will have right to challenge the application and may plead several defenses to counter recognition and enforcement of the foreign judgment in Tanzania.

7.2 Registration of foreign judgments.

A foreign judgment will be registered with the High Court of Tanzania if satisfies the condition set out under Section 3(2) of the Act. That is the judgment must be final and conclusive, there is payable thereunder a sum of money, it does not offend public policy, the judgment is given after the coming into operation of the order directing the Act to extend to that foreign country, it is not time barred and it has not been wholly satisfied, such that it could be executed in the country of origin. If the respondent wishes to challenges its recognition and registration, he or she has to make application to set aside registration by chamber summons supported by affidavit as so provided under Rule 10 of the Reciprocal Enforcement of Foreign Judgments Rules, GN No. 15 of 1936. Once a foreign judgment has been registered as having fulfilled all the necessary conditions required under the Act, it appears to have the same force as Tanzanian judgment and capable of being executed as such and the execution is done according to Tanzanian Civil Procedure Code, Cap 33 R.E 2019.

8.0 THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN TANZANIA: PROCESSES AND PROCEDURES.

On 18 January 2021, Tanzania’s new Arbitration Act of 2020 came into force, repealing the previous Arbitration Act [Cap 15 R.E 2002]. On 29 January 2021, the new Arbitration (Rules of Procedure) Regulations, 2021 similarly came into force, replacing the previous Arbitration Rules (G.N. No. 427 of 1957). The High Court of Tanzania is the only forum for the recognition and enforcement of foreign arbitral awards.

8.1 Conditions for enforcement of foreign arbitral awards in Tanzania.

A foreign award may be enforced in Tanzania if;

(i) It has been made pursuant to the arbitration agreement considered valid under its governing law. Section 73(1) of the Arbitration Act, 2020 provides that; “An award made by the arbitral tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court.” 

(ii) It was made by the arbitral tribunal s provided for in the arbitration agreement or constituted in a manner agreed upon by the parties.

(iii) It was made in conformity with the law governing the arbitration procedures.

(iv) It has become final in its country of origin. 

(v) It concern a matter which may lawfully be referred to arbitration under the laws of Tanzania.

(vi) Enforcement of an award is not contrary to Tanzanian public policy or the laws of Tanzania.

The above conditions are clearly stipulated under Regulation 66 (3) of GN No. 146 of 2021.

8.3 PROCESSES AND PROCEDURES IN THE ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN TANZANIA.

A foreign arbitral award can be enforced in Tanzania upon the following procedures;

8.3.1 Filing an application for registration of the award.

An application for the enforcement of foreign award in Tanzania is made by way of a petition as provided for under Regulation 63(1) (a) of the Arbitration (Rules of Procedures) Regulations, 2021 GN No. 146 of 2021.  The following documents are to be produced along with the application; 

(a) Original award or a duly authenticated copy thereof;

(b) Original arbitration agreement or a duly certified copy thereof; and

(c) Any evidence required to establish that the award is a foreign award.

The filling of an application for registration of foreign award must be made within six months from the date when it was made.  Read the case of Siemens Ltd & Another v Mtibwa Sugar Estate, High Court of Tanzania (Commercial Division), Misc. Commercial Cause No. 247 of 2015 (U.R)

Once an application for enforcement of a foreign award is made, the other party has the opportunity to file an objection against enforcement on the grounds recognized under Regulation 63(2) of GN No.146 of 2021.

However, a Tanzanian court will refuse to enforce a foreign award if; 

(i) The award has been set aside in the country in which it was made.

(ii) The party against which the enforcement is sought was not given notice of arbitration proceedings in sufficient time to enable him to present his case, or if he was under legal incapacity or was not properly represented.

(iii) The award does not deal with all the question referred to by arbitration or contains decisions on matter beyond the agreement to arbitrate.

 CONCLUSION.

As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments and arbitral awards is of increasing importance, since a party who has obtained a judgment or arbitral award in cross-border litigation may wish to recognize and enforce the judgment or award in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court.

BIBLIOGRAPHY

STATUTES.

The Civil Procedure Code [Cap 33 R.E 2019]

The Reciprocal Enforcement of Foreign Judgment Act [Cap 8 R.E 2019]

BOOKS.

Adrian, B (2008). The Conflict of Laws. 2nd edn. Oxford University Press.

Martin, D, Ricketson, S & Lindell, G (1997). Conflict of Laws: Commentary and Materials. Butterworths. Mortensen,R, Garnett, R & Keyes, M (2011). Private International Law in Australia. 2nd edn. LexisNexis

Butterworths.

Patchett, K (1984). Recognition of Commercial Judgments and Awards in the Commonwealth.

Buttersworth London

Sykes, E & Pryles, M (1991). Australian Private International Law. 3rd edn. Law Book Company.

ARTICLES

Ho, H (1997)., ‘Policies Underlying the Enforcement of Foreign Commercial Judgments’. International and Comparative Law Quarterly. Vol. 443, Issue. 46, pp. 451-2.

Kevin, R (1999)., ‘Enforcement of Foreign Judgments in Canada’. Comparative Law Yearbook of International Business. Vol. 333, Article no.21

Marussia, R (1954)., ‘Recognition and Enforcement of Foreign Judgments’. International and Comparative Law Quarterly.Vol. 3, Issue. 1

Paul, R (1989)., ‘European Court of Justice and Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters’. International and Comparative Law Quarterly. Vol. 217, Article no.38.