Did a bit of research and thought I would share. Positions of experts in the area of arbitration.
By far the most important international instrument on arbitration law is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards.
• Generally speaking, by their nature, arbitration proceedings tend not to be subject to appeal, in the ordinary sense of the word.
• However, in most countries, the court maintains a supervisory role to set aside awards in extreme cases, such as fraud or in the case of some serious legal irregularity on the part of the tribunal. (can misrepresentation be argued to constitute fraud – i.e under the concept of fraudulent misrepresentation – such that the assignment carried out without TANESCO's knowledge and approval be claimed as such?) Or better to claim contract uberrimae fidei which is a contract of ‘utmost good faith'. Similarly to fiduciary relationships, the parties are required to make known all material facts influencing a contract. As such, had TANESCO been notified of the assignment having been executed prior to their consent, they could, at their option have terminated the agreements.)
• Only domestic arbitral awards (i.e. those where the seat of arbitration is located in the same state as the court seised) are subject to set aside procedure.
In the recognition and enforcement of arbitral awards, the arbitral process is reliant upon national systems of law. This is the classic example of what Lord Mustill meant when he referred to the relationship between the national courts and arbitration being like a relay race. The arbitral tribunal, whilst having sufficient powers to make the award, has no coercive powers to force a reluctant party to comply with the award. This is where the national court system takes up the baton.
Before considering recognition and enforcement in detail, it is worth just mentioning the limited scope of the ability to challenge an award by way of appeal in the seat of arbitration. In considering whether or not it is possible to challenge an arbitral award, it is necessary to look at the applicable Rules of Arbitration, as well as the law of the seat of arbitration. Each state has its own concept of the level of control it wishes to exercise over the arbitral process, and this can vary (as well as distinguish between domestic and international arbitration). If the seat of the arbitration is London, the appeal is to the Commercial Court of the Queen's Bench Division of the High Court of Justice; if it is in France, it is to the Cour D'Appel, Paris; and if in Switzerland, it is to the Swiss Federal Tribunal.
Challenges to awards by way of an appeal are difficult to make; and, purposefully so, as the decisions of arbitrators are meant to be final and binding. Having said that, in the case of Shell Egypt West Manzala GmbH & Anor v Dana Gas Egypt Ltd {2009}the English High Court held that the UNICTRAL Rules that provide for "final, conclusive and binding" does not exclude the possibility of appeal on a point of law.
This is because the legal system recognises that the parties have decided that they are to be bound by the decision of the arbitrators as an alternative to the national court. The law, therefore, gives effect to the intention of the parties and enforces the award just as it would a national court judgment. The House of Lords decision in Lesotho Highlands Development Authority v Impregilo SpA and other clarifies the basis on which arbitral awards may be challenged in the English courts and affirms the underlying policy of the English Arbitration Act 1996, which is to reduce court intervention in the arbitration process to a minimum.
Hilo jopo la mawakili preparing to take on this matter have their work cut out. Issue as raised by Mhe Mwanakijiji regarding the assignment pre- TANESCO approval is the obvious start point. Kwa kweli sioni point nyingine. Issues nyingine zote zimekuwa dealt with na the arbitration.
