Introduction
Arbitration has emerged as a widely accepted alternative dispute resolution (ADR) mechanism globally, offering parties a private, flexible, and often quicker means of resolving conflicts compared to traditional litigation. Central to the practice of arbitration is the concept of arbitrability, which determines whether a dispute can be resolved through arbitration rather than the courts. This essay explores the meaning of arbitrability, delving into its theoretical underpinnings and practical implications. Specifically, it examines the types of disputes typically excluded from arbitration under Tanzanian law, with a focus on land-related disputes, which are often deemed non-arbitrable due to public policy and statutory considerations. Through this analysis, the essay aims to provide a sound understanding of arbitrability, supported by relevant legal frameworks and academic discourse, while identifying the limitations and applicability of arbitration in specific contexts within Tanzania.
Understanding Arbitrability: A Conceptual Overview
Arbitrability refers to the suitability of a dispute for resolution through arbitration, determined by legal, policy, and practical considerations (Born, 2014). At its core, arbitrability hinges on whether the subject matter of a dispute falls within the scope of issues that parties can legally agree to arbitrate, and whether national laws or public policy permit such disputes to be resolved outside the judicial system. According to Redfern and Hunter (2015), arbitrability is a threshold question in arbitration agreements, as not all disputes are deemed appropriate for private resolution due to their public interest implications.
Generally, arbitrability is divided into objective and subjective dimensions. Objective arbitrability pertains to the nature of the dispute and whether it can be arbitrated under the law, such as matters involving commercial contracts which are often arbitrable (Born, 2014). Subjective arbitrability, on the other hand, concerns the capacity of the parties to enter into an arbitration agreement, for instance, whether a party is legally competent to do so. Most jurisdictions, including Tanzania, adopt a restrictive approach to objective arbitrability, excluding certain categories of disputes from arbitration to safeguard public interest or statutory rights.
Legal Framework for Arbitrability in Tanzania
In Tanzania, the legal framework governing arbitration and arbitrability is primarily encapsulated in the Arbitration Act, Cap. 15 of the Revised Edition 2002. This statute provides the foundation for arbitration proceedings and delineates the scope of disputes that can be arbitrated. While the Act encourages arbitration as a means of dispute resolution, it implicitly acknowledges limits to arbitrability by respecting other statutory provisions and public policy considerations (Tanzania Arbitration Act, 2002).
Tanzanian law, much like many other jurisdictions, aligns with the principle that disputes involving rights in rem (rights over property that are enforceable against the world) or matters of public law are generally non-arbitrable. This position is informed by the need to maintain judicial oversight over issues that affect broader societal interests. Furthermore, Tanzania’s legal system operates within a context where customary laws and practices, particularly in relation to land, play a significant role, often necessitating state intervention rather than private resolution mechanisms.
Disputes Excluded from Arbitration in Tanzania: Focus on Land-Related Matters
One of the most prominent categories of disputes excluded from arbitration in Tanzania pertains to land. Land disputes are deeply intertwined with public policy, customary law, and statutory regulation, making them typically non-arbitrable. The Land Act, Cap. 113, and the Village Land Act, Cap. 114, govern land ownership and disputes in Tanzania, establishing specific mechanisms for resolution that exclude arbitration (Land Act, 1999; Village Land Act, 1999).
Under Tanzanian law, land is held under a system of public ownership, where the President is the trustee of all land on behalf of citizens. This unique arrangement implies that disputes over land often involve issues of public interest, such as ownership, boundaries, or customary rights, which cannot be adequately addressed through private arbitration (Shivji, 1998). For instance, disputes regarding the validity of land titles or customary land tenure are typically resolved through specialised land tribunals or courts, as mandated by the Land Disputes Courts Act, Cap. 216. These tribunals are designed to ensure consistency in land governance and protect vulnerable parties, objectives that might be undermined in a private arbitration setting.
Moreover, land disputes often involve multiple stakeholders, including local communities and government entities, whose interests extend beyond the immediate parties to the arbitration agreement. Indeed, the public nature of land rights in Tanzania renders arbitration inappropriate for such matters, as awards may not be enforceable against third parties or may conflict with statutory protections.
Other Categories of Non-Arbitrable Disputes in Tanzania
Beyond land disputes, other categories of disputes are also typically excluded from arbitration in Tanzania due to their public policy implications. These include criminal matters, which must be adjudicated by the state to uphold justice and societal order, and family law disputes, particularly those involving child custody or matrimonial property, where the welfare of vulnerable individuals takes precedence (Redfern and Hunter, 2015). Additionally, disputes involving insolvency or bankruptcy are generally non-arbitrable, as they require judicial oversight to protect creditors and ensure equitable distribution of assets.
Tax disputes and matters concerning constitutional rights also fall outside the ambit of arbitration in Tanzania. Such issues often involve the interpretation of national laws and policies, necessitating resolution by courts to ensure consistency and accountability. Arguably, these exclusions reflect a broader trend in many jurisdictions to reserve disputes with significant public interest elements for judicial determination, thereby limiting the scope of arbitration to private, consensual matters.
Implications and Limitations of Arbitrability Restrictions
The exclusion of certain disputes, such as those related to land, from arbitration in Tanzania has both practical and theoretical implications. On one hand, it ensures that matters of public importance are subject to judicial oversight, thereby safeguarding societal interests and statutory rights. On the other hand, this restriction may limit the flexibility of parties seeking to resolve disputes efficiently through arbitration, particularly in a context where court systems are often overburdened and slow to deliver justice.
Moreover, the strict demarcation of arbitrable and non-arbitrable disputes raises questions about the balance between private autonomy and public interest. While the Tanzanian legal framework prioritises the latter in cases like land disputes, it may discourage foreign investors or commercial entities who prefer arbitration for its perceived neutrality and efficiency. This tension highlights a key limitation in the application of arbitration within jurisdictions that prioritise public policy over individual choice.
Conclusion
In conclusion, arbitrability is a critical concept in arbitration, determining the scope of disputes that can be resolved outside the traditional court system. In Tanzania, while arbitration is recognised as a valuable ADR mechanism, its application is restricted by legal and policy considerations, particularly in disputes involving land. Land-related matters, governed by statutes like the Land Act and Village Land Act, are typically excluded from arbitration due to their public interest implications and the involvement of customary rights. Other categories, such as criminal and family law disputes, similarly fall outside the purview of arbitration to protect societal values and vulnerable parties. These exclusions underscore the delicate balance between private dispute resolution and public policy, raising important questions about the future development of arbitration in Tanzania. Ultimately, while restrictions on arbitrability serve to uphold justice and equity, they also highlight the need for ongoing dialogue on how best to integrate arbitration into legal systems with significant public law dimensions.
References
- Born, G. B. (2014) International Commercial Arbitration. 2nd ed. Kluwer Law International.
- Land Act (1999) Cap. 113, Laws of Tanzania. Government Printer, Dar es Salaam.
- Redfern, A. and Hunter, M. (2015) Law and Practice of International Commercial Arbitration. 6th ed. Sweet & Maxwell.
- Shivji, I. G. (1998) Not Yet Democracy: Reforming Land Tenure in Tanzania. International Institute for Environment and Development.
- Tanzania Arbitration Act (2002) Cap. 15, Revised Edition, Laws of Tanzania. Government Printer, Dar es Salaam.
- Village Land Act (1999) Cap. 114, Laws of Tanzania. Government Printer, Dar es Salaam.
