Thursday, 13 January 2011
Dowans. Playing the poverty card!
“The law is not static, so they have the right to file the petition to defend their interests and that of the public”
It is only days since Tanzania's Attorney general stated that is was correct to honor the ICC Dowans judgment. Now it seems he has changed hiss mind after The Legal and Human Rights Centre (LHRC) filed the case at the High Court, Commercial Division on Tuesday to block the government’s decision to pay the power firm 97bn/- stating “the law is not static, so they have the right to file the petition to defend their interests and that of the public”. Unfortunately for the Attorney General, the ICC;s Arbitration process is as static today as it was when the parties submitted to it's adjudication.
Prof Abdallah Safari is quoted in the below article as stating
“The government’s hasty move to compensate Dowans instead of defending public interests is one of the grounds that have led to filing the case at the High Court (Commercial Division).”
Unfortunately for Professor Abdallah Safari this is not a ground upon which to challenge the ICC's ruling. Prof Safari also noted that the contract was contradictory from the beginning. If this was the case then all parties to the contract had a right to present their view to the ICC Tribunal to who both had submitted to decide upon this dispute. This ruling cannot be challenged unless if can be shown to fundamentally flawed and it is unlikely that the basis of the contract between the parties know from the outset of the arbitration process will present such a flaw. The problem is not with the International Chamber of Commerce, an institution of impeccable ethics and corporate governance but rather the corrupt institutional framework within Tanzania which allowed the formation of this contract.
As such the advice of Dr Benson Bana, a political scientist at UDSM, who is quoted as stating ''it was a waste of time and resources to stop the registration of the payment at the High Court since the matter was already concluded at ICC.....if the ruling is done by the International Court of Arbitration and certified by our lawyers nothing can be done other than paying the compensation'' may indeed be correct. In any event, the international investment community will be watching this case carefully. Should the judgment not be honored without legal justification then Tanzania becomes an unattractive if not impossible place to invest. What cannot be denied as extraordinary, is the fact that the most senior law officer in the country seems not to be able to make a decision without changing his mind!! The arbitrary element of this case is already decided.