By FAUSTINE KAPAMA-Judiciary
THE High Court has refused to bar ex-Controller and Auditor
General Prof. Mussa Assad from serving as an Arbitrator in pending arbitral
proceedings between three giant petroleum product dealer companies, Oryx Oil
Company Limited, Oryx Energies SA and Oilcom Tanzania Limited.
Judge Mustafa Ismal ruled in favour of Oilcom Tanzania Limited,
the respondent, after dismissing with costs the petition lodged by Oryx Oil
Company Limited and Oryx Energies SA, who had petitioned for recusal of Prof.
Asaad, accusing him that he would be biased.
“(The feelings) are flimsy pretexts of bias which do not pass an
objective test and are not anywhere enough to justify drawing of the inference
of bias. In sum, I hold that the petition is utterly misconceived and devoid of
merit. Accordingly, the same is dismissed with costs,” the judge ruled.
During hearing of the matter, the petitioners had advanced three
reasons to reject Prof. Asaad from being part of three arbitrators to
adjudicate the disagreement involving the parties, stating that he has been
working with the respondent, including preparation of the respondent’s business
plan.
The petitioners submitted that such arbitrator withheld the
nexus of his professional undertakings and, or financial gains with the
respondent.
They stated that there exists an apparent fact on the
arbitrator’s involvement in the preparation of the respondent’s business plan
for the latter’s fuel filling and service station, retail and recreational
centres which would, in this or that way, have a link to the subject matters of
the pending arbitration.
In his ruling, however, the judge pointed out that while the act
of inflating the arbitrator’s credentials is in bad taste and borders on
misrepresentation, the effects arising out of this inaccuracy cannot be said to
bring about any sense of feeling that the arbitrator may be biased in his
operation.
“I am hardly convinced that the same can amount to or result in
the disqualification or truncation of his participation in the arbitral
proceedings. As I appreciate that this anomaly is stronger than a mere keyboard
error, I take the conviction that the same cannot be a justifiable reason,” he
said.
According to him, it brings nothing to suggest, albeit remotely,
that bias would be bred out of such misstatement and form the basis for
recusal. Instead, he considered it as a trifling misstatement which should not
be hyped beyond what it is.
Thus, the judge said, in the absence of any other interpretation
than that the twisting of facts was intended to have the arbitrator ride on the
wave of the respondent’s fame, an explanation which he found some plausibility
in, the imputation of bias was, to say the least, imaginary, illusory and a hot
air.
“It fails to meet the threshold of bias as illustrated. I also
contend that sense would be made if the arbitrator was a sole adjudicator in
the pending arbitral proceedings, which is not the case. He is one of the
three-bench team, with an umpire,” the judge said.
The judge pointed out further that the decision in the
arbitration is by majority of the arbitrators, thus, a single arbitrator could
not, however influential he may be, sway the decision of the panel.
“It should be emphasized that, an arbitrator, once appointed,
serves as a parties’ judge and never the parties’ proxy. This is why the fees
for meeting the cost of arbitration is deposited by both parties and payable to
all arbitrators from single pool or basket,” he said.
The judge took the conviction that there was nothing to suggest,
in the slightest degree, that the arbitrator’s tainted past or association with
the respondent, if any, would hand any advantage to the respondent or prejudice
the interests of the parties, more specifically, the petitioners.
It was his conclusion that the feeling of bias by the
petitioners was more of a perception than a reality and they have not graduated
to a higher level of reasonable apprehension or suspicion that would make a
fair minded and informed member of the public to hold that the arbitrator has
any traces of bias.
The request for Prof. Assad’s recusal was fueled by what
appeared in his Curriculum Vitae (CV), which indicates that, at some point in
the past (March, 2006), he worked for the respondent as a sole consultant who
prepared what came to be known as the Kawawa Road Fuel Filling Business Plan.
Petitioners felt that the information, which was not disclosed
to them, had a link to the subject matters of the pending arbitral proceedings.
In the petitioners’ view, Prof. Assad’s past dealings with respondent raised
concerns and justifiable doubts as to his impartiality when he sits to
determine the dispute.
Prof. Assad had rejoined the request for his recusal, contending
that he never, at any point in time, served for the respondent and that the
project in respect of which his services were enlisted was a Joint Venture
undertaking whose client was Ilala Municipal Council, the latter of whom
engaged him.
He stated that during his stint, he never had any contact or
meet anybody in the respondent’s management and that the choice of the title in
his CV was intended to gain some mileage, knowing that the respondent was a
major oil company at the time.
arbitration consultant
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