Abstract

The doctrine of separability in arbitration posits that an arbitration agreement is autonomous and distinct from the underlying contract in which it is contained. This fictitious notion has generated significant debate concerning its alignment with the consensual nature of Alternative Dispute Resolution (ADR) in Tanzania. This article critically examines the theoretical underpinnings and practical implications of the separability doctrine within the Tanzanian legal framework. By analyzing key cases and statutory provisions, the article explores whether the doctrine upholds or undermines the voluntary and consensual essence of arbitration. It highlights the potential challenges and inconsistencies that arise when enforcing arbitration agreements deemed separate from potentially invalid contracts. The article also delves into comparative perspectives, assessing how other jurisdictions reconcile the doctrine of separability with the principle of party autonomy. Findings suggest that while the separability doctrine aims to safeguard the arbitration process from disputes affecting the main contract, it sometimes conflicts with the foundational principle of consensual dispute resolution. The article concludes with recommendations for aligning the doctrine of separability with the consensual nature of ADR in Tanzania, proposing legislative and judicial measures to ensure a balanced approach that respects party autonomy while maintaining the efficacy of arbitration as a dispute resolution mechanism.

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