Introduction to the Country
Violence is unnecessary and costly. Peace is the only way. Julius Nyere, first president of Tanzania (1922 – 1999).
40 million, including 1 million in Zanzibar
Tanzania is a republic which adheres to multi-party democracy. The constitution endorses a federal system of government in which the President of the United Republic is the head of State and Government, but Tanzania Mainland and the Isles of Zanzibar each have their own executive, legislative and judicial institutions with defined spheres of competence. There is a Union legislature, which comprises members of both the Mainland and Zanzibar legislatures, and 11 Presidential appointees (one of whom is the Attorney General).
The Tanzanian legal system has evolved largely on the basis of English common law because of the British presence in the country from 1919 until independence in 1961. In Zanzibar, the legal system has evolved from both English common law and Islamic law. The constitution is the fundamental law prevailing over all other legislation and includes a Bill of Rights.
Tanzania has become a free market economy in which the pricing of goods and services (including foreign exchange) is determined by market forces. Government professes a commitment to macroeconomic stability and the promotion of savings and investment.
Finance and Tax matters
(a) Financial assistance
(i) Does the concept of financial assistance exist?
It is unlawful for a public company to give whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the company, or, where the company is a subsidiary company, in its holding company. If a company contravenes this section the company and every officer of the company who is in default shall be liable to a fine. Note however there are exceptions and these provisions do not apply to a private company.
(b) Lending restrictions/banking monopolies
(i) Any restrictions applicable to the importation of capital by lenders?
Foreign banks can lend to a company only if they possess a banking licence granted to them by the Bank of Tanzania. Foreign banks with a banking licence issued by the Bank of Tanzania can lend either through their headquarters or through a branch entity.
(ii) Requirement for the lenders/security agent to be registered in the jurisdiction?
There is no specific requirement for a lender / security agent to be registered in the jurisdiction. Although the practice of one bank / institution taking security for and on behalf of a group of lenders has been used, this approach is not much tried and tested in Tanzania.
(iii) Can foreign lenders lend into the jurisdiction?
Yes, see above.
(c) Restrictions relating to repatriation of dividends
(i) Are there any restrictions relating to repatriating dividends?
A company incorporated or registered in Tanzania may hold foreign currency with banks in Tanzania.
Repayment of loans and payment of dividends to foreign entities is permitted, but loans may require registration with the Bank of Tanzania. Money earned by foreigners whether by way of dividends or investment can be repatriated
(i) Are there any restrictions on the convertibility of Tanzanian Shillings?
Tanzania currently has no convertibility restrictions in place. The Foreign Exchange Act 1992 liberalised external trade and created enabling environment for market determined exchange rates.
Any person may not, without the consent of the Governor of the Bank of Tanzania:
- make any payment in Tanzanian Shillings to or for the credit of a person resident outside Tanzania; or
- make any payment in Tanzanian Shillings to or for the credit of a person resident in Tanzania by order or on behalf of a person resident outside Tanzania; or
- place any sum in Tanzanian Shillings to the credit of any person resident outside Tanzania.
(e) Interest payments
(i) Are there any restrictions on the payment and compounding of interest? If so, does this also affect both local and foreign lenders?
There is no general restriction on the payment of interest.
(i) Are there any withholding tax issues in relation to interest? If so, does this also affect both local and foreign lenders?
Withholding tax is payable in certain circumstances on dividends, interest, royalties and management fees.
(ii) List of double taxation treaties.
There are double taxation treaties with a number of countries including:
- Sweden; and
(iii) Lender risks in respect of tax liabilities/tax domiciliation as a result of providing debt and/or taking/enforcing security interests
Lenders are advised to seek detailed taxation advice as under the current legislation a branch profits tax is imposed at a rate of 10%.
(iv) Can loan repayment/enforcement proceeds be treated negatively from a tax perspective for the lenders?
Tax advice should be obtained as to whether loan repayment / enforcement proceeds could be treated negatively from a tax perspective for the lenders.
(g) Stamping costs
(i) Details of stamp duty costs
Every instrument which is executed in Tanzania, or if executed outside Tanzania relates to any property in Tanzania or to any matter or thing to be performed in Tanzania, shall be chargeable with stamp duty.
The duty payable varies for various instruments.
Security, Enforcement and Insolvency
(a) Overview of security regime
(i) Can a security interest be obtained over a companys assets, e.g.:
A wide universal security interest is available (over book debts, inventory, company shares, equipment, insurances and project contracts). Mortgages over land, fixed and floating charges over other assets present and future, as well as assignments by way of security over contracts, are available over personal and real property. Trusts and the concept of insolvency are recognised but not tried and tested in the courts in relation to security enforcement.
(ii) Can shares of a project company validly be pledged and enforced under an English law share charge?
A charge may be granted over shares in a company as security for a loan.
(iii) Can a company grant a security interest in order to secure its obligations (i) as a borrower under a credit facility, and (ii) as a guarantor of the obligations of other borrowers and/or guarantors of obligations under a credit facility?
Security may be granted over receivables.
(iv) If the borrowings to be secured are under a revolving credit facility, are there any special priority or other concerns?
Borrowers may draw down and repay amounts for short periods throughout the term of a loan facility if those are the contractual terms of the loan agreement.
(v) Can the relevant security interests be granted to a security agent or trustee on behalf of the lenders from time to time?
The concept of trust is recognised in Tanzania and the applicable laws are generally and initially drawn from English law.
(vi) Please indicate the claims that would have priority over the relevant security interests.
Certain creditors such as the tax authority and employees up to certain levels are preferential creditors and are given priority over floating charge secured and unsecured creditors on winding up.
(vii) Is there a public security registry?
The BRELA maintains a public register where information about security interests is recorded and can be searched.
A form must be registered with BRELA in respect of certain security interests within 42 days of their creation in order to perfect the security interest and to ensure it is not void as against another creditor or a liquidator.
(viii) Formalities in respect of security creation:
There are certain formalities that must be observed depending on the nature of the security being granted (and the asset class). Formalities also apply in order to perfect security interests, such as registration with BRELA (see above).
(b) Insolvency and enforcement regime
(i) Is there a court or similar register that can be searched in respect of proceedings and insolvency actions?
A search can be carried out at BRELA to check if a company is in the process of liquidation.
(ii) Summary of the different options for an insolvency related process.
The Companies Act 2002 (CA) sets out the insolvency regime for companies in Tanzania. The procedures for insolvency include:
(I) Compulsory liquidation or winding up (or winding up by the court), a shareholder, unpaid creditor, the company itself, the Official Receiver, the Attorney General or an administrator of the company presents a petition to wind up the company on one of the grounds specified in the CA. These grounds include that it is just and equitable;
(II) Voluntary liquidation or winding up
a. Members (solvent) voluntary liquidation or winding up, if the company is solvent and the shareholders agree to close it down;
b. Creditors voluntary liquidation or winding up, to wind up an insolvent Tanzanian company where the company is not capable of being rescued, to prevent further deterioration of its assets and proliferation of its liabilities and to ensure a fair distribution among creditors.
(I) Limited receiver appointed out of court by the holder of a mortgage or charge over the assets of the company;
(II) Administrative receiver appointed out of court by the holder of a floating charge over the whole or substantially the whole of the assets of the company under a floating charge; and
(III) Limited receiver or administrative receiver appointed by the court in certain circumstances.
(C) Administration where a company may be rescued or reorganised or its assets realised under the protection of a statutory freeze on the enforcement rights of creditors;
(D) Company voluntary arrangement, to seek the approval and implementation of a rescue or optimum salvage scheme by the directors or administrator or liquidator as applicable; and
(E) Scheme of arrangement, to freeze operation of the company during administration, liquidation or administrative receivership.
(iii) Are summary or expedited proceedings available?
There are no specific procedures for expedited proceedings.
(iv) Are any governmental or other consents required in connection with:
There are no specific governmental or other consents required in connection with:
(A) the enforcement of a security interest in shares;
(B) the enforcement of a security interest in other assets; or
(C) the enforcement of a guarantee (sovereign or otherwise).
(v) Do lenders inherit all environmental liabilities when they become owner of the shares upon enforcement (or at any other time)?
Lenders may assume environmental liabilities if they enforce security and acquire the shares and assets. A failure to comply with environmental laws may lead to closure of the plant.
(vi) Can security interests be enforced by both private sale and public auction, and is it necessary to appoint a court or other official to carry out the enforcement?
A security interest under a valid security agreement is enforceable in accordance with its terms and the secured party may apply for sale of the security interest subject to those terms. If the proceeds of sale are not enough, the secured party will have a continuing claim against the company of the balance, although not secured if there is no remaining security.
Corporate, Insurance and Employment matters
(a) Corporate vehicle
(i) Project company incorporation:
(A) Type of vehicle
The business form most commonly used is the private company limited by shares which requires at least 2 shareholders and has limited liability for its shareholders up to the amount of committed capital.
The incorporation of a company is effected by filing constitutional documents for the company together with certain prescribed information and fees. It is also possible to register a branch of a foreign company and obtain a Certificate of Compliance from the Business Registration and Licensing Agency (BRELA). It is also necessary to register as a tax payer and obtain a business licence.
A company can be incorporated with any amount as its authorised share capital. There is a minimum capital requirements of Tanzanian Shillings 20,000 (approx USD 20), and other requirements in certain cases, for instance in the banking and insurance sectors.
(B) Issues relating to thin capitalisation
In certain cases interest deductions for payments made are limited.
(C) Requirement to have indigenous shareholdings
There are no requirements in the power sector for a percentage of shares in a project company to be held by Tanzanians.
(I) Companies may either be private companies or what are commonly known as âpublic companies. A public company must have 50 or more shareholders.
(II) Every listed public company or issuer to reserve at least forty percent (40%) of its ordinary shares for investment by Tanzanian investors.
(III) Companies incorporated outside Tanzania which have established a place of business in Tanzania must apply to be registered as a foreign company.
(IV) Foreign nationals and foreign companies cannot own land in Tanzania. However, a Tanzanian company wholly owned by foreigners or majority owned by foreigners can hold land if it holds a Certificate of Incentives issued by the Tanzanian Investment Centre.
(V) Contracts entered into pursuant to a public procurement process or a privatisation process may also impose certain restrictions on the shareholding of the party contracting with the public entity. For instance, the contracting party may be required to ensure that a specified percentage of the shareholding is held by Tanzanian citizens.
(D) Estimated timescale for incorporation in the country. Are there any specific fees or other costs payable to governmental authorities in respect of incorporation?
The estimated timescale for incorporation in Tanzania is 2 to 4 weeks.
There any nominal fees and costs payable to governmental authorities in respect of incorporation.
(b) General corporate issues
(i) Is a private company free to lend and/or issue guarantees?
A private company is free to lend and issue guarantees, subject to its memorandum and articles of association.
(ii) Are there any restrictions on dividend distribution?
A private company is free to pay dividends, subject to its memorandum and articles of association and subject to having distributable reserves.
(i) Mandatory insurance: are there any insurances which the project company or the Project is required to have by law (or regulations or similar)?
There are limited compulsory insurances, such as workers compensation insurance.
(ii) Is there any minimum requirement to place the insurance with local insurers or any other similar restrictions? If so, can reinsurance be lawfully placed internationally?
There is no minimum requirement to place insurance with local insurers or any other similar restrictions.
(iii) Are there any restrictions in respect of granting security rights over the insurances or reinsurances?
There are no restrictions in respect of granting security rights over the insurances or reinsurances.
(i) Legislative/regulatory issues: is there any legislation or regulation impacting on foreign employees, in particular the conditions relating to work and residence permits? Please give an indication of the process and costs in relation to obtaining work and residence permits.
In December 2006, the Tanzanian legislature enacted new legislation relating to employment and related matters with the aim of consolidating the law into one statute. The Employment and Labour Relation Act, 2004 regulates, amongst other things, conditions of employment for employers and employees. The new legislation has made significant changes to labour law in Tanzania. The laws currently governing labour and employment matters are:
(A) The Employment and Labour Relations Act, 2004 (the ELRA);
(B) The Employment and Labour Relations (Code of Good Practice) (the CGP);
(C) The Labour Institutions (Regulation of Wages and Terms of Employment) Order, 2007 (the Order);
(D) The Labour Institutions Act, 2004;
(E) National Social Security Fund Act (the NSSFA);
(F) Accidents and Occupational Diseases (Notification) Act 2002; and
(G) The Occupational Health and Safety Act 2003.
(H) Expatriates who want to work in Tanzania are required to obtain an entry permit under the Immigration Act (Chapter 54) (the IA).
(I) The policy and practice of the Labour and Immigration authorities is to decline applications for work and residence permits where local skills are available to meet the requirements.
(J) The application fees for class A permit are US$ 1,620 for larger investors who have registered under the Tanzania Investment Act. For smaller investors the application fees are US$ 620. The application fees for class B permit are US$ 620.
(ii) Foreign restrictions: are there any restrictions that apply to foreign employees and foreign contractors/subcontractors and if so what do they need to do in order to comply with local legislation?
There are no specific restrictions that apply to foreign employees and foreign contractors/subcontractors.
(a) Land registry: is there a land registry (or similar) in the country that can be searched to confirm whether a project company has granted of any mortgage, charge, option assignment, lien or other encumbrance over the whole or part of the properties or assets of a company?
All title to land in Tanzania is registered with the appropriate regional Lands Registry.
A mortgage should be registered with both the Lands Registry and BRELA. These registries can be searched against to see is a mortgage over land has been given.
(b) Landlords rights: please indicate whether there are any rights which accrue to the landlord (or the government or any other bodies) that may override the terms of a land lease or threaten the rights of a project company particularly any right of repossession or acquisition.
All land in Tanzania is ultimately owned by the Government and the title to the land may give rights to the Government as âlandlordâ and place obligations, or restrictions on the actual occupier as âtenantâ.
(c) Direct agreement: are you aware as to whether a direct agreement in respect of a lease has been previously been provided to lenders on other transactions?
We are not aware whether a direct agreement in respect of a lease has previously been provided to lenders on other transactions in Tanzania.
(d) Forfeiture rights: do relief from forfeiture rights exist and would the lenders be entitled to rely on such rights?
(e) Is there any additional legislation governing property rights?
(f) Are there any formalities with which lenders need to comply when enforcing security over land?
The Lands Act (Cap 1113) sets out certain notice provisions that must be followed before enforcement.
International law and arbitration
(a) Supra-national treaties
(i) List all Bilateral Investment Treaties to which the country is party
Bilateral Investment Treaties include treaties with Denmark, Finland, Germany, India, Italy, Netherlands, Norway, Sweden, Switzerland, United Kingdom and Zambia.
It is possible to enforce some foreign judgments in Tanzania. Foreign judgments are enforceable in Tanzania if they originate from countries whose courts are recognised under the Reciprocal Enforcement of Foreign Judgments Act (Cap 8) (the REFJA) as superior courts. Courts of Lesotho, Botswana, Mauritius, New South Wales, Zambia, Seychelles, Somalia, Zimbabwe, Kingdom of Swaziland and United Kingdom have been listed under the REFJA (Extension of Part II) Order and, as such, final (i.e. non appealable) judgements of superior courts from those countries would be enforceable in Tanzania.
(ii) Is the country a signatory to the Energy Charter Treaty?
Tanzania is not a signatory to the Energy Charter Treaty.
(i) Requirements and restrictions applicable to the choice of arbitration roles and place of arbitration
Arbitration in Tanzania is governed by the Arbitration Act (Cap 15). The Arbitration Act grants substantial leeway to the parties to determine the manner in which they wish the arbitration to be conducted. Where there is no agreement, the Arbitration Act provides that the arbitrator shall make rules for the arbitration.
(ii) Are foreign arbitral awards / decisions are enforceable in the country (i.e. is the country a party to the New York Convention on the Recognition of Foreign Arbitral Awards (the Convention)?
An arbitral award shall be recognized as binding and, upon being filed in the court, shall be enforceable as if it were a decree of the court subject to the provisions of the Arbitration Act. Tanzania is a signatory to the New York Convention on the Recognition and Enforcement of Arbitration Awards. Tanzania is also a member of several international organisations including the International Centre for the Settlement of Investment Disputes (ICSID) and Multilateral Investment Guarantee Agency (MIGA).