Contributed By Eric Silwamba, Jalasi & Linyama Legal Practitioners
Since the enactment of the Arbitration Act No 19 of 2000 (‘The Act’) which repealed and replaced an old antiquated Arbitration Act with its origins in British Colonial Rule. Since 2000 there has been a general increase in the use of Arbitration as well as other forms of Alternative Dispute Resolution.
The Zambia Association of Arbitrators used to be the only recognised arbitral institution. However, recently the Chartered Institute of Arbitrators Zambian Branch has also been recognised. It is safe to say that the CIArb Zambia Branch is currently the leading arbitral institute in Zambia. The CIArb has a full-time secretariat and a permanent office which is located in the capital city of Zambia, Lusaka.
Section 10 of the Act, which makes it mandatory for parties with an arbitration clause in their agreement to refer the matter to arbitration, has to a large extent ensured that parties are forced to arbitrate. This, naturally, has resulted in a high prevalence of domestic and international arbitration.
The most common arbitration in Zambia is domestic arbitration; international arbitration is very rare.
The current trend is that domestic arbitration is on the increase, as stated earlier. However, what will be observed over the last few years is that there has been an increase in international arbitration with respect to the Government of the Republic of Zambia and vendors of goods and services. For example, the provisions of the Public Procurement Act provide that all disputes arising from the procurement of public works and services have to be determined by arbitration. It has therefore become very common to find the Zambian Government making regular appearances at arbitrations in London, South Africa and Mauritius. In addition, provisions under the Mines and Minerals Development Act also provide that disputes relating to Mining rights have to be determined by arbitration.
Investment protection disputes between the government and investors have also seen a slight increase. Two examples of investment disputes which have been in the public domain relate to the dispute with telecom investors in a state-owned company called Zamtel and one of Zambia’s major copper mines, where the Government of the Republic of Zambia holds a minority interest.
The mining, construction and financial industries experience more arbitration activities as opposed to any other industry due to the fact that the industries contribute greatly to Zambia’s economic growth and the parties mostly invoke the arbitration clause in order to avoid unnecessary delays in the event of a dispute and most certainly to settle the matter amicably.
Zambia has two arbitral institutions, namely, the Zambia Association of Arbitrators and the Chartered Institute of Arbitrators Zambia Branch.
Arbitration in Zambia is governed by the Arbitration Act No 19 of 2000 ('The Act'). The Act under Section 8 incorporates the United Nations Commission on International Trade Law (UNICITRAL) Model Law and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Arbitration Act applies to both domestic and international arbitration proceedings.
There have been no changes to domestic (national) law in Zambia with respect to arbitration.
The provisions of Section 9 of the Arbitration Act No 19 of 2000 provide that an arbitration agreement must be in a contract or in the form of separate agreement. The agreement is required to be writing if it contained in a document and signed by the parties or in the exchange of letters, telex, telegrams, or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another.
Any reference made to a document containing an arbitration clause in a written contract constitutes an arbitration agreement, thus making it part of the contract.
The parties are at liberty to submit any dispute to arbitration; however, the provisions of Section 6 of the Arbitration Act provides for matters which are not determinable by arbitration, as follows:
The jurisdiction of the High Court of Zambia is settled in so far as a contract embodies an arbitration clause. The provisions of Section 10 of the Act requires that if there is a matter brought before the court in which a valid arbitration clause is present and were the parties to request at any stage of the proceedings, the court shall stay the proceedings and refer the parties to arbitration.
In the case of Konkola Copper Mines Plc v NFC Africa Mining Plc- Appeal No 118/2006,emphasis was placed on the fact that a court has discretion not to stay proceedings and refer the parties to arbitration, where the plaintiff demonstrates that the arbitration agreement is null and void, inoperative or incapable of being performed.
In the case of Audrey Nyambe v Total Zambia Appeal No 29 of 2011, it was held that, in determining whether a matter is amenable to arbitration or not, it is imperative that the wording used in the arbitration clause itself be closely studied.
Further, in the case of Ody’s Oil Company Limited v The Attorney General Constantinos James Papoutsis, S.C.Z Judgment No 4 of 2012, it was held that the court must be satisfied, first, that there is an agreement, that the agreement is valid, and that it is not null and void, inoperative or incapable of being performed.
Generally, the validity of an arbitration clause is not reliant on the remaining parts of the contract in which it is contained. Thus, an arbitral tribunal may declare a contract invalid and yet retain its jurisdiction to dispute the consequences of such validity, provided that the arbitration clause has separate entity. Article 16(1) of the UNCITRAL Model Law states that “an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract".
Additionally, the Doctrine of Separability does not apply in cases of fraud; in the event of fraud, the arbitration agreement may be declared invalid on the same grounds as the rest of the contract. The Zambian courts are likely to follow similar principles set out in the English case of United World Inc v M.T.S Limited (1998) 10 NWLR (PART 568) 106.
The parties to the arbitration are at liberty to select their preferred arbitrator or arbitrators. This is supported by the provisions of Section 12(2) of the Arbitration Act and Article 11(2) of the UNCITRAL Model Law, which provide that the parties are free to agree on a procedure to appoint the arbitrator or arbitrators.
Where the parties fail to agree on the appointment of an arbitrator, under the provisions of Section 12(3) and Article 11(3) of the UNCITRAL Model Law, the arbitrator shall refer the matter to an arbitral institution such as the Zambia Association of Arbitrators (ZAA) and the Chartered Institute of Arbitrators Zambia Branch (CLArbZB).
Section 12 (4) of the Act gives the power to the court to appoint an arbitrator if the parties or the arbitral tribunal fail to appoint an arbitrator or also in the case of an arbitral institution, if it fails to perform any functions entrusted to it under a particular arbitration agreement.
The provision of Article 13 of the UNCITRAL Model Law states that the parties to the arbitration proceedings may agree on a procedure to adopt in order to challenge an arbitrator. Article 13 provides as follows:
(i) the parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of (iii) below;
(ii) failing any such agreement, a party who intends to challenge an arbitrator must, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his or her office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge;
(iii) if a challenge under any procedure agreed upon by the parties or under the procedure of paragraph (ii) above is not successful, the challenging party may request, within 30 days after having received notice of the decision rejecting the challenge, the court or other authority specified in Article 6 to decide on the challenge, which decision shall not be subject to appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.
The Arbitration (Code of Conduct and Standards) Regulations, Statutory Instrument No 12 of 2007 provides that an arbitrator shall act fairly and impartially between the parties, that he or she shall disclose at the earliest opportunity any prior interest or relationship that may affect his or her impartiality and independence or which may cause reasonable doubts. The arbitrator should not establish any relationship with either party which may give rise to a conflict of interest.
Article 12 of the UNCITRAL Model Law imposes a duty on an Arbitrator to disclose any circumstances that are likely to give rise to justifiable doubts about his or her impartiality or independence. Failure to do so is a ground for terminating the arbitrator’s appointment. This position was also affirmed in the case of Zambia Telecommunications Co Ltd v Celtel Zambia Limited SCZ No 34 of 2008, where it was stated that situations perceived as having compromised the arbitrators' independence and impartiality create a notion that justice may not have been seen to have been done.
The Arbitration Act provides that matters concerning public policy, criminal matters, matrimonial causes, determination of paternity, maternity or parentage of a person, matters affecting the interests of a minor or an individual under a legal incapacity are not determinable by arbitration.
An arbitral tribunal can rule on its own jurisdiction. Article 16(1) of the UNCITRAL Model Law states that:
“the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.”
Article 16(3) further provides that a party aggrieved with a decision of the arbitrator on jurisdiction may request the court to rule on the issue of the arbitrator’s arbitration within 30 days. The decisions of the High Court will not be subject to appeal.
In the recent case of Hybrid Poultry Zambia v NFC Africa Mining PLC Selected Judgment No 49 of 2018, the Supreme Court itself pronounced that an arbitrator has no jurisdiction to entertain a cross-claim or counter-claim which is outside the scope of the arbitral reference.
Article 5 of the UNCITRAL Model law provides that no court shall intervene except where the law provides. The circumstances in which the court may intervene are, inter alia, the appointment of an arbitrator in the event that there is a deadlock, the granting of interim measures of protection of an application to set aside arbitral awards, both interim and final, the determination of jurisdiction of an arbitrator after the ruling on the jurisdiction, an application for the court's assistance to take evidence and the recognition and enforcement of awards.
The provisions of Article 13 of the UNCITRAL Model Law provides that, where a party intends to challenge the jurisdiction of the arbitral tribunal, they shall, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances that would give rise to justifiable doubts as to his or her impartiality or independence, or if he or she does not possess qualifications agreed to by the parties, send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his or her office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
If a challenge under any procedure agreed upon by the parties is not successful, the challenging party may request, within 30 days after receiving notice of the decision rejecting the challenge, that the court or other authority decide on the challenge, and which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.
The Zambian courts apply a very stringent standard when dealing with a review of an arbitrator’s jurisdiction. The courts are very reluctant to interfere in any matter that is the subject of arbitration.
As soon as a party makes an application under section 10 to the effect that there is an arbitration clause, the Zambia judicial court immediately refers the matter to arbitration. The following cases illustrate this provision: Zambia National Holdings Limited and another v The Attorney General (1993/1994) Z.R. 115, Vangelatos v Vangelatos 2008 ZR 97, Pouwels Construction Zambia Limited and another v Inyatsi Construction Limited Appeal No 023 of 2016, Mechanised Mining Solutions (Z) Limited v Konkola Copper Mines Plc 2012/HK/435 and Intermarket Banking Corporation Zambia Limited v Nonde Munkanta 2012/HPC/ 0268.
In the event that a party commences an action in the courts, the courts will either refer the matter to arbitration upon application of the other party or on its own motion without exception. Section 10 does not grant the High Court judge any discretion to continue a matter in court when there is an arbitration clause. In the event that the court proceeds to hear a matter with an arbitration clause, the court will rule those proceedings as a nullity as set out in the case of Pouwels Construction Zambia Limited and another v Inyatsi Construction Limited Appeal No 023 of 2016.
The privity of the arbitration agreement prevents arbitrators from ordering the joinder of parties who have not signed the arbitration agreement. The position in the Zambian Courts is set out in the case of Ody’s Oil Company Limited v The Attorney General and Constantinos James Papoutsis, S.C.Z Judgment No 4 of 2012, where it was held that a party who is not party to the arbitration cannot be bound by the terms and outcome of an arbitration agreement to which they are not privy.
The arbitral tribunal is permitted to award preliminary and interim relief as provided for by Section 14 of the Arbitration Act and Article 17 of the UNCITRAL Model law. These include the powers to:
The UNCITRAL Model Law states that a preliminary order shall be binding on the parties but shall not be subject to enforcement by a court. Such a preliminary order does not constitute an award. The court exercised these powers in the case of Elias Chipimo and Charles Mkokweza v Bradford Machila 2009/HP/0054, and of Zimbabwe Mining Development Corporation v Amaplat Mauritius Limited 2012/HP/1213.
An arbitrator is at liberty to seek the court's assistance when granting preliminary or interim relief in arbitration proceedings. Section 11 of the Arbitration Act provides that the court may grant the following preliminary or interim relief:
The procedure to make applications to court is governed by the Arbitration (Court Proceedings) Rules contained in Statutory Instrument No 75 of 2001. An interim relief will be granted on the merits of each case, and the court will apply the principles of granting an injunction, namely, the prospect of success and whether the damage can be remedied in damages. In the case of Roraima Data Services v Zambia Postal Services Corporation 2011/HN/ARB/01, the court’s approach was that it granted the interim injunction pending arbitration for the reasons that damages would be totally inadequate, and it would be manifestly unjust to confine the plaintiff to its damages for breach should it succeed in its claim before the arbitrator.
The Zambian courts have not yet granted interim relief in aid of foreign seated arbitrations. However, in the event of an application to grant preliminary or interim relief, the courts will be guided by the principles of English Law, pursuant to the provisions of Section 10 of the High Court Act, Chapter 27, Volume 3 of the Laws of Zambia.
The Arbitration Act provides that the court may grant an order securing the amount in dispute or the costs and expenses of the arbitral proceedings and, unless otherwise expressly provided, the arbitral tribunal shall have the power to order the parties to make a deposit in respect of the fees, costs and expenses of the arbitration.
The arbitration procedure is governed by the Arbitration Act, the United Nations Commission on International Trade Law Model of Law on International Commercial Arbitrations, which has introduced the bifurcated system of domestic and international arbitration procedure and the New York Convention on the recognition and enforcement of foreign awards and arbitral awards.
In the event that parties have not agreed on how to commence arbitral proceedings, Article 21 of the UNCITRAL Model Law states that arbitral proceedings in respect of a particular dispute will commence on the date on which a request for the dispute to be referred to arbitration is received.
Arbitrators are subject to the Arbitration Act, the Arbitration (Code of Conduct and Standards) Regulations contained in Statutory Instrument No 12 of 2007 and the UNCITRAL Model Law. These pieces of legislation impose on the arbitrator the following duties:
There are no specific rules that preclude counsel from another jurisdiction appearing in an arbitration. However, section 42 of the Legal Practitioners Act, Chapter 30 of the Laws of Zambia precludes counsel from other jurisdictions acting as advocates in any cause, matter or civil proceeding in Zambia.
The collection and submission of evidence occur at the pleadings stage and at the hearing is subject to the rules adopted by the arbitral tribunal. Parties are at liberty to present evidence either orally or through the use of witness statements.
Article 19 of the UNCITRAL Model law provides for the Determination of Rules of Procedure. It makes provision for the parties to agree freely on the procedure or method of receiving evidence that is to be followed by the arbitral tribunal.
If the parties do not agree, the arbitral tribunal will determine the procedure in any manner it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.
An arbitrator under the provisions of Section 14(2) has the following powers:
A party is also at liberty to also seek the court’s assistance to compel parties.
The Arbitration (Code of Conduct and Standard) Regulations provide that an arbitrator shall not disclose to anyone who is not a party to the arbitral proceedings any information or documents that are exchanged in the course of the proceedings, except with the consent of the parties concerned or when ordered to do by a court or otherwise required to do so by law, or when the information discloses an actual or potential threat to human life or national security.
Regulations 25 and 26 of the Arbitration (Court Proceedings) Rules 2001 extends confidentiality to applications relating to arbitral proceedings and prescribes how custody of records, registers and documents are to be kept confidential by the court.
Section 16(1) of the Arbitration Act provides that an award shall be in writing and shall be signed by the arbitrator or arbitrators and, in arbitral proceedings with more than one arbitrator, the signature of the majority of all members of the arbitral tribunal will suffice, provided that the reason for the omission of the signature is stated.
The award shall state the reason upon which it is based, unless the parties have agreed that no reasons are to be given or the award is on agreed terms under Article 30 of the UNCITRAL Model Law. The award shall state its date and the place of arbitration, as determined in accordance with Article 20(1) of the UNCITRAL Model Law. After the award is made, a copy signed by the arbitrators shall be delivered to each party.
There is no time limit attached to the delivery of an arbitral award.
There are no limits to the types of remedies that an arbitral tribunal may award. It should be noted that damages are equivalent to those issued by the court.
Parties are entitled to recover interest and legal costs. The general practice is that the successful party is awarded costs. The provisions of Section 16(5) of the Act provides that, unless the parties agree otherwise, the costs and expenses of an arbitration, including the legal fees and other expenses of the parties, the fees and expenses of the arbitral tribunal and other expenses related to the arbitration, shall be fixed and allocated by the arbitral tribunal in the award.
Article 16(3) provides that a party aggrieved with a decision of the arbitrator on jurisdiction may request the court to rule on the issue of the arbitrator’s arbitration within 30 days. The decisions of the High Court will not be subject to appeal.
All arbitral decisions are considered to be ‘final and binding’. Arbitral awards are final and cannot be appealed, except where the arbitration proceedings can be challenged in the Zambian High Court on limited statutory grounds. This contractual and binding nature of arbitration can be seen and confirmed in the Zambian case of John Kunda (Suing as Country Director of and on Behalf of the Adventist Development and Relief Agency (ADRA)) v Keren Motors (Z) Limited 2008/HPC/550, where the court held that the arbitral rules, such as those of UNCITRAL, provide unequivocally that an arbitration award is final and binding.
In the case of Savenda Management Limited v Stanbic Bank Zambia Appeal No 002/2015 at page J24 of the judgment, the judges stated as follows: “Allowing the said application would amount to changing the decision of the Arbitrator with regard to the period within which the payment should have been made. In our view, Courts do not have jurisdiction to sit as appellate courts to review and alter arbitral decisions.”
Parties cannot expand or exclude the scope of appeal under Zambian legislation.
Judicial review proceedings do not apply in domestic (national) or international arbitration.
Zambia has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and this has been domesticated into the Zambian laws by virtue of Section 31 of the Arbitration Act.
The Convention of the Settlement of Investment Disputes between States and National of other States has been domesticated by the enactment of Investments Disputes Convention Act, Chapter 42, Volume 4 of the Laws of Zambia.
Zambia has not made any reservations with respect to the aforementioned Conventions.
In order to obtain the recognition and enforcement of the arbitral award, the provisions of Article 4 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards states that a party applying forits enforcement shall apply a duly authenticated original award or a duly certified copy, as well as the original arbitration agreement or a duly certified copy thereof. However, if the award or agreement is not made in the official language of the country in which the award is relied upon, the party shall provide a duly certified translated copy into the official language.
Zambia is a signatory to the SADC Protocol on Finance and Investment (Investment Protocol) and the COMESA Treaty and the Investment Agreement for the COMESA Common Investment Area (CCIA Agreement).
It is also imperative to note that the Investment Disputes Convention Act, Chapter 42, Volume 4 of the Laws of Zambia has domesticated the Convention on the Settlement of Investment Disputes Between States and Nationals of other States.
The courts will not enforce an award which has been set aside.
The defence of sovereign immunity will only be raised after registration but before enforcement. In Zambia, section 21(4) of the State Proceedings Act, Chapter 71, Volume 6 of the Laws of Zambia, precludes the levy of execution against the Zambian Government.
The Zambian courts regularly recognise and enforce arbitration awards, an example is the case of U and M Mining Zambia Limited v Konkola Copper Mines PLC  EWHC 260.
For an arbitral tribunal to obtain recognition and enforcement, it should adhere to the provisions of Article 4 of the York Convention on the Recognition and Enforcement of Foreign Arbitral Awards which states that a party applying forits enforcement shall apply a duly authenticated original award or a duly certified copy, as well as the original arbitration agreement or a duly certified copy thereof. However, if the award or agreement is not made in the official language of the country in which the award is relied upon, the party shall provide a duly certified translated copy into the official language.
The Arbitration Act does not provide for class-action or group arbitration. However, if there is a class or group of people who are party to an agreement with an arbitration clause, it shall be enforced.
The Arbitration (Code of Conduct and Standards) Regulations set out extensively the manner in which arbitrators are required to conduct themselves. With respect to the professional standards applicable to counsel, the Legal Practitioners Act Chapter 30, Volume 4 of the Laws of Zambia governs the conduct of counsel practising in Zambia.
There are restrictions on third-party funding.
Due to the consensual nature of arbitration, arbitrators cannot generally consolidate actions without the agreement of both parties.
The privity of the arbitration agreement prevents arbitrators from ordering the joinder of parties who have not signed the arbitration agreement.The position in the Zambian courts is set out in the case of Ody’s Oil Company Limited v The Attorney General and Constantinos James Papoutsis, S.C.Z Judgment No 4 of 2012, where it was held that a party who is not party to the arbitration cannot be bound by the terms and outcome of an arbitration agreement to which they are not privy.