International Arbitration 2022 Comparisons

Last Updated August 16, 2022

Law and Practice

Authors



Mulenga Mundashi Legal Practitioners (MMLP) was established in 1999 and is one of the leading and highly regarded corporate and commercial full-service law firms in Zambia. The firm houses 20 lawyers and 11 support staff. It has extensive experience in providing legal representation to both local and international clients. It offers comprehensive services in the areas of banking and finance, corporate advisory, capital markets, mining, high-level tax advisory, tax litigation, conveyancing, insurance industry, mergers and acquisitions, pension funds and high-level corporate litigation. MMLP is very active in the fields of arbitration and litigation as a provider of legal services. The firm has acted as counsel and experts on Zambian law in various local arbitral tribunals as well as several arbitrations before the International Chamber of Commerce (ICC), the London Court of Arbitration (LCIA) and the Permanent Court of Arbitration (PCA) in London, as well as various privately administered arbitrations.

International arbitration is fairly common in Zambia, particularly with respect to commercial relationships between the Government of the Republic of Zambia and private international entities where it is increasingly becoming the preferred means of resolving disputes between the parties. For example, Section 101 of the Public Procurement Act No. 8 of 2020 (the “Procurement Act”) provides that any dispute over a matter or decision made under the Procurement Act shall be determined by arbitration in accordance with the provisions of the Arbitration Act No. 19 of 2000 (the “Arbitration Act”). Furthermore, Section 56 of the Mines and Minerals Act No. 11 of 2015 (the “Mines Act”) also entitles the parties to resolve their disputes under the Mines Act by way of arbitration in accordance with the Arbitration Act.

The above provisions, among others, serve to reinforce our position that commercial transactions and their attendant disputes involving the Government of the Republic of Zambia and private international or domestic entities are increasingly being subjected to arbitration through legislation. This is in addition to the choice of the parties to a commercial transaction to resolve their disputes by arbitration.

The COVID-19 pandemic has impacted the use and conduct of international arbitration in Zambia in various ways, such as delayed hearings and determination or issuance of arbitral awards.

However, owing to several international guidelines that have been issued to alleviate the impact of the COVID-19 pandemic on the use and conduct of international arbitration, arbitration proceedings or hearings have over recent years been conducted in a hybrid model of physical and virtual hearings. A classic example of an international guideline which has been issued is the Chartered Institute of Arbitrators UK Guidance Note on Remote Dispute Resolution Proceedings, which was promulgated on 8 April 2020 (the “CIArb Guidance Note”). The CIArb Guidance Note was designed to equip parties to international (or domestic) arbitration proceedings with the necessary tools and techniques for conducting dispute proceedings in compliance with social distance regulations. The CIArb Guidance Note offers practical advice on how, under remote conditions, proceedings can not only continue but can proactively adapt in ways that will ultimately be positive for the way dispute resolution is practised. Zambia has adopted this CIArb Guidance Note. That being the case, the COVID-19 pandemic has not resulted in the reduction of international arbitration in Zambia. If anything, international arbitration proceedings may have seen an increase in Zambia in recent years owing to the flexible new hybrid way of, among other things, conducting hearings.

International (and domestic) arbitration has, in recent years, been significantly experienced and conducted in the procurement and construction industries in Zambia. The basis for this increase in international arbitration activity is the increase in the procurement processes and general infrastructure development that Zambia has experienced in recent years. According to a research paper by Chipozya Kosta Tembo et al entitled “Assessing the effectiveness of arbitration in the Zambian construction industry”, arbitration is experiencing a sustained increase in the construction industry and is now the main contractual means of dispute resolution.

We are not aware of any industries that have been experiencing decreased international arbitration as a result of the COVID-19 pandemic.

Zambia had two recognised arbitral institutions that were used for international Zambia, namely the Chartered Institute of Arbitrators Zambia Branch (“CIArb”) and the Zambia Association of Arbitrators (“ZAA”). However, ZAA has since become defunct and is no longer operational in Zambia.

It is worth mentioning that, notwithstanding the above, parties to an international commercial dispute are still at liberty to choose any international arbitral institution such as, among others, the International Court of Arbitration and the London Court of International Arbitration.

We are not aware of any new arbitral institutions that have been established in Zambia between 2021 and 2022.

Section 2 of the Arbitration Act defines the word “court” as the High Court or any other court as may be designated by statutory instrument by the Chief Justice of Zambia having jurisdiction to decide the issues constituting the subject matter of the arbitration as if that matter had been the subject matter of a suit. Further, rule 3 of the Arbitration (Court Proceedings) Rules, Statutory Instrument No. 75 of 2001 (“Court Proceedings Rules”) designates the following other courts as having jurisdiction to hear matters from arbitration proceedings:

  • the Industrial Relations Division of the High Court;
  • the Lands Tribunal; and
  • all subordinate courts.

In view of the above, it is worth mentioning that the High Court of Zambia generally retains supervisory powers over international and/or arbitration proceedings held in Zambia. Section 11 (1) of the Arbitration Act empowers the High Court to grant an interim measure of protection to any party before or during arbitral proceedings. Further, the High Court has powers in terms of Section 17 of the Arbitration Act to set aside an arbitral award that has been rendered by a tribunal in accordance with the said provision. 

The Arbitration Act is the principal legislation which governs international and domestic arbitration.

Section 8 of the Arbitration Act domesticates the UNCITRAL Model Law as the First Schedule to the Act, and the same applies to arbitration proceedings with reservations depending on whether the arbitration proceedings are held in Zambia or outside Zambia. Section 8 of the Arbitration Act provides as follows:

“(1) where the place of an arbitration is in Zambia, the First Schedule shall, subject to the other provisions of this Act, apply to the arbitration.

“(2) where the place of arbitration is not in Zambia, articles 8, 9, 35 and 36 of the First Schedule shall apply.”

The Supreme Court of Zambia has had the opportunity to pronounce on the applicability of the UNCITRAL Model Law in Zambia. In the case of China Henan International Cooperation Group Company Limited v G and G Nationwide (Z) Limited Appeal No. 199/2016, the Supreme Court held on pages J26 and J27 of its judgment as follows:

“When the old Arbitration Act, Chapter 40 of our laws was repealed and replaced by the Arbitration Act, Zambia chose to adopt the Model Law with modifications which are contained in the sections in the Arbitration Act. By this we mean that, the sections in the Arbitration Act vary the application of the Model Law by substituting certain Articles in the Model Law with the sections in the Arbitration Act. The First Schedule to the Arbitration Act confirms this because the articles of the Model Law that are not applicable to Zambia are clearly indicated as “modified by” specified sections of the Act. The effect of the foregoing, as we stated in the case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency, is that our Arbitration Law is in effect the Model Law. This situation is not unique to Zambia alone as evidenced by the Zimbabwean Arbitration Act which also has the Model Law appended as Schedule 1 to the Act…”

In light of the above, Zambian arbitration law is primarily based on the UNCITRAL Model Law except where the said Model Law (First Schedule to the Arbitration Act) has been expressly modified by the substantive provisions of the Arbitration Act.

There are no significant changes to the Zambian arbitration law that have occurred in the past year. Further, there is no pending legislation that may change the arbitration landscape in Zambia.

The Arbitration Act requires an arbitration agreement to be in writing. The agreement may either be in the form of an arbitration clause in a contract or a separate agreement(Section 9 of the Arbitration Act). 

Further, Article 7 of the UNCITRAL Model Law as modified by Sections 2 and 9 of the Arbitration Act provides that “An agreement is in writing if it is contained in a document signed by the parties or in an 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; and the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and reference is such as to make that clause part of the contract.”

Section 6 of the Arbitration Act provides for a list of subject matters that may not be referred to arbitration in Zambia. The following is the list of matters that are not “arbitrable” under Zambian law:

  • agreements contrary to public policy;
  • agreements which in terms of any law may not be determined by arbitration;
  • criminal matters or proceedings except insofar as permitted by written law or unless the court grants leave for a matter or proceeding to be determined by arbitration;
  • matrimonial causes;
  • matters incidental to a matrimonial cause unless the court grants leave for the matter to be determined by arbitration;
  • the determination of paternity, maternity or parentage of a person; and
  • matters affecting the interests of a minor or an individual under a legal incapacity unless the minor or individual is represented by a competent person.

The above list of “non-arbitrable” matters provides guidance on what matters may be the subject of arbitration in Zambia. Further, the Supreme Court has had the opportunity to determine the arbitrability of issues under Zambian law. In the case of African Alliance Pioneer Master Fund v Vehicle Finance Limited Appeal No. 21/2011, the Supreme Court held as follows:

“The validity as to form and substance of the arbitration agreement, the arbitrability of the issues and the regularity of the constitution of the arbitral tribunal, are in our considered view, some of the matters that are governed directly by the law of the seat of arbitration, regardless of what the parties’ choice on procedure is.”

In light of the above, the arbitrability of issues is governed by the substantive law of arbitration (Arbitration Act) as read together with the law of the seat of arbitration.

In the case of Nyambe v Total Zambia Limited (2015) ZMSC 2, the Supreme Court 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 is closely studied. Further, in the case of Zambia National Holdings Limited and Another v The Attorney General (1994) S.J. 22, the Supreme Court held that in cases where parties have agreed to settle any dispute between them by arbitration, the court’s jurisdiction is ousted unless the agreement is null and void, inoperative or incapable of being performed.

The approach taken by courts in Zambia in determining the law applicable to arbitration is to see the law which the parties themselves agreed as governing arbitral proceedings in the arbitration agreement.

The parties are at liberty to decide which law will apply to their disputes as and when they arise. The case of Blue Financial Zambia Limited and Others v African Banking Corporation Zambia Limited (T/A Bank ABC) Appeal No. 118 of 2015 is illustrative of this position, as the Supreme Court held that the law applicable to the agreement was South African law because the parties themselves had expressly agreed to it in the arbitration agreement. Therefore, South African law governed the arbitration proceedings.

Further, the approach of the courts in Zambia with respect to enforcement is that where an agreement makes provision for an arbitration clause then the power of the court to adjudicate on the matter is ousted unless the agreement is null and void, inoperative or incapable of being performed.

The Supreme Court in the case of ZCCM Investment Holdings Plc v Vedanta Resources Holdings Limited and Konkola Copper Mines Plc Appeal No. 14/2021 delivered on 22 March 2022 held as follows:

“Perhaps as a starting point we must agree with Vedanta’s submissions that where parties have chosen that they would refer any of their dispute to arbitration instead of resorting to regular courts, a prima facie duty is cast upon the court to act on their agreement. In Hayter v Nelson Home Insurance Co. Saville J noted that it should always be remembered that by their arbitration agreement the parties covenant that instead of a court, a private tribunal will resolve their dispute. This should be so even where the tribunal turns out to be slower or otherwise less efficient than the courts.

“We also stated in Zambian National Holdings Limited & Another v Attorney General, referred to by counsel for Vedanta, that where parties have agreed to settle any dispute between them through arbitration, the court’s jurisdiction is ousted unless it can be shown that the agreement is null and void or otherwise incapable of being performed. The decision in Leopard Ridge Limited v Zambia Wildlife Authority was to the same effect.”

Further, the Supreme Court in the case of ZCCM Investment Holdings Plc v Vedanta Resources Holdings Limited and Konkola Copper Mines Plc Appeal No. 14/2021 cited above went on to hold on page R53 as follows:

“As the High Court correctly stated in Cash Crusaders Franchising Pvt Ltd v Shakers and Movers (Zambia) Limited, “…The starting point is to recognize that once the parties have decided to have their dispute adjudicated upon by way of arbitration, they are in fact saying that they do not wish to avail themselves of the courts save in the limited circumstances provided by the law. Further, once an award is rendered, it is binding and enforceable upon the parties pursuant to section 20 of the Arbitration Act.”

“We endorsed this position in Savenda Management Services Limited v Stanbic Bank Zambia Limited.”

Having said the above, courts in Zambia enforce arbitration agreements validly entered into by the parties.

The Arbitration Act makes provision for the rule of separability to apply to arbitration clauses contained in invalid agreements. An arbitral clause may be considered valid even if the rest of the contract in which it is contained is invalid. This is in accordance with Article 16(1) of the UNCITRAL Model Law, which provides that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.

In view of the above, the rule of separability applies to arbitration clauses contained in invalid agreement.

There are no limits on the parties’ autonomy to select arbitrators in Zambia. Section 12 (2) of the Arbitration Act gives parties the freedom to select arbitrators.

If the parties’ chosen method for selecting arbitrators fails, the Arbitration Act provides for a default procedure. Section 12 (3) (a) of the Arbitration Act provides that in an arbitration with three arbitrators, each party is required to appoint one arbitrator and the two appointed arbitrators appoint the third arbitrator. If a party fails to appoint an arbitrator within 30 days of receiving the request to do so, or if the two arbitrators fail to agree on a third arbitrator within 30 days of their appointment, the appointment shall be made by the arbitral institution at the request of a party.

Section 12 (3) (b) of the Arbitration Act provides that in an arbitration with a sole arbitrator, where the parties fail to agree, the appointment can be made by the arbitral institution on request of a party.

The courts in Zambia may intervene in the selection of arbitrators. However, the courts in Zambia may only intervene in the appointment of arbitrators where (a) the parties have failed to appoint an arbitrator under their agreed procedure; (b) in the case of three arbitrators, the two arbitrators have failed to agree on the appointment of the third arbitrator; or (c) an arbitral institution has failed to act after having been requested by the parties or arbitrators. This is in accordance with Section 12 (4) of the Arbitration Act.

Articles 12, 13 and 14 of the UNCITRAL Model Law, which is the First Schedule to the Arbitration Act, make provision for the challenge or removal of the arbitrators. In terms of Article 12 (2) of the UNCITRAL Model Law, an arbitrator may only be challenged (a) where there are circumstances that give rise to justifiable doubts as to his impartiality or independence; or (b) if the arbitrator does not possess the qualifications agreed to by the parties.

The mandate of the arbitrator may be terminated where the arbitrator is unable to perform his functions or where for other reasons the arbitrator acts with undue delay (Article 14 (1) of the UNCITRAL Model Law, which is the First Schedule to the Arbitration Act).

Article 12 (1) of the UNCITRAL Model Law places an ongoing duty upon the arbitrator to disclose to the parties any circumstances that may raise doubts regarding the arbitrator’s independence, impartiality and/or disclosure of potential conflicts of interest. Article 12 (1) provides as follows:

“When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.”

Section 6 of the Arbitration Act provides for a list of subject matters that may not be referred to arbitration in Zambia. The following is the list of matters that are not “arbitrable” under Zambian law:

  • agreements contrary to public policy;
  • agreements which in terms of any law may not be determined by arbitration;
  • criminal matters or proceedings except insofar as permitted by written law or unless the court grants leave for a matter or proceeding to be determined by arbitration;
  • matrimonial causes;
  • matters incidental to a matrimonial cause unless the court grants leave for the matter to be determined by arbitration;
  • the determination of paternity, maternity or parentage of a person; and
  • matters affecting the interests of a minor or an individual under a legal incapacity unless the minor or individual is represented by a competent person.

An arbitral tribunal may rule on a party’s challenge to the tribunal’s own jurisdiction. This is provided for in Article 16 of the UNCITRAL Model Law, which is the First Schedule to the Arbitration Act. The Court of Appeal in Satyam Shivan Sundaram and Another v Given Chisakula Kawina recognised the arbitral tribunal's competence to rule as to its own jurisdiction in the matter.

Under the Arbitration Act, the High Court is empowered to address issues of jurisdiction of an arbitral tribunal where the tribunal has ruled as a preliminary question that it has jurisdiction (Article 16 (3) of the Arbitration Act). The application to the High Court is required to be made by a party within 30 days after having received notice of the ruling. The decision of the High Court on issues of the tribunal's jurisdiction is not subject to an appeal to a higher court, ie, the Court of Appeal.

The Arbitration Act does not make provision for a party to appeal to the High Court where the tribunal has ruled that it has no jurisdiction to hear and determine the matter.

In terms of Article 16 (3) of the UNCITRAL Model Law, parties have the right to go to court to challenge the ruling by the tribunal confirming its jurisdiction within 30 days from the date of the notice of ruling of the tribunal.

The standard of judicial review for questions of admissibility and jurisdiction by is de novo. In terms of the Court Proceedings Rules, a party is required to make an application by way of originating summons to the High Court for review of the decision of the tribunal on its jurisdiction (Rule 11 of the Court Proceedings Rules). Arbitration is not subject to judicial review in Zambia.

The approach of the national courts towards a party that commences court proceedings in breach of an arbitration agreement is that courts are reluctant to allow such proceedings. That being the case, courts are empowered under Section 10 of the Arbitration Act as well as Order XIX, rule 2 (g) of the High Court (Amendment) Rules, Statutory Instrument No. 58 of 2020 to stay the proceedings and refer the parties to arbitration. 

The Supreme Court in the case of ZCCM Investment Holdings Plc v Vedanta Resources Holdings Limited and Konkola Copper Mines Plc Appeal No. 14/2021 delivered on 22 March 2022 held as follows:

“Perhaps as a starting point we must agree with Vedanta’s submissions that where parties have chosen that they would refer any of their dispute to arbitration instead of resorting to regular courts, a prima facie duty is cast upon the court to act on their agreement. In Hayter v Nelson Home Insurance Co. Saville J noted that it should always be remembered that by their arbitration agreement the parties covenant that instead of a court, a private tribunal will resolve their dispute. This should be so even where the tribunal turns out to be slower or otherwise less efficient than the courts.

“We also stated in Zambian National Holdings Limited & Another v Attorney General, referred to by counsel for Vedanta, that where parties have agreed to settle any dispute between them through arbitration, the court’s jurisdiction is ousted unless it can be shown that the agreement is null and void or otherwise incapable of being performed. The decision in Leopard Ridge Limited v Zambia Wildlife Authority was to the same effect.”

Further, the Supreme Court in the case of ZCCM Investment Holdings Plc v Vedanta Resources Holdings Limited and Konkola Copper Mines Plc Appeal No. 14/2021 cited above went on to hold on page R53 as follows:

“As the High Court correctly stated in Cash Crusaders Franchising Pvt Ltd v Shakers and Movers (Zambia) Limited “…The starting point is to recognize that once the parties have decided to have their dispute adjudicated upon by way of arbitration, they are in fact saying that they do not wish to avail themselves of the courts save in the limited circumstances provided by the law. Further, once an award is rendered, it is binding and enforceable upon the parties pursuant to section 20 of the Arbitration Act.”

“We endorsed this position in Savenda Management Services Limited v Stanbic Bank Zambia Limited.”

In view of the above, there is a general reluctance of courts in Zambia to allow proceedings that have been filed in breach of arbitration agreements. This is in line with Article 118 of the Constitution of Zambia, which requires that alternative forms of dispute resolution be encouraged. Thus, whenever a valid agreement to arbitrate exists, the national courts show willingness to stay the matter and refer the parties to arbitration.

The Arbitration Act does not have a provision that allows an arbitral tribunal to assume jurisdiction over individuals or entities that are neither party to an arbitration agreement nor signatories to the contract containing the arbitration agreement. Therefore, an individual who is not party to an arbitration agreement is not bound by its terms. It is for this reason that the court in Ody’s Oil Company Limited v The Attorney General and Constantinos James Papoustis SCZ Judgment No. 4 of 2012 held that a party that is not party to an arbitration agreement cannot be bound by the terms and outcome of an arbitration agreement to which they are not privy.

In terms of Section 14 of the Arbitration Act, an arbitral tribunal is empowered to order interim and other measures.

The interim or preliminary awards are binding. The basis for our position is that the term “award” under the Arbitration Act includes interim and preliminary awards. This position was reaffirmed by Judge Mikalile’s ruling in the High Court in ZCCM v Konkola Copper Mines PLC (in Provisional Liquidation) and Vedanta Resources Holdings Limited 2019/HP/0761 that partial awards are generally final and binding.

Furthermore, according to Section 14 of the Arbitration Act, the tribunal has the power to grant the following interim reliefs:

  • to grant an interim injunction or other interim order;
  • to order the parties to make a deposit in respect of the fees, costs and expenses of the arbitration;
  • to make any order it considers appropriate to compel the attendance of a witness before it to give evidence or produce documents;
  • to order any witness to submit to examination on oath or affirmation before the arbitral tribunal, or before an officer of the tribunal or any other person in order to produce information or evidence for use by the arbitral tribunal;
  • to order the discovery of documents and interrogatories;
  • to issue a commission or request for the taking of evidence out of jurisdiction; and
  • to detain, preserve or inspect any property or thing in the custody, possession or control of a party which is in issue in the arbitral proceedings and to authorise for any of those purposes any person to enter upon any land or any building in the possession of a party, or to authorise any sample to be taken or any observation to be made or experiment to be carried out which may be necessary or expedient for the purpose of obtaining full information or evidence.

Courts in Zambia play a role in preliminary or interim reliefs through the issuance of executory assistance in accordance with Section 14 (4) of the Arbitration Act. The purpose of “executory assistance” is to give the interim or preliminary relief granted by the tribunal a force of an order that may then be executed like any other ordinary judgment or decision of the court.

Further, Section 11 of the Arbitration Act empowers the court (upon a party’s request), before or during arbitration proceedings, to grant interim relief such as an order for the preservation, interim custody, sale or inspection of any goods which are the subject matter of the dispute. In the case of Roraima Data Services Limited v Zambia Postal Services Corporation HN/ARB 1 of 2011, the court granted an interim injunction pending arbitration on the basis that damages would be inadequate, and that it would be unjust to confine the plaintiff to damages were it to succeed in its claim at the arbitration proceedings.

The Arbitration Act makes provision for either the High Court or the arbitral tribunal to order security for costs. Section 11(2) (b) of the Arbitration Act allows the court to order for the security of costs, while Section 14 (2) (b) allows an arbitral tribunal to order security for costs.

Apart from the Arbitration Act, there are rules that govern the procedure of arbitration in Zambia. These are the Arbitration (Code of Conduct and Standards) Regulations, Statutory Instrument No. 12 of 2007 and The Arbitration (Court Proceedings) Rules, Statutory Instrument No. 65 of 2001.

There are no particular procedural steps that are required by law in arbitral proceedings conducted in Zambia. However, generally, in order to commence arbitral proceedings in Zambia, parties are required to declare a dispute and appoint an arbitrator in accordance with the arbitration agreement as read together with Section 12 of the Arbitration Act.

Section 14 of the Arbitration Act grants arbitrators several powers including the power to (a) make interim orders; (b) order parties to make a deposit in respect of the fees, costs and expenses of the arbitration; (c) make orders so as to compel the attendance of witnesses in certain circumstances; and (d) detain, preserve or inspect any property or thing in the custody, possession or control of a party which is in issue in the proceedings.

Further, the Arbitration (Code of Conduct and Standards) Regulations, Statutory Instrument No. 12 of 2007 impose the following duties on the arbitrator:

  • to act fairly and impartially as between the parties;
  • to disclose at the earliest opportunity any prior interest or relationship that may affect impartiality and/or independence or which might reasonably raise doubts as to the arbitrator’s impartiality and/or independence in the conduct of the arbitral proceedings;
  • to avoid entering into any financial, business, professional, family or social relationship, or acquiring any financial or personal interest, which might adversely affect impartiality and for a reasonable period of time after a case;
  • to not accept any gift or substantial hospitality, from any party to the arbitration, except in the presence of and with the consent of the other party;
  • to not establish a relationship with any of the parties in a matter related to the arbitration which may give rise to a conflict of interest;
  • to only accept an appointment if the arbitrator possesses the qualifications required for the arbitration and has suitable experience and ability for the case; and
  • to advise the parties to explore the possibility of reaching an amicable settlement of a matter where practicable.

There are no particular requirements for legal representation before an arbitral tribunal in Zambia. Section 21 of the Arbitration Act provides that:

“Unless otherwise agreed by the parties, a party to arbitral proceedings may be represented in the proceedings by a legal practitioner or other person of that party’s choice.”

Therefore, parties are at liberty to elect any person to represent them in arbitration proceedings whether such person is a legal practitioner or not.

The general approach is that the parties decide beforehand the course that the arbitration proceedings will take and the general approach to the collection and submission of evidence at pleading stage and at the hearing. This is in accordance with Article 19 of the UNCITRAL Model Law. Where the parties do not decide or agree, the arbitrator decides the manner in which the arbitration will be conducted. In such cases, some of the powers conferred on the arbitrator are that they may decide the relevance, admissibility, materiality and weight of evidence. Therefore, some parties may choose to have their case tried as if it were in court and have the collection and submission of evidence follow the rules of the court, while others may choose a more relaxed approach.

There are no specific rules relating to the above categories except that the evidence collected and submitted should be confidential.

Please refer to 8.1 Collection and Submission of Evidence.

Section 14 of the Arbitration Act grants arbitrators the power, among other things, to make orders so as to compel the attendance of witnesses to produce documents or give witness.

Further, the arbitral tribunal or a party with the tribunal’s approval can request from the court executory assistance in the exercise of any power conferred on the tribunal. This is according to Article 27 of the UNCITRAL Model Law.

Arbitral proceedings are generally confidential unless otherwise agreed by the parties. This is according to Section 27 of the Arbitration Act.

Further, information from arbitration cannot generally be disclosed in subsequent proceedings as they are confidential and are not meant to prejudice the parties at a later stage. However, in an application to set aside an arbitral award under Section 17, all relevant information can be presented before the High Court.

Section 16 of the Arbitration Act requires an arbitral award to: 

  • be in writing and signed by the arbitrators;
  • state the reasons upon which it is based unless the parties have an agreement to the contrary;
  • state the date and place the arbitration was determined at;
  • be delivered to the parties to the arbitration; and
  • unless agreed by the parties, fix the costs and fees of the arbitration.

The Arbitration Act does not make provision on the time frame for the delivery of the arbitral award. However, Regulation 17(3) of the Arbitration (Code of Conduct and Standards) Regulations 2007 provides that "once the case record has been closed, an arbitrator shall adhere to the time limits for an award, as stipulated in the submission to arbitrate or the order for directions.” Therefore, even though there is no time limit that has been set by the Arbitration Act for delivering an award, the tribunal is required to deliver the award within the time period set out by the parties either in the submission to arbitrate or in the orders for directions.

In terms of Section 14 of the Arbitration Act, an arbitral tribunal can grant all legal and equitable remedies available in litigation, including legal costs and interest unless the parties have agreed otherwise.

According to Section 16 of the Arbitration Act, unless otherwise agreed by the parties, the arbitral tribunal fixes and allocates costs in the award, as well as any interest on the sums determined. However, the Section makes it clear that such interest is applied in accordance with the law applicable to Zambia judgment debts. Furthermore, the Section is clear that where an award is silent as to costs, each party shall bear its own costs.

In practice, however, costs follow the event and the unsuccessful party pays the successful party’s costs.

From the outset, it is worth mentioning that a party is not entitled to appeal against an arbitral award in Zambia. The only recourse available to a party is to set aside the arbitral award that may have been rendered by the tribunal in accordance with Section 17 (1) of the Arbitration Act. The said provision provides that recourse to a court against an arbitral award may be made only by an application for setting aside.

The position above was affirmed by the court in Zambia Revenue Authority v Tiger Limited and Zambia Development Agency, where it was held that an application to set an award aside is the only recourse against an arbitral award.

However, even then there are a limited number of reasons available to a party to challenge an award provided for under Section 17 (2) of the Act. An application to set aside the award can be made on the following grounds:

  • where a party to the arbitration was under some incapacity or the arbitration agreement is not valid under the law;
  • where the party making the application was not given proper notice of the appointment of the arbitrator or was unable to present his case;
  • where an award deals with a dispute not contemplated under the terms of reference or goes beyond the said terms, save to say in such cases only the part exceeding the terms will be set aside where possible to do so;
  • where the composition of the tribunal was not in accordance with the agreement or, in the absence of one, with the Act; and
  • where the award has not yet become binding on the parties or has been set aside or suspended by the country in which or under the law of which it was made.

Under the Arbitration Act, parties cannot agree to exclude or expand the scope of challenging an arbitral award.

The Arbitration Act does not make provision for a party to challenge an arbitral award on its merits. The Supreme Court in the case of Konkola Copper Mines v Copperfields (2010) Z.R. Vol. 3 156 held that:

“An application to set aside an award is not intended for the court to review the award of the tribunal or indeed conduct a hearing akin to an appeal.”

Zambia has signed, ratified and domesticated the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. It is contained in the Second Schedule to the Arbitration Act.

A party intending to enforce an arbitral award in Zambia is required to register the arbitral award in the High Court of Zambia in accordance with the Arbitration Act. The registration of an arbitral award in Zambia is done by filing an ex parte originating summons supported by an affidavit which should speak to or exhibit the following:

  • The duly authenticated original award or a duly certified copy thereof.
  • The original arbitration agreement or a duly certified copy thereof.
  • A duly certified translation of the award and the arbitration agreement if they are not in the official language.
  • Specify the rate of interest sought by the deponent or the amount of interest which has become due under the award.
  • State the full name, title, trade or business of the respondent so far as is known to the deponent.
  • State to the best of information and belief of the deponent:
    1. that the applicant is entitled to enforce the award;
    2. that at the date of the application, the award has not been satisfied, or if the award has been not been satisfied, or if the award has been satisfied in part, stating the amount or any other matter which remains unsatisfied;
    3. if the award is a foreign award, that at the date of the application the award can be enforced by execution in the country in which it was made; and
    4. that the award is valid and binding on the parties and has not been set aside or suspended in Zambia or in the country in which, or under the law of which, it was made. (Rule 16 of the Court Proceedings Rules)

An arbitral award that has been set aside in the seat of arbitration cannot be enforced in Zambia (Article 36 (1) (5) of the UNCITRAL Model Law as amended by Section 19 of the Arbitration Act). Furthermore, where there is a pending application to set aside the arbitral award in the seat of the country in which the award was made, the High Court dealing with the application for registration and enforcement of an arbitral award is required to adjourn the proceedings before it and direct the party to serve the court process on the opposing party.

Further, and specifically in the case of Zambia, the State Proceedings Act, Chapter 71 of the Laws of Zambia restricts enforcement of any arbitral awards or judgment of the court against the State. Further, reliefs such as specific performance or an injunction may not be granted against the State in any proceedings.

Courts in Zambia are inclined towards the recognition and enforcement of arbitration awards. The general position is that arbitral awards are recognised and enforced in Zambia irrespective of the country in which they were made. However, according to Section 19 of the Arbitration Act, a court may decline to recognise and enforce an arbitral award if the court finds that (a) the subject matter of the dispute is not capable of settlement by arbitration under Zambian law; or (b) the recognition and enforcement of the award would be contrary to public policy; or (c) the making of the award was induced or effected by fraud, corruption or misrepresentation.

The Supreme Court in the case of Zambia Revenue Authority v Tiger Limited and Zambia Development Agency Selected Judgment No. 11 of 2016 adopted the reasoning of Gubbay CJ, in the Zimbabwean Supreme Court case of Zimbabwe Electricity Supply Authority v Genius Joel Maposa (1992) 2 Zimbabwe Law Reports 452 (S), where the court held as follows:

“where, however, the reasons or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes an inequity that is so far reaching and outrageous in its defiance of logic or accepted standards that a sensible and fair-minded person would consider that the concept of justice in Zimbabwe would be intolerably hurt by the award, then it would be contrary to public policy to uphold it… An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact, or in law. In such a situation, the Court would not be justified in setting the award aside.”

Furthermore, the Supreme Court in the case of NHA-MKP Estate Development Limited v Workers Compensation Fund Control Board Appeal No. 44 of 2017 cited with authority its earlier decision in the Tiger Limited case and held as follows:

“Considering the case of Zambia Revenue Authority v Tiger Limited (9) with regard to the definition of public policy, we are of the view that an arbitral award or part thereof can only be set aside on the ground that it is in conflict with public policy if it is apparent that the award would result in gross injustice. In casu, the Award is not in conflict with public policy as defined.”

The Zambian jurisdiction does not proscribe class-action arbitration. Further, there are no limitations or requirements specific to such claims.

The ethical codes and other professional standards applicable to counsel and arbitrators in Zambia are, among others, the Legal Practitioners Practice Rules, Statutory Instrument No. 51 of 2002 and the Arbitration (Code of Conduct and Standards) Regulations, Statutory Instrument No. 12 of 2007.

There no rules or restrictions on third-party funders in Zambia.

The Arbitration Act does not make provision for the consolidation of arbitral proceedings.

It is only the parties to an arbitration agreement and proceedings that can be bound by the subsequent arbitral award. It is, however, worth mentioning that once an arbitral award has been rendered and subsequently registered in the High Court, it becomes enforceable like any other judgment of the High Court. This was decided by the court in Vedanta Resources Holdings Limited v ZCCM Investment Holdings Plc & Konkola Copper Mines Plc (Appeal No. 181/2019). Further, in the case of ZCCM Investments Holdings Plc v First Quantum Minerals Limited and 6 Others Appeal No. 92 of 2020, the court held that:

“It is not in dispute that the ruling by the [Arbitral] Tribunal was registered in the High Court in Zambia pursuant to Section 18 of The Arbitration Act and therefore, the award upon registration had the force of a Zambian Judgment.”

Further, courts in Zambia have no jurisdiction to render a decision capable of binding foreign third parties unless they are parties to the arbitration agreement or the dispute which is subject of the arbitral proceedings.

Mulenga Mundashi Legal Practitioners

1st Floor, Zimbabwe House,
Plot 11058, Haile Selassie Avenue,
Long Acres,
Lusaka, Zambia

+260 211 254248/50

+260 211 254260/66

info@mmlp.co.zm www.mmlp.co.zm
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Law and Practice in Zambia

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Mulenga Mundashi Legal Practitioners (MMLP) was established in 1999 and is one of the leading and highly regarded corporate and commercial full-service law firms in Zambia. The firm houses 20 lawyers and 11 support staff. It has extensive experience in providing legal representation to both local and international clients. It offers comprehensive services in the areas of banking and finance, corporate advisory, capital markets, mining, high-level tax advisory, tax litigation, conveyancing, insurance industry, mergers and acquisitions, pension funds and high-level corporate litigation. MMLP is very active in the fields of arbitration and litigation as a provider of legal services. The firm has acted as counsel and experts on Zambian law in various local arbitral tribunals as well as several arbitrations before the International Chamber of Commerce (ICC), the London Court of Arbitration (LCIA) and the Permanent Court of Arbitration (PCA) in London, as well as various privately administered arbitrations.