International Arbitration 2021

Last Updated August 17, 2021

Zambia

Law and Practice

Authors



Eric Silwamba, Jalasi & Linyama Legal Practitioners (ESJL) is a Zambian law firm that has been in existence for over 30 years as Eric Silwamba and Company. In 2013, it was rebranded as ESJL, following the admission to partnership of Joseph Jalasi and Lubinda Linyama. It has, over the years, developed to the level of being among the top law firms in Zambia. The firm offers boutique-style legal services to its clients. ESJL is able to offer a wide range of services in the fields of dispute resolution, banking and finance, mergers and acquisitions, corporate, competition, tax, energy and mining. In the fourth quarter of 2019, Dentons, the world’s largest firm by head count, announced that its partners had voted to admit ESJL to its network of firms. In addition to this chapter on international arbitration, the firm has contributed to published guides on energy law, litigation and dispute resolution, mining and corporate tax in Zambia. The firm is a member of the pro bono service Trust Law.

The enactment of the Arbitration Act No 19 of 2000 (The Act) repealed and replaced an old, antiquated Arbitration Act with its origins in British Colonial Rule.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 previously stated. However, the last few years have seen 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 and South Africa. 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.

In June 2020, the International Centre for Settlement of Investment Disputes (ICSID) reported a dispute between the Zambian Government and a mining entity.

Conduct of Arbitration Proceedings in Zambia during the COVID-19 Pandemic

Zambia has followed the Guidance Note on Remote Dispute Resolution Proceedings issued by the Chartered Institute of Arbitrators UK. The Guidance is there to assist parties and neutrals on how to conduct remote proceedings effectively. 

The mining, construction and financial industries experience more arbitration activities than 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.

As far as is known, there are no particular industries experiencing decreased international arbitration activity.

Zambia has two arbitral institutions, namely, the Zambia Association of Arbitrators and the Chartered Institute of Arbitrators Zambia Branch.

No new arbitral institutions were recognised in the 2020–21 period.

In Zambia, arbitration is specifically dealt with by the High Court, Commercial Division. There is also in place a confidential registry under which arbitration matters are registered and filed.

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 a separate agreement. The agreement is required to be in writing if it is 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 provide for matters which are not determinable by arbitration, as follows:

  • an agreement that is contrary to public policy;
  • a dispute which in terms of any law may not be determined by arbitration;
  • a criminal matter or proceeding, except in so far as permitted by written law or unless the court grants leave for the matter or proceeding to be determined by arbitration;
  • a matrimonial cause;
  • a matter 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; or
  • a matter 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 courts respect the parties' choice of law in an arbitration agreement.

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 require that if there is a matter brought before the court in which a valid arbitration clause is present, and were the parties to request so 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 that 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 (CIArbZB).

In the case of multi-party arbitrations, the same procedure with respect to non-multi party proceedings applies.

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, and to do so 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.

  • The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of the third paragraph below.
  • 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.
  • If a challenge under any procedure agreed upon by the parties or under the procedure of the second paragraph 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 and 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 doubt. 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.

In the recent Supreme Court Judgment in the case of Tiger Limited v Engen Petroleum (Z) Limited (2019) ZMSC 22, it was held that non-disclosure by the arbitrator of his relationship with the respondent made the award liable to be set aside on the ground that it was against public policy under the provisions of section 17 of the Arbitration Act.

The Arbitration Act provides that matters concerning public policy, criminal matters, matrimonial causes, determination of paternity, maternity or parentage of a person, and 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 the 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, 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 position was later reaffirmed by the Supreme Court in the case of Beza Consulting Inc Limited v Bari Zambia Limited & Another [2019] ZMCA 210, where the Court said that "the decision in the Ody’s case effectively renders the arbitration agreement inoperative for the reason that a party to the proceedings, who is not a party to the arbitration agreement, ought to be heard and the court is the forum at which he can be heard and not at arbitration.”

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:

  • grant an interim injunction or other interim order;
  • order the parties to make a deposit in respect of the fees, costs and expenses of the arbitration;
  • make any orders it considers appropriate to compel the attendance of a witness before it can give evidence or produce documents;
  • order any witness to submit to examination on oath or affirmation before the arbitral tribunal, or before the tribunal to give evidence or produce information or evidence for use by the arbitral tribunal;
  • order the discovery of documents and interrogatories;
  • take action that would prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process;
  • provide a means of preserving assets out of which a subsequent award may be satisfied; or
  • preserve evidence that may be relevant and material to the resolution of the dispute.

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:

  • an order for the preservation, interim custody, sale or inspection of any goods which are the subject-matter of the dispute;
  • an order securing the amount in dispute or the costs and expenses of the arbitral proceedings;
  • an interim injunction or other interim order; or
  • any other order to ensure that an award which may be made in the arbitral proceedings is not rendered ineffectual.

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:

  • to act fairly and impartially;
  • to give the parties full disclosure of any circumstance that may affect impartiality and/or independence or which might reasonably raise doubts as to the arbitral proceedings;
  • not to 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 take reasonable steps to ensure that the parties understand the arbitration process before the arbitration commences;
  • to accord to all parties the right to be heard after due notice of the time and place of the hearing;
  • to allow any party the opportunity to be represented by counsel;
  • to conduct the arbitration with reasonable dispatch and attend hearings and participate in deliberations; and
  • where there is more than one arbitrator, to accord each other an opportunity to participate in all aspects of the proceedings.

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 occurs 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:

  • 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; and
  • to issue a commission or request for the taking of evidence out of jurisdiction.

In addition, a party is at liberty also to 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 so 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 the 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 for its 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 have not had an opportunity to pronounce themselves on this position. The Zambian courts, given the common-law heritage, are likely to be influenced by the position of the English courts, to the extent that position is consistent with Zambian Law.

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 [2013] 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 for its 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.

The position was later reaffirmed by the Supreme Court in the case of Beza Consulting Inc Limited v Bari Zambia Limited & Another [2019] ZMCA 210. Where the court said that "the decision in the Ody’s case effectively renders the arbitration agreement inoperative for the reason that a party to the proceedings, who is not a party to the arbitration agreement, ought to be heard and the Court is the forum at which he can be heard and not at arbitration.”

Eric Silwamba, Jalasi & Linyama Legal Practitioners

At William Burton Place
No. 12 Chilekwa Mwamba Road off Lubu/Saise Roads
Longacres, Lusaka
Zambia

+260 211 256530

+260 211 256372

joseph.jalasi@dentons.com www.dentons.com/en/dentons-eric-silwamba-jalasi-and-linyama
Author Business Card

Trends and Developments


Authors



Simeza, Sangwa & Associates (SSA) is a full-service Lusaka-based law firm with a focus on both contentious and non-contentious business. As one of the largest and fastest-growing firms in the country, the firm is dedicated to providing the highest levels of client service, skill and expertise to both corporate and individual clients. The SSA team consists of 14 advocates, ten legal support staff and eight administrative staff. Simeza, Sangwa & Associates is part of TagLaw and through that membership is able to offer its clients more than 150 quality legal firms in over 80 countries. SSA has a large dispute resolution department with extensive experience in commercial litigation and the enforcement of judgments. SSA is external legal counsel to several commercial banks and corporate entities and has acted as legal counsel to the Trade and Development Bank (formerly the PTA Bank) in respect of various financing projects in Zambia.

International Arbitration: Trends & Developments – Zambia

In Zambia, domestic and international arbitrations are governed by the Arbitration Act No 19 of 2000, which incorporates the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention) and the United Nations Commission on International Trade Law (UNCITRAL) Model Law. Whilst other forms of alternative dispute resolution exist, arbitration is by far the most utilised form of alternative dispute resolution and an arbitration clause is now a standard boilerplate clause in commercial agreements in Zambia.

The wide adoption of arbitration as a form of dispute resolution mechanism by the local and international business community in Zambia following the introduction of the Arbitration Act 2000 is owed to the fact that resolution of disputes via arbitrations is generally faster than litigation; arbitral clauses survive the agreement and arbitral awards can, in certain instances, be challenged and set aside within the Zambian courts. The introduction of the Zambian branch of the Charted Institute of Arbitrators and the establishment of the Zambian Association of Arbitrators also prompted the growth and adoption of arbitration as an acceptable form of alternative dispute resolution. The prevalence of the settlement of disputes by way of arbitration, as a direct alternative to litigation, remains unchanged.

The community of arbitrators has grown significantly in the last five years, with several members of the judiciary alongside prominent highly experienced advocates leading the Zambian push towards the use of arbitration. This growth has resulted in a few Alternative Dispute Resolution Interest Groups being established and the adoption of some of the Supreme Court judges as international arbitrators by the Chartered Institute of Arbitrators UK and other international accrediting bodies.

The Impact of COVID-19

The biggest and most evident impact on International Arbitration in Zambia in 2020 was the COVID-19 pandemic. International travel ground to a halt and a number of organisations implemented remote-working practices for its staff. This occurred in Zambia when, in March 2020, Zambia recorded its first COVID-19 case. In the subsequent months, especially in light of the second and third waves of the pandemic, companies, institutions and organisations resorted to working from home, in rotations, and virtually.

The impact of the pandemic was two-fold; firstly, there were delayed determinations of domestic and international arbitrations during the period of the pandemic. Secondly, once the world started to get back on its feet after the initial shock of lockdowns, etc, arbitrations and arbitral hearings continued to be conducted virtually in a hybrid model of physical and virtual hearings.

Slow Determination of Domestic and International Arbitrations

In early 2020, when the entire world was coming to grips with the COVID-19 pandemic, hearings of matters were in some cases stood down indefinitely or postponed to dates to be agreed upon. In other instances, parties to arbitral hearings and arbitrators were rendered physically marooned in other jurisdictions due to lockdowns or, where it was possible to do so, quickly returned to their jurisdictions to avoid lockdowns. This also occurred in Zambia. Alongside matters in the Zambian courts, arbitral hearings were stood down and postponed indefinitely, parties to arbitrations were unable or unwilling to travel and, as a result, several arbitrations were not heard or determined as scheduled.

To date, the Zambian branch of the Chartered Institute of Arbitrators has not published any details on the number of recorded and determined arbitrations for 2020 to 2021. However, the Institute has confirmed, by telephone, that there was a decline in the overall number of arbitrations registered and even fewer numbers of arbitrations were heard and determined. This is contrasted internationally where, for example, the International Chamber of Commerce (ICC) recorded a total of 946 new cases in 2020, the highest number registered since 2016, while the London Court of International Arbitration (LCIA) and the International Centre for Settlement of Investment Disputes (ICSID) reported their highest-ever numbers of cases.

Shift toward Digital and Hybrid Hearings

The shift towards virtual hearings via commercial virtual hearing rooms and platforms such as Microsoft Teams, Google Meet, and Zoom cannot be understated. These platforms allow parties, their representatives, and arbitrators in different jurisdictions to conduct arbitral proceedings. The advent of COVID-19 has changed the manner in which arbitral proceedings are conducted. At the start of the pandemic, several hearings were postponed due to travel restrictions and social-distancing measures. However, several arbitral tribunals adapted to this "new normal" by ordering the facilitation of remote virtual hearings and by ordering or directing that hearings be conducted virtually.

The absence of express provisions addressing remote hearings in the arbitral rules or national arbitration legislation at the start of the pandemic prompted arbitral institutions to provide guidance on the conduct of parties to arbitrations. Examples of these guides include:

  • the COVID-19: Information and Guidance in Stockholm Chamber of Commerce Arbitrations (27 March 2020);
  • the International Chamber of Commerce (ICC) Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic (9 April 2020);
  • the Hong Kong International Arbitration Centre (HKIAC) Guidelines for Virtual Hearings (14 May 2020); and
  • the Chartered Institute of Arbitrators UK Guidance Note on Remote Dispute Resolution Proceedings (August 2020).

In addition, further guidance can be seen from the external protocols and orders that were released in the wake of the COVID-19 pandemic. Some of these include:

  • the Seoul Protocol on Video Conferencing in International Arbitration;
  • the Africa Arbitration Academy’s Protocol on Virtual Hearings in Africa;
  • the International Institute for Conflict Prevention & Resolution (CPR) Model Procedural Order for Remote Video Arbitration Proceedings; and
  • the PLC’s Procedural Order for Video Conference Arbitration Hearings.

In Zambia, the Chartered Institute of Arbitrators UK Guidance Note and the Africa Arbitration Academy’s Protocol on Virtual Hearings in Africa have been adopted and, currently, parties to alternative dispute resolution proceedings, especially domestic and international arbitrations, meet with their representatives to prepare for an arbitral hearing and usually attend the meetings virtually via Zoom, with an arbitrator in another country chairing the arbitration. The acceptance and use of electronic evidence will enable arbitral hearings to proceed with little or no delay with regard to the submission of documents relevant to the hearings. With subsequent waves of the COVID-19 pandemic still likely and several international borders still closed, the use of digital arbitral hearings will continue and may become standard practice for years to come.

The pandemic has also had the effect of limiting the travel of Zambian arbitrators who could not travel to hear and determine matters outside the jurisdiction. The Guidance Note provides guidelines upon which of those international arbitrations can continue.

The general conclusion is that the coronavirus pandemic has resulted in the move from in-person arbitral hearings to hearings that now occur digitally or in a hybrid form, where each party and their representatives appear from their countries of residence and the arbitrator appears from their third country of residence. The advancements in technology and the wide roll-out of Wi-Fi connectivity over the African continent and, in particular, in Zambia, has allowed for matters to progress, be heard and determined in spite of the pandemic and its resultant limits of international travel.

As the COVID-19 pandemic currently shows no sign of ending in Zambia, the continued use of digital hearings or hybrid hearing is expected to continue and may even form a permanent part of the alternative dispute resolution proceedings landscape for several years to come.

Whilst there may be some reluctance to an outright shift to digital and virtual proceedings, their overall use shows no decline and may need to remain in place for a number of years while the world moves into a post COVID-19 era by varying degrees.

Arbitrators’ duties on full disclosure of conflicts of interest

There has been a growing trend in different jurisdictions addressing an arbitrator’s duties to disclose potential conflicts, as calls for transparency and full disclosure seem to be emerging internationally. For example, in Eiser v Spain (ICSID Case No ARB/13/36), an International Centre for Settlement of Investment Disputes (ICSID) ad hoc committee annulled a EUR128 million award made against Spain under the Energy Charter Treaty, following the claimant’s nominated arbitrator failing to disclose his professional relationship (gained through his role as arbitrator and counsel in other arbitrations) with the claimant’s damages expert.

This position is also the position in Zambia and was confirmed by the Supreme Court in the Zambian case of Tiger Limited v Engen Petroleum Limited ([2019] ZMSC 22), wherein an arbitral award was set aside for the non-disclosure by an arbitrator of facts that did not extinguish the perception of possible, or the likelihood of, bias.

Continued use of international arbitrations by the Zambian Government

The trend of the Zambian Government undertaking international arbitrations remains, with the matter between the Zambian Government and a mining entity in the International Centre for Settlement of Investment Disputes (ICSID) still pending and the Zambian Government reporting in August 2020 that it had been successful in an arbitration dispute against a US-registered company in the London Court of Arbitration in the United Kingdom.

Simeza, Sangwa & Associates

Vitumbiko Office Park, Stand 4713
Cnr United Nations/Ng’umbo Roads
Longacres
P.O. Box 36824, Lusaka
Zambia

+260 211 227 574/227 484

+260 211 220 568

info@simezasangwa.com www.simezasangwa.com
Author Business Card

Law and Practice

Authors



Eric Silwamba, Jalasi & Linyama Legal Practitioners (ESJL) is a Zambian law firm that has been in existence for over 30 years as Eric Silwamba and Company. In 2013, it was rebranded as ESJL, following the admission to partnership of Joseph Jalasi and Lubinda Linyama. It has, over the years, developed to the level of being among the top law firms in Zambia. The firm offers boutique-style legal services to its clients. ESJL is able to offer a wide range of services in the fields of dispute resolution, banking and finance, mergers and acquisitions, corporate, competition, tax, energy and mining. In the fourth quarter of 2019, Dentons, the world’s largest firm by head count, announced that its partners had voted to admit ESJL to its network of firms. In addition to this chapter on international arbitration, the firm has contributed to published guides on energy law, litigation and dispute resolution, mining and corporate tax in Zambia. The firm is a member of the pro bono service Trust Law.

Trends and Development

Authors



Simeza, Sangwa & Associates (SSA) is a full-service Lusaka-based law firm with a focus on both contentious and non-contentious business. As one of the largest and fastest-growing firms in the country, the firm is dedicated to providing the highest levels of client service, skill and expertise to both corporate and individual clients. The SSA team consists of 14 advocates, ten legal support staff and eight administrative staff. Simeza, Sangwa & Associates is part of TagLaw and through that membership is able to offer its clients more than 150 quality legal firms in over 80 countries. SSA has a large dispute resolution department with extensive experience in commercial litigation and the enforcement of judgments. SSA is external legal counsel to several commercial banks and corporate entities and has acted as legal counsel to the Trade and Development Bank (formerly the PTA Bank) in respect of various financing projects in Zambia.

Compare law and practice by selecting locations and topic(s)

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

Please select at least one chapter and one topic to use the compare functionality.