THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW

STUDENT NUMBER: 2018241010

COURSE: ALTERNATIVE DISPUTE

RESOLUTIONS

COURSE CODE: LPR

LECTURER: MR. CHANDA CHUNGU

TASK: ASSIGNMENT

I hereby declare that this paper represents my own work. I have not used
works of other authors without acknowledgement.

……………………
INTRODUCTION

“There is no question but that conflict resolution, through the processes of negotiation,
mediation and arbitration, has become an acceptable and, indeed, inevitable part of creative
lawyering in the 21st century. That explains why all self-respecting law schools now provide
for skills training in the field of Alternative Dispute Resolution (ADR) as part of their core
offerings”.1

Alternative dispute resolution hereinafter called ADR, in its pristine form, originally referred
to a variety of techniques for resolving disputes without litigation. But having regard to the
evolution of modern techniques such as caseload management and the ever-growing
prevalence of ADR within the litigation context, it might be more accurate now to describe
ADR not as an alternative to litigation but one technique which is appropriate in the context
of dispute resolution generally. Following that way of thinking, litigation is considered as just
one of a variety of methods of dispute resolution with ADR being another. ADR systems may
be generally categorized as arbitration, negotiation, mediation, conciliation, Med-Arb and
international commercial arbitration. These modes of dispute resolution have become widely
used due to their many advantages such as; they are cheaper, speed of proceedings,
flexibility, confidentiality, decongestion of court systems, voluntary nature, it is cheaper,
there is a wider range of remedies.2

This Article pays particular focus on the ADR system Arbitration, it shall define the term
Arbitration and further shall discuss the routes and remedies available to a party that is not
satisfied with the decision rendered through the arbitration process (arbitral award) taking
into account the Zambian law procedure as well as international Law procedure.

ARBITRATION

Arbitration as defined by the Arbitration Act3 is any arbitration whether or not administered
by a permanent arbitral institution and means the conduct of proceedings for the
determination of a dispute by an arbitral tribunal. Another definition of arbitration is that it is
‘a consensual system of judicature directed to the resolution of commercial disputes in

1
Albert Fiadjoe, Alternative Dispute Resolution: A World Perspective (Great Britain: Cavendish publishing
limited, 2004),1
2
http://www.legalserviceindia.com/article/l64-Ad-Hoc-and-Institutional-Arbitration.html
3
Cap 19

1
private’. An arbitrator, therefore, is described as ‘a disinterested person, to whose judgment
and decision matters in dispute are referred’.4

The industrial relations act5 defines arbitration as “as a process by which parties to a dispute
present their cases by the use of evidence to a neutral third party called arbitrator, who
renders a decision which is binding on the parties enforceable”

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one

or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the
parties opt for a private dispute resolution procedure instead of going to court. Arbitration
carries a few exclusive qualities, and one of these quality is its nature of being consensual.
Arbitration can either Voluntary or Court annexed.

The reason for the rise in agreements of arbitration was because of the lack of efficiency by
judicial services, as they took a long time in disposing off cases, so people decided to turn to
alternate dispute resolution of which Arbitration is a part, further it is also confidential and
not open to everyone with a very friendly atmosphere, one has the liberty to appoint its own
arbitrators, place of arbitration can be chosen according to the comfort of the parties and after
listing them the Arbitrator may pass an award or maybe an interim award . An award is
similar to a judgement by the courts of law, however in the case of arbitration, the arbitrator
grants it on the basis of the facts and evidences which might be in the form of monetary
compensation or in the form of injunctions which depends and varies from case to case. The
award passed by the arbitrator is binding upon the parties.

ARBITUAL AWARD

An arbitration award (or arbitral award) is a determination on the merits by an arbitration

tribunal in arbitration, and is analogous to a judgment in a court of law According to the
Arbitration Act, an award is the decision of an arbitral tribunal on the substance of a
dispute and includes any interim, interlocutory or partial award and on any procedural or
substantive issue It is referred to as an 'award' even where the entire claimant's claims fail
(and thus no money needs to be paid by either party), or the award is of a non-monetary
nature.6

4
Rowland, PMB, Arbitration Law and Practice, 1988, ICAEW, p 1.
5
Industrial relations act
6
Ibid

2
When an award is passed it holds authority and is binding on both parties to the dispute, it is
to be implemented according to the civil procedure code. However, there might be a case
where the parties are not satisfied with the award, so the act itself defines a method through
which an Arbitral award may be set aside.7

REMEDIES AVAILABLE TO A DISSATISFIED PARTY

The remedies that can sought to an arbitral award are that the court may set aside the award;
the court may decide to remit the award to the arbitral tribunal for modification; or the court
may by itself modify the award; or it may set aside the award in whole or part If the award is
wholly set aside, the proceedings have to be commenced de novo and this would involve
either a court action or a new arbitration would have to be commenced if the setting aside is
for other reasons.

ROUTES TO CHALLENGING AN ARBITRAL AWARD IN ZAMBIA

It is a well-known fact that anyone can pass a judgement that might be overruled, even the
landmark judgements of the supreme court are overruled as far as human beings exist there is
a scope for mistake, and that is why there was a need for a mechanism that can help set aside
an award granted by the arbitration tribunal, it should be understood, that if there is an
agreement of arbitration, an arbitration clause in a contract, a suit is barred by arbitration,
which means that one cannot approach the court unless the parties have exhausted arbitration,
which is to be completed under one year, unless extended by the Hon’ble high court of the
respected jurisdiction, and if the extension fails then the mandate of the arbitration tribunal
nullifies.

There are two pieces of legislation that state the grounds for setting aside an Arbitral award in
Zambia, these being the Arbitration Act and the provisions of Order XLV, Rule 13 of the
High Court Act8. The two aforementioned statutes have proven to be in conflict with each
other as the order prescribes the sole ground for setting aside an award as being perverseness,
or misconduct of the arbitrator umpire while section 17 of the Arbitration act states more
grounds. It was later held in the case of Konkola Copper Mines PLC V Copperfield’s
Mining services limited9, that in view of the conflict in the two pieces of legislation, high
court act would be repealed by implication because its provisions were wholly incompatible
with that of the subsequent one.
7
Savenda Management Services Limited v. Stanbic Bank Limited Selected Judgment No. 39 of 2017.
8
Cap 27
9
2010/HP/ARB/ NO. 002.

3
In Spite of an Arbitral award being binding as earlier stated, Section 17 of the Arbitration
Act10 lays down the grounds on which an award passed in Zambia by the arbitral tribunal can
be set aside if it is in accordance with subsection (2) in Zambia. 11 Section 2 of the Act limits
the grounds on which the court may set aside an Arbitral Award.

Section 17(2) and article 34 of the UNCITRAL Model Law provide that an arbitral award
may be set aside by the court only if the party making the application furnishes proof that:

a) a party to the arbitration agreement was under some incapacity; or the said agreement
is not valid under the law to which the parties have subjected it or, failing any
indication thereon, under the laws of Zambia;
b) the party making the application was not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was otherwise unable to present his case;
c) the award deals with a dispute not contemplated by, or not falling within the terms of,
the submission to arbitration, or contains decisions on matters beyond the scope of the
submission to arbitration, provided that, if the decision on matters submitted to
arbitration can be separated from those not so submitted, only that part of the award
which contains decisions on matters not submitted to arbitration may be set aside;
d) the composition of the arbitral tribunal or the arbitral procedure was not in accordance
with the agreement of the parties or, failing such agreement, was not in accordance
with this Act or the law of the country where the arbitration took place; or
e) the award has not yet become binding on the parties or has been set aside or
suspended by a court of the country in which, or under the law of which, that award
was made.12

Section 17(2)(b) of the Arbitration Act provides that the court will set aside an award on the
following grounds:

a) the subject-matter of the dispute is not capable of settlement by arbitration under the
law of Zambia;
According to Section 6(2) of the Arbitration Act13 disputes that are not capable of
being determined by Arbitration are: agreements contrary to public policy,
matrimonial cause, matters incidental to a matrimonial cause unless the Court grants

10
Cap 19
11
ibid
12
Cap 19
13
Ibid

4
 leave for the matter or proceeding to be determine by Arbitration, criminal matters or
proceedings except those permitted by written law or unless the Court grants leave for
the matter or proceedings to be determined by Arbitration, where the determination of
paternity, materiality or parentage of a person, disputes which in terms of any law,
may not be determined by arbitration and matters that affect the interests of minors or
individuals under a legal incapacity, unless the minor or individual is represented by a
competent person.
To understand this ground, the case of Zamtel v Celtel14, could be illustrative, in this
case, the Arbitral Tribunal was chaired by Hon. Mr. Justice C. Kajimanga, a High
Court Judge. Prior to the awarding of the Arbitral Award the Chairman accepted an
appointment to serve as a member of another Tribunal at the request of the
defendant’s advocate. The court stated “Public Policy has not been defined in the
Arbitration act. It is however, public policy that a person ought to be tried by an
impartial tribunal. In this case the learned Chairman’s involvement in this case
without disclosing his interest in the other arbitral tribunal could easily be perceived
as being contrary to public policy because the perceptions from the objective test,
would have been that a likelihood of bias or possible conflict of interest could not be
ruled out. It was on this ground that the award was set aside. This case shows, that
when the agreement is contrary to public policy, the dispute cannot be settled by
arbitration, hence validating the ground.

b) the award is in conflict with public policy;

In an attempt to understand what constitutes public policy, the case of Martin
Misheck Simpemba Rose Domingo Kakompe v. Nonde Munkanta 15, gave a form
of understanding concerning Public policy. The main premise of the application was
that the award rendered on 31st December, 2007, ought to be set aside on the ground
that the award in question was in conflict with public policy, and offensive to the
relevant provisions of the Mines and Mineral Act. However, the court held that;
i. Although the term public policy is not defined in the Arbitration Act, the
defence of public policy should only be invoked where the upholding of an
arbitral award would; shock the conscience; is clearly injurious to the public
good; wholly offensive to an ordinary member of society; where it violates the

14
Zamtel v Celtel Zamtel v Celtel SCZ Judgment No.34 of 2008
15
2008/HP/268

5
 forum’s most basic notion of morality or justice; or it is outrageous in its
defiance of logic or accepted moral standards that any sensible and fair
minded person would be intolerably hurt by such an award.
ii. The defence of public policy is narrowly construed in the bid to preserve, and
recognize the goal of finality in all arbitrations. Thus an arbitral award is not
liable to be struck down on allegations that it is premised on incorrect ground
whether of fact or law.

c) the making of the award was induced or effected by fraud, corruption or

misrepresentation.
To understand this ground of setting aside an Arbitral award, the case of John
Kunda v. Keren Motors (z) Limited16 shall be addressed. In this case,

ROUTES TO CHALLENGE AN ARBITUAL AWARD UNDER INTERNATIONAL

LAW

With regard to the international aspect, the Model law is designed to assist countries in
reorganizing and modernizing their laws on arbitral procedure so as to take into account the
particular features and needs of international commercial arbitration.17 It covers all the stages
of the Arbitral process from the arbitration agreement, the composition and jurisdiction of the
arbitral tribunal and the extent of Court intervention through to the recognition and
enforcement of the arbitral award. In the Landmark case of China Henan International
Corporation Group Company Limited v G & G Nationwide (z) Limited 18 the court
explained the relationship between the Arbitration Act and the Model Law in that when it
comes to international matters concerning the involvement of Arbitration, the Arbitration Act
No 19 of 2000 will apply as it has the UNCITRAL Model Law on Commercial Arbitration
and the New York Convention included.

Similar to the laws in the Arbitration Act, Article 34, Chapter VII of the UNCITRAL Laws, 19
an arbitral award may be set aside by the Court only if; the party making the application

16
2008/HPC/550
17
Jain Sankalp, Framework Governing International Commercial Arbitration: UNICTRAL Model Law and
principles (London: sweet and Maxwell, 2015).
18
China Henan International Corporation Group Company Limited v G & G Nationwide (z) Limited 2017 ZMSC
18
19
ibid

6
furnishes proof that a party to the arbitration agreement was under some incapacity or the
said agreement is not valid under the law to which the parties have subjected it to. 20 If the
party making the application was not given proper notice of the appointment of an arbitrator
or of the arbitral proceedings or was otherwise unable to present his case. Also, if the award
deals with a dispute not expected or not failing within the terms of the submission to
arbitration or contains decisions on matters beyond the scope of the submission to arbitration,
provided that, if the decisions on matters submitted only that part of the award which contains
decisions on matters not submitted to arbitration may be set aside and lastly, the composition
of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of
the parties unless the agreement was in conflict with a provision of this law from which the
parties cannot derogate and also if the Court finds that the subject matter of the dispute is not
capable of settlement by arbitration under the law of this state or the award is in conflict with
the public policy, it will set aside the Arbitral award.

CONCLUSION

In conclusion, it is clear that Arbitration is considered as one of the most popular forms of
ADR because it provides party’s with more control over the outcomes of their disputes and is
more flexible than traditional litigation. Hence making a very necessary mechanism in
Zambia’s Legal environment.

BIBLIOGRAPHY

20
2(i) Article 34, Chapter VII of the UNICITRAL Law

7
BOOKS

Albert Fiadjoe, Alternative Dispute Resolution: A World Perspective (Great Britain:

Cavendish publishing limited, 2004)

Jain Sankalp, Framework Governing International Commercial Arbitration: UNICTRAL

Model Law and principles (London: sweet and Maxwell, 2015).

CASES

China Henan International Corporation Group Company Limited v G & G Nationwide (z)
Limited 2017 ZMSC 18

John Kunda V Keren Motors (z) Limited 2008/HPC/550

Konkola Copper Mines PLC V Copperfield’s Mining services limited 2010/HP/ARB/ NO.
002.
Savenda Management Services Limited v. Stanbic Bank Limited Selected Judgment No. 39
of 2017.
Zamtel v Celtel Zamtel v Celtel SCZ Judgment No.34 of 2008

STATUTES

The High Court Act Chapter 27 of the laws of Zambia

The Arbitration Act Chapter 19 of the laws of Zambia

The Industrial Relations act 296 of the Laws of Zambia

WEBSITES

http://www.legalserviceindia.com/article/l64-Ad-Hoc-and-Institutional-Arbitration.html