Zimbabwe
Arbitration Act, 1996 (No. 6 of 1996)
ARRANGEMENT OF
SECTIONS
1. Short title.
2. Interpretation.
3. Law applicable to arbitrations.
4. What may be arbitrated.
5. Application of Act to arbitration under other
enactments.
6. Repeal and transitional provisions.
7. Amendments to Acts.
FIRST SCHEDULE: Model Law.
SECOND SCHEDULE: Amendments to Acts.
To give effect to domestic and international
arbitration agreements; to apply, with modifications,
the Model Law on International Commercial Arbitration
adopted by the United Nations Commission on
International Trade Law on the 21st June, 1985,
thereby giving effect to the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
adopted in New York on the 10th June, 1958; to repeal
the Arbitration Act [Chapter7:02]; to amend the
High Court Act [Chapter 7:06], and
section 6 of the Prescribed Rate of Interest Act [Chapter
8:10]; and to provide for matters incidental to
or connected with the foregoing.
ENACTED by
the President and the Parliament of Zimbabwe.
1.
Short title
This Act may be cited as the Arbitration Act, 1996.
2.
Interpretation
(1) in this Act�
"Minister" means the Mi>"Minister" means
the Minister of Justice, Legal and Parliamentary
Affairs or any
other Minister to whom the President may, from time
to time, assign the administration of this Act;
"Model
Law" means the Model Law on International Commercial
Arbitration adopted by the United Nations Commission
on International Trade Law on the 21st June, 1985,
which is set out, with modifications, in the First
Schedule.
(2) Any expression to which a
meaning has been assigned in the Model Law shall bear
the same meaning when used in this Act.
(3) The material to which an arbitral tribunal or a
court may refer in interpreting this Act includes the
documents relating to the Model Law and originating
from the United Nations Commission on International
Trade Law, or its working group for the preparation of
the Model Law, that is to say the travaux
pr�paratoires to the Model Law, and, in
interpreting the Model Law, regard shall be had to its
international origin and to the desirability of
achieving international uniformity in its
interpretation and application.
3.
Law applicable to arbitrations
(1) Subject to sections four and five,
where the place of an arbitration is in Zimbabwe, this
Act and the Model Law, as modified by this Act, shall
apply to the arbitration.
(2) Subject to sections four and five, where the
place of an arbitration is not in Zimbabwe, articles
8, 9, 35 and 36 of the Model Law, as modified by this
Act, shall apply to the arbitration.
4.
What may be arbitrated
(1) Subject to this section, any dispute which
the parties have agreed to submit to arbitration may
be determined by arbitration.
(2) The following matters
shall not be capable of determination by arbitration�
(a) an agreement that is contrary to public policy;
or
(b) a
dispute which, in terms of any law, may not be
determined by arbitration; or
(c) a
criminal case; or
(d) a
matrimonial cause or a matter relating to status,
unless the High Court gives leave for it to be
determined by arbitration; or
(e) a
matter affecting the interests of a minor or an
individual under a legal disability, unless the High
Court gives leave for it to be determined by
arbitration; or
(f) a
matter concerning a consumer contract as defined in
the Consumer Contracts Act [Chapter 8:03], unless the
consumer has by separate agreement agreed thereto.
(3) The fact that an enactment confers jurisdiction on
a court or other tribunal to determine any matter
shall not, on that ground alone, be construed nd
alone, be construed as preventing the matter from
being determined by arbitration.
5.
Application of Act to arbitration under other
enactments
(1 ) Subject to subsection (2), where an
enactment requires any matter to
be determined by an arbitrator or by arbitration in
accordance with any law relating to arbitration, such
requirement shall be deemed to be an arbitration
agreement for the purposes of this Act.
(2) Where an enactment provides for the
determination of any matter by arbitration, the
provisions of that enactment, to the extent that they
are inconsistent with this Act, shall prevail.
6.
Repeal and transitional provisions
(1) Subject to this section, the Arbitration Act
[Chapter 7:02] is repealed.
(2) This Act shall apply to every arbitration
agreement whether made before, on or after the date of
commencement of this Act, and any reference in any
such agreement to the Arbitration Act [Chapter 7:02]
shall be construed as a reference to this Act:
Provided
that, where arbitral proceedings were commenced
in terms of the Arbitration Act
[Chapter 7:02], they may be continued and completed
in terms of that Act which shall, for such purpose,
be
deemed to continue in operation.
(3) For the purposes of this section, arbitral
proceedingsion, arbitral proceedings shall be deemed
to have commenced on the date the parties have agreed
they commenced or, failing such agreement, on the date
of receipt by the respondent of a request for the
dispute to be referred to arbitration.
(4) This Act shall apply to every arbitral award
whether made before, on or after the date of
commencement of this Act.
7.
Amendments to Acts
The Act specified in each Part of the Second
Schedule is amended to the extent set out in that
Part.
FIRST SCHEDULE (Section
2)
MODEL LAW
[This Schedule contains the United Nations
Commission on International Trade Law (UNCITRAL) Model
Law, with modifications. The modifications appear in
italics.]
CHAPTER I
GENERAL PROVISIONS
Article
1. Scope of application.
2. Definitions and rules of interpretation.
3. Receipt of written communications.
4. Waiver of right to object.
5. Extent of court intervention.
6. (Deleted)
CHAPTER II
CHAPTER II
ARBITRATION AGREEMENT
7. Definition and form of arbitration agreement.
8. Arbitration agreement and substantive claim before
court.
9. Arbitration agreement and interim measures by
court.
CHAPTER III
COMPOSITION OF ARBITRAL
TRIBUNAL
10. Number of arbitrators.
11. Appointment of arbitrator.
12. Grounds for challenge.
13. Challenge procedure.
14. Failure or impossibility to act.
15. Appointment of substitute arbitrator.
CHAPTER IV
JURISDICTION OF
ARBITRAL TRIBUNAL
16. Competence of arbitral tribunal to rule on its
jurisdiction.
17. Power of arbitral tribunal to order interim
measures.
CHAPTER V
CONDUCT OF ARBITRAL
PROCEEDINGS
18. Equal treatment of parties.
19. Determination of rules of procedure.
20. Place of arbitration.
21. Commencement of arbitral proceedings.
22. Language.
23. Statement of claim and defence.
24. Hearings and written proceedings.
25. Default of party.
26. Expert appointed by arbitral tribunal.
27. Court assistance in taking evidence.
CHAPTER VI
MAKING OF AWARD AND
TERMINATION OF PROCEEDINGS
28. Rules applicable to substance of dispute.
29. Decision-making by panel of arbitrators.
30. Settlement.
31. Form and contents of award.
32. Termination of proceedings.
33. Correction and interpretation of award; additional
award.
CHAPTER V[I
RECOURSE AGAINST AWARD
34. Application for setting aside as exclusive
recourse against arbitral award.
CHAPTER VIII
RECOGNITION AND
ENFORCEMENT OF AWARD
35. Recognition and enforcement.
36. Grounds for refusing recognition or enforcement.
CHAPTER 1
GENERAL PROVISIONS
ARTICLE
1
Scope
of application
(1) This Model Law applies as provided in
sections3 and 4 of the Act.
(2) (deleted: appears in section 3 of the Act).
(3) (deleted).
(4) (deleted).
(5) (deleted: appears in section 4(3) of the
Act).
ARTICLE
2
Definitions and rules of interpretation
For the purposes of this
Model Law�
(a) "arbitration" means any arbitration
whether or not administered by a permanent arbitral
institution;
(b) "arbitral tribunal" means
a sole arbitrator or a panel of arbitrators;
(c) "court" means
a body or organ of the judicial system of a State;
(d)
where a provision of this Model Law, except article
28, leaves the parties free to determine a certain
issue, such freedom includes the right of the parties
to authorise a third party, including an institution,
to make that determination;
(e)
where a provision of the Model Law refers to the fact
that the parties have agreed or tt that the parties
have agreed or that they may agree or in any other way
refers to an agreement of the parties, such agreement
includes any arbitration rules referred to in that
agreement;
(f)
where a provision of this Model Law, other than in
articles 25(a) and 32(2)(a), refers to a claim, it
also applies to a counter-claim, and where it refers
to a defence, it also applies to a defence to such
counter-claim.
ARTICLE 3
Receipt
of written communications
(1) Unless otherwise agreed
by the parties�
(a) any written communication is deemed to have
been received if it is delivered to the addressee
personally or if it is delivered at his place of
business, habitual residence or mailing address; if
none of these can be found after making a reasonable
inquiry, a written communication is deemed to have
been received if it is sent to the addressee's last
known place of business, habitual residence or mailing
address by registered letter or any other means which
provides a record of the attempt to deliver it;
(b)
the communication is deemed to have been received on
the day it is so delivered.
(2) The provisions of this article do not apply to
communications in court proceedings.
ARTICLE
4
Waiver
of right to object
A party who knows thter>
A party who knows that any provision of this
Model Law from which the parties may derogate or any
requirement under the arbitration agreement has not
been complied with and yet proceeds with the
arbitration without stating his objection to such
non-compliance without undue delay or, if a time-limit
is provided therefor, within such period of time,
shall be deemed to have waived the right to object.
ARTICLE
5
Extent
of court intervention
In matters governed by this Model Law, no court
shall intervene except where so provided in this Model
Law.
ARTICLE
6
Court
or other authority for certain functions of
arbitration assistance and supervision
(Deleted)
CHAPTER II
ARBITRATION AGREEMENT
ARTICLE
7
Definition and form of arbitration agreement
(1) "Arbitration agreement" is
an agreement by the parties to submit to
arbitration all or certain disputes which have arisen
or which may arise
between them in respect of a defined legal
relationship, whether
contractual or not. An arbitration agreement may be in
the form of an arbitration clause in a contract or in
the form of a separate agreement.
(2) The arbitration agreement shall be in
writing. An aon agreement shall be in writing. 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. The
reference in a contract to a document containing an
arbitration clause constitutes an arbitration
agreement provided that the contract is in writing and
the reference is such as to make that clause part of
the contract.
ARTICLE
8
Arbitration agreement and substantive claim before
court
(1) A court before which proceedings are brought
in a matter which is the subject of an arbitration
agreement shall, if a party so requests not later than
when submitting his first statement on the substance
of the dispute, stay those proceedings and refer the
parties to arbitration unless it finds that the
agreement is null and void, inoperative or incapable
of being performed.
(2) Where proceedings referred to in paragraph
(1) of this article have been brought, arbitral
proceedings may nevertheless be commenced or
continued, and an award may be made, while the issue
is pending before the court.
ARTICLE
9
Arbitration agreement and interim meaion agreement and
interim measures by court
(1) It is not incompatible with an arbitration
agreement for a party to request, before or during
arbitral proceedings, from the High Court an interim
measure of protection and, subject to paragraphs (2)
and (3) of this article, for the High Court to grant
such measure.
(2) Upon a request in terms
of paragraph (1) of this article, the High Court
may grant�
(a) an order for the preservation interim custody
or sale of any goods which are the subject-matter of
the dispute; or
(b)
an order securing the amount in dispute or the costs
of the arbitral proceedings; or
(c)
an interdict or other interim order; or
(d)
any other order to ensure that any award which may be
made in the arbitral proceedings is not rendered
ineffectual.
(3) The High Court shall not grant an order or
interdict in terms of paragraph (1) unless�
(a) the arbitral tribunal has not yet been
appointed and the matter is urgent; or
(b)
the arbitral tribunal is not competent to grant the
order or inter diet; or
(c)
the urgency of the matter makes it impracticable to
seek such order or interdict from the arbitral
tribunal;
and the High Court shall not
grant any such order or interdict where the arbitral
tribunal, being competent to grant the order or
interdict, has determinr interdict, has determined an
application therefor.
(4) The decision of
the High Court upon any request made in terms of
paragraph (1) of this article shall not be subject to
appeal.
CHAPTER III
COMPOSITION OF ARBITRAL
TRIBUNAL
ARTICLE
10
Number
of arbitrators
(1) The parties are free to determine the number
of arbitrators.
(2) Failing such determination, the number of
arbitrators shall be three:
Provided that where each
party has any one of the following in Zimbabwe�
(a) his place of business; or
(b)
if he has more than one place of business, his
principal place of business; or
(c)
if he has no place of business, his place of
habitual
residence;
the number of arbitrators,
failing such determination, shall be one.
ARTICLE
11
Appointment of arbitrators
(I ) No person shall be precluded by reason of
his nationality from acting as an arbitrator, unless
otherwise agreed by the parties.
(2) The parties are free to agree on a procedure
of appointing the arbitrator or arbitrators, subject
to the provisions of paragraphs (4) and (5) of this
article.
(3) Failing such agreement�
(a) in an arbitration with three arbitrators, each
party sh three arbitrators, each party shall appoint
one arbitrator, and the two arbitrators thus appointed
shall appoint the third arbitrator; if a party fails
to appoint the arbitrator within thirty days of
receipt of a request to do so from the other party, or
if the two arbitrators fail to agree on the third
arbitrator Within thirty days of their appointment,
the appointment shall be made, upon request of a
party, by the High Court;
(b)
in an arbitration with a sole arbitrator, if the
parties are unable to agree on the arbitrator, he
shall be appointed, upon request of a party, by the
High Court.
(4) Where,
under an appointment procedure agreed upon by
the parties�
(a) a party fails to act as required under such
procedure; or
(b)
the parties, or two arbitrators, are unable to reach
an agreement expected of them under such procedure; or
(c) a
third party, including an institution, fails to
perform any function entrusted to it under such
procedure;
any party may request the High
Court to take the necessary measure, unless the
agreement on the appointment procedure provides other
means for securing the appointment.
(5) A decision on a matter entrusted by
paragraph (3) or (4) of this article to the High Court
shall be subject to no appeal. The High Court in
appointing an arbitrator, shall have due regard to any
qualifications required of the arbitrator by the
agreement rator by the agreement of the parties and to
such considerations as are likely to secure the
appointment of an independent and impartial arbitrator
and, in the case of a sole or third arbitrator, shall
take into account as well the advisability of
appointing an arbitrator of a nationality other than
those of the parties.
ARTICLE
12
Grounds
for challenge
(1) 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.
(2) An arbitrator may be challenged only if
circumstances exist that give rise to justifiable
doubts as to his impartiality or independence, or if
he does not possess qualifications agreed to by the
parties. A party may challenge an arbitrator appointed
by him, or in whose appointment he has participated,
only for reasons of which he becomes aware after the
appointment has been made.
ARTICLE
13
Challenge procedure
(1) The parties are free to agree on a procedure
for challenging an arbitrator, subject to thng an
arbitrator, subject to the provisions of paragraph (3)
of this article.
(2) Failing such agreement, a party who intends
to challenge an arbitrator shall, within fifteen 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 office or the
other party agrees to the challenge, the arbitral
tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed
upon by the parties or under the procedure of
paragraph (2) of this article is not successful, the
challenging party may request, within thirty days
after having received notice of the decision rejecting
the challenge, the High Court to 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.
ARTICLE
14
Failure
or impossibility to act
(1) If an arbitrator becomes de jure or de facto
unable to perform the functions of his office or for
other reasons fails to act without undue delay, his
mandate terminates if he withdraws from his office or
if the parties agree on the termination. gree on the
termination. Otherwise, if a controversy remains
concerning any of these grounds, any party may request
the High Court to decide on the termination of the
mandate, which decision shall be subject to no appeal.
(2) If, under this article or article 13(2), an
arbitrator withdraws from his office or a party agrees
to the termination of the mandate of an arbitrator,
this does not imply acceptance of the validity of any
ground referred to in this article or article 12(2).
ARTICLE
15
Appointment of substitute arbitrator
(1) Where the mandate of an arbitrator
terminates under article 13 or 14 or because of his
withdrawal from office for any other reason or because
of the revocation of his mandate by agreement of the
parties or in any other case of termination of his
mandate, a substitute arbitrator shall be appointed
according to the rules that were applicable to the
appointment of the arbitrator being replaced.
(2) Unless otherwise agreed
by the parties�
(a) where the sole or the presiding arbitrator is
replaced, any hearings previously held shall be
repeated; and
(b)
where an arbitrator, other than a sole or a presiding
arbitrator, is replaced, any hearings previously held
may be repeated at the discre be repeated at the
discretion of the arbitral tribunal.
(3) Unless otherwise agreed by
the parties, an order or ruling of the arbitral
tribunal made prior to the replacement of an
arbitrator under this article * not invalid solely
because there has been a change in the composition of
the arbitral tribunal.
CHAPTER IV
JURISDICTION OF
ARBITRAL TRIBUNAL
ARTICLE
16
Competence of arbitral tribunal to rule on its
jurisdiction
(1) The arbitral tribunal may rule on its own
jurisdiction, including any objections with respect to
the existence or validity of the arbitration
agreement. For that purpose, an arbitration clause
which forms part of a contract shall be treated as an
agreement independent of the other terms of the
contract. A decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure
the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not
have jurisdiction shall be raised not later than the
submission of the statement of defence. A party is not
precluded from raising such a plea by the fact that he
has appointed, or participated in the appointment of,
an arbitrator. A plea that the arbitral tribunal is
exceeding the scope of its authority shallope of its
authority shall be raised as soon as the matter
alleged to be beyond the scope of its authority is
raised during the arbitral proceedings. The arbitral
tribunal may, in either case, admit a later plea if it
considers the delay justified.
(3) The arbitral tribunal may rule on a plea
referred to in paragraph (2) of this article either as
a preliminary question or in an award on the merits.
If the arbitral tribunal rules on such a plea as a
preliminary question, any party may request, within
thirty days after having received notice of that
ruling, the High Court to decide the matter, which
decision shall be subject to no appeal; while such a
request is pending, the arbitral tribunal may continue
the arbitral proceedings and make an award.
ARTICLE
17
Power
of arbitral tribunal to order interim measures
(1) Unless otherwise agreed by the parties, the
arbitral tribunal may, at the request of a party,
order any party to take such interim measure of
protection as the arbitral tribunal may consider
necessary in respect of the subject-matter of the
dispute. The arbitral tribunal may require any party
to provide appropriate security in connection with any
such measure.
(2) Unless otherwise agreed
by the parties, an arbitral tribunal shall have
power�
(a) to grant an interdict or other interim order;
(b)
to ;
(b)
to order the parties to make a deposit in respect of
the fees and costs of the arbitration.
(3) The arbitral tribunal or a
party with the approval of the arbitral tribunal may
request from the High Court executory assistance in
the exercise of any power conferred upon the arbitral
tribunal under paragraphs (1) and (2) of this article.
(4) If a request is made under paragraph (3) of
this article, the High Court shall have, for the
purpose of giving effect to the request, the same
powers it would have in civil proceedings before it.
CHAPTER V
CONDUCT OF ARBITRAL
PROCEEDINGS
ARTICLE
18
Equal
treatment of parties
The parties shall be treated with equality and
each party shall be given a full opportunity of
presenting his case.
ARTICLE
19
Determination of rules of procedure
(1) Subject to the provisions of this Model Law,
the parties are free to agree on the procedure to be
followed by the arbitral tribunal in conducting the
proceedings.
(2) Failing such agreement, the arbitral
tribunal may, subject to the provisions of this Model
Law, conduct the arbitration in such manner as it
considers appropriate. The poit considers appropriate.
The power conferred upon the arbitral tribunal
includes the power to determine the admissibility,
relevance, materiality and weight of any evidence.
(3) Every witness giving evidence, and every
person appearing before an arbitral tribunal, shall
have the same privileges and immunities as witnesses
and legal practitioners in proceedings before a court.
ARTICLE
20
Place
of arbitration
(1) The parties are free to agree on the place
of arbitration. Failing such agreement, the place of
arbitration shall be determined by the arbitral
tribunal having regard to the circumstances of the
case, including the convenience of the parties.
(2) Notwithstanding the provisions of paragraph
(1) of this article, the arbitral tribunal may, unless
otherwise agreed by the parties, meet at any place it
considers appropriate for consultation among its
members, for hearing witnesses, experts or the
parties, or for inspection of goods, other property or
documents.
ARTICLE
21
Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the
arbitral proceedings in respect of a particular
dispute commence on the date on which a request for
that dispute to be referred to arbitration is received
by the respondent.
ARTICLE
22
Language
(1 )
The parties are free to agree on the language or
languages to be used in the arbitral proceedings.
Failing such agreement, the arbitral tribunal shall
determine the language or languages to be used in the
proceedings. This agreement or determination, unless
otherwise specified therein, shall apply to any
written statement by a party, any hearing and any
award, decision or other communication by the arbitral
tribunal.
(2) The
arbitral tribunal may order that any documentary
evidence shall be accompanied by a translation into
the language or languages agreed upon by the parties
or determined by the arbitral tribunal.
ARTICLE
23
Statement of claim and defence
(1)
Within the period of time agreed by the parties or
determined by the arbitral tribunal, the claimant
shall state the facts supporting his claim, the points
at issue and the relief or remedy sought, and the
respondent shall state his defence in respect of these
particulars, unless the parties have otherwise agreed
as to the required elements of such statements. The
parties may submit with their statements all documents
they consider to be relevant or may add a reference to
the documents or other evidence they will submit.
(2)
Unless otherwise agreed by the parties, either party
may amend OF supplement his claamend OF supplement his
claim or defence during the course of the arbitral
proceedings, unless the arbitral tribunal considers it
inappropriate to allow such amendment having regard to
the delay in making it.
ARTICLE
24
Hearings and written proceedings
(I )
Subject to any contrary agreement by the parties, the
arbitral tribunal shall decide whether to hold oral
hearings for the presentation of evidence or for oral
argument, or whether the proceedings shall be
conducted on the basis of documents and other
materials. However, unless the parties have agreed
that no hearing shall be held, the arbitral tribunal
shall hold such hearings at an appropriate stage of
the proceedings, if so requested by a party.
(2) The
parties shall be given sufficient advance notice of
any hearing and of any meeting of the arbitral
tribunal for the purposes of inspection of goods,
other property or documents.
(3) All
statements, documents or other information supplied to
the arbitral tribunal by one party shall be
communicated to the other party. Also any expert
report or evidentiary document on which the arbitral
tribunal may rely in making its decision shall be
communicated to the parties.
(4) At
any hearing or any meeting of the arbitral tribunal of
which notice is required to be given under paragraph
(2) of this article, or in any proceedings conducted
on the basis of donducted on the basis of documents or
other materials, the parties may appear or act in
person or may be represented by any other person of
their choice.
ARTICLE
25
Default
of a party
Unless
otherwise agreed by the parties, if, without
showing
sufficient cause�
(a) the claimant fails to communicate his statement
of claim in accordance with article 23(1), the
arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his
statement of defence in accordance with article 23(1),
the arbitral tribunal shall continue the proceedings
without treating such failure in itself as an
admission of the claimant's allegations;
(c) any party fails to appear at a hearing or to
produce documentary evidence, the arbitral tribunal
may continue the proceedings and make the award on the
evidence before it;
(d) the claimant fails to prosecute his claim, the
arbitral tribunal may make an award dismissing the
claim or give directions, with or without conditions,
for the speedy determination of the claim.
ARTICLE
26
Expert
appointed by arbitral tribunal
(1)
Unless otherwise agreed by the parties, the arbitral
tribunal�
(a) may appoint one or more experts to report to it
on specific issues to be determined by the arbitral
tribudetermined by the arbitral tribunal;
(b) may require a party to give the expert any
relevant information or to produce, or to provide
access [to, any relevant
documents, goods*] or other property for
his inspection.
(2) Unless otherwise agreed by the parties, if a
party so requests or if the arbitral tribunal
considers it necessary, the expert shall, after
delivery of his written or oral report, participate in
a hearing where the parties have the opportunity to
put questions to him and to present expert witnesses
in order to testify on the points at issue.
ARTICLE 27
Court assistance in taking evidence
(1) The
arbitral tribunal or a party with the approval of the
arbitral tribunal may request from the High Court
assistance in taking evidence. The High Court may
execute the request within its competence and
according to its rules on taking evidence.
(2)
For the purposes of paragraph (1) of this article�
(a) the High Court may issue a subpoena to compel
the attendance of a witness before an arbitral
tribunal to give evidence or produce documents;
(b) the High Court may order any witness to submit
to examination on oath before the arbitral tribunal,
or before an officer of the court or any other person
for the use other person for the use of the arbitral
tribunal;
(c) the High Court shall have, for the purpose of
the arbitral proceedings, the same power as it has
for
the purpose of proceedings before that court to make
an order for�
(i) the discovery of documents and interrogatories;
(ii) the issue of a commission or request for the
taking of evidence out of the jurisdiction;
(iii) the detention, preservation or inspection of
any property or thing which is in issue or relevant to
the arbitral proceedings and authorising for any of
those purposes any person to enter upon any land or
building in the possession of a party, or authorising
any sample to be taken or any observation to be made
or experiment to be tried which may be necessary or
expedient for the purpose of obtaining full
information or evidence.
CHAPTER VI
MAKING OF AWARD AND
TERMINATION OF PROCEEDINGS
ARTICLE
28
Rules
applicable to substance of dispute
(1 )
The arbitral tribunal shall decide the dispute in
accordance with such rules of law as are chosen by the
parties as applicable to the substance of the dispute.
Any designation of the law or legal system of a given
State shall be construed, unless otherwisonstrued,
unless otherwise expressed, as directly referring to
the substantive law of that State and not to its
conflict of laws rules.
(2)
Failing any designation by the parties, the arbitral
tribunal shall apply the law determined by the
conflict of laws rules which it considers applicable.
(3) The
arbitral tribunal shall decide ex aequo et bono or as
amiable compositeur only if the parties have expressly
authorised it to do so.
(4) In
all cases, the arbitral tribunal shall decide in
accordance with the terms of any contract and shall
take into account any usages of any trade applicable
to the transaction.
ARTICLE
29
Decision-making by panel of arbitrators
In
arbitral proceedings with more than one arbitrator,
any decision of the arbitral tribunal shall be made,
unless otherwise agreed by the parties, by a majority
of all its members. However, questions of procedure
may be decided by a presiding arbitrator, if so
authorised by the parties or all members of the
arbitral tribunal.
ARTICLE
30
Settlement
(1) If,
during arbitral proceedings, the parties settle the
dispute, the arbitral tribunal shall terminate the
proceedings and, if requested by the parties and not
objected to by the arbitral tribunal, record the
settlement in the f, record the settlement in the form
of an arbitral award on agreed terms.
(2) An
award on agreed terms shall be made in accordance with
the provisions of article 31 and shall state that it
is an award. Such an award has the same status and
effect as any other award on the merits of the case.
ARTICLE
31
Form
and contents of award
(1) The
award shall be made in writing and shall be signed by
the arbitrator or arbitrators. In arbitral proceedings
with more than one arbitrator, the signatures of the
majority of all members of the arbitral tribunal shall
suffice, provided that the reason for any omitted
signature is stated.
(2) The
award shall state the reasons upon which it is based,
unless the parties have agreed that no reasons are to
be given or the award is an award on agreed terms
under article 30.
(3) The
award shall state its date and the place of
arbitration as determined in accordance with article
20(1). The award shall be deemed to have been made at
that place.
(4)
After the award is made, a copy signed by the
arbitrators in accordance with paragraph (1) of this
article shall be delivered to each party.
(5)
Unless otherwise agreed by the parties�
(a) the costs and expenses of an arbitration
including the legal and other expenses of the parties,
the fees and expenses of the aees and expenses of the
arbitral tribunal and other expenses related to the
arbitration, shall be as fixed and allocated by the
arbitral tribunal in its award;
(b) where the award does not specify otherwise,
each party shall be responsible for his own legal and
other expenses and for an equal share
of the fees and expenses of the arbitral tribunal and
any other expenses related to the arbitration.
(6) Unless otherwise agreed by the parties�
(a) an arbitral tribunal may award interest at such
rate, on such sum and for such period as may be
specified in the award;
(b) where the award does not specify otherwise, a
sum directed to be paid by the award shall carry
interest from the date of the award up to the date of
Payment at the same rate as a judgement debt.
(7) Unless otherwise agreed by the parties, an
arbitral tribunal shall hare the power to make an
interim, interlocutory or partial award.
ARTICLE
32
Termination of proceedings
(1) The
arbitral proceedings are terminated by the final award
or by an order of the arbitral tribunal in accordance
with paragraph (2) of this article.
(2)
The arbitral tribunal shall issue an order for
the
termination of the arbitral proceedings when�
(a) the claimant withdrawte>(a) the claimant
withdraws his claim, unless the respondent objects
thereto and the arbitral tribunal recognises a
legitimate interest on his part in obtaining a final
settlement of the dispute;
(b) the parties agree on the termination of the
proceedings;
(c) the arbitral tribunal finds that the
continuation of the proceedings has for any other
reason become unnecessary or impossible.
(3) The mandate of the arbitral tribunal terminates
with the termination of the arbitral proceedings,
subject to the provisions of articles 33 and 34(4).
ARTICLE
33
Correction and interpretation of award; additional
award
(1)
Within thirty days of receipt of the award, unless
another period of time has been agreed upon by
the
parties�
(a) a party, with notice to the other party, may
request the arbitral tribunal to correct in the award
any errors in computation, any clerical or
typographical errors or any errors of similar nature;
(b) if so agreed by the parties, a party, with
notice to the other party, may request the arbitral
tribunal to give an interpretation of a specific point
or part of the award.
If the arbitral tribunal considers the request to
be justified, it shall make the correction or give the
interpretation within thirty days of receipt of the
request. The intpt of the request. The interpretation
shall form part of the award.
(2) The
arbitral tribunal may correct any error of the type
referred to in paragraph (1)(a) of this article on its
own initiative within thirty days of the date of the
award.
(3)
Unless otherwise agreed by the parties, a party, with
notice to the other party, may request, within thirty
days of receipt of the award, the arbitral tribunal to
make an additional award as to claims presented in the
arbitral proceedings but omitted from the award. If
the arbitral tribunal considers the request to be
justified, it Shall make the additional award within
sixty days.
(4) The
arbitral tribunal may extend, if necessary, the period
of time within which it shall make a correction,
interpretation or an additional award under paragraph
(1) or (3) of this article.
(5) The
provisions of article 31 shall apply to a correction
or interpretation of the award or to an additional
award.
CHAPTER VII
RECOURSE AGAINST AWARD
ARTICLE
34
Application for setting aside as exclusive recourse
against arbitral award
(1 )
Recourse to a court against an arbitral award may be
made only by an application for setting aside in
accordance with paragraphs (2) and (3) of this
article.
(2)
An arbitral award may b>(2) An arbitral award
may be set aside by the High Court only if�
(a) the party making the application furnishes
proof that�
(i) a party to the arbitration agreement referred
to in article 7 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
on that question, under the law of Zimbabwe; or
(ii) 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; or
(iii) 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 decisions 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; or
(iv) the composition of the arbitral tribunal or
the arbitral procedure was not in accordance with the
agreement of the parties, unless such agreement was in
conflict with a provision of this Model Law from which
the parties cannot derogate, or, failing such
agreement, was not in accordance with this Model Law.
(b) the High Court finds that�
(i) the subject-matter of the dispute matter of the
dispute is not capable of settlement by arbitration
under the law of Zimbabwe; or
(ii) the award is in conflict with the public
policy of Zimbabwe.
(3) An application for setting aside may not be
made after three months have elapsed from the date on
which the party making that application had received
the award or, if a request had been made under article
33, from the date on which that request had been
disposed of by the arbitral tribunal.
(4) The
High Court, when asked to set aside an award, may,
where appropriate and so requested by a party, suspend
the setting aside proceedings for a period of time
determined by it in order to give the arbitral
tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the
arbitral tribunal's opinion will eliminate the grounds
for setting aside.
(5)
For the avoidance of doubt, and without limiting
the
generality of paragraph 2(b)(ii) of this article, it
is declared that an award is in conflict with
the
public policy of Zimbabwe if�
(a) the making of the award was induced or effected
by fraud or corruption; or
(b) a breach of the rules of natural justice
occurred in connection with the making of the award.
CHAPTER VIIICHAPTER
VIII
RECOGNITION AND
ENFORCEMENT OF AWARDS
ARTICLE
35
Recognition and enforcement
(1) An
arbitral award, irrespective of the country in which
it was made, shall be recognised as binding and, upon
application in writing to the High Court, shall be
enforced subject to the provisions of this article and
of article 36.
(2) The
party relying on an award or applying for its
enforcement shall supply the duly authenticated
original award or a duly certified copy thereof and
the original arbitration agreement referred to in
article 7 or a duly certified copy thereof. If the
award or agreement is not made in the English
language, the party shall supply a duly certified
translation into the English language.
ARTICLE
36
Grounds
for refusing recognition or enforcement
(1)
Recognition or enforcement of an arbitral award,
irrespective of the country in which it was made,
may
be refused only�
(a) at the request of the party against whom it
is invoked, if that party furnishes to the court where
recognition or enforcement is sought proof that�
(i) a party to the arbitration agreement referred
to in article 7 was under some incapacity; or the said
agreement is not validaid agreement is not valid under
the law to which the parties have subjected it or
failing any indication thereon, under the law of the
country where the award was made; or
(ii) the party against whom the award is invoked
was not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was
otherwise unable to present his case; or
(iii) the award deals with a dispute not
contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on
matters beyond the scope of the submission to
arbitration, provided that, if the decisions on
matters submitted to arbitration can be separated from
those not so submitted, that part of the award which
contains decisions on matters submitted to arbitration
may be recognised and enforced; or
(iv) 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 the law of the country
where the arbitration took place; or
(v) 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; or
(b) if the court finds that�
(i) the subject-matter of the dispute is not
capable of settlement by arbitration under the law of
Zimbabwe; or
(ii) the recognition or enforcement of the
awarnforcement of the award would be contrary to the
public policy of Zimbabwe.
(2) If an application for setting aside or suspension
of an award has been made to a court referred to in
paragraph (1 )(a)(v) of this article, the court where
recognition or enforcement is sought may, if it
considers it proper, adjourn its decision and may
also, on the application of the party claiming
recognition or enforcement of the award, order the
other party to provide appropriate security.
(3)
For the avoidance of doubt and without limiting
the
generality of paragraph l(b)(ii) of this article, it
as declared that the recognition or enforcement
of an
award would be contrary to the public policy of
Zimbabwe if�
(a) the making of the award was induced or effected
by fraud or corruption; or
(b) a breach of the rules of natural justice
occurred in connection with the making of the award.
SECOND SCHEDULE
(Section 7)
AMENDMENTS TO ACTS
PART I
HIGH COURT OF ZIMBABWE
ACT, 1981 [CHAPTER 7:06]
By
the insertion after section 19 of the following
section�
"19A. Reference of question ; Reference
of question for report by referee
(1)
The High Court may refer any question arising
in civil
proceedings, including�
(a) any question requiring extensive examination of
documents or any scientific, technical or local
investigation which, in the opinion of the High Court,
cannot conveniently be conducted by it; or
(b) any question relating wholly or partly
to accounts; for inquiry and report by a referee
appointed generally or specially by the High Court.
(2) The High Court may adopt, wholly or partly and
with or without modification, the report of a referee
appointed under subsection (1), or may remit the
report to him for further consideration or may take
such other action in regard to the report as the High
Court considers necessary or desirable.
(3) Any
part of a referee's report which has been adopted by
the High Court under subsection (2) shall have effect,
subject to any modifications the court may have made,
as if it were a finding by the High Court in the civil
proceedings in question.
(4) A
referee appointed under this section shall have such
powers, and shall conduct his inquiry in such manner,
as may be prescribed by order of the High Court or in
rules of court.
(5) For
the purpose of procuring the attendance of witnesses,
including a witness detained in custody under any law,
and the production of
documents or other things before a referee appointed
under this sectioted under this section, proceedings
before such a referee shall be deemed to be civil
proceedings before the High Court.
(6)
If a person who has been summoned to appear and
give
evidence or produce any document or thing before a
referee appointed under this section�
(a) fails without just excuse to attend at the time
and place specified; or
(b) having attended, fails without just excuse to
remain in attendance until the conclusion of the
proceedings or until he is excused by the referee from
further attendance; or
(c) refuses without just excuse to be sworn; or
(d) having been sworn, refuses without just excuse
to answer such questions as are put to him or fails to
produce any document or thing which he is required to
produce;
he shall be guilty of an offence and liable to a
fine not exceeding five hundred dollars or to
imprisonment for a period not exceeding three months
or to both such fine and such imprisonment.
(7) If
a person, after being sworn in proceedings before a
referee appointed under this section, gives false
evidence knowing the evidence to be false or not
knowing or believing it to be true, he shall be guilty
of an offence and liable to the penalties prescribed
by law for perjury.
(8)
A referee appointed under this section shall
be entitled
to�
(a) such remuneration as may be prescribed in rules
of court or, if no such remuneration is prescribed, as
the court may deed, as the court may determine; and
(b) the reimbursement of any reasonable expenditure
incurred by him in connection with the proceedings
conducted by him;
and any such remuneration and reimbursement shall
be liable to taxation and shall be costs in the civil
proceedings concerned.".
PART II
PRESCRIBED RATE OF
INTEREST ACT, 1985 [CHAPTER 8:10]
In
section 6 by the deletion from subsection (1)
of ",
by arbitration".
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