CHAPTER 40
ARBITRATION ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Scope of application of Act to agreements and awards

   4.   Application of Act to the Republic

   5.   Application of Act to arbitration under other laws

PART II
ARBITRATION AND RELATED MATTERS

   6.   Matters subject to arbitration and exceptions

   7.   Effect of death of a party

   8.   Application of First Schedule to arbitral proceedings

   9.   Form of arbitration agreement

   10.   Arbitration agreement and substantive claim before court

   11.   Arbitration agreement and interim measures by court

   12.   Appointment of arbitrators

   13.   Appointment of substitute arbitrator

   14.   Power of arbitral tribunal to order interim and other measures

   15.   Default of a party

   16.   Form and contents of award and costs and expenses of arbitration

   17.   Application for setting aside as exclusive recourse against arbitral award

   18.   Recognition and enforcement

   19.   Grounds for refusing recognition or enforcement

   20.   Effect of award

   21.   Legal or other representation

   22.   Prohibition of representation or acting as witness by arbitrators in legal proceedings

   23.   Recognition of arbitral institutions

   24.   Grant or refusal of recognition

   25.   Conditions for recognition

   26.   Revocation of recognition

   27.   Confidentiality of arbitration

   28.   Protection of arbitrators, arbitral and other institutions, witnesses, etc

   29.   Application of Judicial (Code of Conduct) Act, 1999 to arbitrators

PART III
RECOGNITION AND ENFORCEMENT OF NEW YORK CONVENTION AWARDS

   30.   Interpretation of this Part

   31.   Recognition and enforcement of New York Convention awards

PART IV
MISCELLANEOUS

   32.   Rules of court

PART V
REPEAL AND TRANSITIONAL PROVISIONS

   33.   Repeal of Act 3 of 1933 and transitional provisions

      FIRST SCHEDULE

      SECOND SCHEDULE

AN ACT

to repeal and replace the Arbitration Act with provisions for domestic and international arbitration through the adoption, with modifications, of the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on the 21st June, 1985; to provide for an arbitral procedure which is fair, efficient and capable of meeting the specific needs of each arbitration; to redefine the supervisory role of the courts in the arbitral process; to preserve the legal recognition and enforcement of foreign arbitral awards under the Geneva Protocol on Arbitration Clauses (1923) and the Geneva Convention on the Execution of Foreign Arbitral Awards (1927); to provide for the recognition and enforcement of foreign arbitral awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958); and to provide for matters connected with or incidental to the foregoing.

[2nd March, 2001]

Act 19 of 2000.

PART I
PRELIMINARY

1.   Short tile

This Act may be cited as the Arbitration Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

“arbitral institution” means an institution recognised as such in accordance with section 23;

“arbitral proceedings” means proceedings conducted by an arbitral tribunal for the settlement, by arbitration, of a dispute which has been referred to arbitration in terms of an arbitration agreement;

“arbitral tribunal” means a sole arbitrator or a panel of arbitrators acting as such under an arbitration agreement;

“arbitration” refers to 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 in terms of this Act;

“arbitration agreement” means an agreement, whether in writing or not, 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;

“award” means 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;

“court” means the High Court or any other court, as may be designated by statutory instrument by the Chief Justice, having jurisdiction to decide the issues constituting the subject matter of the arbitration as if that matter had been the subject-matter of a suit; and the expression “the court” shall be construed accordingly;

“dispute” includes a difference;

“legal proceedings” means civil proceedings in any court;

“official language” means the English language;

“party” in relation to an arbitration agreement, a submission to arbitration or arbitral proceedings, means a party to the agreement, submission or proceedings and includes any person claiming under or through a party to the agreement.

   (2) In the First Schedule, a reference to "this State" shall be construed as a reference to Zambia.

   (3) In interpreting this Act, an arbitral tribunal or a court may refer to the documents relating to the Model Law on International Commercial Arbitration adopted by the United nations Commission on International Trade Law on the 21st June, 1985 set out in the First Schedule and, subject to the other provisions of this Act, to the documents of the Commission’s working group, namely the travaux preparatoires; and in interpreting the provisions of the First Schedule, regard shall be had to its international origin and to the desirability of achieving international uniformity in its interpretation and application.

3.   Scope of application of Act to agreements and awards

Subject to section 33, this Act shall apply to—

      (a)   every arbitration agreement; and

      (b)   every arbitral award,

whether made before or after the commencement of this Act; and any reference in any such agreement or award to the Arbitration Act shall be construed as a reference to this Act.

4.   Application of Act to the Republic

Subject to the State Proceedings Act, this Act shall apply to any arbitration agreement to which the Republic is a party but shall not apply to an arbitration agreement between—

      (a)   the Republic and the government of a foreign country; or

      (b)   the Republic and any undertaking which is wholly owned by, or is under the sole control of, the government of a foreign country unless otherwise agreed between the Republic and that undertaking.

5.   Application of Act to arbitration under other laws

   (1) Subject to sub-section (3), this Act shall apply to every arbitration under any other written law, whether that law is in force before or after the commencement of this Act.

   (2) Where a written law provides for a matter to be determined by arbitration whether or not in accordance with any law relating to arbitration—

      (a)   the provision in the written law shall be deemed to be an arbitration agreement; and

      (b)   a person by or against whom a claim subject to arbitration in pursuance of that provision may be made or has been made shall be deemed to be a party to that arbitration agreement.

   (3) The provisions of this Act shall not apply to an arbitration referred to in sub-section (1) if, or to the extent that, those provisions—

      (a)   are inconsistent with the provisions of the written law concerned or with any rules of procedure applicable under that law; or

      (b)   are excluded by the written law concerned or by any other written law.

PART II
ARBITRATION AND RELATED MATTERS

6.   Matters subject to arbitration and exceptions

   (1) Subject to sub-sections (2) and (3), any dispute which the parties have agreed to submit to arbitration may be determined by arbitration.

   (2) Disputes in respect of the following matters shall not be capable of determination by arbitration—

      (a)   an agreement that is contrary to public policy;

      (b)   a dispute which, in terms of any law, may not be determined by arbitration;

      (c)   a criminal matter or proceeding except insofar as permitted by written law or unless the court grants leave for the matter or proceeding to be determined by arbitration;

      (d)   a matrimonial cause;

      (e)   a matter incidental to a matrimonial cause, unless the court grants leave for the matter to be determined by arbitration;

      (f)   the determination of paternity, maternity or parentage of a person; or

      (g)   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.

   (3) The fact that a law confers jurisdiction on a court or other tribunal to determine any matter shall not, on that ground alone, be construed as preventing the matter from being determined by arbitration.

7.   Effect of death of a party

   (1) Unless otherwise agreed by the parties, an arbitration agreement shall not be discharged by the death of a party and may be enforced by or against the personal representative of that party.

   (2) Sub-section (1) shall not affect the operation of any written law or rule of law by virtue of which a substantive right or obligation is extinguished by death.

8.   Application of First Schedule to arbitral proceedings

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

   (2) Where the place of arbitration is not in Zambia, Articles 8, 9, 35 and 36 of the First Schedule shall apply.

9.   Form of arbitration agreement

   (1) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

   (2) An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another; and the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and reference is such as to make that clause part of the contract.

   (3) Where parties agree otherwise than in writing by reference to terms which are in writing, their agreement shall be treated as an agreement in writing.

10.   Arbitration agreement and substantive claim before court

   (1) A court before which legal proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests at any stage of the proceedings and notwithstanding any written law, 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 sub-section (1) 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.

11.   Arbitration agreement and interim measures by Court

   (1) A party may, before or during arbitral proceedings, request from a court an interim measure of protection and, subject to sub-sections (2), (3) and (4), the court may grant such measure.

   (2) Upon a request in terms of sub-section (1), the court may grant—

      (a)   an order for the preservation, interim custody, sale or inspection of any goods which are the subject matter of the dispute;

      (b)   an order securing the amount in dispute or the costs and expenses of the arbitral proceedings;

      (c)   an interim injunction or other interim order; or

      (d)   any other order to ensure that an award which may be made in the arbitral proceedings is not rendered ineffectual.

   (3) Where the court intends to grant an order or an injunction requested under sub-section (2), and an arbitral tribunal has already ruled or made a finding of fact on a matter relevant to the request, the court shall treat the ruling or finding made in the course of the arbitral proceedings as conclusive for the purpose of the request.

   (4) The court shall not grant an order or injunction under this section unless—

      (a)   the arbitral tribunal has not yet been appointed and the matter is urgent;

      (b)   the arbitral tribunal is not competent to grant the order or injunction; or

      (c)   the urgency of the matter makes it impracticable to seek such order or injunction from the arbitral tribunal;

and the court shall not grant any order or injunction where the arbitral tribunal, being competent to grant the order or injunction, has already determined an application therefor.

12.   Appointment of arbitrators

   (1) No person shall be precluded by reason of that person’s nationality, gender, colour or creed from acting as an arbitrator.

   (2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of sub-sections (4) and (5).

   (3) Failing such agreement—

      (a)   in an arbitration with 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 an arbitral institution;

      (b)   in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitration, the arbitrator shall be appointed, upon request of a party, by an arbitral institution.

   (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 arbitral institution, fails to perform any functions entrusted to it under such procedure,

any party may request the court to take the necessary measures, unless the agreement on the appointment procedure provides other means for securing the appointment.

   (5) A decision on a matter entrusted by sub-sections (3) or (4) to the court or to an arbitral institution shall not be subject to appeal,

   (6) The court or arbitral institution, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator 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 any of the nationalities of the parties.

13.   Appointment of substitute arbitrator

   (1) Where the mandate of an arbitrator terminates under articles 13 or 14 of the First Schedule 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 other presiding arbitrator is replaced, any hearing previously held shall be held afresh; and

      (b)   where an arbitrator, other than a sole or a presiding arbitrator is replaced, any hearing previously held may be held afresh at the request of any party.

   (3) Unless otherwise agreed by the parties, an order or ruling made prior to the replacement of an arbitrator under this article is not invalid solely because of a change in the composition of the arbitral tribunal.

14.   Power of arbitral tribunal to order interim and other 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 and 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 interim injunction or other interim order;

      (b)   to order the parties to make a deposit in respect of the fees, costs and expenses of the arbitration.

   (3) For the purposes of article 17 of the First Schedule, the arbitral tribunal shall also have power—

      (a)   to make any order it considers appropriate to compel the attendance of a witness before it to give evidence or produce documents;

      (b)   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;

      (c)   to order the discovery of documents and interrogatories;

      (d)   to issue a commission or request for the taking of evidence out of jurisdiction;

      (e)   to detain, preserve, or inspect any property or thing in the custody, possession or control of a party which is in issue in the arbitral proceedings and to authorise for any of the those purposes any person to enter upon any land or any building in the possession of a party, or to authorise any sample to be taken or any observation to be made or experiment to be carried out which may be necessary or expedient for the purpose of obtaining full information or evidence.

   (4) The arbitral tribunal or a party with the approval of the arbitral tribunal may request from the court executory assistance in the exercise of any power conferred upon the arbitral tribunal under this section.

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