Alternative dispute resolution refers to any method of resolving disputes without litigation. There are a number of dispute resolution mechanisms, that are alternative to litigation, these include inter alia, mediation, and arbitration. Arbitration is a process used, by the agreement of parties, to resolve disputes. In arbitration, disputes are resolved by a person or persons acting in a judicial manner in private, rather than by a national court of law that would have jurisdiction but for the agreement of the parties to exclude it.[1]
Advantages of Arbitration
- the parties’ right to select their forum: rather than be subjected to litigation in the other party’s courts, the parties by agreement decide what law will be used to settle the dispute and the seat of arbitration;
- the parties’ right to select the adjudicators for their dispute: parties decide who determines their matter and therefore can take into consideration issues such as expertise;
- the ease of enforcement of the arbitral award in other jurisdictions;
- confidentiality of the proceedings Confidentiality: you cannot publicise proceedings or awards arising from an arbitration [2];
- arbitration provides a quicker and speedy method of resolving disputes.
The Law on Arbitration in Zambia.
The primary law that regulates arbitration proceedings in Zambia is the Arbitration Act No. 19 of 2000. The Arbitration Act adopts and domestics with modifications, the Model Law. The Model Law appears as Schedule 1 to the Arbitration Act.
What is the Model Law?
The Model Law on International Commercial Arbitration (the Model Law) is a legislative template for statutes adopted by the United Nations Commission on International Trade Law for arbitration. It seeks to guide national legislators on the development of liberal, friendly, efficient, easily understandable and reliable regulation of arbitration at the domestic level. Further, the Model Law seeks to attain transnational legal harmonisation, levelling the playing field for international commercial arbitration.[3]
Matters subject to Arbitration
Section 6 of the Arbitration Act outlines matters which are subject to Arbitration in Zambia. The Act stipulates that an arbitral tribunal has jurisdiction to determine disputes brought to it by agreement of the parties .[4] However, disputes in respect of the following matters are not subject to arbitration:[5]
- 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 insofar 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.[6]
- What is the United Nations Commission on International Trade Law Model Law?[7]
The United Nations Commission on International Trade Law (UNCITRAL) was created by the UN General Assembly in 1966 with the mandate of reducing obstacles to international trade. One of UNCITRAL’s missions is the creation of model laws in areas of international trade, as a means of fostering uniformity in trade laws, with the intent that the participating nations will adopt the laws. The Model Law on International Commercial Arbitration (the Model Law) is one example of the work of UNCITRAL.
The Model Law was adopted by the United Nations Commission on International Trade Law on 21 June 1985 and has been adopted by over 80 states including Zambia. The Model Law is a legislative template for arbitration statutes. It seeks to guide national legislators on the development of liberal, friendly, efficient, easily understandable and reliable regulation of arbitration at the domestic level. Further, the Model Law seeks to attain transnational legal harmonisation, levelling the playing field for international commercial arbitration.[8]
The First Schedule to the Arbitration Act (No. 16 of 2000) of Zambia contains the Model Law as adopted by the United Nations Commission on International Trade Law on 21st June, 1985.[9] The Arbitration Act stipulates that where the place of arbitration is in Zambia, the UNICTRAL model law will apply to the arbitration subject to any provisions of the Arbitration Act.[10]
- Amendments of 2006 to the Model Law.[11]
Amendments to articles 1 (2), 7, and 35 (2), a new chapter IV A to replace article 17 and a new article 2 A were adopted by UNCITRAL on 7 July 2006. The revised version of article 7 is intended to modernise the form required of an arbitration agreement to better conform with international contract practices.
The newly introduced chapter IV A establishes a more comprehensive legal regime dealing with interim measures in support of arbitration.
REFERENCES
[1] Halsbury’s Laws of England, (Vol 2 (3), 4th Ed. Reissue) Page 2, Paragraph 1.
[2] Section 27 Arbitration Act
[3] For more information : Bantekas, Ilias and Ortolani, Pietro and Ali, Shahla F. and Gómez, Manuel A. and Polkinghorne, Michael, UNCITRAL Model Law on International Commercial Arbitration: A Commentary (2020). Cambridge, UK: Cambridge University Press, University of Hong Kong Faculty of Law Research Paper No. 2019/101, Available at SSRN: https://ssrn.com/abstract=3473654
[4] Section 6 (3), Arbitration Act No. 19 of 2000
[5] Section 6(2) Arbitration Act
[6] Section 6 (2), Arbitration Act No. 19 of 2000
[7] For more information see United Nations Commission on International Trade Law – International Trade Law : Research Guide – Research Guides at Columbia Law School
[8] For more information : Bantekas, Ilias and Ortolani, Pietro and Ali, Shahla F. and Gómez, Manuel A. and Polkinghorne, Michael, UNCITRAL Model Law on International Commercial Arbitration: A Commentary (2020). Cambridge, UK: Cambridge University Press, University of Hong Kong Faculty of Law Research Paper No. 2019/101, Available at SSRN: https://ssrn.com/abstract=3473654
[9] First Schedule, Arbitration Act No. 19 of 2000
[10] Section 8, Arbitration Act No. 19 of 2000
[11] UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 | United Nations Commission On International Trade Law