admincommon law and the promulgation of the Arbitration Act did not alter the common law of Arbitration.
This was aptly captured by Korsah JA in the case of Henks Construction (Pvt) Ltd versus Zimbabwe Defence (Pvt) Ltd.
“The Arbitration Act (Chapter 7:02) has not changed the common law principles that were applicable in relation to arbitration. It only provided a better and more efficient means of having disputes submitted to arbitration and the enforcement of the awards of Arbitrators.
“It must be an implied condition that the Arbitrator was to resolve the dispute between the parties in accordance with the existing law of contract.”
In the field of arbitration, there are three vital international instruments. First is the Geneva Protocol on Arbitration Clauses of September 24, 1923 which has eight articles, and has been ratified by 30 states.
Second is the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927, which amended the Geneva Protocol in certain respects.
Third is the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958. This gave parties greater freedom in the choice of the arbitral authority and of the arbitration procedures, thus attempting to remove the difficulties faced by parties in the enforcement of foreign arbitral awards. The Arbitration Act (Chapter 7:15) was enacted to give effect to domestic and international agreements, particularly the New York Convention of 1958. It also sought to apply, mutatis mutandis, the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on June 21, 1985 (the UNCITRAL laws).
The Model Law was prepared after long deliberations in various meetings of the whole Commission during the 18th Annual Session.
The General Assembly of the UN in its resolution 40/72 of December 11, 1985 recommended the following. “All states give due consideration to the Model Law on International Commercial Arbitration, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practices.”
So far, a large number of states have adopted UNCITAL Model Law on International Commercial Arbitration in their domestic legislation on Arbitration. This has resulted in achieving greater uniformity in the law relating to arbitration in these countries.
Zimbabwe is one such country, incorporating it in its schedule of Section 2 of the Arbitration Act (Chapter 7: 15). There is one more international document, the 1965 Convention on the Settlement of Investments Disputes between States and Nationals of other states done at Washington (commonly known as the ICSID Convention of 1965).
It only applies to the investment disputes between a country and the investors of another country who have made investments in that first country.
Zimbabwe ratified the Convention on May 20, 1994 and domesticated it in the form of the Schedule to Section 2 of the Arbitration (International Investment Disputes) Act (Chapter 7:03) on December 8, 1995.
The two pieces of legislation govern commercial arbitration in Zimbabwe. Section 6 (2) of the Arbitration Act states that the Act “shall apply to every arbitration agreement, whether made before, on or after September 13, 1996.” (See also Section 6 (4) of the Arbitration Act). Section 4 of the Arbitration Act states that any dispute which the parties have agreed to submit to arbitration may be determined by arbitration.
It further provides that the following matters shall not be capable of determination by arbitration:
- An agreement that is contrary to public policy.
- A dispute which is legally indeterminable by arbitration.
- A matrimonial cause or a matter relating to status without the leave of the High Court.
- A matter affecting the interests of a minor or an individual under a legal disability without the leave of the High Court.
- 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.
- A criminal case, in terms of Section 4 (3) of the Arbitration Act where an enactment confers jurisdiction on a court or other tribunal to determine any matter, that enactment shall not be construed as preventing the matter from being determined by arbitration.
This therefore means that where a statute specifically provides for the resolution of, say, a contractual dispute by an action for damages in a Court of Law that cannot be read to exclude a possible resolution of the dispute by arbitration. Section 5 of the Arbitration Act is also worth noting. It provides in Section 5 (1) of the Arbitration Act that where an enactment requires any matter to be determined by an Arbitrator or by arbitration in accordance with the law relating to arbitration, such requirements shall be deemed to be an arbitration agreement for the purposes of the Act. This therefore means that Arbitrations done in terms of, for example, the Labour Act shall be done in conformity with the Arbitration Act provided the Labour Act does not have specific provisions that exclude the application of Arbitration Act. This is so because the Labour Act is superior to any enactment inconsistent with it.
Section 5 (2) of the Arbitration Act inserts a critical provision that the provisions of an enactment providing for the determination of any matter by arbitration, (e.g. Labour Act) shall prevail to the extent that they are inconsistent with the Arbitration Act.
This provision is the chief sponsor of the confusion that rocks the minds of other practitioners that arbitration proceedings in terms of the Labour Act are totally divorced from those provided for in terms of the Arbitration Act, even where there is no inconsistency.
The reasoning is flawed in that it pre-supposes the existence of two separate regimes of arbitration, one that applies the Arbitration Act and another that does not. In terms of Section 5 (2), the Arbitration Act shall be applied in all arbitration provided the other enactment providing for arbitration is not inconsistent with the Arbitration Act, in which case the provision of that other enactment shall prevail.
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