UNIVERSITY OF

LUSAKA
Alternative Dispute Resolution (ADR)
Unit 4
Arbitration

Introduction
Arbitration, as form of ADR, is a legal technique for the
resolution of disputes outside the courts, where the parties to
a dispute refer it to one or more persons, by whose decision
they agree to be bound
 It is a settlement technique normally used for the resolution
of commercial disputes, particularly in the context of
international commercial transactions
 It can be either voluntary or mandatory (although mandatory
arbitration can only come from a statute or from a contract
that is voluntarily entered into, where the parties agree to
hold all disputes to arbitration, without knowing, specifically,
what disputes will ever occur) and can be either binding or
non-binding
 In Zambia, arbitration is principally governed by the
Arbitration Act No. 19 of 2000. Other Acts are; Industrial
Relations Court (Arbitration and Mediation) Rules- S.I no 26 of
2002; Small Claims Court (only to the extent of appointment);
and High Court Act.
 Introduction
 Arbitration may be defined as 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
 The Arbitration Act no. 19 of 2000, defines arbitration as
“…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.”
 Unlike the definition in the Arbitration Act, the definition
given under the Industrial Relations Act is more
elaborate
 It 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”
 Voluntary and mandatory arbitration

 Voluntary arbitration implies that the two contending

parties, unable to compose their differences by
themselves or with the help of the mediator or
conciliator, agree to submit the conflict/dispute
between them to be resolved by an impartial
authority whose decision they are ready to accept
 This type of reference is known as a “voluntary
reference”, for the parties volunteer themselves to
come to a settlement through an arbitration
mechanism
 Mandatory arbitration is one where the parties are
required to arbitrate without any willingness on their
part
 Such reference of a dispute is known as 'compulsory'
or 'involuntary' reference, because reference in such
circumstances does not depend on the will of both the
contending parties or any party to the dispute
Advantages of arbitration
 Some of the key advantages of arbitration are:

 1) Expertise: when the subject matter of the dispute is

highly technical, arbitrators with an appropriate degree of
expertise can be appointed (as one cannot “choose the
judge” in litigation)
 2) Efficiency: arbitration is often faster than litigation in
court
 3) Less costly: can be cheaper and more flexible for
businesses
 4) Arbitral awards are generally non-publicised i.e.
confidential
 5) Language: the language of arbitration may be chosen,
whereas in judicial proceedings, the official language of the
country of the competent court will be automatically applied
 6) No appeal: there are very limited avenues for appeal
 7) Choice of arbitrator: parties are free to choose an
arbitrator
 8) It is a confidential process
 Disadvantages of arbitration
 Some of the disadvantages of arbitration are:
 1. Arbitration may be subject to pressures from powerful
law firms representing the stronger and wealthier party
 2. If the arbitration is mandatory and binding, the parties
waive their rights to access the courts
 3. In some arbitration agreements, the parties are
required to pay for the arbitrators and this puts an
additional layer of legal costs
 4. There are very limited avenues for appeals, which
means that an erroneous decision cannot be easily
overturned
 5. Although usually thought to be speedier- juggling
schedules by arbitrators can lead to delays
 6. Arbitrators are generally unable to enforce interlocutory
measures against a party, making it easier for a party to
take steps to avoid enforcement
 Types of arbitration
 Ad Hoc arbitration
 Ad hoc arbitration is a proceeding that is not administered by others and requires
the parties to make their own arrangements for selection of arbitrators and for
designation of rules, applicable law, procedures and administrative support
 The primary advantage of ad hoc arbitration is flexibility, which enables the
parties to decide upon the dispute resolution procedure. This necessarily requires
a greater degree of effort, co-operation and expertise of the parties in
determination of the arbitration rules
 Very often, the parties may misunderstand each other since they are of different
nationalities and come from different jurisdictions, and this can delay the
arbitration. Also, once a dispute arises, parties tend to disagree and lack of
cooperation required may frustrate the parties’ intention of resolving their dispute
by ad hoc arbitration
 However, such situations can be avoided, if the parties agree that the arbitration
should be conducted under certain arbitration rules. This results in reduced
deliberation and legal fees and also facilitates early commencement of the
arbitration, as the parties do not engage in the time consuming process of
determining complex arbitration rules
 Due to its flexibility, ad hoc arbitration is preferred in cases involving state parties
who consider that a submission to institutional arbitration devalues their
sovereignty and they are therefore reluctant to submit to institutional control. Ad
hoc arbitration also permits the parties to shape the arbitration in a manner,
which enables quick and effective resolution of disputes involving huge sums of
public money and public interest.
 Ad hoc arbitration
 Another primary advantage of ad hoc arbitration is that
it is affordable. The parties only pay fees of the
arbitrators’, lawyers or representatives, and the costs
incurred for conducting the arbitration i.e. expenses of
the arbitrators, venue charges, etc
 They do not have to pay fees to an arbitration
institution which, if the amount in dispute is
considerable, can be prohibitively expensive
 In ad hoc arbitration, the parties negotiate and settle
fees with the arbitrators directly. This allows them the
opportunity of negotiating a reduction in fees
 Institutional arbitration
 An institutional arbitration is one in which a specialised
institution with a permanent character intervenes and
assumes the functions of aiding and administering the
arbitral process, as according to the rules of that institution
 It is important to note that these institutions do not arbitrate
the dispute, it is the arbitrators who arbitrate, and so the
term arbitration institution is inapt and only the rules of the
institution apply
 In institutional arbitration, the first issue arising for
agreement of the parties is choice of the institution
appropriate for the resolution of disputes, arising out of their
contract
 Whilst making such choice, there are various factors to be
considered i.e. nature and commercial value of the dispute,
rules of the institution as these rules differ, past record and
reputation of the institution and also that the institutional
rules are in tune with the latest developments
 Institutional arbitration
 The advantages of institutional arbitration to those who
can afford it are apparent:
 (i) availability of pre-established rules and procedures
which assure that arbitration will get off the ground and
proceed to conclusion with dispatch
 (ii) administrative assistance from institutions providing
a secretariat or court of arbitration
 (iii) lists of qualified arbitrators, often broken out by
fields of expertise
 (iv) appointment of arbitrators by the institution should
the parties request it
 (v) physical facilities and support services for
arbitrations
 (vi) assistance in encouraging reluctant parties to
proceed with arbitration and
 (vii) an established format with a proven record
Institutional arbitration
 The primary disadvantages attending the institutional
approach are:
 (i) administrative fees for services and use of facilities
may be high in disputes over large amounts, especially
where fees are related to the amount in dispute. For
lesser amounts in dispute, institutional fees may be
greater than the amount in controversy
 (ii) the institution's bureaucracy may lead to added
costs and delays and
 (iii) the disputants may be required to respond within
unrealistic time frames
 Arbitration agreement (clause)
 An arbitration agreement is 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
 It may be in the form of an arbitration clause in a contract or in
the form of a separate agreement
 It must however be in writing if contained in a document and
signed by parties
 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
 Moreover, a valid and enforceable clause must be also based
on: consensus; clearly state submission to arbitration and be
between parties with legal capacity or by their representatives
with authority to bind the principal to arbitration; based on legal
relationship giving rise to cause of arbitration; and be on
arbitrable subject matter
 Matters which are arbitrable
 An arbitrable matter is simply one that can be submitted
to arbitration
 Generally, any matter can be subjected to arbitration
unless the law states otherwise
 The Arbitration Act provides that: 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.
Matters which are not
arbitrable
 Generally any dispute which the parties have agreed to submit
to arbitration may be determined by arbitration. However,
certain matters shall not be capable of determination by
arbitration, that is to say:
 (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
Matters which are arbitrable
 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
 Reference to arbitration
 Arbitration is directly linked to party autonomy. The arbitration
agreement plainly and directly reflects the will of the parties to submit
their present or future disputes to arbitration
 This being so, the arbitration agreement becomes at the same time the
very basis and the limit of the arbitration proceeding: the arbitration
agreement manifests the clear desire of the parties to submit their
disputes to arbitration thus ousting the jurisdiction of public courts
 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
 Where proceedings referred to in section 10 (1) (AS STATED ABOVE)
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
 Apart from the Arbitration Act, Order XLV r. 1 of the High Court Act Rules
and section 3 (IRC Mediation and Arbitration) Rules also provide for
reference to arbitration
 Reference to arbitration
 In the case of Zacharia Titus Zandamela v Management
Committee of the Local Authorities Superannuation Fund
(1978) Z.R. 144 (H.C.), it was stated “If two persons agree that
any dispute which may arise between them in respect of any
matter shall be referred to the determination of a third
person, that agreement will not oust the jurisdiction of the court,
but, since the court attaches importance to the sanctity of
contract, the court will, generally speaking, in the exercise of its
discretion and in aid of that sanctity of contract, stay an action
which is brought in contravention of or non-compliance with what
has been agreed.
 That is what happens in the usual case where there is what is
commonly called an arbitration clause, and one party,
notwithstanding the arbitration clause, seeks to resort to the
courts. On the other hand, where the legislature has thought it
proper to lay down that the determination of certain question
should be made by some authority other than the courts, the
courts have no jurisdiction to override Parliament and no
jurisdiction to determine that which Parliament has said shall be
determined by some other person or body.”
 Reference to arbitration
 In Republic of Botswana, Ministry of Works Transport and
Communication, Rincheau Design Consultants (sued as a firm
previously T/A KZ Architects) v Mitre Limited, the first
appellant and the respondent entered into a building contract for the
construction of buildings to be supervised by the second appellant.
The contract provided for reference of any dispute to arbitration. In
the course of construction work a dispute arose between the parties
 Prior to the appointment of the arbitrator, the respondent had
obtained an interim injunction against the appellants. Subsequent to
the arbitrator’s award the respondent filed an application to set
aside the award and upon amending the originating notice of motion
 It was held that the court ought not to have entertained the
respondent's application let alone order continuation of the ex-parte
order
 The doctrine of separability
 The doctrine of separability, or autonomy, of the
arbitration clause provides that an arbitration clause
embedded in a contract is considered separate from the
main contract
 In Heyman v Darwins Limited, Lord Macmillan
stated: ... the arbitration clause does not impose on one
of the parties an obligation in favour of the other. It
embodies the agreement of both parties that, if any
dispute arises with regard to the obligations which the
one party has undertaken to the other, such dispute shall
be settled by a tribunal of their own constitution. And
there is this very material difference, that whereas in an
ordinary contract the obligations of the parties to each
other cannot in general be specifically enforced and
breach of them results only in damages, the arbitration
clause can be specifically enforced by the machinery of
the Arbitration Acts.
The doctrine of separability
 The arbitration clause and the main contract comprise two
separate sets of contractual relations
 In Black Clawson Int'l Ltd. v. Papierwerke Waldhof-
Aschaffenburg AG, the Black Clawson Court clarified the
relationship between the arbitration clause and the main
contract:
 [T]here are not one, but two, sets of contractual relations which
govern the arbitration of disputes under a substantive
contract.... First, there is the contract to submit future disputes
to arbitration. This comes into existence at the same time as
the substantive agreement of which it forms part
 Prima facie it will run for the full duration of the substantive
agreement, and will then survive for as long as any disputes
remain unresolved. Second, there are one or more individual
sets of bilateral contractual obligations which are called into
existence as and when one party asserts against the other a
claim falling within the scope of the initial promise to arbitrate,
which they have not been able to settle
 The doctrine of separability
 Where a dispute arises concerning the initial validity or
continued existence of the main contract, the
arbitration clause, being independent, continues to be
valid and binding on the parties even if the main
contract is void
 Thus, it can even give arbitrators jurisdiction to
determine issues concerning validity of the contract
 In Harbour Assurance Co (UK) Ltd v Kansa
General International Assurance Co Ltd and
others, it was held that, the principle of separability of
an arbitration clause contained in a written contract
could give jurisdiction to an arbitrator under that
clause to determine a dispute over the initial validity
or invalidity of the written contract provided that the
arbitration clause itself was not directly impeached
 The doctrine of separability
 In spite of all the arguments about its implications, the notion that the
arbitration clause can be governed by a different law to the main contract
has not itself given rise to much controversy
 What has led to ferocious if sometimes meaningless arguments is the
question of whether the validity of an arbitration clause can be
determined separately to that of the main contract. Therefore, the
doctrine of separability has been justified on four theoretical grounds:
 (i) that it conforms to the parties' intentions
 (ii) that it furthers the integrity of the arbitral process
 (iii) that there is a legal presumption of the existence of two agreements,
and
 (iv) that courts usually review only the arbitral award, not the merits, of
the dispute
 Challenges to the contract as a whole are usually based either on a
ground that directly affects the entire agreement or on the ground that
the illegality of one of the contract’s provisions renders the whole
contract invalid. In Heyman v Darwins Ltd, Viscount Simon LC
commented “… if one party to the alleged contract is contending that it is
void ab initio (because, for example, the making of such a contract is
illegal) the arbitration clause cannot operate, for on this view the clause
itself also is void.”
 Doctrine of severability
 Under the severability doctrine, an arbitration clause is separable from
the contract containing it and therefore can survive a successful
challenge to the validity of the contract itself
 In Ferris & another v Plaister & another, the plaintiffs had alleged
fraud and the contract was void ab initio. They argued that once a
contract had been rescinded for fraud it, including the arbitration
clause, no longer existed. It was held that an arbitration clause is a
severable agreement and can survive the contract. Therefore, an
arbitral tribunal does not cease to have jurisdiction by reason of a claim
that the contract is null and void provided that the arbitral tribunal
upholds the validity of the arbitration agreement
 In Prima Paint Corp. v. Flood & Conklin Mfg., the issue in the case
was whether a claim of fraud in the inducement of the entire contract is
to be resolved by the federal court, or whether the matter is to be
referred to the arbitrators. The court held that “if the claim is fraud in
the inducement of the arbitration clause itself-an issue which goes to
the making of the agreement to arbitrate-the federal court may proceed
to adjudicate it.”
Appointment of an arbitrator
 An arbitrator is a private neutral person chosen to hear or
resolve a dispute as opposed to going a court of law. A
person is not precluded by reason of nationality, gender,
colour or creed from acting as an arbitrator
 Parties to the arbitration are free to agree on the procedure
of appointing the arbitrator or arbitrators. The most
common method being: each party chooses an arbitrator
and then the two arbitrators choose the third one
 In arbitration with a sole arbitrator, if the parties are unable
to agree on the arbitration, the arbitrator is appointed, upon
request of a party, by an arbitral institution
 If they fail, a request to Court or arbitral tribunal may be
made. 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
Appointment of an arbitrator

 In the event that the mandate of an arbitrator

terminates by reason of being challenged 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 is appointed according to the rules
that were applicable to the appointment of the arbitrator
being replaced.
 Qualifications and competence of an arbitrator
 The qualifications that an arbitrator must possess have been laid
down in the Code of Professional Conduct of Arbitrators,
Conciliator and Mediators. They are categorized as general and
special qualifications
 General Qualifications
 Some of the general qualifications are:
 (a) Essential personal qualification of arbitrators includes honesty,
integrity, impartiality and general competence in the art and
skill of dispute resolution

 (b) Demonstrate ability to exercise these personal qualities faithfully

and with good judgment, both in procedural matters and in
substantive decisions (where applicable)

 (c) An arbitrator must be as ready to rule for one party as for the
other on each issue, either in a single case or in a group of cases.
Compromise by an arbitrator for the sake of attempting to achieve
personal acceptability is unprofessional
Special qualifications

 Special qualifications include:

 (a) When an arbitrator decides that a case requires
specialized knowledge beyond his/her competence,
the arbitrator must decline appointment,
withdraw, or request technical assistance
 (b) An arbitrator may be qualified generally but not for
specialized assignments. Therefore, the arbitrator
must possess distinctive educational background,
training and experience
 (c) Effective appraisal by an arbitral institution court
or by an arbitrator of the need for special
qualifications requires that both parties make
known the special nature of the case prior to
appointment of the arbitrator
Challenging an arbitrator

 An arbitrator is mandated to disclose any

circumstances likely to give rise to justifiable doubts
as to his impartiality or independence from the time of
his appointment and throughout the arbitral proceedings
 Therefore, an arbitrator may be challenged only if
circumstance 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 to the arbitration 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
Independence
 Independence is generally regarded as an objective and
fact-based standard requiring the arbitrator to be free
from outside influence and pressure
 In determining whether an arbitrator is independent the
arbitrator’s relationship, whether professional, business,
familial or personal, with any of the arbitrating parties or
any of their affiliates or counsel will be examined
 However, the mere existence of a relationship
between the arbitrator and one of the parties or the
counsel does not necessarily lead to the existence of
a relationship of dependency that would justify a
challenge.
 Impartiality
 Impartiality is said to be a subjective standard
concerned with the arbitrator’s mental predisposition with
respect to any of the arbitrating parties or the matter in
dispute
 Partiality is typically established if there are justifiable
doubts that the arbitrator will favour one party over the
other for reasons that are unrelated to a reasoned
decision on the merits of the case
 These unrelated factors may include the relationships
discussed in the paragraph above. It can also relate to
statements made before or during the course of an
arbitral preceding which concerns the parties, the dispute
in question or the legal issues raised in the proceedings or
to conduct during proceedings
Justifiable doubts requirements
 A challenge will only succeed if it is established that there
are justifiable doubts as to the arbitrator’s impartiality
and/or independence
 The justifiable doubts requirement ensures that the
parties do not make frivolous or vexatious challenges
which would artificially prolong the arbitral proceedings
undermining its efficacy
 It can be argued that the justifiable doubts requirement
contains both an objective and subjective element.
Existence of doubt is to be assessed by reference to the
particular party and the circumstances of the case
(subjective element) to determine whether such doubt is
justifiable to a reasonable person who finds
themselves in such circumstances (objective
element)
Justifiable doubts requirements

 In Porter v. Magill the House of Lords clarified that the test

for impartiality is “whether, having regard to the relevant
circumstances, as ascertained by the court a fair minded
and informed observer, having considered the facts,
would conclude that there was a real possibility that the
tribunal was biased.”
The manifest lack requirement
 The requirement that the lack of impartiality and/or
independence must be manifest imposes a “relatively
heavy burden on the party” making the proposal for
disqualification. This burden seems significantly higher
than the “justifiable doubt” requirement
 In Amco Asia Corp. v. Indonesia, held that the “mere
appearance of partiality was not a sufficient ground for
disqualification of the arbitrator. The challenging party had
to prove not only facts indicating the lack of independence,
but also that the lack is ‘manifest’ or ‘highly probable’,
not just ‘possible’ or ‘quasi-certain’.”
Procedure for challenging an arbitrator
 There are a number of possible remedies available to a party
once it is aware of circumstances giving rise to justifiable
doubts as to an arbitrator’s impartiality and/or independence
 First, the party can commence proceedings to remove
or disqualify an arbitrator. Second, the award itself may be
challenged in the seat of the arbitration, which, if
successful, would result in the award being set aside.
Finally, the party can resist enforcement of the award at
the enforcement stage.
 Under the Model Law, the parties are free to agree a
procedure for challenging an arbitrator. Failing such
agreement, Article 13(2) stipulates that a party who
intends to challenge an arbitrator must send a written
statement of reasons for the challenge to the arbitral
tribunal. In circumstances where the arbitrator who has been
challenged does not withdraw after the challenge is made,
the Model Law provides that it is the arbitral tribunal who
will decide upon the challenge. There is no mention of the
challenged arbitrator not participating in the decision of
the tribunal.
 PROCEDURE FOR CHALLENGING AN ARBITRATOR

 A party is accorded a further right under Article 13(3) to

require the national court to decide on the challenge
after the arbitral tribunal has ruled on the matter. The
Model Law provides that such decision by the court is not
subject to appeal
 A party is given thirty days from the date it receives
notice from the arbitral tribunal rejecting the challenge to
commence proceedings in court. It should be noted that
the court proceedings will be de novo proceedings rather
than a review of the decision of the arbitral tribunal.
Procedure for challenging an arbitrator
 In order to ensure the efficacy of arbitral proceedings,
Article 13(3) permits the arbitral tribunal to continue the
proceedings, and even make an award whilst the
challenge is pending before the national courts
 In a further attempt to minimise delay to the proceedings
and ensure that challenge is not used for tactical reasons
to challenge only unfavourable awards, strict time limits
for challenge are imposed under the Model Law
 In particular, a party is required to make a challenge
within fifteen days of becoming aware of the
constitution of the tribunal or of any circumstances which
give rise to justifiable doubts as to the arbitrator’s
impartiality or independence.
 The doctrine of “komptenz-kompenz”
 Kompetenz-kompetenz means an arbitral tribunal is allowed to
make a decision on whether it has jurisdiction over an
issue that needs to be settled and whether an arbitration
agreement is valid
 It is largely based on Article 16 of the Model law which
provides that the arbitral tribunal may rule on its own
jurisdiction, including any objections with respect to the
existence or validity of the arbitration agreement
 A plea that the arbitral tribunal is exceeding the scope 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
 If the arbitral tribunal rules that it has jurisdiction, any party
may request, the court to decide the matter, but while such
a request is pending, the arbitral tribunal may continue the
arbitral proceedings and make an award.
 Duties of arbitrator
 Some of the duties of the arbitrator are:
 (a) Act fairly and impartially as between the parties
in conducting the arbitral proceedings
 (b) Disclose at the earliest opportunity any prior
interest or relationship that may affect impartiality
and or independence or which might reasonably raise
doubts as to the arbitral proceedings any prior relations
with any party involved in the dispute
 (c) Not to establish a relationship with any of the
parties in a matter related to the arbitration which may
give rise to a conflict of interest
 (d) Take reasonable steps to ensure that the parties
understand the arbitration process before the
arbitration commences and accord all parties the right
to appear in person and to be heard after due notice of
the time and place of hearing
 Duties of arbitrator
 (e) to advise the parties to explore the possibility of
reaching an amicable settlement
 (f) not to disclose to anyone who is not a party to the
arbitral proceedings any information or documents that
are exchanged in the course of the proceedings except
with the consent of the parties concerned
 (g) Avoid impropriety in communicating with the
parties;
 (h) Disclose the basis of fees, disbursements, to
enable the parties decide on the retainer; and charge
reasonable fees
 (i) to plan a work schedule so that present and future
commitments will be fulfilled in a timely manner
 (j) To uphold the dignity and integrity of the office and
endeavor to provide effective service to the parties
 PROFESSIONAL MISCONDUCT
 Circumstances where an arbitrator shall be guilty of professional misconduct are:
 (a) contravenes the provisions of the Act and Regulations;
 (b) unlawfully discloses or uses to their own advantage any information acquired in
the course of professional work on behalf of a client
 (c) engages in conduct that is dishonest, fraudulent or deceitful; (d) commits a
criminal offence
 (d) engages in conduct that is prejudicial to the arbitration process;
 (e) charges fees for professional work on scales other than the scales prescribed
 (f) brings the profession into disrepute
 (g) encourages another person to breach or disregard the principles of this code
 (h) attempts to influence unfairly the award in an arbitration
 (i) obtains or attempts to obtain an appointment as an arbitrator by offering or
paying monetary or inducement to any person
 (j) touts or solicits for appointment as an arbitrator
 (k) attempts to discredit another arbitrator with a view to unfairly influencing an
appointment or
 (l) conducts oneself dishonourably
An arbitrator is not liable for anything done or omitted in good faith in the
discharge or purported discharge of his functions
 Rights of parties during arbitration

The parties also have rights during arbitration:

 (a) Parties are to be treated with equality and given
opportunity to present their case
 (b) Parties are free to determine the procedure to be
followed by the tribunal
 (c) Parties free to agree on the place of arbitration
 (d) Parties can choose when proceedings can
commence
 (e) Parties are free to agree on the language to be
used
 Rendering an 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
 THE EFFECT OF AN AWARD
 The award is final and binding both on the parties. It will not be set
aside unless :
 (i) a party to the arbitration agreement was under some
incapacity; or agreement not valid under the law ;
 (ii) the party making the application was not given proper notice
of the appointment of an arbitrator;
 (iii) the award deals with a dispute not contemplated by
arbitration;
 (iv) the composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the agreement of the
parties or with the Act;
 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.
 Any application for setting aside should be made within 3 months
from receipt of award.
 Setting aside the award
 There are also other circumstances when an arbitral award
may be set aside. This could be were a court finds that:
 (i) the subject matter is not capable of settlement by
arbitration under the law of Zambia
 (ii) the recognition and enforcement of the award would be
contrary to public policy or
 (iii) the making of the award was induced by fraud,
corruption or misrepresentation
 Order XLV rule 13 also states that: no award shall be liable
to be set aside except on the ground of perverseness or
misconduct of the arbitrator or umpire. Any application to
set aside an award shall be made within fifteen days after
the publication thereof
 Setting aside the award
 There is little jurisprudence on setting aside awards. With respect to setting
aside an award made in breach of public policy, the case of Zamtel v Celtel,
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 19 of 2000
 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 [is] on this
ground that the award [is] set aside.”
 In Zimbabwe Electricity Supply Authority v Maposa the Court observed
that “public policy is an expression of vague import.” this judgment
discussed Gubbay who stated, “…the approach to be adopted is to construe
the public policy defence, as being applicable to either a foreign or domestic
award, restrictively in order to preserve and recognize the basic
objective of finality in all arbitrations; and to hold such defence applicable
only if some fundamental principle of the law or morality or justice is
 The effect of setting aside an award

 The effect of setting aside the award may be that; 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.
 Recommended readings include
 IRC (arbitration and mediation) Rules
 Arbitration Act No. 19 of 2000
 http://cppradr.blogspot.com/2009/07/ad-hoc-and-institutional-arbitration.
html
 http://www.carrow.com/ad-hoc.htm
 http://www.legalserviceindia.com/article/l64-Ad-Hoc-and-Institutional-Arbi
tration.html
 Carlos Esplugues Mota “Validity and Effects of the Incorporation by
Reference of Arbitration Agreements in International Maritime Arbitration:
Current Situation and Future Trends” Diritto del Commercio
Internazionale (2012)
 Janet A. Rosen “Arbitration Under Private International Law: The Doctrines
of Separability and Comp´etence
 de la Comp´etence” Fordham International Law Journal (1993) (Volume
17 Issue 3) pp. 599-666
 UNCITRAL Model law
 Arbitration (Code of conduct and standards) Regulation