ZAMBIA Law and Practice Contributed by: Luckson Mwamba, Katongo Bwalya and Mumba Mwila, Mwamba & Milan Advocates
an agreement that incorporates written terms by refer - ence is also treated as being in writing. Once these formal requirements are satisfied, Zambi - an courts will generally uphold and enforce arbitration agreements, staying court proceedings and compel - ling parties to arbitrate their disputes. 3.2 Arbitrability Section 6 (2) of the Arbitration Act expressly excludes certain subject matters from arbitration in Zambia. These include: • agreements contrary to public policy; • disputes which, under any law, may not be deter - mined by arbitration; • criminal matters or proceedings, unless permitted by law or with leave of court; • matrimonial causes and related matters, unless the court grants leave; • the determination of paternity, maternity or parent - age; and • matters affecting the interests of a minor or a per - son under legal incapacity, unless represented by a competent person. The general approach of taken in Zambia is twofold. First, the courts assess whether the dispute falls within the categories expressly excluded under the Arbitration Act. Second, where no statutory exclusion applies, the courts examine the wording of the arbitra - tion clause to determine whether the dispute is within its scope. The Supreme Court has affirmed this approach in Afri- can Alliance Pioneer Master Fund v Vehicle Finance Limited (Appeal No. 21 of 2011), emphasising that arbitrability is governed by the law of the seat regard - less of what the parties’ choice of procedure is. Simi - larly, in Audrey Nyambe v Total Zambia Limited (SCZ Appeal No. 29 of 2011), the Court underscored the importance of closely studying the wording of the arbitration clause when determining whether a dispute is amenable to arbitration. More recently, the Court of Appeal in Cobham Capi- tal Limited v African Inland Container Depot Zambia Limited (Appeal No. 270 of 2024) provided important
guidance on the scope of the public policy exception. Recognising that the Arbitration Act does not define “public policy”, the Court adopted a narrow and defer - ential approach, holding that the public policy ground is confined to exceptional cases where an arbitral award is incompatible with the fundamental values and foundational legal principles of the Zambian legal system. The Court cautioned that setting-aside pro - ceedings should not become disguised appeals on the merits and that mere errors of law or fact, or iso - lated breaches of legal rules, will not ordinarily amount to a violation of public policy. Rather, the award must, viewed as a whole, offend essential and widely rec - ognised principles underpinning the legal order before judicial intervention is warranted. The arbitrability of employment discrimination claims has recently been the subject of significant judicial consideration. In Hambani Ngwenya & Another v Lubambe Copper Mine Limited (2025 ZMSC 31), the Supreme Court granted leave to appeal to determine whether claims for unfair discrimination under Sec - tion 5 of the Employment Code Act are capable of settlement by arbitration and whether such claims are excluded on public policy grounds notwithstand - ing Section 6 of the Arbitration Act. Earlier, the Court of Appeal in the said matter of Hambani Ngwenya & Another v Lubambe Copper Mine Limited (Application No. SP 49 of 2024) (2025 ZMCA 72) held that discrimi - nation claims under the Employment Code Act are matters of public law and are therefore not amenable to arbitration. The Supreme Court’s decision, which is still pending, is expected to provide authoritative guidance on the arbitrability of statutory employment rights in Zambia. Accordingly, arbitrability in Zambia is determined by reference to the statutory exclusions in the Arbitration Act, the scope of the parties’ arbitration agreement, the law of the seat of arbitration and, where public policy is invoked, a narrowly construed incompatibility test that limits court intervention to exceptional cir - cumstances.
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