ZAMBIA Law and Practice Contributed by: Luckson Mwamba, Katongo Bwalya and Mumba Mwila, Mwamba & Milan Advocates
3.3 National Courts’ Approach Determination of Governing Law
The principle was emphasised by the Supreme Court in Konkola Copper Mines v NFC Africa Mining (SCZ Appeal No. 118 of 2006), where it was held that once an arbitration clause exists and a party applies for a stay under Section 10, the Court has no discretion but to refer the matter to arbitration. Recent jurisprudence has reinforced the procedural requirements for enforcing arbitration agreements. In Cosmas Mulenga v Bright Jangazya (Appeal No. 262 of 2024) (2026 ZMCA), the Court of Appeal held that an arbitration clause does not automatically oust the Court’s jurisdiction. Rather, under Section 10 of the Arbitration Act, proceedings may only be stayed and referred to arbitration upon the application of a party. Similarly, in Roland Imperial Tobacco Company Lim- ited v Bpifrance Assurance Export (2026 ZMCA 74), the Court reaffirmed that arbitration is consensual and that a court cannot, of its own motion, refer parties to arbitration or compel a non-party to an arbitration agreement to arbitrate. These decisions reinforce the procedural framework governing the enforcement of arbitration agreements in Zambia. In practice, arbitration agreements are therefore read - ily enforced by Zambian courts, reflecting alignment with international arbitration standards and recogni - tion of arbitration as an effective alternative method of dispute resolution. 3.4 Validity Under Zambian law, an arbitration clause may still be valid even if the rest of the contract is found invalid. Article 16 (1) of the UNCITRAL Model Law, as adopted into Zambian law through the Arbitration Act, provides for the doctrine of separability, stating that an arbitra - tion clause forming part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by a court or tribunal that the contract is null and void does not automatically invali - date the arbitration clause. This means that Zambian courts apply the rule of separability, thereby upholding the arbitration clause and allowing arbitral proceed - ings to continue, even where the underlying agree - ment is challenged.
The Zambian courts’ approach to determining the law governing an arbitration agreement is to give effect to what the parties expressly agreed. In Sigma Financial Solutions and 3 Others v Chongo Kalela Sinyangwe (Appeal No. 4/2023), the Court of Appeal enforced a clause providing for UAE law and the exclusive jurisdiction of Dubai courts, holding that parties who have expressly chosen a foreign law and forum are bound by that choice unless another forum is clearly more appropriate under the doctrine of forum non conveniens. Similarly, in Chansa Chipili , Powerflex ( Z ) Limited v Wellingtone Kanshimike and Wilson Kalumba (2012) Vol. 3 ZR 483, the Supreme Court emphasised that in cross-border commercial transactions with foreign jurisdiction clauses, the parties’ choice of law and forum is paramount, although Zambian courts may still examine whether local jurisdiction is justified by the circumstances. The overall approach is therefore pro-enforcement: courts will usually uphold arbitration agreements and the governing law chosen by the parties, unless strong reasons exist to depart. Enforcement With respect to enforcement, Zambian courts are firmly aligned with Section 10 of the Arbitration Act, which obliges a court to stay proceedings brought in breach of an arbitration agreement unless the agree - ment is null, void, inoperative, or incapable of being performed. In Vedanta Resources Holdings Limited v ZCCM Investment Holdings Plc and Konkola Copper Mines Plc (CAZ/08/249/2019), the Court of Appeal affirmed that as a general rule, courts must refer a matter to arbitration where an arbitration clause exists, provided a party to the agreement requests such referral. Likewise, in Beza Consulting Inc . Lim- ited v Bari Zambia Limited and Gidey Genremariam Egziabher (CAZ Appeal No. 171/2018), the Court clari - fied that Section 10 requires the ouster of the Court’s jurisdiction to be triggered by a request by a party to the arbitration agreement who is also a party to the proceedings.
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