ZAMBIA Law and Practice Contributed by: Luckson Mwamba, Katongo Bwalya and Mumba Mwila, Mwamba & Milan Advocates
of Appeal held that an arbitration clause contained in a supply contract between the Appellant and Decou - fle Sarl did not bind the Respondent, who, although an assignee of receivables under bills of exchange, was not a party to the supply contract. The Court emphasised that the assignment transferred only the receivables and did not extend to the contractual rights and obligations arising under the supply agree - ment, including the arbitration clause. Accordingly, the arbitration agreement was enforceable only between the parties to that agreement in the circumstances of the case. The decision reaffirms the principles of priv - ity and consent in arbitration, confirming that a person who is not party to an arbitration agreement cannot ordinarily be compelled to arbitrate. Under Section 14 of the Arbitration Act, arbitral tri - bunals in Zambia are empowered to grant interim or preliminary relief and such relief is binding on the parties. The term “award” under the Act expressly includes interim and preliminary awards. This position was affirmed in the case of ZCCM v Konkola Copper Mines PLC ( in Provisional Liquidation ) and Vedanta Resources Holdings Limited (2019/HP/0761), which held that partial awards are generally final and bind - ing. The types of interim relief available to a tribunal include granting interim injunctions, requiring parties to deposit funds to cover arbitration costs, compel - ling witnesses to attend or produce documents, order - ing the discovery of documents, taking evidence out of jurisdiction, and detaining, preserving, inspecting or testing property relevant to the arbitration. These measures are designed to protect the subject matter of the dispute and ensure that the final award can be 6. Preliminary and Interim Relief 6.1 Types of Relief
the amount in dispute or costs, or for interim injunc - tions, or any other measure necessary to ensure that an arbitral award is not rendered ineffectual. The court may only grant such relief where the arbitral tribunal has not yet been appointed and urgency requires intervention, where the tribunal lacks competence to grant the relief, or where urgency makes it impracti - cable to seek the relief from the tribunal. Relief will not be granted where the tribunal, being competent, has already determined the application. In Zambia Logistics Limited v ARS Freight Company Limited , the High Court confirmed its powers under Section 11 (2) to grant such measures. Furthermore, Section 14 (4) allows a tribunal, or a party with the tribunal’s approval, to request executory assistance from the courts in relation to powers conferred on the tribunal, reinforcing the courts’ supportive role. Zambian courts may, in exceptional circumstances, grant interim relief in aid of foreign-seated arbitrations. In U & M Mining Zambia Limited v Konkola Copper Mines plc [2013] EWHC 260 (Comm), it was recog - nised that while courts at the seat ordinarily exercise primary supervision, local courts may intervene where urgent measures are necessary for practical reasons and where intervention does not circumvent the arbi - tration agreement. Appointment of Emergency Arbitrators The Arbitration Act does not provide for emergency arbitrators. Urgent relief in Zambia must therefore be sought either from the arbitral tribunal once consti - tuted or, where permitted, directly from the courts in accordance with the statutory framework. 6.3 Security for Costs Zambian law allows both courts and arbitral tribunals to order security for costs. Under Section 11 (2)(b) of the Arbitration Act, the High Court can require a party to provide security for costs, while Section 14 (2)(b) empowers the tribunal to do the same. This ensures that the party bringing or defending arbitration has sufficient means to cover the expenses of the pro - ceedings, protecting the financial integrity of the arbi - tration process.
effectively enforced. 6.2 Role of Courts Power of Court to Grant Interim Relief
Under Zambian law, the courts play a limited but sup - portive role in relation to interim relief in arbitral pro - ceedings. Section 11 of the Arbitration Act empowers a party to request from the court, before or during arbitration, measures for the preservation, custody, sale or inspection of goods in dispute, for securing
1197 CHAMBERS.COM
Powered by FlippingBook