ZAMBIA Law and Practice Contributed by: Luckson Mwamba, Katongo Bwalya and Mumba Mwila, Mwamba & Milan Advocates
Hearing Stage Article 24 of the Model Law empowers the tribunal to determine whether the proceedings will be conducted on a documents-only basis or by way of oral hear - ings. Where oral hearings are held (which is the more common method), the practice generally mirrors High Court procedure where witness statements serve as evidence-in-chief, after which the witnesses may be subjected to cross-examination by the opposing party and re-examination by the party calling them. Expert evidence, if relied upon, must also be disclosed and furnished to the other side. Privileged Evidence Principles of privilege operate similar to court pro - ceedings, with privileged communications, including attorney–client communications and “without preju - dice” correspondence, remaining protected. Default and Failure to Produce Evidence Article 25 of the Model Law permits the tribunal to proceed with the arbitration and render an award on the basis of the evidence available if a party fails to appear or to produce documentary evidence. 8.2 Rules of Evidence Article 19 of the UNCITRAL Model Law provides that the parties are free to agree on the rules of procedure, including the rules of evidence. Failing such agree - ment, the arbitral tribunal has discretion to determine the admissibility, relevance, materiality and weight of any evidence. In practice, although parties are not strictly bound by Zambian evidentiary rules, arbitral tribunals seated in Zambia commonly apply the same rules of evidence that govern domestic court proceedings, unless the parties agree otherwise. This approach reflects pre - vailing arbitral practice in Zambia, where domestic evidentiary principles are frequently adopted as the framework for assessing evidence in arbitral proceed - ings. The importance of party autonomy in this regard was reaffirmed by the Supreme Court in SA Airlink ( Pty ) Limited v Zambia Skyways Limited and 5 Others (Appeal No. 10/2023). In setting aside the award, the Court held, among other things, that the arbitrator had
exceeded the scope of the arbitration by determin - ing matters outside the reference, notwithstanding that the parties had agreed at the preliminary con - ference that the arbitration would proceed under the strict rules of evidence. The decision underscores that while arbitral tribunals enjoy procedural flexibility, they remain bound by the procedural and evidential frame - work agreed by the parties, and a material departure from that framework may expose an award to judicial intervention. 8.3 Powers of Compulsion Section 14 (3) of the Arbitration Act confers on an arbi - tral tribunal the power to order the attendance of a wit - ness or production of evidence from both parties and non-parties both within and outside the jurisdiction. However, arbitral tribunals seated in Zambia do not possess direct enforcement powers. Consequently, under Section 14 (4), the tribunal may request execu - tory assistance from the courts to enforce these com - pulsion orders via summons or subpoenas. In Zambia, arbitration proceedings are treated as con - fidential, and as such, all the proceedings – including the existence of the arbitration, the documentation and the award – are confidential, unless the parties have consented to the disclosure of arbitration or the disclosure has been ordered by law or court order in the event that the information concerns an actual or potential threat to human life or national security. It is also the general practice that once parties move the court seeking enforcement of an award, the arbi - tration award and on some occasions the arbitration proceedings may become part of the court record, thereby placing the arbitration into the public domain and limiting confidentiality to the extent of disclosures made in the enforcement of the award. 9. Confidentiality 9.1 Extent of Confidentiality
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