ZAMBIA Law and Practice Contributed by: Luckson Mwamba, Katongo Bwalya and Mumba Mwila, Mwamba & Milan Advocates
11.2 Excluding/Expanding the Scope of Appeal In Zambia, parties cannot agree to exclude any statu - tory ground for setting aside an arbitral award or to expand those grounds. The Arbitration Act prescribes the method and grounds for challenging an award in mandatory terms. While arbitration is a consensual process, its framework remains subject to public pol - icy considerations. Accordingly, parties cannot con - tract out of or extend beyond the statutory framework, as doing so would be contrary to public policy. 11.3 Standard of Judicial Review The standard of judicial review in Zambia is deferential rather than de novo. Although not expressly set out in the Arbitration Act, Zambian case law demonstrates a consistent judicial approach of restraint, with the courts declining to review the merits of an arbitral award or to re-hear the dispute. The courts’ supervi - sory role is confined to ensuring that the award falls within the statutory framework and to reviewing appli - cations brought on the prescribed grounds for setting aside. The courts have no discretion to re-examine the merits of the arbitration under any circumstances in the Zambian jurisdiction. Zambia is a ratified signatory to the New York Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards (1958). The Convention was domes - ticated through its incorporation into the Second Schedule of the Arbitration Act pursuant to Part IV of the Act, and this adoption was done without reserva - tion. 12.2 Enforcement Procedure Procedure for Enforcement of Arbitral Awards in Zambia In Zambia, the enforcement of an arbitral award begins with registration of the award in the courts. This requires filing an originating summons accom - panied by an affidavit exhibiting: • a duly authenticated original award or a certified copy; and 12. Enforcement of an Award 12.1 New York Convention
the tribunal may award simple or compound interest on the whole or part of any sum, for such period (which usually includes the pre-award period and post-award period until settlement) and at such rate as it consid - ers appropriate, subject to party agreement. However, given that Zambian law generally allows compound interest only where the parties expressly agree to it, and arbitration is a consensual process, the prevailing practice is for tribunals to award simple interest at the pleaded rate or such other rate as the tribunal deems appropriate in the circumstances. Arbitral awards are not subject to appeal in Zambia. Instead, parties may seek recourse by applying to the High Court to set aside an award on prescribed grounds. The grounds for setting aside are set out under Section 17 (2) of the Arbitration Act and include: • a party to the arbitration agreement was under incapacity; • the arbitration agreement is invalid under the law to which the parties have subjected it; 11. Review of an Award 11.1 Grounds for Appeal • procedural irregularities, such as (a) the applicant was not given proper notice of the appointment of the arbitrator or the proceedings or (b) the compo - sition of the tribunal or the arbitral procedure was not in accordance with the parties’ agreement or the law; • the award, or part of it, deals with matters beyond the scope of the arbitration agreement; • the award is not yet binding on the parties, or has been set aside or suspended by a competent court in Zambia; and • the award is in conflict with Zambia’s public policy, or was obtained through fraud, corruption or mis - representation. Procedure for Challenging an Award An application to set aside an arbitral award must be made within three months from the date on which the award was received. However, Article 33 of the UNCI - TRAL Model Law provides that an award cannot be set aside where an application for correction or inter - pretation of the award has been made.
1201 CHAMBERS.COM
Powered by FlippingBook