ZAMBIA Law and Practice Contributed by: Luckson Mwamba, Katongo Bwalya and Mumba Mwila, Mwamba & Milan Advocates
• an authenticated or certified copy of the arbitration agreement. Authentication is generally performed by a notary public at the seat of arbitration. Registration is neces - sary because arbitral tribunals in Zambia do not have the machinery to enforce or execute awards directly. For international arbitrations seated in Zambia, the rules for recognition and enforcement under Article 35 of the UNCITRAL Model Law apply, whereas the procedures under the New York Convention typically govern the registration and enforcement of foreign awards. Where an award or arbitration agreement is in a for - eign language, a certified English translation must also be supplied to the court before registration. Foreign Award Subject of Setting-Aside Proceedings Zambian courts will not enforce or recognise an award that is not binding in the jurisdiction of the arbitral seat, such as where it has been set aside or its appli - cation has been suspended. Where proceedings to set aside a foreign arbitral award are ongoing at the seat of arbitration, Zambian courts may stay enforce - ment proceedings pending the outcome of those proceedings. This power to stay is discretionary and determined on a case-by-case basis. Plea of Sovereign Immunity in Enforcement Zambia does not have legislation directly addressing sovereign immunity in the context of arbitral award enforcement. However, the principle is widely recog - nised in public international law and may be invoked as a defence. Its presence in Zambian law is indirectly reflected in statutes such as the Diplomatic Immu - nities Act, which recognises the general concept of sovereign immunity, though not directly applicable to states themselves. The modern approach to sovereign immunity is that it is not absolute: where the dispute arises from com - mercial activities rather than sovereign acts, a state cannot claim immunity. In Zambia, the Zambian state enjoys specific protection from enforcement actions
under the State Proceedings Act, which excludes enforcement of awards against it. 12.3 Approach of the Courts The courts in Zambia have adopted a co-operative approach towards the recognition and enforcement of arbitral awards, subject to public policy considera - tions. Enforcement will be refused on public policy grounds where an award is found to be intolerable to Zambia’s public policy or contrary to fundamental notions of justice. This was the approach emphasised in the case of Tiger Limited v Engen Petroleum ( Z ) Limited . It is uncommon for Zambian courts to con - sider foreign public policy in determining the enforce - ability of an award where the arbitration was seated domestically. The law in Zambia is silent on the arbitrability of class actions. In the absence of an express prohibition or group arbitration framework, it could be argued that class actions are arbitrable. However, the arbitra - tion framework in Zambia – and international prac - tice – rests on party consent as the foundation of the process. Class or group arbitrations do not ordinar - ily anticipate prior consensus of all affected parties before proceedings are commenced. For this reason, it is unlikely that a class arbitration could proceed in Zambia without facing significant hurdles in satisfying the requirement of party consent. 13.2 Ethical Codes 13. Miscellaneous 13.1 Class Action or Group Arbitration The professional and ethical standards applicable to arbitrators in Zambia are set out in the Arbitration (Code of Conduct and Standards) Regulations 2000. These require arbitrators to observe the principles of fairness, impartiality, disclosure of potential conflicts of interest, and confidentiality. In arbitrations seated in Zambia, legal practitioners admitted to the Zambian Bar must comply with the standards of professional conduct prescribed under the Legal Practitioners Act. Where foreign counsel appear in international arbitrations seated in Zambia, they are not subject to Zambian ethical and profes -
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