ZAMBIA Trends and Developments Contributed by: Christopher Kapambe, Kasewe Banda, Nakasamba Banda Chanda and Chamwaza Chioneni Phiri, AMW & Company Legal Practitioners
Public-private partnerships: where the trend reverses PPPs are central to the 2031 programme because Zambia lacks the fiscal room to build all required infrastructure from the national budget. The copper- production target depends on assets beyond the mine gate, such as: • railways; • roads; • border facilities; Where such projects use PPP structures, the quality and consistency of their dispute clauses will directly affect investment and production. The 2023 PPP Act does not itself allocate a dispute forum. That marks a change from section 64 of the repealed 2009 Act, which directed disputes between the contracting authority and concessionaire to the agreed mechanism or, failing agreement, arbitration under the Arbitration Act. Under the current Act, sec - tion 55 (l) merely requires a PPP agreement to state its governing law and dispute mechanism. Section 90 gives an aggrieved bidder ten working days to appeal to the PPP Council and states that the Council’s deci - sion is final. • transmission networks; • processing facilities; and • bulk-water systems. Two consequences follow, as outlined below. • First, procurement law compels arbitration and mining law facilitates it, but PPP law leaves the forum to contractual drafting, without the former statutory fallback. • Second, section 90 (6)’s finality language sits awkwardly beside compulsory arbitration under procurement law and the High Court’s supervisory jurisdiction. The text does not say whether a final Council decision excludes arbitration, judicial review or neither. Given the Council’s governmental composition, an unsuc - cessful bidder in a major procurement is unlikely to regard the question as settled.
The Act also creates dispute-prone rights without allo - cating a decision-maker: • Section 71 permits revision where changed eco - nomic conditions or non-project-specific legislation substantially increase costs or reduce value; • Section 72 permits takeover for material default; • Section 73 supports lender step-in; and • Sections 68 and 69 restrict assignment and changes of control. Each raises the boundary between legitimate statu - tory power and interference with the investor’s bar - gain. Section 71 may become one of Zambia’s most commercially significant infrastructure provisions, yet the Act does not identify who decides how it applies. The same facts may generate investor-state claims. Contractual arbitration enforces the PPP or min - ing agreement; treaty arbitration asks whether State conduct breaches applicable investment protections. Zambia is an ICSID Contracting State and qualifying investors may benefit from treaties, depending on nationality, timing and the instrument in force. Draft - ing should coordinate contract and treaty exposure, including waivers, parallel proceedings and attribu - tion. Treaty protection is a distinct route, not a substi - tute for a sound contract. Statutory amendment is not essential to close the gap. Section 51 requires contracting authorities to use standard solicitation documents issued by the PPP Office. Those documents and the standard project agreement can establish negotiation, adjudication or dispute-board determination, then institutional arbi - tration at an identified seat. They should also address consolidation, joinder, lender participation, interim relief, sovereign immunity, enforcement and award currency. Adjudication and the construction sector The construction sector is integral to mining expan - sion, as new mines, processing plants, transmission lines, roads, railways and water infrastructure will depend on major engineering and construction con - tracts – many of which will be based on or influenced by the FIDIC standard forms.
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