ZIMBABWE Law and Practice Contributed by: Prince Kanokanga and Davison Kanokanga, Kanokanga & Partners
• Disputes that, under any law, may not be deter - mined by arbitration. • Criminal matters. • Matrimonial matters or matters relating to sta - tus, unless the leave of the High Court has been sought and granted. See “Matrimonial Arbitration in Zimbabwe: An Analysis of Section 4 (2)(d) of the Arbitration Act” [Chapter 7:15] (2022), by Prince Kanokanga, in University of Zimbabwe Students Law Review , pp 43–73. • Matters affecting the interests of minors or an individual lacking legal capacity, unless leave of the High Court has been sought and granted. Prior to 10 December 2019, under Section 4 (f) of the Arbitration Act [Chapter 7:15], consumer dis - putes were not arbitrable unless the consumer had, by means of a separate agreement, consented to the arbitration. Under Section 60 of the Consumer Protec - tion Act [Chapter 14:14], consumer disputes can be resolved by arbitration in accordance with the Arbitra - tion Act [Chapter 7:15]. 3.3 National Courts’ Approach The Zimbabwean courts have adopted a pro-arbitra - tion stance towards the enforcement of arbitration agreements and recognise an arbitration agreement as a separate and distinct agreement within a con - tract. See Conplant Technology ( Pvt ) Ltd v Wentspring Investments ( Pvt ) Ltd 2015 (2) ZLR 907 (H). The courts generally follow the principle of party autonomy. Where the parties to the contract have not expressly chosen the law governing the arbitration agreement, Zimbabwean Courts will apply conflict of laws princi - ples to determine the applicable law. With respect to enforcement, the general trend in the Zimbabwean courts has been to give effect to the intention of the parties to resolve their disputes by way of arbitration unless the arbitration agreement is null, void, inoperative or incapable of being performed. See Waste Management Services ( Pvt ) Ltd v City of Harare 2000 (1) ZLR 172 (H). However, for the court to enforce an arbitration agreement, a party has to make a request to the court for stay of proceedings, and if there is no request for stay of proceedings and referral to arbitration, the court will generally have jurisdiction
to hear and determine the matter. See Recoy Invest- ments ( Pvt ) Ltd v Tarcon ( Pvt ) Ltd 2011 (2) ZLR 65 (H). 3.4 Validity Under Zimbabwean law, and prior to the adoption of the Model Law, the courts have held that an arbitration clause may still be valid even if the rest of the contract in which it is contained is invalid. See Scriven Bros v Rhodesian Hides & Produce Co Ltd 1943 AD 393. Article 16 (1) of the Model Law was adopted into Zim - babwe law through the enactment of the Arbitration Act [Chapter 7:15]. As a result, the doctrine of separa - bility is a part of Zimbabwean law. See Chartpril Enter- prises ( Pvt ) Ltd & Another v Elnour United Engineering Group ( Pvt ) Ltd & Another HH 602–21. The Arbitration Act [Chapter 7:15] does not limit the party’s autonomy to select arbitrators in Zimbabwe. 4.2 Default Procedures Article 11 of the Model Law provides a default proce - dure for the appointment of arbitrators. See Chiyayi & Others v Baxter Paints ( Pvt ) Ltd & Another HH 325–22. It applies in situations where the parties fail to agree on the procedure and where an arbitration agreement does not provide a method for selecting arbitrators. See Zimbabwe Electricity Supply Authority v Bikita Minerals ( Pvt ) Ltd 2001 (1) ZLR 438 (H). The default procedure in Article 11 of the Model Law also applies to multiparty arbitrations in Zimbabwe. 4.3 Court Intervention The Zimbabwe courts will only intervene in the selec - tion of arbitrators where: • the appointment procedure agreed upon by the parties fails; • the parties or the two nominated arbitrators fail to agree; or • a third party including an arbitration institution fails to perform any function entrusted to it. 4. The Arbitral Tribunal 4.1 Limits on Selection
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