ZIMBABWE Law and Practice Contributed by: Prince Kanokanga and Davison Kanokanga, Kanokanga & Partners
5.5 Breach of Arbitration Agreement Under Zimbabwean law, the courts will generally stay proceedings and refer a matter to arbitration, unless the arbitration agreement is null and void, inoperative or incapable of being performed. 5.6 Jurisdiction Over Third Parties The Arbitration Act [Chapter 7:15] does not address the issue of third parties who are not a party to an arbitration agreement nor signatories to the contract containing the arbitration agreement. Notwithstanding the fact that the Arbitration Act [Chapter 7:15], which incorporated the Model Law in Zimbabwe, does not address the issue of third parties, the non-consensual theory of law appears to have been adopted in Zim - babwe. It includes the alter ego principle (group of companies), and the principles of estoppel and suc - cession. In terms of the non-consensual theory, the concept of piercing the corporate veil is regarded as being appli - cable in arbitration. In StarAfrica Corporation Ltd v Zimbabwe Sugar Refinery Workers Union 2021 (1) ZLR 818 (S), the Supreme Court of Zimbabwe upheld a decision by an arbitrator piecing the corporate veil. Article 31 (7) of the Model Law, as it applies to Zimba - bwe, is a modified provision that sets out the different types of arbitral awards that an arbitral tribunal in Zim - babwe can make. This includes interim, interlocutory and partial awards. See Zimbabwe Electricity Trans- mission and Distribution Company ( Pvt ) Ltd v Masawi & Another 2020 (1) ZLR 1296 (H). These awards are accorded their appropriate status. 6.2 Role of Courts Under Zimbabwean law, the court’s role in arbitration is limited. The supportive role of the court with regard to preliminary or interim relief in arbitral proceedings in Zimbabwe is provided for in Articles 9 and 17 of the Model Law. The types of interim measures that are permitted include: 6. Preliminary and Interim Relief 6.1 Types of Relief
• an order for the preservation, interim custody or sale of any goods that are the subject matter of the dispute; • an order securing the amount in dispute; • an order securing the costs of the arbitral proceed - ings (including the deposit in respect of the fees and costs of the arbitration); and • any other order to ensure that any award that may be made in the arbitral proceedings is not rendered ineffectual. The High Court of Zimbabwe generally will not grant preliminary or interim relief where: • the arbitral tribunal has not yet been appointed and the matter is urgent; • the arbitral tribunal is not competent to grant the order; or • the urgency of the matter makes it impracticable to seek such preliminary or interim relief from the arbitral tribunal. The High Court of Zimbabwe may grant preliminary or interim relief in support of arbitration proceedings seated outside of Zimbabwe. The Arbitration Act [Chapter 7:15] does not provide for emergency arbitration. Urgent relief must therefore be sought either from the arbitral tribunal once consti - tuted or directly from the High Court. 6.3 Security for Costs Zimbabwean law allows both courts and arbitral tri - bunals to order security for costs. Furthermore, the courts may also make an order for a deposit in respect of the fees and costs of the arbitration.
7. Procedure 7.1 Governing Rules
Subject to the Arbitration Act [Chapter 7:15], the par - ties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. See Walenn Holdings ( Pvt ) Ltd v Lloyd & Another 1996 (2) ZLR 383 (H). The High Court in City of Harare v Univern Enterprises ( Pvt ) Ltd & Another HH 346-23 cautioned parties on the need for good faith in agree -
1219 CHAMBERS.COM
Powered by FlippingBook