Arbitration agreement

Arbitrability

Are there any types of disputes that are not arbitrable?

Section 6 of the Arbitration Act No. 19 of 2000 provides that parties are at liberty to subject any dispute to arbitration. However, the following are the exceptions to the rule:

  • agreements that are contrary to public policy;
  • a dispute that, in terms of any law, may not be determined by arbitration;
  • criminal matters except insofar as permitted by written law or leave of court is granted;
  • matrimonial causes;
  • matters incidental to matrimonial causes, save for when the court grants leave that said matter can be determined by arbitration;
  • matters concerning paternity, maternity or parentage;
  • matters affecting the interest of a minor or individual under a legal incapacity, unless the minor or individual is represented by a competent person.
Requirements

What formal and other requirements exist for an arbitration agreement?

Section 2 of the Arbitration Act No. 19 of 2000 states that not all agreements should be in writing, provided there is evidence of a contractual relationship that submits to arbitration when a dispute arises. It further states that, where an arbitral agreement is in writing, it must be contained in a document signed by all the parties. There is further recognition of agreements contained in exchange of letters or other means of communication that provide evidence of the agreement. In circumstances where an objection can be raised and it has not its assumed the right is waived. An arbitration agreement can also be contained in a contract as part of its terms and conditions provided the contract is in writing and the clause is part of the contract.

Enforceability

In what circumstances is an arbitration agreement no longer enforceable?

Arbitration agreements are generally a separate agreement embedded in any contract and as such survive the termination, death or insolvency of a party. Arbitration agreements will only not be enforceable if they violate the fundamentals of contract formation.

Separability

Are there any provisions on the separability of arbitration agreements from the main agreement?

Yes, the doctrine of separability of arbitration clauses is recognised in Zambia. This is provided in article 16 of the UNCITRAL Model law.

Third parties – bound by arbitration agreement

In which instances can third parties or non-signatories be bound by an arbitration agreement?

A non-party to an arbitration agreement cannot be bound by the terms and outcomes of an arbitration agreement. This is as per Odys Oil Company Limited v The Attorney General and others (2012) ZR 164, Volume 1, p. 182

Third parties – participation

Does your domestic arbitration law make any provisions with respect to third-party participation in arbitration, such as joinder or third-party notice?

A non-party to an arbitration agreement cannot be bound by the terms and outcomes of an arbitration agreement. This is as per Odys Oil Company Limited v The Attorney General and others (2012) ZR 164, Volume 1, p. 182

Groups of companies

Do courts and arbitral tribunals in your jurisdiction extend an arbitration agreement to non-signatory parent or subsidiary companies of a signatory company, provided that the non-signatory was somehow involved in the conclusion, performance or termination of the contract in dispute, under the ‘group of companies’ doctrine?

While the Arbitration Act is silent with regard to the extension of arbitration agreements to non-signatory parent or subsidiary companies, the Zambian arbitral tribunals are more likely to follow the English position in this regard.

Multiparty arbitration agreements

What are the requirements for a valid multiparty arbitration agreement?

Section 2 and 9 of the Arbitration Act No. 19 of 2000 provides that there can be multiple parties to an arbitration agreement. Parties are generally free to agree on an appointment procedure with regard to arbitrators. Where a party fails to jointly appoint an arbitrator, the other party is at liberty to request the arbitration institute to appoint an arbitrator on the party’s behalf. This is provided for in section 12(3) of the Arbitration Act No. 19 of 2000.

Consolidation

Can an arbitral tribunal in your jurisdiction consolidate separate arbitral proceedings? In which circumstances?

The Arbitration Act No. 19 of 2000 does not provide specifically for consolidation of arbitral proceedings. However, this is possible by agreement of the parties.

Law stated date

Correct on:

Give the date on which the information above is accurate.

17 November 2020