The common practice when drafting contracts dictates that a dispute resolution clause should always be captured to govern how parties deal with conflicts arising from the agreement they are about to enter. Lately, Arbitration has been a medium many have been electing as a form of dispute resolution. This article intends to look at what arbitration really is, what it entails, the law on arbitration, and the implications of the same, to identify why many have been leaning towards it over traditional litigation.

DEFINING ARBITRATION

Arbitration can be defined as a form of alternative dispute resolution specially designed to be a platform where parties can resolve their disputes outside the courts. Arbitration is a platform that allows for private dispute resolution where parties in dispute approach an arbitrator, who plays the role of a neutral party or an umpire, for the purposes of adjudicating over the matter in dispute.

A critical feature of arbitration proceedings is that they are consensual means of settling disputes. Parties to proceedings are in control of whowill preside over the matter, the manner in which the proceedings will be executed, the time framesof delivery, dates, and the location of the proceedings. Unlike litigation, the parties even have the discretion to decide the procedures and rules of the proceedings. However, these rules ought to be defined in the parties’ “Arbitral Agreement,” which, in essence, can be regarded as the foundation for arbitration.

With this in mind, it is worth specifying that the starting point of any arbitration process is the Arbitration Agreement. Without an Arbitration Agreement or an arbitration provision in the primary contract, one cannot institute arbitration proceedings.

WHICH LAW GOVERNS ARBITRATION IN ZIMBABWE?

Arbitration in Zimbabwe is governed by the Arbitration Act (Chapter 7: 15), which encompasses the United Nations Commission on International Trade Law (UNCITRAL) Model Law. All arbitration matters are governed according to its provisions.

Whilst the actual arbitration proceedings are subject to what the parties agree, the proceedings themselves and how they should be handled are expected to fall within the confines of this statute.

WHAT CAN BE ARBITRATED?

According to Section 4(1) of the Arbitration Act, any dispute which the parties have agreed to submit to arbitration may be determined by arbitration.

However, Section 4(2) goes on further to state the limitations of arbitration by specifying what shall not be determined by arbitration, and that is;

1. an agreement that is contrary to public policy;
2. a dispute which, in terms of any law, may not be determined by arbitration;
3. a criminal case;
4. a matrimonial cause or a matter relating to status (except with leave of the High Court);
5. a matter affecting the interests of a minor or an individual under a legal disability (except with leave of the High Court); and
6. a matter concerning a consumer contract as defined in the Consumer Contracts Act, unless the consumer has by separate agreement agreed thereto.

THE PURPOSE OF ARBITRATION

The purpose of arbitration is to resolve disputes between the parties in conflict amicably outside a court setting, in proceedings that are governed by their mutual agreement and consent.

Even more so, the purpose of arbitration is not only to resolve the dispute but to ensure the finality of the resolution in ensuring that the decision rendered is final, binding, and enforceable at law.

ADVANTAGES OF ARBITRATION

1. It is centred on the mutual agreement and consent of the parties;
2. It is flexible as proceedings are made to suit the parties’ agreement;
3. It is procedurally simpler;
4. Quicker resolution of the dispute is guaranteed as compared to litigation;
5. The Arbitrators are often chosen because of their expertise in the subject matter;
6. It is subjectively inexpensive as compared to litigation;
7. It is more conducive and convenient to the parties;
8. It ensures finality;
9. Its proceedings are private, unlike litigation;
10. Arbitration awards are enforceable, and
11. Its awards are final and binding on the parties.

DISADVANTAGES OF ARBITRATION

1. Arbitral awards are not subject to appeal or review;
2. Awards do not create precedents- they are binding to no one else but the parties;
3. Awards can be set aside or suspended;
4. Standards used by Arbitrators are unclear;
5. An arbitral award cannot be appealed.
6. Arbitration proceedings cannot be reviewed; and
7. An Arbitrator is entitled to make a mistake, and the said mistake is not appealable,
   no matter how grave.

TYPES OF ARBITRATION

1. Statutory Arbitration

This is arbitration that is statutorily imposed, and parties are bound to conform and submit to it.

2. Ad-hoc arbitration

This is a form of arbitration where the parties independently determine the procedures to be used in proceedings,
without the involvement of an arbitral institution. This form of arbitration entails that the parties determine the
arbitrators to entertain their matter, the appointment, the location of the arbitration, and the rules relevant to the
proceedings.

3. Foreign arbitration

This is arbitration, which is conducted in a place that transcends national boundaries, and upon conclusion of the
proceedings, its award is enforceable as a foreign award.

4. Domestic arbitration

This is arbitration that takes place between parties within the same country and is conducted according to the local
substantive and procedural law.

5. International arbitration

This arbitration is executed when parties to a dispute are from different countries or the dispute goes beyond national
boundaries.

6. Institutional arbitration

This is a form of arbitration where proceedings are executed by an appointed institution, according to its processes
and procedures

CONCLUSION

One thing is certain: arbitration presents a compelling alternative in the dispute resolution landscape.  Arbitration offers a strategic advantage, seeing that it is a confidential and comfortable path to resolution. The benefits speak for themselves, particularly for businesses seeking to minimize negative publicity and safeguard their reputation, as well as individuals who value their privacy. In short, arbitration is not just an option; it is a valuable tool worth serious consideration.

Prepared by:     Jean C Nyamasvisva 

Associate                         

Reviewed by:    Blessing Diza                                 

Managing Partner