Arbitration under the Warsaw Convention in Zimbabwe

Zimbabwe domesticated the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention 1929 as amended by the Hague Protocol of 1955).

Consequently, the Warsaw Convention, in so far as it relates to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees and other persons, has the force of law in Zimbabwe in relation to any carriage by air, to which the Convention applies, irrespective of the nationality of the airline performing the carriage, subject to the provisions of the Carriage by Air Act [Chapter 13:04].

In terms of section 8 (1) of the Carriage by Air Act [Chapter 13:04] no action against a carrier’s servant or agent, which arises out of damage to which the Warsaw Convention relates, if such servant or agent was acting within the scope of their employment, can be brought after more than (2) two years from the date of arrival at the destination or from the date on which the aircraft ought to have arrived or from the date on which the carriage was stopped.

What is Arbitration?

D Kanokanga, Commercial Arbitration in Zimbabwe (Juta & Co, Cape Town, 2020) 9 notes that:

‘Arbitration is a private and consensual method of dispute resolution in which the disputants agree to submit their disputes to a neutral party for a final award which will be binding upon the parties. Further, it can be said that arbitration is part of the available alternative dispute-resolution mechanisms (ADRMs).’

The Provision for Arbitral Proceedings in the Carriage by Air Act in Zimbabwe

Section 8 (3) of the Carriage by Air Act [Chapter 13:04] provides as follows:

Subsections (1) and (2) and Article 29 of the Convention shall have effect as if references in those provisions to an action included references to an arbitration; and for the purpose of this subsection an arbitration shall be deemed to be commenced when one party to the arbitration serves on the other party or parties a notice requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator or, where the submission provides that the reference shall be to a person named or designated in the submission, requiring him or them to submit the dispute to the person so named or designated.