Compulsory Arbitration and Voluntary arbitration in Zimbabwe

The use of compulsory arbitration and voluntary arbitration in Zimbabwe is high and the practice of arbitration has been part and parcel of Zimbabwe’s history for the best part of a century. The law and practice of arbitration in Zimbabwe has developed and accommodates both ad hoc arbitration and institutional arbitration. Most commercial disputes are resolved by means of arbitration. The use of arbitration is also prevalent in labour and employment disputes in Zimbabwe.

Section 95(a) of the Labour Act [Chapter 28:01] provides for compulsory arbitration where a dispute is a dispute of interest and the parties are engaged in an essential service. Parties can also refer a dispute or unfair labour practice to compulsory arbitration is the dispute or unfair labour practice is a dispute of right in Zimbabwe in terms of section 95(c) of the Labour Act [Chapter 28:01]. It is only, with the agreement of the parties, that a dispute or unfair labour practice may be referred in terms of section 95(5)(b) of the Labour Act [Chapter 28:01] to voluntary arbitration.

The High Court of Zimbabwe in Ferro – Alloys Employers Association of Zimbabwe v Zimbabwe Metal, Energy and Allied Workers Union & Others 2018 (2) ZLR 356 (H) held that compulsory arbitration is imposed by government.

Generally, compulsory arbitration does not arise by consensual agreement of the parties to resolve their dispute by arbitration but by operation of an Act or other piece of legislation which provides that certain types of disputes arising within its remit should be referred for compulsory arbitration. Typically, compulsory arbitration occurs after a matter has been referred for conciliation and a Certificate of No Settlement has been validly issued.

The effect of a Certificate of No Settlement is to establish the fact that an attempt to settle the dispute through conciliation has failed. see Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa 2020 (1) ZLR 1268 (CC). It is then that the matter is referred for compulsory arbitration conducted by an arbitrator who would have obtained a Certificate of Appointment to act as an arbitrator. On the other hand, voluntary arbitration is consensual in nature and the parties have the autonomy to formulate the nature and extent of their differences and have the discretion to nominate and appoint the tribunal, lay down the rules and agree on the terms of reference and pay the tribunal.