Enforcement of local and foreign arbitral awards in Zimbabwe

Where a party to a local arbitral award or foreign arbitral award does not voluntarily comply with the award, the successful party can apply for the recognition and enforcement of the local arbitral award of foreign arbitral award, as an arbitral award whether local or foreign is not self – executing. see Emeza Trading (Pvt) Ltd v Yellowcob Enterprises (Pvt) Ltd 2019 (3) ZLR 829 (H).

Article IV of the New York Convention and Article 35 of the Model Law which both have the force of law in Zimbabwe lay down certain affirmative formal requirements that an applicant for recognition or enforcement must fulfil.

The process

In Zimbabwe, parties who wish to have their local arbitral awards or foreign arbitral awards recognised should file a chamber application for recognition and enforcement of the local or foreign arbitral award with the High Court of Zimbabwe. see Lowveld Rhino Trust v Dhlomo - Bhala 2020 (1) ZLR 457 (S).

The chamber application for recognition and enforcement of a local arbitral award or a foreign arbitral award in terms of Article IV of the New York Convention or Article 35 of the Model Law to the High Court of Zimbabwe should be accompanied by the following documents:

• (a) Certified or authenticated copy of the arbitration agreement;
• (b) Certified or authenticated copy of the arbitral award;
• (c) Certified or authenticated copy of the arbitration agreement and award duly translated into English if the arbitration agreement or award is not in English.

Enforcement of a local arbitral award or a foreign arbitral award in Zimbabwe is separate from recognition. In Dudka & Ors v Cheni Investments (Pvt) & Ors 2011 (1) ZLR 1 (H) 6B – C, the High Court of Zimbabwe held that:

“In terms of art 35 an arbitral award shall be recognised as binding and upon application in writing to the High Court shall be enforced. Article 35 brings out two distinctive features of an arbitral award. The first one is its binding nature and the second one its enforceability. An award takes effect upon its grant. Its execution has no effect on whether it is binding or not. A party can chose to obey an award, in which event there would not be need for the award to be registered. Registration allows for execution.”

Grounds for refusing recognition or enforcement of local and foreign arbitral awards in Zimbabwe

In terms of Article V of the New York Convention and Article 36 of the Model Law, a local arbitral award or foreign arbitral award will not be recognised and enforced in Zimbabwe the party against whom it is invoked, can satisfy the High Court on the following:

• (a) Arbitrability. This category includes: the subject matter of the dispute is not capable of settlement by arbitration under the applicable law.
• (b) Award in conflict with public policy. This category includes: an award being rendered by a tribunal which is in conflict with the public policy of Zimbabwe i.e., the making of the award was induced or effected by fraud or corruption, and / or there was a breach of the rules of natural justice in connection with the making of the award.
• (c) Due process. This category includes: lack or failure of proper notification concerning the commencement of the arbitral proceedings and / or the appointment of the tribunal. Also included in this category is, a failure by the tribunal to accord the parties with equal treatment in the presentation of the case.
• (d) Excess of mandate. This category includes: an award which deals disputes which were not contemplated by or falling with the terms of reference i.e., the terms of submission to arbitration. Also included in this category, are decisions made by the tribunal on matters which are beyond the scope of the terms of reference.
• (e) Irregular constitution of tribunal. This category includes: an award rendered by a tribunal at variance with the parties agreed composition which may include the number of arbitrators, their nationality and qualifications.
• (f) Irregular procedure. This category includes: a deviation from the parties agreed procedure to be followed by the tribunal in conducting the proceedings, include an arbitration agreement or the applicable institutional rules.
• (g) Invalidity of arbitration agreement. This category includes: incapacity of one the parties, lack of consent and the form of the agreement i.e., oral consent to arbitration.