How to institute arbitral proceedings under the Carriage by Air Act [Chapter 13:04] in Zimbabwe?

Disputes between individuals, and even entities, are a feature of our everyday life. Arbitration is therefore a method of resolving disputes in which disputants agree to submit their disputes to an individual whose ‘judgement’ they are prepared to trust.

Thus, each party puts his or her case to this decision-maker (arbitrator) who then listens to the parties, considers the facts and arguments raised by the parties (or their representatives) and then makes a decision, which is final and binding on the parties.

The Warsaw Convention regulates liability for international carriage of persons, luggage and cargo by aircraft for reward. 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.

Consequently, under section 8 (3) of the Carriage by Air Act [Chapter 13:04] arbitral proceedings are deemed to have been commenced when one party 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’ 7 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.

The form of a notice for the appointment of an arbitrator under section 8 (3) of the Carriage by Air Act [Chapter 13:04]

There is no stipulated notice prescribed either by the Arbitration Act [Chapter 7:15] or the Carriage by Air Act [Chapter 13:04]. A notice also known as a request for arbitration, can generally take the form of an application, a letter, a notice or may be in the form of a Statement of Claim.

Ordinarily a notice or request for arbitration will contain the following:

1. (a) A demand that the dispute be referred to arbitration;
2. (b) The names and contact details of the parties;
3. (c) Identification of the arbitration agreement that is invoked;
4. (d) Identification of any contract or other legal instrument out of or in relation to which the dispute arises or, in the absence of such contract or instrument, a brief description of the relevant relationship;
5. (e)A brief description of the claim and an indication of the amount involved, if any;
6. (f) The relief sought;
7. (g) A proposal as to the number of arbitrators, the language and the place of arbitration, if the parties have not previously agreed on them.