The grounds for refusal of enforcement of a foreign arbitral award under Zimbabwean law

The specific grounds for refusal of enforcement of foreign arbitral awards are contained in Article 36 of the Model Law which is contained in the First Schedule of the Arbitration Act [Chapter 7:15] and Article V of the New York Convention which has the force of law in Zimbabwe pursuant to the enactment of the Arbitration Act [Chapter 7:15].

Resultantly, Article 36 of the Model Law and Article V of the New York Convention set forth the limited and exhaustive grounds on which recognition and enforcement of a foreign arbitral award may be refused in Zimbabwe. Generally, upon the filing of a chamber application for registration of an award, the High Court of Zimbabwe will recognise and enforce a foreign arbitral award, irrespective of the country in which it was made, unless:

• (a) party to the arbitration agreement was under some incapacity; or
• (b) the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
• (c) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
• (d) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or
• (e) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
• (f) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or
• (g) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or
• (h) the recognition or enforcement of the award would be contrary to the public policy of Zimbabwe.

The leading superior court decisions on Article 36 of the Model Law in Zimbabwe are:

• (a) Beazley N.O. v Kabell & Another 2003 (2) 198 (S);
• (b) Husaihwevhu & Others v UZ-USF Collaborative Research Programme 2010 (2) ZLR 448 (H); and
• (c) Giya v Ribi Tiger Trading 2014 (1) ZLR 103 (H).