The intervention of domestic courts in arbitration in Zimbabwe

Prior to the adoption of the Model Law in Zimbabwe and after its adoption in the Arbitration Act [Chapter 7:15] on the 13 th September 1996, the Zimbabwean courts have consistently supported the autonomy of arbitral proceedings in accordance with international best practice.

In terms of Article 5 of the Model Law, the High Court of Zimbabwe does not have inherent jurisdiction pertaining to arbitral matters. Therefore, the Zimbabwean courts will not generally interfere with arbitral proceedings as the court’s supervisory functions of arbitration in Zimbabwe are restricted to only those matters which are governed by the Model Law.

The Commercial Division of the High Court in Zimbabwe Base Metals Mining (Pty) Ltd v Damo Resources (Pvt) Ltd & Another HH 577-24 at para 46 – 47 quoted Davison Kanokanga & Prince Kanokanga, UNCITRAL Model Law on International Commercial Arbitration: A Commentary on the Zimbabwean Arbitration Act [Chapter 7:15] (Juta & Co, Cape Town, 2022) at 52 – 53, and held that:

“Learned authors Kanokanga & Kanokanga1 make the following observation generally on court involvement in arbitral matters, and specifically on the import of Article 5 (1) of the Arbitration Act; - “Principle of minimal judicial interference. The law on arbitration in Zimbabwe is now governed by the Act, which takes into account the principle of minimal judicial interference as reflected in Article 5. One of the fundamental reasons for the adoption of the Model Law in Zimbabwe was to reduce significantly the extent of intervention of the courts in the arbitral process? This latitude delivered by the Arbitration Act to arbitration process is telling. It reflects an extension of the doctrine of freedom and sanctity of contract from the realm of commercial relationships to the quasi-judicial resolution of disputes issuing therefrom. The parties are granted the freedom not just to contract in trade, but also to contract in dispute resolution. All that being superintended over by the Arbitration Act and peripherally-the High Court.”

The specific involvement of the High Court of Zimbabwe to intervene in arbitration matters is as contained in the following provisions of the Model Law:

• (a) Article 8 (arbitration agreement and substantive claim before court);
• (b) Article 9 (interim measures);
• (c) Article 11 (appointment of arbitrators);
• (d) Article 13 (challenge procedure);
• (e) Article 14 (failure or impossibility to act);
• (f) Article 16 (competence of arbitral tribunal to rule of its jurisdiction);
• (g) Article 17 (power of arbitral tribunal to order interim measures);
• (h) Article 27 (court assistance in taking evidence);
• (i) Article 34 (setting aside an award);
• (j) Article 35 (recognition and enforcement); and
• (k) Article 36 (refusal of recognition or enforcement).