Overview of arbitration model law
Ihave written articles on arbitration or commercial arbitration in the past. In this article, I look at the Model Law as provided for in the Arbitration Act (Chapter 7:15), “the Arbitration Act” or “the Act”.
Model Law on arbitration in Zimbabwe According to the Arbitration Act the Model Law contains the United Nations Commission on International Trade (UNCITRAL) Model Law, with modifications.
The Model Law is arranged in Chapters which are in turn arranged in Articles. Below I explain the salient aspects thereof.
Chapter 1 – General Provisions
Article 1 states that the Model Law applies as per sections 3 and 4 of the Arbitration Act. Section 3 covers laws applicable to arbitration while section 4 deals with what may be arbitrated.
Article 2 covers important definitions and rules of interpretation. Article 3 is about receipt of written communication by or between parties such as delivery thereof. Article 5 covers waiver of the right to object to non-compliance with a provision of the Model Law or a requirement under the arbitration agreement. In Article 6 the Model Law deals with the extent of court intervention in arbitration.
Chapter II – Arbitration Agreement
In Article 7 the Model Law deals with the crucial issue of definition and form of arbitration agreement, for example, that the arbitration agreement has to be in writing.
Article 8 is about the arbitration agreement and substantive claim before the court whereas Article 9 deals with the arbitration agreement and interim measures by courts. This covers orders a court may or may not grant.
Chapter III – Composition of Arbitral Tribunal
Article 10 covers the number of arbitrators, for example parties are free to determine the number of arbitrators. Article 11 covers the appointment of arbitrators including situations where parties agree or disagree on the procedure of appointment.
Article 12 addresses challenge procedures including the procedure for challenging an arbitrator. Article 14 deals with failure or
impossibility to act by the arbitrator, for example when an arbitrator becomes de jure or de facto unable to perform his duties, whereas Article 15 provides for the appointment of a substitute arbitrator where this becomes necessary.
Chapter IV – Jurisdiction of Arbitral Tribunal
This part is very important as it can constitute a point in limine or preliminary point during arbitral proceedings. Article 16 deals with the competence of an arbitral tribunal to rule on its jurisdiction while Article 17 is about the power of the arbitral tribunal to order interim measures. This should be read together with Article 9 which covers interim measures by a court.
Chapter V – Conduct of arbitral proceedings
This chapter is at the core of arbitral proceedings and I have specifically covered it before. Article 18 covers equal treatment of parties, Article 19 is about the determination of rules of procedure. Article 20 is in the place of arbitration where parties agree or disagree thereon.
Article 21 deals with the commencement of arbitral proceedings, and Article 22 is on language to be used during arbitral proceedings. Article 23 covers the all-important statement of claim and defence, while Article 24 addresses hearings and written proceedings. Default by a party is covered in Article 25 while the appointment or use of an expert is provided for in Article 26. Court assistance in taking evidence during proceedings is provided for in Article 27.
Chapter VI – Making of an Arbitral Award and termination of proceedings
Rules applicable to the substance of the dispute is dealt with in Article 28 while Article 29 covers decision-making by a panel of arbitrators. Article 30 deals with the settlement of disputes during arbitral proceedings, and Article 31 deals with the form and content of an arbitral award.
Under the same chapter, Article 32 addresses termination of arbitral proceedings, Article 33 is about correction and interpretation of award – additional award.
Chapter V11 – Recourse against award
Article 34 provides for the application for setting aside as an exclusive recourse against an arbitral award.
Chapter VIII – Recognition and enforcement of awards
Obtaining an award is not the end. It needs enforcement. Article 35 provides for the recognition and enforcement of an award while Article 36 is about grounds for refusing recognition or enforcement.
The Model Law has a significant bearing or arbitral proceedings. Parties or arbitrators ought to be very familiar with the Arbitration Act and the Model Law therein. The above is merely an overview for readers.
Disclaimer
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
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Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountants, insolvency practitioner, registered tax accountants and advises on deal and transactions. He has extensive experience from industry and Commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his personal capacity. He can be contacted on +263 772 246 900 or gohofisi@gmail.com