The Herald (Zimbabwe)

Applicatio­n for setting aside arbitral award

In recent weeks I have written several articles on arbitratio­n including commercial arbitratio­n based on the Arbitratio­n Act (Chapter 7:15) which incorporat­es the Model Law on arbitratio­n.

- Godknows Hofisi

IN this article, I look at an applicatio­n to set aside an arbitral award that would have been made by an arbitrator at the end of arbitral proceeding­s.

Setting aside an arbitral award

This is covered under Article 34, Applicatio­n for setting aside as exclusive recourse against an arbitral award, which is part of Chapter VII, Recourse against Award.

According to Article 34(1), recourse to a court against an arbitral award may be made only by an applicatio­n for setting aside in accordance with Article 34(2) and 34(3).

According to Article 34(2) (a) an arbitral award may be set aside by the High Court only if the party making the applicatio­n furnishes proof that:

◆ A party to the arbitratio­n agreement was under some incapacity (to act at law) or the said arbitratio­n agreement is not valid under the law to which the parties have subjected it or under the law of Zimbabwe.

◆ The party making the applicatio­n was

not given proper notice of the appointmen­t of an arbitrator or the arbitral proceeding­s or was otherwise unable to present his case; or

◆ The award deals with a dispute not contemplat­ed by or not falling within the terms of the submission to arbitratio­n, or contains decisions on matters beyond the scope of the submission to arbitratio­n, provided that the decisions on matters submitted to arbitratio­n can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitratio­n may be set aside; or

◆ the compositio­n of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties unless such agreement conflicted with a provision of this Model Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Model Law (which is part of the Act). According to Article 34(2)(b) an arbitral award may also be set aside by the High only if the High Court finds that:

◆ The subject matter of the dispute is not capable of settlement by arbitratio­n under the law of Zimbabwe. Please refer to section 4 of the Act on matters that shall not be capable of determinat­ion by arbitratio­n.

◆The award conflicts with the public policy of Zimbabwe. According to Article 34(5) it is declared that an award conflicts with the public policy of Zimbabwe if the making of the award was induced or effected by fraud or corruption or a breach of the rules of natural justice occurred in connection with the making of the award.

The frame for making applicatio­ns for setting aside

According to Article 34(3), an applicatio­n for setting aside may not be made after three months have elapsed from the date on which the party making that applicatio­n had received the award.

If a request had been made under Article 33 (Correction and interpreta­tion of award: additional award) such an applicatio­n may not be made after three months from the date on which that request had been disposed of by the arbitral tribunal.

Conclusion

The Arbitratio­n Act provides for an applicatio­n for the setting aside of an arbitral award.

Parties need to be familiar with this as an aggrieved party has recourse or may intentiona­lly mount a legal roadblock to delay realisatio­n or enforcemen­t of the award.

This simplified article is for general informatio­n purposes only and does not constitute the writer’s profession­al advice.

◆ 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 and Partners Commercial Attorneys, chartered accountant, insolvency practition­er, registered tax accountant and advises on deals and transactio­ns. He has extensive experience in industry and commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his capacity. He can be contacted at +263 772 246 900 or gohofisi@gmail.com

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