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.
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