An analysis of the role of the Court in the arbitral process in Zambia
Mwala, Mwangala I
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Arbitration is the reference of a dispute by voluntary agreement of the parties to an impartial person for determination, which parties agree in advance to accept the decision of the arbitrator as final and binding. Arbitration enables parties to resolve their disputes without having recourse to the courts. This study was undertaken to analyse the role of the court in the arbitral process in Zambia. The objectives of the study were to examine the various forms of alternative dispute resolution mechanisms with emphasis on arbitration, to examine the instances when recourse can be had to the courts in arbitration, to determine the negative consequences that may flow from the relationship between the court and the arbitral process such as the courts interfering in the arbitral process and to provide a viable solution to the interference of the courts in arbitral matters, i f any, as well as any other negative consequences that may flow from the relationship between the courts and the arbitral process. The data was collected by way of desk research namely written sources and through field investigation by way of interviews. From the research, it was observed that arbitration is the most formalised and important form of ADR in Zambia,and that the court plays a complementary role in the arbitral process. It was also noted that the Arbitration Act No. 19 of 2000 and the UNCITRAL Model Law enumerate the circumstances under which the court can intervene in the arbitral process and that i f the court intervened in a manner not stipulated by the Arbitration Act or Model Law, this would amount to interference with the arbitral process. However, it was discovered that the Arbitration Act and the Model Law are tailored in such a matter that the court cannot interfere in the arbitral process. It was also noted that in order to set aside or enforce an arbitral award, parties have to apply to the High Court which entails that such cases have to join the backlog of cases already before the courts. This defeats the rationale behind ADR which is to relieve the courts of the heavy load of cases as well as to provide litigants with a quicker and cheaper method of resolving their disputes. In this regard, one of the recommendations was that the court should devise a system whereby arbitral matters taken before the courts do not have to join the backlog of cases such as making it mandatory for such cases to be registered on the commercial cause list as most arbitral matters in Zambia are commercial in nature. Another solution would be for such matters to be heard in Chambers. Other recommendations were that there is need for legal reform in the area of arbitration on a regular basis and there is also need for legal training as most lawyers and judges in Zambia are not knowledgeable of the law of arbitration.
- Law