Injunctive relief as a remedy under arbitration law in Zambia
Date
2013-04-15
Authors
Ndulo, Mutinta Kaumbi
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Abstract
The concept of arbitration is not a new occurrence; its genesis can be traced as far back as the medieval times and has carefully evolved for the proper administration of justice. Arbitration is a method of Alternative Dispute Resolution (ADR) and is highly preferred to other forms of dispute resolution. Under the law on arbitration, there a number of remedies available to
the parties to an arbitral process. One of the remedies available to the parties is the remedy of injunctive relief The purpose of this research was to illustrate the effects of the court's power to grant injunctive relief during arbitration. This research primarily involved desk research and field research which entailed interviews with judges, advocates and scholars. This paper
first introduced the concept of arbitration and brought the problem of court ordered
injunctions into perspective. The granting of injunctions in both arbitration and litigation was discussed and this paper further illustrated that the principles of granting injunctions under both methods of dispute resolution are the same. This research further analysed the legislation
on arbitration from different jurisdictions and a comparison was made with Zambia. From the analysis and comparison made it was shown that most of the jurisdictions analysed allow for court intervention in the arbitral process with the exception of Sweden which leans towards non-judicial participation in the arbitral process until after the arbitral process is done.In addition, the case of Friday Mwamba v Derrick Chekwe and case law from other
jurisdictions was analysed thereby illustrating the effects of giving the courts power to grant injunctive relief It was found that these effects include; the courts treading into the main issue, the lack of confidentiality once the court interferes as rulings on injunctions are made
available without need for consent from the parties and the delays in arbitration due to the numerous applications to court. The research concluded by illustrating that there is need to adhere to the rationale of arbitration by restricting court intervention to the end of the arbitral
process. This research further outlined some recommendations which can prevent the courts
from intervening in the arbitral process by way of injunctive relief These recommendations include; the creation of a legal infrastructure which clearly spells out the arbitrators powers, the restriction of the courts powers to the end of the arbitral process, the introduction of a
supervisory judge to give guidance during the proceedings, education and training of
arbitrators and the inclusion of the arbitrators powers to grant injunctions in the arbitration agreement.
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Keywords
Labour Injunction , Injunctions---Zambia