CAVENDISH UNIVERSITY ZAMBIA

ASSIGNMENT BRIEF AND FEEDBACK FORM

STUDENT NUMBER: _ 102-092, 082-487 & 095-010____

INTAKE
JAN 2024
LECTURER: ETHEL MASUMBU

SUBJECT:
ADR

PRESENTATIONS. 1

DATE HANDED OUT: 4/11/2024

DATE DUE IN: 04/11/2024

DAY/EVE/DL Distance Learning

ASSIGNMENT BRIEF

GIVEN SHOULD BE IN THIS BOX

1. GOVERNING LAW
2. THE ARBITRAL PROCESS
3. ETHICAL APPLICABLE TO ARBITRATOR/DISCLOSURE BY ARBITRATOR
4.
STUDENT INSTRUCTIONS:
This form must be attached to the front of your assignment
1. The assignment must be handed in without fail by the submission date (see assessment schedule for your
course)
2. Ensure that the submission form is date stamped by the reception staff when you hand it in
3. Late submission will not be entertained unless with prior agreement with the subject tutor
4. All assessable assignments must be word processed
ASSIGNMENT GUIDANCE
This assignment is intended to assess the student’s knowledge in all of the following areas.
However, greater emphasis should be given to those items marked with a
(Tutor: - please tick as applicable)

ASSESSABLE SKILLS Please Tick.

Good and adequate interpretation of the questions

Knowledge and application of the relevant theories

Use of relevant and practical examples to back up theories

Ability to transfer and relate subject topics to each other

Application or use of appropriate models

Evidence of library research

Knowledge of theories

Written Business English communication skills

Use of visual (graphs) communications

Self-Assessed ‘time management’

 Evidence of field research

(Administration only*)
LECTURERS FEEDBACK:
INTRODUCTION

Arbitration has been used as a method of dispute resolution for centuries, with origins dating
back to ancient times in various civilizations, including ancient Greece and Rome. Modern
arbitration law and practice have been influenced by the development of trade and commerce,
leading to the need for efficient and flexible dispute resolution mechanisms. Halsbury’s Laws of
England defines arbitration as a process used by the agreement of the parties to resolve disputes.
In arbitrations, disputes are resolved, with binding effect, by a person or persons acting in a
judicial manner in private, rather than by a national court of law that would have jurisdiction but
for the agreement of the parties to exclude it. The decision of the arbitral tribunal is usually
called an award.1 In addition, Black’s Law Dictionary defines it as “the reference of a dispute to
an impartial (third) person chosen by the parties to the dispute who agree in advance to abide by
the arbitrator’s award issued after a hearing at which both parties have an opportunity to be
heard.”2

In short, arbitration is an excellent alternative to litigation. It is a time and cost-efficient method

of resolving disputes where the parties oust the jurisdiction of the courts and instead take their
dispute to one or more third persons chosen by them—in a word, the arbitrator(s). It provides the
parties autonomy, and the proceedings are confidential in nature. It also provides for flexible
procedures to be followed, unlike litigations, that can be agreed upon between the parties.

Arbitration is a semi-judicial and more formal dispute resolution process whereby parties are
heard before a neutral decision maker known as the arbitrator. The procedure before an arbitrator
is similar to that before a court. Thus, parties may make opening statements, introduce
documents and examine witnesses under oath. However, the rules of evidence are relaxed and
hearsay evidence is often considered. Like court adjudication, arbitration involves the
presentation of proofs and arguments by the parties to the arbitrator or panel of arbitrators who
issue a binding decision known as an award3. It is an adjudicative procedure in which a tribunal

1
Halsbury’s Laws of England (5th ed, LexisNexis UK 2008), para 501.
2
Black’s Law Dictionary (5th ed., 1979).
3
See, Wetsch, Sherry, R. (2000)- In Zambia an arbitrator’s award is binding on the parties and they have limited
rights of appeal. This topic is pursued in Chapter Seven infra.
issues a ruling known as an award. A third party reviews the evidence in the case and imposes a
decision that is legally binding on both sides and enforceable in the Courts4.

MAIN BODY

1. Governing Laws;

International Arbitration is governed by the United Nations Commission on International Trade

Law (UNCITRAL) Model Law on International Commercial Arbitration, which has been
adopted by many countries with slight modifications. The UNCITRAL Arbitration Rules provide
a comprehensive set of procedural rules upon which parties may agree for the conduct of arbitral
proceedings arising out of their commercial relationship and are widely used in ad hoc
arbitrations as well as administered arbitrations. The Rules cover all aspects of the arbitral
process, providing a model arbitration clause, setting out procedural rules regarding the
appointment of arbitrators and the conduct of arbitral proceedings, and establishing rules in
relation to the form, effect and interpretation of the award. At present, there exist four different
versions of the Arbitration Rules: (i) the 1976 version; (ii) the 2010 revised version; and (iii) the
2013 version which incorporates the UNCITRAL Rules on Transparency for Treaty-based
Investor-State Arbitration and (iv) the 2021 version which incorporates the UNCITRAL
Expedited Arbitration Rules.5

The UNCITRAL Arbitration Rules were initially adopted in 1976 and have been used for the
settlement of a broad range of disputes, including disputes between private commercial parties
where no arbitral institution is involved, investor-State disputes, State-to-State disputes and
commercial disputes administered by arbitral institutions. In 2006, the Commission decided that
the UNCITRAL Arbitration Rules should be revised in order to meet changes in arbitral practice
over the last thirty years. The revision aimed at enhancing the efficiency of arbitration under the
Rules without altering the original structure of the text, its spirit or drafting style.

Article 1 of UNCITRAL Arbitration Rules states that where the parties to a contract have agreed
in writing* that disputes in relation to that contract shall be referred to arbitration under the

4
Sullivan, Arthur; Steven m. sheffrin(2003).
5
https://uncitral.un.org/en/texts/arbitration/contractualtexts/arbitration#:~:text=The%20UNCITRAL%20Arbitration
%20Rules%20provide,as%20well%20as%20administered%20arbitrations.
UNCITRAL Arbitration Rules, then such disputes shall be settled in accordance with these Rules
subject to such modification as the parties may agree in writing. 6 UNCITRAL provides a
framework for the harmonization and progressive development of international trade law,
including arbitration. International Court of Arbitration: The ICC International Court of
Arbitration is the world's leading institution for the resolution of international disputes by
arbitration.

Domestic arbitration is governed by the Arbitration Act, Chapter 40 of the Laws of Zambia 7. The
Act provides a framework for the conduct of domestic arbitrations, including the enforcement of
arbitral awards8. This Act adopted the rules of the UNCITRAL Model Law on International
Commercial Arbitration. Thus, arbitration proceedings in Zambia comply with international
standards and best practices. In accordance with the Act, parties are subject to a few mandatory
provisions and are free to determine the arbitration proceedings themselves. They usually do so
by agreeing to a pre-formulated set of rules offered by national and international arbitration
institutions. In case of disagreement to the rules, the proceedings are governed by the Act.

Domestic arbitration in Zambia is based on the principle of party autonomy. Parties are free to
agree on the arbitration process, including the appointment of arbitrators 9 and the rules governing
the arbitration. Appointment of Arbitrators: If the parties do not agree on the appointment of
arbitrators, the Act provides for the appointment by a designated authority, which is typically the
High Court of Zambia. Conduct of Arbitral Proceedings.10

The Act sets out the procedures for the conduct of arbitral proceedings, including the submission
of evidence as stipulated by section 2911, the examination of witnesses as per section 12 (1)12, and
the making of awards. Enforcement of Awards: An arbitral award made in Zambia is enforceable

6
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW Arbitration Rules
7
See section 1; This Act may be cited as the Arbitration Act.
8
See sections 14 and 16; Power to remit award and Award when filed to be enforceable as a decree
9
See section 7; Power for Court in certain cases to appoint an arbitrator, umpire or third arbitrator
10
See section 9; Power as to appointment of arbitrators where submission provides for three arbitrators
11
(1) The party seeking to enforce a foreign award must produce- (a) the original award or a copy thereof duly
authenticated in manner required by the law of the country in which it was made; and
(b) evidence proving that the award has become final; and
(c) such evidence as may be necessary to prove that the award is a foreign award and that the conditions mentioned
in paragraphs (a), (b) and (c) of subsection (1) of section twenty-eight are satisfied.
12
The Court shall issue the same processes to the parties and any witness whom the arbitrator or umpire desires to
examine, as the Court may issue in suits tried before it.
in the same manner as a judgment of the High Court. The Act provides for the enforcement of
awards through the courts, including the recognition and enforcement of foreign arbitral awards
see section 29 Effect of foreign awards13.

2. The Arbitral Process;

The arbitral process refers to the method of resolving disputes of traditional litigation by using an
arbitrator or a panel of arbitrators. Arbitration is a form of alternative resolution ADR where
parties agree to submit their dispute to one or more arbitrators who will make a binding decision
on the matter.

Below are some of the key steps in the arbitral process;

Firstly, agreement to arbitrate the parties involved in a dispute agree to submit their case to
arbitration either through a pre-existing contract such as a commercial agreement that includes
an arbitration clause or through a separate agreement to arbitrate after a dispute Arises. Like in
the case of U&M Mining Zambia Ltd vs. Konkola Copper Mines Plc. The parties agreed to the
jurisdiction of an appropriate court for the purposes of the interim protective measures. on the
basis of the anti –suit injunction obtained by the U& M was discharged.

Secondly, appointment of arbitrator; typically, each party selects an arbitrator then select a third
neutral arbitrator to form a panel. Alternatively, parties may agree on a single arbitrator. The
arbitrator must be impartial and independent.

Thirdly, preliminary hearing; the arbitrator conducts a preliminary hearing to establish the
procedural rules, timelines and other logistics of the arbitration. This includes determining the
scope of the dispute, the rules governing the arbitration and any other preliminary matters.

Then there is Exchange of information and evidence; Similar to court litigation, the parties
exchange relevant information and evidence, this process may involve document production,

13
(1) A foreign award shall, subject to the provisions of this Part, be enforceable in the Court either by action or
under the provisions of section sixteen of Part II.
(2) Any foreign award which would be enforceable under this Part shall be treated as binding for all purposes on the
persons as between whom it was made, and may accordingly be relied on by any of those persons by way of
defence, set-off or otherwise in any legal proceedings, and any references in this Part to enforcing a foreign award
shall be construed as including references to relying on an award
witness statements and export reports, and the Arbitration Act 1996 does not make any
Recommendation as to the choice of words or clauses and leaves it to the parties to express their
intention to submit their dispute to the arbitration with a suitable choice of words.

Fifthly, arbitration hearing; The parties present their case at arbitration hearings where witnesses
may testify, evidence is submitted, and legal arguments are made. Arbitration hearings are
generally less formal than court proceedings’.

Furthermore, arbitration reward- After considering the evidence and arguments presented, the
arbitrator renders a final decision known as an arbitration award. This award is usually binding
and enforceable by Law. Lastly, enforceable award -Once the award is issued .it can be enforced
in courts according to applicable laws. Arbitration awards are typically easier to enforce
internationally due to conventions such as the New York Convention.

The arbitral process offers several advantages over traditional litigation, including
confidentiality, flexibility in procedure, and the ability to select arbitrators with expertise in the
subject matter of the dispute, however arbitration also has limitations, such as potentially higher
costs and limited rights to appeal the arbitral award compared to court judgments’.

3. Ethics Applicable to Arbitrators;

Ethics can generally be understood as moral principles that control or influence a person’s
behaviour. In that sense, ethical standards for international arbitrators are those standards and
principles that guide and regulate the conduct of arbitrators in international arbitral
proceedings.
a. Impartiality and Independence: Arbitrators must be impartial and independent,
and they must disclose any circumstances that may give rise to justifiable doubts
as to their impartiality or independence. to accept the Rules applicable to the
proceedings - to be independent from the parties to the proceedings, from any
party related to them and their third party funders if any, as well as from whoever
related to them and, if the parties are legal entities, from their shareholders, their
directors, officers and employees, their advisors, consultants and counsel; to be
and to remain impartial and also not have any kind of financial or personal
 interest in the dispute or arising from its outcome; to be neutral and unbiased ; - to
have adequate knowledge of the field of the dispute; to be in a position to handle
each arbitral proceeding personally, reserving to it all the time it requires, without
delegating in any way his/her study of the matter and the drafting of the decision;
not to be a partner, associate, colleague of a party or of its counsel or of a relative
or close friend of any of them, or in any event having any economic, or
professional, or personal interest related to any of them, or working
himself/herself or any partner or associate of him/her, in the same office,
corporation, entity or activity of any of them, or having acted, himself/herself or
someone of his/her office or organisation, for his/her appointing person or legal
entity related to it.

Arbitrators must be independent from the parties to the proceedings, as well as from any party
related to them and their third-party funders, if any. They must remain impartial and neutral, with
no financial or personal interest in the dispute or its outcome. See Section 29 of the Arbitrators
Act which refers to the Judicial Code of Conduct Act.

b. Confidentiality: Arbitrators are bound by confidentiality and must not disclose

confidential information obtained during the arbitration process. Arbitrators must
keep confidential all information obtained during the arbitral proceedings, even
after the issuance of the award. They must respect the parties' right to present and
prove their case, conducting the proceedings in a manner that ensures each party
has a reasonable opportunity to do so.

c. Duty of Good Faith and Compliance: Arbitrators must comply with the general
duty of good faith and the principles set out by the Rules of Conduct of their
profession. Their acceptance of appointment as arbitrator implies acceptance of
the Code of Ethics, and they undertake to abide by it throughout their role in the
arbitral proceedings.

d. Disclosure of Conflicts of Interest: Arbitrators must make a full disclosure of

any possible conflicts of interest or interference they may have at the time of their
appointment or whenever the Court requires it. This includes disclosing any
 relevant circumstances that may give rise to doubts about their impartiality,
independence, or neutrality.

e. Professionalism and Diligence: Arbitrators are required to have adequate

knowledge of the field of the dispute and to handle each arbitral proceeding
personally, without delegating their study of the matter or the drafting of the
decision. They must act in a diligent and fair manner, conducting the proceedings
in compliance with the arbitration agreement and the Rules.

f. Cost Efficiency and Transparency: Arbitrators should cooperate to keep the

costs of the proceedings as low as possible. They should issue interlocutory
measures and expedite partial awards if necessary to ensure the efficient
resolution of the dispute. They should also be transparent in their actions and
decisions, providing reasons for their determinations and allowing for
amendments to the claims and the production of new documents unless they cause
substantial delays.

g. Accountability and Ethical Conduct: Arbitrators are accountable for any

breaches of their ethical duties, which may lead to their removal from the
arbitration. They should act ethically and responsibly, with the intention of
serving the parties' rights and ensuring a fair and just resolution of the dispute.

These ethical codes are designed to maintain the integrity and credibility of the arbitral process,
ensuring that arbitrators uphold the highest standards of professionalism and fairness in their
role. The ethical codes for arbitrators appointed in arbitral proceedings are comprehensive and
detailed. They mandate that arbitrators comply not only with the general duty of good faith but
also with the specific principles outlined in the Rules of Conduct of their profession and the
Code of Ethics. These principles emphasize the importance of impartiality, independence, and
neutrality, requiring arbitrators to disclose any possible conflicts of interest and to refrain from
any financial or personal interest in the dispute. Arbitrators must also have adequate knowledge
of the field of the dispute and handle each arbitral proceeding personally, without delegating
their tasks. Additionally, they are expected to conduct proceedings diligently and fairly,
respecting the rights of the parties and ensuring that each party has a reasonable opportunity to
present and prove their case. Arbitrators are also encouraged to promote settlement or mediation,
prioritize the intention of the parties over literal wording, and ensure that their decisions are
enforceable and in line with the applicable law or principles agreed upon by the parties. Failure
to adhere to these ethical standards may result in removal from the arbitration proceedings,
highlighting the importance of ethical conduct and accountability in the arbitration process.

CONCLUSION

In conclusion, arbitration is a valuable alternative to traditional litigation for resolving disputes,

offering advantages such as efficiency, autonomy, and confidentiality. It has a long history
dating back to ancient civilizations and has evolved to become a widely accepted method of
dispute resolution. The governing laws of arbitration, both internationally and domestically,
provide a framework for the conduct of arbitral proceedings, ensuring that they comply with
international standards and best practices. The arbitral process involves several key steps,
including agreement to arbitrate, appointment of arbitrators, preliminary hearing, exchange of
information and evidence, arbitration hearing, arbitration award, and enforcement of the award.
Arbitrators are held to high ethical standards, including impartiality, independence,
confidentiality, professionalism, and accountability, to ensure the integrity and credibility of the
arbitral process. Overall, arbitration continues to play a vital role in the modern legal landscape,
offering parties an effective and efficient means of resolving disputes.
REFERENCES.

 Case Authority

 U&M Mining Zambia Ltd vs. Konkola Copper Mines Plc

 List of Acts of Parliament

 Arbitration Act, Chapter 40 of the Laws of Zambia

 List of Books

 Black’s Law Dictionary (5th ed., 1979).

 Halsbury’s Laws of England (5th ed, LexisNexis UK 2008), para 501.

 Sullivan, Arthur; Steven m. sheffrin(2003).

 Wetsch, Sherry, R. (2000)- In Zambia an arbitrator’s award is binding on the

parties and they have limited rights of appeal.

 List of International Treaties

 European Court of Arbitration (the Rules) Arbitrators’ Code of Ethics

 The Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(New York Convention)

 United Nations Commission On International Trade Law Arbitration Rules

 Online references
 https://uncitral.un.org/en/texts/arbitration/contractualtexts/arbitration#:~:text=The
%20UNCITRAL%20Arbitration%20Rules%20provide,as%20well%20as
%20administered%20arbitrations