Enforcement of foreign arbitration awards under the laws of Zimbabwe

Nyasha Brighton Munyuru
Muvingi & Mugadza, Harare
​​​​​​​munyuru@mmmlawfirm.co.zw

Introduction

The hallmark of any effective process is the enforcement of its results. Therefore, the enforceability of arbitral awards in any jurisdiction marks an essential feature of arbitration. Zimbabwe has established mechanisms to ensure that parties can successfully register and enforce foreign awards in the jurisdiction. Given the paradigm shift towards arbitration as the preferred form of settling cross-border commercial disputes, information concerning the enforcement of arbitration awards under Zimbabwean laws has become a critical area for discussion.

The Government of Zimbabwe acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention or the Convention) on 29 September 1994. The Convention requires courts of contracting states to enforce private agreements to arbitrate and, subject to the inclusion of any reservations, recognise and enforce arbitration awards made in the other contracting states. This move is commendable and goes a long way in assisting in the settlement of disputes.

Zimbabwe ratified and enacted the New York Convention through the Zimbabwean Arbitration Act [Chapter 7:15] (the ZAA), which governs arbitration in Zimbabwe and largely mirrors the UNCITRAL Model Law on International Commercial Arbitration (the Model Law).

The recognition and enforcement of foreign awards

Chapter VIII of the ZAA, which replicates Articles 35 and 36 of the Model Law, provide for the recognition and enforcement of foreign arbitration awards. Under Article 35(1), the Zimbabwean High Court will recognise and, upon a written application, enforce a foreign arbitral award unless the provisions under Article 36 (grounds for refusing recognition and enforcement) are engaged. It is commendable that the laws of Zimbabwe recognise arbitral awards regardless of the country from which they originate. This clause is very comforting for all proponents of arbitration as a form of alternative dispute resolution.

Enforcement procedure

Article 35(2) of the ZAA dispenses with the double exequatur requirement. The party applying for the award’s enforcement need only provide the authenticated original award and the original arbitration agreement or duly certified copies of the award and agreement. The law also requires a translation of the award if the arbitral tribunal issued it in a foreign language.

The party seeking enforcement of the foreign does so through a court application on notice to the other party. The High Court Rules of 1971 guide the application form. The enforcing party issues the application through a notice supported by an affidavit establishing the cause of action.

As alluded to above, the deponent must attach the originals or certified copies of the arbitration agreement and arbitral award. The application notice must give ten days’ notice to the Respondent and any other interested parties to oppose the registration of the award. The courts in Zimbabwe have defined ‘interested party’ as a party who has a direct and substantial interest in the subject matter and outcome of the application.[1] Failing such opposition, the Court will enrol the matter on the unopposed motion roll.

However, if the matter is opposed, the respondent or any other interested party must file notice of opposition, coupled with an affidavit setting out grounds for opposition within ten days of service of the application upon them. After receiving the notice of opposition , the applicant may elect to file its answering affidavit and heads of argument. After that, the party applying for enforcement files the necessary answering affidavit, the matter is set down, and the court will hand down a judgement after hearing arguments from the parties.

The party wishing to enforce the award has a period of one year from the making of the award to enforce it in Zimbabwe; beyond this, the party will not enforce it in Zimbabwe through registration with the High Court as explained above.

The enforcement process generally takes less than six months from making the application for registration to the time of issuance of the writ of execution. The ZAA affords the court the discretion to order an applicant in enforcement procedure to provide security costs for the respondent if the respondent succeeds in opposing the registration of the foreign arbitral award.

Grounds for refusing recognition or enforcement of foreign awards

However, despite recognising arbitral awards from all jurisdictions, Article 36 of the ZAA sets out the circumstances under which the Zimbabwean Court will refuse the awards recognition or enforcement. Primarily, the court may refuse recognition or enforcement where the party resisting the award's enforcement proves one or more of the following grounds.

Invalid arbitration agreements

Similar to Article V(1)(a) of the New York Convention, Article 36(1)(a)(i) of the ZAA gives the court discretion to refuse a foreign award’s recognition or enforcement if the arbitration agreement is invalid because:

• the parties could not conclude it under the law applicable to each of them; or
• the agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the country’s law under which the tribunal made the award.

Improper notification of the arbitral proceedings

Article 36(1)(a)(ii) of the ZAA establishes that the court may refuse recognition or enforcement if the party against whom the award is invoked was not properly notified of the arbitrators’ appointment or the arbitral proceedings or was otherwise unable to present its case in the arbitration.

Resolution of issues not contemplated by the arbitration agreement

Article 36(1)(a)(iii) of the ZAA provides that the Court may refuse recognition or enforcement if the award:

• deals with a dispute that the arbitration agreement neither contemplates nor accommodates; or
• contains decisions that are outside the agreement’s scope.

Nevertheless, the Act addresses the possibility of partial enforcement of an award covering issues stipulated in the arbitration agreement and those that are not, enabling recognition and enforcement of the former.

Irregularity in the arbitral tribunal or procedure

According to Article 36(1)(a)(iv) of the ZAA, the court may refuse recognition or enforcement where:

• the arbitral tribunal’s composition or the arbitral procedure did not accord with the agreement of the parties, or
• in the absence of such an agreement, the law of the country where the arbitration took place.

Non-binding, annulled or suspended awards

Article 36(1)(a)(v) of the ZAA provides that the court may refuse recognition or enforcement if the award:

• has not yet become binding on the parties;
• has been set aside; or
• has been suspended by the competent authority of the state in which, or under the law of which, the award was issued.

Non-arbitability

Article 32(1)(b)(i) of the ZAA provides that the court may refuse recognition or enforcement of an award where the dispute’s subject cannot be settled through arbitration under Zimbabwean law.

Violation of public policy

Under Article 32(1)(b)(ii) of the ZAA, the court may, of its own volition, refuse recognition or enforcement of an award that contains provisions contrary to Zimbabwean public policy.

Conclusion

It is important to note that the enforcement procedure is clear cut, and the courts in Zimbabwe have been reluctant to block the registration of foreign awards in the jurisdiction. The courts have consistently held that the registration process is a procedural issue, and they rarely interfere with the award unless it affects matters relating to public policy.

In conclusion, it must be stated that this acceptance by Zimbabwe to allow the registration of foreign awards is an important step and contributes positively to the embracing of arbitration in the settlement of disputes.