Enforcement of arbitral awards and its effectiveness in the Zimbabwe mining sector

Abstract

Study examined the arbitral awards enforcement and its effectiveness in the mining sector in Zimbabwe with a view to produce a model framework for the effective enforcement of arbitration awards. The study was motivated by the rampant disputes in the Zimbabwean mining sector which have threatened production and output in the sector. Highly publicised cases on the enforcement of arbitral awards in Zimbabwe had cast a negative picture of the aspect thereby casting doubt on the utility of arbitration which is evidently a preferred alternative dispute resolution method. The study was a desk study that made use of secondary data. Findings showed that Zimbabwe has adopted the UNCITRAL Model Law which has been appended to the Arbitration Act [Chapter 7:15]. Expectedly, Chapter VIII of the Arbitration Act [Chapter 7:15] is a replica of the Article 35 and 36 of the Model Law and provides for both recognition and enforcement of foreign arbitral awards. The judiciary is important in the enforcement of arbitral awards and Article 35(1) allows national courts to recognise and enforce arbitral awards subject to lack of any grounds for refusal or engagement of the same. The procedure for seeking enforcement as per Article 35 of the ZAA is standardised with processes like applying through courts being in place. There are however challenges relating to the onerous and time-consuming nature of the court procedures when seeking arbitration. The limited array of enforcement options exacerbates the challenges. The study further showed that arbitral award enforcement procedure can be simplified through removal of certain processes like the requirement of notifying parties when applying to courts based on Article 35(2). Further, despite adoption of the Model law, enforcement can be made effective in the mining sector by incorporating local realities thereby coming up with a model tailored to the Zimbabwean context. Courts can also embrace digital technologies and other ICTs in order to quicken the process of enforcement by cutting down the processing times as well as allowing for cost effective enforcement.