Hilary Muza 
THERE are various methods that exist to facilitate the settlement of legal disputes between people, and these vary from the commonly known litigation, to arbitration and less known and applied procedures of conciliation and arbitration. 
With the prevailing bottlenecks and unreliability of our courts due to various shortcomings that are dogging them, arbitration is a process that can offer an efficient and prompt settlement of disputes. It is the aim of this contribution, to discuss this important method of solving disputes.
Some legal authorities have labelled arbitration as “privatised litigation” because it is a consensual process initiated by the contesting parties.
Unlike litigation, which can drag one into willingly or unwillingly, arbitration can only commence if the parties have expressly agreed to such a process.
There are fundamental differences between arbitration and litigation. Other than the one distinction identified above relating to the issue of consent, in an arbitration, the parties are free to determine the procedure to be used. With litigation, the appointment of the judge who will hear the case is out of the hands of the parties, whereas in the case of arbitration, the parties are free to choose their arbitrator or arbitrators.
Other more subtle differences also exist. Whereas, the successful party can take a decision of a court with which he is dissatisfied on appeal, the award of an arbitrator is final. Such a decision can only be taken for review in the formal courts, which procedure is materially different from the appeal process. With reference to the law of procedure in its widest sense, it appears that an arbitrator is not obliged to apply the law of evidence unless the arbitration agreement provides otherwise. However, he must observe the common rules of natural justice and the Arbitration Act No. 6 of 1995 (“the Act”).
An arbitral process provides a number of advantages to litigation and the uppermost is the privacy of the proceedings, which are not susceptible to public scrutiny through publication and the other which is the appointment of an arbitrator with specialised knowledge in the area of dispute. Since arbitration is less formal, it also ensures at times saving in time and costs. Furthermore, and as observed above, the arbitrator’s award is final and binding on the parties.
This noble dispute resolution process is governed by the Act which repealed the old Arbitration Act of the colonial era. The Act incorporates what is called a Model Law of the International Commercial Arbitration, which was adopted by the United Nations Tarde Law in 1985.
According to the Act, parties may submit to arbitration any dispute for as long as such dispute shall not be:
• Contrary to public policy; or
• A criminal case; or
• A matrimonial case or matter relating to status; or
• A matter affecting the interest of a minor; or
• A matter concerning a consumer contract as defined in the Consumer Contracts Act.
The Act states that an arbitration agreement shall be in writing. This agreement shall include-a document signed by both parties, or in an exchange of letters, telex, telegrams, or other means of communication like telefax or email.
It must be observed that a clause in any other contract providing for arbitration shall be sufficient proof such as to make that clause part of the contract of arbitration.
The parties are free to determine the number of arbitrators, and where there is no agreement as to the composition of the tribunal, the maximum number of arbitrators shall be one.
No person shall be precluded by reason of his nationality from acting as an arbitrator. The parties may however agree about placing restrictions on the nationality of the arbiter.
The arbitrator is encouraged to be alert to the rigorous procedural tactics that may be taken advantage of by legal representatives. As such, his crucial role is to exercise his powers flexibly but with robustness to ensure that the arbitration will proceed in an expeditious and cost effective manner.
It appears the Act is silent about legal representation of the parties, but be that as it may, such an issue will best be left to the agreement of the parties, such that where parties consent to non-representation, then no party shall be heard to protest about the issue of legal assistance.
There are specifically laid down grounds upon which a party may rely to have an arbitrator’s award set aside. These are additional grounds for review to those found in the High Court Act. An arbitral award may upon a review in the High Court be set aside if a party furnishes proof among other things, that a party to the proceedings was under some incapacity; or that the said agreement was invalid under the law. Further, where a party was not given proper notice of the appointment of the arbitrator, or of the proceedings, or was unable to present his case, then the award may be set aside. Where the High Court finds that the subject matter of the dispute is not capable of settlement by arbitration under the Zimbabwean law, or the award is in conflict with the public policy of Zimbabwe, then again it can set aside the award.
An application for setting aside an award may not be made after three months have lapsed from the date the aggrieved party received the award.
Arbitration is common in serious commercial disputes and as observed, it provides an easier and quicker resolution of disputes than litigation. It is hoped that individuals, both natural and artificial, with outstanding disputes or who might have disputes will in future choose arbitration as a dispute resolution process. There is need for people to be alerted to the convenience of this valuable process.
