1. ARBITRATION PROCEEDINGS IN ZIMBABWE

HISTORICAL BACKGROUND OF ARBITRATION IN ZIMBABWE
(i) Zimbabwe’s history of arbitration can be traced back through British annexation, occupation and later colonization, during which period the British introduced their own legal system.
(ii) That first occurred in 1889 when Southern Rhodesia became a Protectorate with the incorporation of the British South African Company (BSAC) through a Royal Charter in 1923 the territory became a British Colony.
(iii) The first statute on arbitration law to be enacted in the Colony of Southern Rhodesia was the Arbitration Act [Chapter 7:02] which was a colonial enactment promulgated as early as 1928.
(iv) Overtime, minor amendments were made to the Arbitration Act – for instance in 1938, 1964, 1971. It is important to emphasize that the present Arbitration law in Zimbabwe did not change the common law principles applicable to arbitration in Zimbabwe, instead it provided an improved and more efficient means of having disputes submitted to arbitration.

INTRODUCTION and DEFINITION
(i) Arbitration fundamentally involves resolving disputes outside the traditional court system and the definition is non- judicial procedure for resolving disputes. It is a flexible and consensual means by which parties can resolve their disputes through a binding and enforceable process. [i]
(ii) The decision to arbitrate is subject to the party’s agreement, commonly incorporated into the contract.
(iii) Arbitration is a private and consensual method of dispute resolution in which disputants agree to submit their disputes to a neutral party for a final award which will be binding upon parties.

TYPES OF ARBITRATION
(i) Arbitration has commonly classified into types – institutional, ad hoc, Statutory arbitration semi administered and in two categories Domestic and International.
(ii) Institutional Arbitration is where the parties designate a specialized arbitral institution to administer the resolution of their disputes. Each institution has its own set of rules that provide a procedural framework. The parties specify in their agreement that their disputes should be determined under a set of rules of a selected arbitral institution.
(iii) Ad hoc, the arbitration, the arbitration is not administered by an arbitral institution and the parties are free to agree on the applicable procedure of their choice. They may adopt an internationally accepted set of arbitration rules, however where the parties agree no procedural rules the arbitral tribunal will administer the arbitration as it deems fit.
(iv) Statutory Arbitration, it is derived from statute. Here the arbitral tribunal exercises public power as opposed to power being inherently derived from the parties. In Zimbabwe, the Labour Act [Chapter 28:01] provides for compulsory arbitration, the Labour Officer. As the case may be determined by the arbitrator’s terms of reference after consultation with parties to the dispute
(v) Semi administered arbitration, a semi administered arbitration is one of in which an arbitral tribunal and then it leaves it to the tribunal to communicate with the parties to make further arrangements. Most arbitrations conducted in Zimbabwe are semi-administered. There are two tribunal institutions in Zimbabwe: Harare Commercial Arbitration Centre (CAC) and the Africa Institute of Mediation and Arbitration.

CATEGORIES  
(i) Domestic Arbitration – is between persons residing or doing business in the same country. All aspects of the arbitration proceedings are related to a single jurisdiction. Both Parties are nationals of or reside in one state, and the contract is subject to being performed in the same country and subject to the local statute.
(ii) International Arbitration – an arbitration is considered international if the dispute concerns cross border commercial activity because parties to the arbitration agreement reside in different countries or are of a different nationality, or where the subject matter relates to more than one country.

MATTERS NOT CAPABLE OF DETERMINATION BY ARBITRATION:
(i) An agreement that is contrary to public policy
(ii) A dispute which in terms of any law, may not be determined by arbitration
(iii) A criminal case
(iv) A matrimonial cause or matter relating to status, unless the High Court gives leave for it to be determined by arbitration
(v) A matter affecting the interests of a minor or an individual under a legal disability, unless the High Court gives leave or it to be determined by arbitration

COMMERCIAL ARBITRATION
(i) Since the introduction of the new Arbitration Act, the use of arbitration as an ADRM has gained momentum. Most commercial contracts now contain an arbitration clause in terms of which the parties choose arbitration as their preferred method of resolving any existing or future dispute between then arising out of the contract.
(ii) Most contracts nominate the Commercial Arbitration Centre (CAC) in Harare as the appointing authority in the event that the parties as unable to agree on an arbitrator.
(iii) Commercial Arbitration is an internationally recognized dispute –resolution mechanism (often business do not realize the need for arbitration) to resolve disputes between parties, particularly commercial entities.
(iv) It is an alternative dispute-resolution process that deals with complicated situations in non-confrontational ways and in a manner that eliminates emotional considerations. Arbitration has always had a vital role to play in oiling the wheels of commerce and industry. Parties to cross-border contracts, for instance wish to avoid their respective courts generally prefer to have their disputes resolved by specialist arbitrators rather than generalist judgments[ii]

ARBITRATION AGREEMENT
(i) Article 7 of the Schedule of Arbitration Act [Chapter 7:15] provides:

An arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which may have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An Arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

COMMENCEMENT OF ARBITRATION
(i) The arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Article 3 of the United Nations Commission on Trade Law(UNCITRAL) Arbitration Rules (as revised in 2010) provides that the notice of arbitration shall include the following:
– A demand that the dispute be referred to arbitration
– The names and contact details of parties
– Identification of the arbitration agreement that is invoked
– A brief description of the relevant relationship

APPOINTMENT
(i) Article 11 of the Model Law in the Schedule to the Arbitration Act provides for the appointment of arbitrators: ‘the parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraph s 4 and 5 of the article.
(ii) Where the parties enter into a contract that contains an arbitration clause they can in their arbitration agreement, set out how the arbitrator will be appointed in the event of a dispute. The Arbitration agreement is the basic source of an arbitrator’s jurisdiction

ARBITRATOR’S POWERS
(i) The powers of an arbitrator are discretionary; they define the maximum that the arbitrator can compel the parties to do. These powers suggest three limitations
– The terms of the arbitration agreement
– The provisions of the Arbitration Act
– The obligation to observe the rules of natural justice

ARBITRATOR’S FEES
(i) Arbitrators resolve disputes impartially at the instance of parties to an arbitration agreement. To fulfil their mandate, heavy demands are placed on their time, expertise and experience. The role they play is an important one they dispense justice and help to reduce the court’s workload. Most arbitrators are professionals or business people who set aside time from their busy schedules in order to conduct the arbitral proceedings. They must therefore be appropriately remunerated for their professional services. There is however no scale or tariff for the arbitrator’s fees. Consequently, how an arbitrator will be remunerated is a matter of discussion between the arbitrator and the parties.

(ii) However, most arbitrators are in Zimbabwe are senior practicing lawyers and a few retired judges who use the Law Society of Zimbabwe (LSZ) tariff when fixing and determining their fees.

PRELIMARY HEARING
The first action of a newly appointed arbitrator, after they have notified the parties of the acceptance of their appointment, will be to convene a preliminary hearing.

The purpose of such a meeting would be to determine, the procedure and the rules to be followed to bring the matter to a hearing the form of the hearing itself, the arrangements concerning the date and the venue of the hearing.

HEARING
A hearing is the procedure in which each party in turn presents to the arbitrator their evidence of the fact in support of their case and their arguments based on these facts why the arbitrator should grant their claim or reject their opponent’s. the hearing takes place after the closure of pleadings.

The pleadings in arbitration take the following form and sequence.
(a) The Claimant files with the arbitrator and serves the respondent with their Statement of Claim, in which they state the facts supporting their claim, the points at issue and the relief or remedy sought.
(b) The Respondent files with the Arbitrator and serves the Claimant with their Statement of Defence in which they deal with each averment or allegation in the claimant’s statement of claim stating that they admit or deny it.
(c) If the respondent has a counter claim they should file this with the arbitrator and serve same on the claimant together with their Statement of Defence.
(d) The Respondent upon receipt of the claimant’s response to their counter-claim respond by way of a Replication in which they comment on each and every allegation by the claimant and state whether they deny or accept.

AWARDS
Arbitrators do not deliver a judgment; they render an award. The word award is not defined in the Arbitration Act, as there is no internationally or universally accepted definition of the term. According to Butler and Finsen’

The award is the consummation of the arbitration proceedings. The Arbitrator has heard each party’s version of the facts in dispute and his arguments why his case ought to be upheld ad that of his opponent dismissed. The arbitrator must now reconcile the conflicting allegations of the fact and resolve the differing points of view and so decide the issues before him. He must the convert his decision in writing by means of a document known as an award.  

THE PLACE OF ARBITRATION IN TRANSBOUNDARY DISPUTES: A COMPARATIVE ANALYSIS OF KENYA

1.1 INTRODUCTION
In an increasingly interconnected world, transboundary disputes have become a common feature of international relations particularly in Africa, where borders often cut across shared natural resources, infrastructure projects, trade routes, and investment interests. As regional integration deepens through frameworks such as the African Continental Free Trade Area (AfCFTA), the East African Community (EAC), and the Southern African Development Community (SADC), the potential for inter-state and cross-border disputes grows.

Traditional state-to-state diplomacy, litigation, and political negotiation have long served as tools for resolving these disputes. However, arbitration characterized by neutrality, confidentiality, flexibility, and enforceability has emerged as a viable and preferred mechanism for managing transboundary disagreements, particularly in commercial and investment matters.

This article explores the evolving place of arbitration in transboundary disputes, with a comparative analysis between Kenya and Zimbabwe. Both countries have adopted the UNCITRAL Model Law, are parties to the New York Convention, and have gradually developed local institutional frameworks to support arbitration. However, the pace, structure, and effectiveness of these developments vary.

By examining each country’s legal framework, institutional infrastructure, judicial attitude, and real-world application of arbitration in cross-border disputes, this article aims to illuminate Africa’s broader readiness to embrace arbitration as a sustainable tool for regional peace, economic growth, and legal certainty.

Arbitration has emerged as a pivotal alternative dispute resolution (ADR) mechanism in Kenya, offering parties an effective means to resolve disputes outside of traditional court litigation. This article explores the definition, advantages, legal framework, and scope of arbitration in Kenya.

1.2 What is Arbitration?
Arbitration is a private and voluntary process in which parties to a dispute agree to submit their conflict to one or more neutral third parties, called arbitrators, for resolution. The arbitrator(s), who are often experts in the subject matter of the dispute, hear both sides and render a binding decision known as an award. The decision in arbitration is final and can be enforced by the courts, making arbitration a powerful tool for conflict resolution.

Unlike court litigation, which takes place in public, arbitration is typically confidential. This confidentiality is particularly beneficial for commercial parties who wish to protect sensitive business information from public exposure.

1.3 Advantages of Arbitration
Arbitration has several advantages over traditional litigation, making it an appealing choice for resolving disputes. These benefits include:

(i) Flexibility and Control:
Arbitration allows parties to design a process that suits their needs. They can agree on timelines, procedural rules, and even the language of the proceedings. This level of flexibility ensures that the process is efficient and tailored to the specific nature of the dispute. The parties also have the power to choose the arbitrators based on their expertise, which can enhance the fairness and quality of the resolution.

(ii) Speed and Efficiency:
One of the key benefits of arbitration is its generally quicker resolution compared to court proceedings. Court cases in Kenya can take years to reach a final decision due to case backlogs and procedural complexities. Arbitration, on the other hand, tends to be faster because of the streamlined process and fewer formalities. For parties seeking a timely resolution, this efficiency can be a significant advantage.

(iii) Expertise:
In arbitration, the parties are free to select arbitrators with specific expertise in the area of dispute, such as construction, banking, intellectual property, or trade. This ensures that the decision-maker has the necessary knowledge and understanding of the subject matter, which is not always the case in traditional court litigation.

(iv) Confidentiality:
Arbitration proceedings are generally held in private, and the details of the dispute and the award can be kept confidential. This is particularly advantageous in commercial disputes where public exposure could harm the reputations of the parties involved or reveal sensitive business information. The confidentiality of arbitration proceedings makes it an attractive option for companies wishing to resolve disputes discreetly.

(v) Enforceability:
Arbitration awards are enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to which Kenya is a signatory. This treaty allows for the recognition and enforcement of arbitration awards across more than 160 countries, making it an essential tool for international business and cross-border disputes. This international enforceability ensures that an arbitration award is not only binding in Kenya but also in jurisdictions where the losing party has assets.

(vi) Finality:
Arbitration is designed to provide a final and binding decision. There are limited grounds for appealing an arbitration award, which enhances the finality and certainty of the resolution. This is in contrast to court decisions, which can be appealed and prolonged for years, causing additional legal costs and uncertainty for the parties.

1.4 LEGAL FRAMEWORK GOVERNING ARBITRATION IN KENYA
Kenya’s arbitration regime is largely anchored in the Constitution of Kenya, 2010 and the Arbitration Act, No. 4 of 1995, as amended in 2009. The Act is modeled on the UNCITRAL Model Law and provides a comprehensive legal framework for both domestic and international arbitration. Kenya ratified the New York Convention in 1989, ensuring recognition and enforcement of foreign arbitral awards.

Institutionally, Kenya boasts the Nairobi Centre for International Arbitration (NCIA), established under the NCIA Act, 2013, which provides administrative support for international and cross-border arbitration. Kenya also benefits from a constitutionally grounded recognition of ADR under Article 159(2)(c) of the Constitution of Kenya, 2010, which obligates courts to promote arbitration and other out-of-court mechanisms.

These legal instruments and institutions make Kenya well-positioned to handle transboundary disputes, especially those arising from cross-border trade, environmental management, and regional infrastructure.

In Kenya, arbitration is governed primarily by the Constitution of Kenya and the Arbitration Act, No. 4 of 1995 (revised in 2020). This legislation provides a robust legal framework that supports the arbitration process and ensures its enforceability both within Kenya and internationally.

(a) The Constitution of Kenya
Article 159(2)(c) expressly provides that:

“Alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3).”

This clause is the bedrock of constitutional recognition of arbitration and other ADR methods. It affirms that arbitration is not only legally valid but is a constitutionally enshrined method of dispute resolution, equal in dignity and legitimacy to court-based adjudication.

The phrase “shall be promoted” imposes a positive obligation on all arms of government, including the Judiciary, to encourage and facilitate the use of arbitration where appropriate.

(b) Arbitration Act
(i) Scope and Application of the Act
The Arbitration Act applies to both domestic and international arbitrations, unless expressly excluded by agreement of the parties. Under Section 3, the Act defines a “domestic arbitration” based on the nationality, residence, or incorporation of the parties, or the location of performance of the underlying contract. Conversely, arbitration is considered “international” where the parties have their places of business in different states, or where the subject matter of the dispute involves multiple jurisdictions.

The Act is applicable whether the arbitration is administered by an institution or conducted ad hoc, and whether it arises out of contractual or non-contractual legal relationships—provided there is a valid arbitration agreement in writing, as required under Section 4.

(ii) The Arbitration Agreement
A valid arbitration process must be grounded on an enforceable arbitration agreement. According to Section 4, such an agreement must be in writing and may take the form of a stand-alone contract, a clause within a broader agreement, or even an exchange of electronic communication or pleadings that implies mutual consent. This broad definition reflects the flexibility and adaptability of arbitration in commercial practice.

(iii) Court Intervention and Judicial Support
A fundamental tenet of the Act is the principle of minimal judicial intervention, codified under Section 10. Courts may not intervene in arbitration proceedings except as expressly provided in the Act. Nevertheless, judicial support is permitted where necessary. Under Section 7, the High Court may grant interim protective measures either before or during the arbitral proceedings. Further, where court proceedings are instituted in breach of a valid arbitration agreement, the court is obliged to stay the proceedings and refer the matter to arbitration, as provided under Section 6.

(iv) Appointment, Challenge, and Jurisdiction of Arbitrators
The Act vests parties with considerable autonomy in selecting their arbitral tribunal. Sections 11 and 12 allow parties to agree on the number and method of appointing arbitrators. Where no such agreement exists, the Act provides default mechanisms and empowers the High Court to intervene in certain limited cases.

To ensure impartiality, Section 13 imposes a continuing obligation on arbitrators to disclose any circumstances that may give rise to doubts as to their independence or neutrality. The procedure for challenging or removing an arbitrator is detailed in Sections 14 to 16, with the final determination lying with the High Court, whose decision is conclusive.

The principle of competence-competence, enshrined in Section 17, allows the arbitral tribunal to rule on its own jurisdiction, including challenges to the existence or validity of the arbitration agreement. The doctrine of separability is also recognised, ensuring that the invalidity of the main contract does not automatically render the arbitration clause void.

(v) Conduct of Arbitral Proceedings
The Act gives parties considerable flexibility in determining the rules governing their proceedings. In the absence of agreement, the tribunal may conduct the arbitration as it deems appropriate, provided that both parties are treated equally and given a fair opportunity to present their case, as required under Section 19.

Procedural aspects such as the seat of arbitration (Section 21), commencement of proceedings (Section 22), language of the arbitration (Section 23), submission of pleadings (Section 24), and treatment of party default (Section 26) are all governed by Part IV of the Act. The Act also allows the tribunal to appoint experts (Section 27) and, with the tribunal’s permission, to seek court assistance in taking evidence.

(vi) Arbitral Awards and Finality
Upon hearing the matter, the tribunal issues a final and binding award. The substantive and procedural requirements for such an award are set out in Sections 29 to 32. The award must be in writing, signed, dated, and must indicate the seat of arbitration. It must also provide reasons unless the parties agree otherwise.

The finality of arbitral awards is affirmed under Section 32A, and the tribunal is authorized to award costs and interest under Sections 32B and 32C. Where necessary, the tribunal may correct, clarify, or supplement the award through Section 34.

(vii) Setting Aside an Award
The only recourse against an arbitral award under Kenyan law is an application to the High Court to set it aside. The grounds for setting aside, listed under Section 35, are narrowly defined and include incapacity, invalid arbitration agreement, lack of notice, inability to present one’s case, ultra vires decisions, and public policy violations. An application must be made within three months of receiving the award, and courts are encouraged to allow the tribunal to cure defects where appropriate.

(viii) Recognition and Enforcement of Awards
The Act also makes provision for the recognition and enforcement of both domestic and foreign arbitral awards. Section 36 provides that such awards are enforceable through the High Court upon production of the original award and arbitration agreement. Kenya, being a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, incorporates the Convention into domestic law via Section 36(2).

The High Court may refuse enforcement only on limited grounds set out in Section 37, such as procedural unfairness, invalid arbitration agreements, incapacity, or public policy concerns.

The Arbitration Act (Cap. 49), when read alongside Article 159(2)(c) of the Constitution, affirms Kenya’s commitment to alternative dispute resolution as a credible, efficient, and enforceable system of justice. The Act codifies internationally accepted standards while preserving the local legal character needed to address domestic disputes effectively. With a balance between autonomy and limited judicial oversight, the Act positions Kenya as a favourable seat for both local and international arbitration.

For parties engaged in commercial transactions or cross-border investments, understanding and leveraging the provisions of this Act is essential to securing a timely and enforceable resolution of disputes in a legally sound manner.


1.5 ARBITRATION IN TRANSBOUNDARY DISPUTES: THE KENYAN PERSPECTIVE

1.5.1 Introduction
Kenya has embraced arbitration as a core dispute resolution mechanism, particularly in commercial and investment-related matters. In the context of transboundary disputes whether environmental, commercial, or infrastructure-related Kenya’s legal and institutional architecture offers notable strengths, though certain structural and practical challenges remain. This section explores Kenya’s approach to arbitration in such disputes, drawing comparative lessons and offering insights into the evolving regional landscape.

1.5.2 Application to Transboundary Disputes
(a) Investment and Cross-Border Commercial Arbitration
Kenya has been party to several bilateral investment treaties (BITs) that contain arbitration clauses allowing foreign investors to bring claims before tribunals such as ICSID. For example, in Cortec Mining Kenya Ltd & Others v Republic of Kenya (ICSID Case No. ARB/15/29), Kenya defended its regulatory actions within the international arbitration framework demonstrating its acceptance of arbitration as a neutral forum for resolving cross-border disputes.

Additionally, with the operationalization of AfCFTA and continued membership in COMESA and EAC, Kenya is increasingly involved in disputes involving entities across African borders. Arbitration remains a preferred mechanism in such contexts due to its neutrality and enforceability.

(b) Natural Resources and Environmental Disputes
Kenya shares critical natural resources with neighboring states, including Lake Victoria, Turkwel River, and transboundary wildlife corridors. While many of these disputes are resolved through diplomacy or under regional frameworks such as the Nile Basin Initiative, Kenya’s laws and treaties often recognize arbitration as a viable last-resort mechanism.

For instance, the East African Community Treaty provides a framework for arbitration between partner states, while Kenya’s Environmental Management and Coordination Act (EMCA) does not preclude arbitration in environmental matters involving multiple jurisdictions.

(c) Judicial Attitude and Enforcement
Kenyan courts have consistently shown deference to arbitral processes and the finality of arbitral awards. In cases like Kenya Shell Ltd v Kobil Petroleum Ltd [2006] eKLR, the Court of Appeal of Kenya emphasized minimal interference in arbitral proceedings. Kenya’s Judiciary has also established the ADR Directorate to support policy development and judicial training on arbitration.

Moreover, arbitral awards whether domestic or foreign are routinely enforced in Kenyan courts, provided they meet the requirements of the Arbitration Act and the New York Convention.

1.5.3 Challenges
While Kenya’s arbitration infrastructure is progressive, several challenges remain in the transboundary context:
(a) High Costs and Resource Intensity: International arbitrations can be expensive and time-consuming.
(b) State Reluctance: Government entities may resist submitting sovereignty-related disputes (e.g., water or land) to binding arbitration.
(c) Limited Expertise in Specialized Areas: Although capacity is growing, Kenya still lacks sufficient expertise in handling complex environmental and regional infrastructure arbitration.
(d) Public Policy Defense: Courts may occasionally be drawn into debates on whether an arbitral award offends public policy, particularly in politically sensitive cases.

1.5.4 Opportunities and the Way Forward
Kenya is uniquely placed to become a regional hub for the arbitration of transboundary disputes, especially with:
(a) A credible arbitral institution (NCIA);
(b) A maturing judiciary supportive of arbitration;
(c) A strategic location and reputation for regional stability;
(d) Membership in multiple economic blocs (EAC, COMESA, AfCFTA).

Going forward, strategic investment in capacity building, specialized panels for environmental and investor-state arbitration, and greater inter-state cooperation through frameworks like the EAC Court of Justice or COMESA Court of Justice will further entrench Kenya’s leadership in this space.

1.5.5 Conclusion
Kenya’s legal and institutional architecture demonstrates a strong commitment to arbitration as a mechanism for resolving transboundary disputes. However, realizing the full potential of arbitration in transboundary disputes requires continued judicial support, public sector sensitization, and regional collaboration.

*Proposed Joint Conclusion
As Africa moves toward deeper economic, infrastructural, and environmental integration, the resolution of transboundary disputes must evolve in tandem. Arbitration offers African states a path to resolve complex disputes peacefully, efficiently, and credibly especially where political sensitivities, resource allocation, and foreign investment are concerned.

From the comparative analysis, it is evident that both Kenya and Zimbabwe have laid strong legal foundations for arbitration. Kenya has made considerable institutional progress, particularly through the establishment of the Nairobi Centre for International Arbitration (NCIA) and its proactive judiciary. Zimbabwe, while grounded in a similar legal framework, continues to build institutional capacity and has shown openness to reform.

Nevertheless, both jurisdictions face common challenges: the high cost of arbitration, uneven awareness among public institutions, and concerns around enforcement and state sovereignty. To harness the full potential of arbitration in transboundary contexts, both states must invest in capacity building, expand awareness among key stakeholders, and support regional cooperation through shared arbitral institutions and mutual enforcement mechanisms. Ultimately, strengthening arbitration in transboundary disputes will not only promote justice and rule of law but also enhance investor confidence, protect shared resources, and reinforce Africa’s collective vision of sustainable development and peaceful coexistence.

[i] Practitioner’s Handbook on Commercial Arbitration in Nigeria pg. 1

[ii] Commercial Arbitration in Zimbabwe DFVGB pg. 12