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ALTERNATIVE DISPUTE RESOLUTION: THE KEY TO INVESTING IN ZIMBABWE

 

To quote the Zimbabwean President Emmerson Mnangagwa in Davos for the World Economic Forum (WEF), “Zimbabwe is now open for business.” His recent visit to Davos served to strengthen the new Zimbabwean dispensation’s moves to embrace the international community in doing business in Zimbabwe.[1] The ongoing political transition in Zimbabwe is set to attract a number of foreign investors and the hopes are high that the country could become one of the economic giants of Africa once again.[2]

However, investment is by no means an easy transaction and where parties from different countries transact there often arises dispute. When such a dispute arises parties may refer to several possible avenues:

  • The domestic courts of the country, or

  • The law applicable to the agreement and subsequent dispute, or

  • Alternative Dispute Resolution [3]


THE DIFFICULTIES OF CONVENTIONAL LITIGATION PROCESSES 

The domestic courts of Zimbabwe and the law applicable to the agreement and subsequent dispute fall under conventional litigation. Conventional litigation is plagued by difficulties such as undue delay in the dispensation of justice, complicated procedural formalities and high costs of litigation and Zimbabwe is not immune to these difficulties.[4]

ADR is a procedure introduced to relieve the ordinary courts and improve access to justice by putting the disputing parties through less legalistic and procedurally rigid mechanisms.[5] 

IS ALTERNATIVE DISPUTE RESOLUTION RELEVANT FOR INVESTMENT CONSIDERATIONS? 

Enforcing contracts and resolving disputes is a part of daily business in the private sector. World Bank Group studies reveal that efficient access to justice plays a key role for successful business endeavours.[6]  As such, we explore the role that ADR methods have to play in providing efficient access to justice for investors in Zimbabwe.

ADR plays an essential role in modern commercial and labour agreements. There are 3 basic forms of ADR:

  • CONCILIATION: Where parties to a dispute are assisted in discussing the issue with one another in the presence of a neutral observer. The parties reach an agreement without any intervention from the facilitator.[7]

  • MEDIATION: In this instance the parties are assisted by a neutral facilitator who then gives his or her legal opinion at the end of the proceedings. This opinion is non-binding and parties are free to disregard it.[8]

  • ARBITRATION: The dispute is submitted by agreement of the disputing parties to an arbitrator (usually a former Judge or expert in the area of dispute). The arbitrator then considers the parties’ claims and makes a final and binding decision.[9]


ADR is becoming more popular in resolving disputes between parties from different jurisdictions. It offers distinct advantages over conventional litigation:

ADVANTAGES OF ADR

  • Private and confidential proceedings

  • Agreement between parties is an essential element

  • Less formal, less adversorial and a more flexible process.

  • Simple procedure with less stringent evidential rules

  • Parties have a say in deciding who presides or facilitates their case

  • Quick dispensation of justice and choice of venue for dispute resolution


 

LEGISLATIVE PROTECTION OF ADR METHODS IN ZIMBABWE 

Alternative Dispute Resolution is a fairly new system in Zimbabwe adapted to improve access to justice by disputing parties and relieve the courts of the burden of labour disputes and cases through less legalistic and procedurally rigid mechanisms as well as expediting the disposal of disputes. Accordingly, the legislature has enacted laws to strengthen and encourage ADR processes.

DOMESTIC LEGISLATION

  • Civil Matters (Mutual Assistance) Act [Chapter 8:02] allowing for the registration of foreign judgments in Zimbabwe provided that the judgment was handed down in a designated country.

  • Arbitration Act [Chapter 7:15] enacted to give effect to domestic and international agreements and provides a more efficient means of having disputes submitted to arbitration and enforcement of arbitration awards.

  • Arbitration (International Investments Disputes) Act [Chapter 7:03].


 INTERNATIONAL LEGISLATION:

  • Geneva Protocol on Arbitration Clauses of September 24, 1923 amended by the Geneva Convention Execution of Foreign Arbitral Awards of 1927 in some respects.

  • New York Convention on the Recognition & Enforcement of Foreign Arbitral Awards of June 10, 1958: Ratified and given effect to by the Arbitration Act Ch 7:15.

  • Convention on the Settlement of Investment Disputes between States and Nationals of other states (ICSID)

  • UNICITRAL Model Law on International Commercial Arbitration applied via the Arbitration Act. [10]


  THE AFRICA INSTITUTE OF MEDIATION AND ARBITRATION (AIMA)

Established in 2013, AIMA is a Zimbabwean institution that offers dispute resolution services to corporate clients and individuals. We facilitate principled negotiation as opposed to the conventional adversarial confrontation. With a panel of Mediators and Arbitrators that is comprised of highly respected former judges and expert lawyers; their proven experience enables us to offer an exceptional independent and professional service.

Our primary services are

  • Mediation which enables parties to reach a negotiated settlement via a neutral facilitator;

  • Arbitration where arbitrator plays a similar role to that of a judge and an award made by the arbitrator is binding and enforceable.

  • Med-Arb appropriate where parties are proceeding to arbitration. The processes commences with the standard mediation process. If a settlement is reached, a Mediation settlement Agreement is executed and signed by both parties. Where any issues remain unresolved AIMA’s Med-Arb rules allow an easy transition from Mediation to Arbitration.

  • Expedited Mediation or Arbitration is a fast track version of mediation and arbitration. It is particularly useful for parties who want emergency relief and can result in resolution of a dispute in less than a week.[11]


By virtue of its geographical location Zimbabwe is an essential corridor to doing business in SADC.

AIMA handles a diverse case load of international commercial and investment disputes, labour disputes, commercial contracts, mining law and commercial corporate law. We account for industry specific usages in handling our matters and strive to handle the matters expeditiously to minimise any business disruption.

In offering successful ADR procedures AIMA helps to reduce an investor’s risk with regard to dispute resolution.

Other services offered include consultancy and training, early neutral evaluation and fact finding inquires.

Article by Tanita Gandidze Legal Officer at AIMA (BSocSci International Relations, Industrial Sociology & History) University of Cape Town , (LLB) University of Cape Town. 

 

 

[1] The Standard: Mnangagwa pushes for economic turnaround. https://www.thestandard.co.zw/2018/01/28/mnangagwa-pushes-economic-turnaround/ (Full interview available at https://www.youtube.com/watch?v=pTkGgyMyzgM  )

[2] Ibid.

[3] Document Series No.14: Alternative Dispute resolution Methods. Ch 1: Alternative Dispute Resolution Methods by Dr Vinod Agarwal www.unitar.org/dfm

[4] Ibid.

[5] Ibid.

[6] Document Series No.14: Alternative Dispute resolution Methods. Ch 1: Alternative Dispute Resolution Methods by Dr Vinod Agarwal www.unitar.org/dfm

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] http://europeanlawyersfoundation.eu/wp-content/uploads/2016/11/Arbitration-of-International-Disputes-A-Zimbabwean-Perspective.pdf

[11] More information available at www.aima.org.zw

Alternative Dispute Resolution: How Africa can use its traditional knowledge to better itself.

Many African citizens have lost faith in the ability of their nations courts to provide timely or just conclusions to their grievances.[1] A 2009 Survey in Liberia found that only 3 percent of criminal and civil disputes were taken to a formal court whereas over 40 percent sought resolution through informal mechanisms.[2] The remaining 55 percent did not consult any forum at all.[3] The traditional means of solving disputes arising from a breach in relationship between two or more parties is reconciliation.[4] African societies have traditionally resolved disputes through the use of negotiated settlement.[5] But as the countries were systematically colonised the new governments controlled dispute resolution mechanisms and subsequently replaced the old customary law systems.[6]


Alternative Dispute Resolution (ADR) is an age long cultural phenomenon in most African countries.[7] Formal litigation is grounded in an adversarial process and is limited in ensuring fairness and satisfaction for disputants.[8] The process is often plagued by overcrowding and lengthy delays.[9] Courts are often overburdened and overwhelmed resulting in an inability to provide timely and effective closure. [10] ADR encompasses a series of mediation mechanisms for resolving conflicts which may be linked to but function outside of the court systems. Whereas trials are formal proceedings governed by strict rules, mediation involves third party neutrals facilitating negotiations between the disputing parties. Focus is thus on the interests of the parties themselves as opposed to their negotiating positions.[11]


ADR has helped courts reduce delays and costs to litigate, deliver justice faster and fairly and allow parties to exercise control in the resolution of their cases without feeling alienated.[12] A prime example is the Gacaca courts of Rwanda.[13] In the period between 6 April and 4 July 1994 an estimated 800 000 to 1 000 000 citizens were massacred at the hands of an ethnic motivated genocide.[14] After the genocide the government imprisoned thousands of suspects. The judicial system had not escaped decimation by the war and could not adjudicate its caseload over a realistic period of time.[15] In 2001, almost 120 000 people remained in prison awaiting trial for their participation in the genocide.[16] The International Criminal Tribunal for Rwanda (ICTR) had only produced 8 sentences and one acquittal after 7 years of work while the local courts had dealt with approximately 6000 cases.[17] Attempting to alleviate the problem the country passed the Gacaca law in January 2001.[18]


The aim was to resuscitate a traditional form of communal justice in which communal elders (elected by the community and of proven integrity) would resolve disputes by devising compensatory solutions aimed at restoring societal harmony.[19] These took place on an ad hoc basis and encouraged community participation. By the conclusion of the Gacaca court’s genocide trials in 2012, 12 000 community courts had tried and concluded an approximate number of 1.2 million cases.[20] The Gacaca courts were important in that they emphasised the country’s traditional philosophy of reconciliation and reintegration as opposed to the punitive concept of justice introduced by the colonial systems.[21]


Some of the traditional dispute resolution methods have stood the test of time surviving only as informal systems and in some instances lower courts in the judicial hierarchy.[22]  ADR is an increasingly popular complementary system to the official legal channels to resolve disputes.[23] However the concept of a dispute resolution mechanism that encompass reconciliation and reintegration are not new to Africa.[24] And it is perhaps time for the continent to adapt its traditional knowledge towards bettering mechanisms brought in by the West that have proved to be in some aspects less effective than the traditional system.


The African Institute of Mediation and Arbitration in Zimbabwe provides a wide range of ADR services  such as  mediation, arbitration, med-arb and expedited mediation or arbitration, reminiscent of the traditional approach. These services focus on providing clients with efficient and effective ADR that are impartial and safeguard confidentiality. Our vision is to provide fairness and finality in alternative dispute resolution. In this manner ADR can be used to settle labour disputes, commercial disputes, family disputes and disciplinary matters amongst others.


Article by Tanita Gandidze Legal Officer at AIMA (BSocSci International Relations, Industrial Sociology & History) University of Cape Town , (LLB) University of Cape Town.


 


[1] Ernest E. Uwazie Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability in Africa Security Brief No.16 November 2011.

[2] Ibid at 1.

[3][3] Ibid. this included cases where claimants felt the need to take justice into their own hands, often with violent consequences.

[4] F Peter Phillips, ADR in Africa Mediate.com Everything Mediation. Jasmine C Dickerson Overview of Commercial Alternative Dispute Resolution in Africa. https://www.mediate.com/articles/PhillipsPbl20120625.cfm

[5] Ibid.

[6] Ibid.

[7] Ernest E. Uwazie Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability in Africa Security Brief No.16 November 2011 at 2.

[8] Ibid at 3.

[9] Ibid.

[10] Ibid.

[11] F Peter Phillips, ADR in Africa Mediate.com Everything Mediation. Jasmine C Dickerson Overview of Commercial Alternative Dispute Resolution in Africa. https://www.mediate.com/articles/PhillipsPbl20120625.cfm

[12] Anuradha Chakravarty, Gacaca Courts in Rwanda: Explaining Divisions within the Human Rights Community. Yale Journal of International Affairs 2006 @ 113.

[13] Shanon E. Powers Rwandan’s Gacaca Court: Implication for International Criminal Law and Transitional Justice. Insights. Vol 15 Issue 17 2011.

[14] Anuradha Chakravarty,  Gacaca Courts in Rwanda: Explaining Divisions within the Human Rights Community. Yale Journal of International Affairs 2006 @ 113.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Chika Ezeanya-Esiobu @ TEDGlobal 2017 How Africa can use its traditional knowledge to make progress.

[20] Ibid.

[21] Ibid.

[22] F Peter Phillips, ADR in Africa Mediate.com Everything Mediation. Jasmine C Dickerson Overview of Commercial Alternative Dispute Resolution in Africa. https://www.mediate.com/articles/PhillipsPbl20120625.cfm

[23] Ernest E. Uwazie Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability in Africa Security Brief No.16 November 2011 at 2.

[24] Megan W Westberg Rwanda’s Use of International Justice Aftre Genocide: The Gacaca Courts and the ICTR 11/24/2010 at 337.