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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