NAME OF CASE
Ebi Zimbabwe (Pvt)Ltd v Old Mutual Unit Trusts(Pvt)Ltd and another
NAME OF THE COURT
High Court of Zimbabwe
CITY AND COUNTRY
Removal of arbitrator, right to be heard, setting aside of award
SUMMARY OF CASE
In May 2004 the applicant and the 1st respondent entered into a software licensing agreement. Following a dispute that arose between the parties in January 2006, the matter was referred to an arbitrator for arbitration. On the 23rd of June 2008, the applicant challenged the impartiality of the arbitrator in terms of Article 13(2) of the First Schedule to the Arbitration Act [Chapter 7:15] (the Model Law). On the 28th of June 2008, the arbitrator rejected this challenge and his decision was communicated to the applicant on the 3rd of July 2008. The challenge was then referred to this Court for determination on the 1st of August 2008 in terms of Article 13(3) of the Model Law.The issues for determination were whether the arbitrator failed to act impartially and if whether his conduct warranted his removal as an arbitrator, whether the challenge before court had prescribed and the nature of the challenge.
- The partiality of an arbitrator may not always manifest itself immediately as a single act committed on one specific occasion. More often than not, it will be evinced by a series of acts at different times or continuing conduct which when pieced together demonstrates his lack of impartiality. In this context, the aggrieved party may only be in a position to form justifiable doubts as to the arbitrator’s impartiality towards the end of such continuing conduct rather than at its inception. The specific acts complained of in casu fall precisely into the category of continuing conduct that I have described above. The challenge before the arbitrator in this case was timeously lodged and has not prescribed
The test to be used in establishing whether or not the arbitrator was impartial is an objective one. The arbitrator did not in any way act partial. Rather his actions were done in a bid to bring the matter to finality .
- Article 13(3) does not define or fetter the powers of the Court as to the procedure to be followed. In practice, the procedure that is adopted in the referral of arbitral matters to the Court is by way of ordinary application and there is nothing in the Rules of Court to preclude the filing of submissions by any party to the arbitration proceedings in question. Thus to construe Article 13(3) in a restrictive manner would operate to constrict and offend the common law right to be heard which vests in every interested party – as embodied in the audi alteram partem rule – as well as the constitutional right to a fair hearing guaranteed by Section 18(2) of the Constitution.