Interim measures

The above provision notwithstanding, a party to arbitration is at

liberty to apply to Court for interim measures. Section 11 of the
Arbitration Act states that a party may, before or during arbitral
proceedings, request from a court an interim measure of protection.
The following interim measures may be granted by the Court – (see
S. 11 (2)).

a. An Order for the preservation, interim custody, sale or

inspection of any goods which are the subject matter of the
dispute;
b. An order securing the amount in dispute or the costs and
expenses of the arbitral proceedings;
c. An interim injunction or other interim order;

d. An order to ensure that an award which may be made in

the arbitral proceedings is not rendered ineffectual.

In the case of ELIAS CHILESHE CHIPIMO AND CHARLES

MKOKWEZA V BRADFORD MACHILA, the Court considered the
effect of section 11 of the Arbitration Act which provides the
requirement to specify the relief sort and it considered whether
partnership property is subject to arbitration. In that case, The
Claimants alleged that the Respondent threatened to levy distress on
the partnership of Corpus Globe due to the Respondent’s perceived
interest in stand number 2386 (the “Property”), Lusaka from which
the partnership operated.
The Claimants claimed that the Respondent had traded his interest
in the Property for monthly drawings, following his failure to meet his
budgetary obligations to the partnership of Corpus Globe. The
Respondent averred that the dispute for rentals on the Property did
not arise from the partnership deed (the “Deed”) of Corpus Globe
because the Property was owned by Brentwood Investments Limited,
of which the Respondent was a shareholder along with Karish
Investments Limited and Nova Holdings.

The Respondent as such stated that the issue of rentals due to

Brentwood was not subject to resolution by arbitration in terms of
the Deed. The first Claimant therefore applied to the Court for an
interim measure of protection pursuant to Rule 9 of the Arbitration
(Court Proceedings) Rules 2001.

In the above cited case, the following were held:

a. The application was not properly presented before the

Court as no specific endorsement was made to aid the
Court in determining what specific measures of protection
were being sort, or the asset that was sort to be preserved
or indeed the wrongful act that was sort by the Claimants
to restrain the Respondent from committing.
b. As the property in dispute was not an asset of the
partnership, the claimants did not have a good arguable
claim to the right sort to be protected.
Further, on the import of section 11 (1), (2) and (4) of the Arbitration
Act, the Court in the case of HOTTLIER LIMITED V EASTERN AND
SOUTHERN TRADE AND DEVELOPMENT BANK clarified the power
of the Court under the said sections. In that case, on 17 th October
2016, the applicant filed Originating Summons and an affidavit in
support for an interim measure of protection pending the
commencement and conclusion of arbitration proceedings pursuant
to section 11 (1) and (2) of the Arbitration Act No. 19 2000 as read
together with Rule 9 of the Arbitration (Court Proceedings) Rules,
Statutory Instrument No. 75 of 2001.

The gist of the application was that a dispute had arisen between the
parties regarding a Loan Agreement. The Loan Agreement provided
for arbitration as a mode of dispute resolution. The Applicant was
apprehensive that the Respondent may place the Applicant in
receivership before the matter goes to arbitration and sought to
invoke sections 11 (1) and (2) of the Arbitration Act.

It was held:

a. Section 11 is clear on the powers of the Courts to

grant interim measures of protection to any party, before
or during arbitral proceedings. Sub-section (2) of the same
section sets out the relief the Court can grant upon request
in terms of subsection (1) thereof.
b. Section 11 (4) outlines that the Court will invoke its
powers under section 11 only where a tribunal has not yet
been appointed and the matter is urgent, or that the
 tribunal so appointed is not one that is competent to grant
the order or injunction.

In the case of FRIDAY MWAMBA V DERRICK CHEKWE, the Court

considered that urgency is required when granting an injunction
under section 11 of the Arbitration Act. In that case, On 18 th
February, 2010 the Judge granted the applicant an ex parte
injunction pursuant to section 11 of the Arbitration Act No. 19 of
2000, that the Respondent, whether by himself, his proxies, servants
or his agents howsoever be restrained, and an injunction granted to
restrain the respondent from attending any meeting or meetings of or
concerning Necor Zambia Limited and Application Solutions Limited
or either of them or from attending the office or business premises of
the said companies or either of them or otherwise doing or causing
to be done any act or thing having a bearing upon the companies in
question pending the resolution, by arbitration, of the dispute and
differences that have risen between the applicant and the
Respondent unit/ unless it were ordered otherwise.

The matter was heard inter parties on 25 th February 2010. The

injunction being sought by the applicant is in the applicant is in aid
of intended arbitration proceedings. The applicant held 48.5% shares
in the capital of Necor Zambia Limited while the respondent holds
1.5% shares therein. Necor Zambia Limited, in turn held 51% shares
in the capital of Application Solutions Zambia Limited, a private
company limited by shares wherein the respondent and applicant
held 0.18% and 17.82% shares respectively.
The following was held:

The Courts only grant an injunction if the arbitral tribunal has

not yet been appointed and the matter is urgent. Granting the
injunction in the absence of any urgency would only serve to
place the applicant in an unassailable position.

REMOVAL OF AN ARBITRATOR:

Procedure for Challenging Arbitrator

An arbitrator’s appointment can only be challenged by a party if there

are valid grounds for doing so (see article 12 (2) of the Model Law).
This restriction in intended to prevent parties from disrupting the
arbitral proceedings by making frivolous challenges. To pre-empt
such challenges, it is incumbent upon the arbitrator to disclose to
the parties any circumstances, which are likely to give rise to a
possible challenge in respect of his impartiality and independence.
Where possible, this should be done at the time of his appointment.
The challenge procedure is specified in Article 13 of the Model Law
as follows:

(1) The parties are free to agree on a procedure for challenging an

arbitrator, subject to the provisions of paragraph (3) of this article.
(2) Failing such agreement, a party who intends to challenge an
arbitrator shall, within fifteen days after becoming aware of the
constitution or the arbitral tribunal or after becoming aware of any
circumstances referred to in article 12(2), send a written statement
of the reasons for the challenge to the arbitral tribunal. Unless the
 challenged arbitrator withdraws from his office, or the other party
agrees to the challenge. the arbitral tribunal shall decide on the
challenge.
(3) If a challenge under any procedure agreed upon by the parties
or under the procedure of paragraph (2) of this article is not
successful, the challenging party may request, within thirty days
after having received notice of the decision rejecting the challenge,
the court or other authority specified, in article 6 to decide on the
challenge. which decision shall be subject to no appeal; while such
appeal is pending, the arbitral tribunal, including the challenged
arbitrator, may continue the arbitral proceedings and make an
award.

The following options are available to the challenged arbitrator:

a. To withdraw from his office. This does not mean

acceptance of the validity of the ground of challenge (Article 14
(2)).
b. To withdraw from office if the other party agrees to the
challenge. This also does not necessarily mean acceptance of
the grounds of the challenge.
c. To constitute himself into a tribunal for purposes of
deciding the challenges. When he does so, he should hear both
parties on the grounds of the challenge.

If after hearing the parties, the arbitrator decides that the challenge
is successful, he must withdraw. If he decides otherwise, he may
continue with the arbitration. If the challenging party is dissatisfied
with the arbitrator’s decision, he must within 30 days from the date
of receiving the notice of the challenged arbitrator’s decision apply to
the Court for a determination on the challenge. The Court will not
be hearing the matter in an appellate capacity but will be making a
decision on the merits of the challenge itself. The Court’s decision is
final and not subject to appeal.

Termination of Arbitrator’s Mandate

The arbitrator’s mandate may be terminated in the following
circumstances:

1. By virtue of a successful challenge of an arbitrator’s mandate

by a party under Article 13 (2) of the Model Law on the grounds
provided under Articles 12(2) of the Model Law.

2. Failure or impossibility of the arbitrators to act in the following

circumstances:

(a) If the arbitrator is unable to perform his functions e.g. if he is

incapacitated;

(b) If the arbitrator fails to act without undue delay (see Article

14 of the Model Law).

3. By an agreement of the parties at any time revoking or

terminating his mandate;

4. By the arbitrator withdrawing from office due to any other

reason e.g. his own doubts as to his independence or impartiality;
When the arbitrator becomes functus officio i.e. performance of his
mandate to its conclusion when he has made his final award (see
Article 32 (3) of the Model Law).