HERBERT CHITEPO LAW SCHOOL

SURNAME : CHIHATA

NAME : KUDAKWASHE

REGISTRATION NUMBER : M172577

COURSE TITLE : ALTERNATIVE DISPUTE RESOLUTION

PROGRAMME : BACHELOR OF LAWS (LLB)

PART : 5.1

MARK : ……………

COMMENTS:

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The Arbitration Act outlines instances under which the appointment of an arbitrator can be
challenged. These include: justifiable doubts to the impartiality or independence of the
arbitrator. With the aid of case law, explain how courts have interpreted this statement.

“justifiable doubts to the impartiality or independence of the arbitrator.”

Arbitration is an alternative dispute mechanism among conciliation and mediation. One of its
major advantages is that it is faster and it seeks to maintain the relationship of the parties.
With arbitration, parties chose whom they want the arbitrator to be unlike in court where the
judicial officer is select by court process. Like judicial officers, arbitrators are supposed to be
impartial and independence. Any sign of being partial or bias on any one party can be used as
a ground upon which any of the parties can challenge the appointment of the arbitrator. An
arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as
to his impartiality or independence. 1 The term ‘justifiable doubts to the impartiality or
independence of the arbitrator’ has been defined by the courts in the Zimbabwean jurisdiction
and abroad as anything that done by an arbitrator that would lead a reasonable person to be of
the view that there is a real likelihood or bias or a reasonable belief that the arbitrator is bias.2

In interpreting the term ‘justifiable doubts to the impartiality or independence of the

arbitrator,’ the court in the case of Pomelo Mining v Annandale held that an objective test
must be applied.3 That is in interpreting the term ‘justifiable doubts to the impartiality or
independence of the arbitrator,’ the question to be asked is whether or not there is a real
likelihood of bias from the given facts and circumstances. In other words, the court should
not seek to ascertain whether there was actual bias or partiality. But rather, the court should
satisfy itself that in the mind of a reasonable man and considering the circumstances, there is
a real likelihood that the arbitrator could lose his impartiality and independence. Thus the
party alleging justifiable doubts as to the impartiality or independence if the adjudicator does
not need to have concrete evidence pointing to doubt but rather should prove on a balance of
probabilities that there is doubt that is justifiable to the impartiality or independence of the
arbitrator. The question of whether or not the arbitrator was impartial is irrelevant. What is
considered is the likelihood of bias.

The courts have also interpreted the term ‘justifiable doubts to the impartiality or
independence of the arbitrator’ to mean that there should be a basis of the doubts. In other
1
Section 12 (2) of the Arbitration Act
2
Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)
3
Pomelo Mining v Annandale HH 55-09
words, the doubts should not be bald and baseless. The doubt should be grounded in facts and
not be unsubstantiated. In addition, the facts must have some veracity that point to bias and
impartiality. Justifiable doubts cannot and should not be based on baseless belief, suspicion
or spurious allegations as held by the court in the case of Pomelo Mining.4 Thus in other
words, one can deduce that what makes the doubts justifiable is that they are based on
varacious facts or circumstances.

In the same vein, the court in the case of EBI Zimbabwe (Pvt) Ltd v Old Mutual Unit Trusts
(Pvt) Ltd held that ‘justifiable doubts to the impartiality or independence of the arbitrator’
means that there must be a real likelihood of bias and not mere suspicion of bias. 5 The court
went on to say that justifiable doubts of impartiality can be grounded in an act or a series of
acts done by the arbitrator. Hence the term in question is also spoken to in a situation in
which the arbitrator does something or says something that which is not in itself fair or
impartial. However, there is no need for the party allerging justifiable doubts to the
impartiality or independence of the arbitrator’ to prove actual bias or impartiality. The term is
question simply means or refers to a situation in which an arbitrator’s conduct through words
or conduct, action or inaction display a real possibility of him not being able to act judicially.6

‘Justifiable doubts to the impartiality or independence of the arbitrator’ also speak to a

situation or rather have been interpreted wide enough to refer to a situation in which there a
set of facts that arose before arbitration that might lead one to think that there is a likelihood
of bias. This was aptly demonstrated in the case of Leopard Rock Hotel Co (Pvt) Ltd & Anor
v Walenn Construction (Pvt) Ltd.7 In this case, the court was inclined to hold that there were
justifiable doubts to the impartiality and independence of the arbitrator because he was a
member of an investment company that owned shares in a company to which he was
appointed an arbitrator. In this case, the arbitrator had not done anything that negatively
reflects on his ability to remain impartial and independent. But rather, the fact that he was a
member of an investment company with interest in the matter gave rise to ‘justifiable doubts
to the impartiality or independence of the arbitrator.’ Consequently, this gives rise to the
interpretation that an arbitrator can be found wanting for lack of impartiality and
independence on the basis of circumstances that arose before his appointment as an arbitrator.

4
See above note
5
EBI Zimbabwe (Pvt) Ltd v Old Mutual Unit Trusts (Pvt) Ltd HH 55-09
6
Koh Bros Building and Civil Engineering Pte Ltd v Scotts Development (Saraca) Pte Ltd [2003] 3 LRC
7
Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255 (S)
The term ‘justifiable doubts’ reflects the fact that there are some doubts which are not
justifiable. The court in the case of EBI8 held that not all doubts and likelihoods are
justifiable. A party to arbitration proceedings might be emotionally connected to the matter
and thus fail to be objective or reasonable. As such, the court will not consider justifiable
doubts as in the eyes of the party but rather in the eyes of a reasonable person considering the
circumstances. In the case of EBI, the court found that the fact that an arbitrator had acted in
a robust manner so as to speedily determine the case does not give rise to justifiable doubts to
the impartiality or independence of the arbitrator.’ As such, a party should not claim
justifiable doubts according to his own eyes but according to the standard of a reasonable
person. In this matter, the court held that a party challenging the appointment of an arbitrator
must establish the existence of grounds from which a reasonable person would think that
there was a real likelihood of bias and that the arbitrator could not or would not fairly
determine the issues before him.

Lastly, the court in the case of held that ‘justifiable doubts to the impartiality or independence
of the arbitrator’ refers to a situation in which a reasonable man assumes that an arbitrator
might be biased or is biased.9 Again there must be evidence leading to such a conclusion. In
the case of Musonzoa (Private) Limited v Standard Fire And General Insurance Company
(Private) Limited one of the parties and the arbitrator has a close business relationship. 10 The
court held that this was evidence enough to justify doubts to the impartiality or independence
of the arbitrator. As such, the term in question was against interpreted by the court to mean
that there should be evidence and a real danger of bias. The arbitrator’s ability to be impartial
is irrelevant in the determination of impartiality as the court have interpreted the term in
question to mean that it demands there be evidence showing real risk, the arbitrator’s input is
not necessary.

In conclusion, an arbitrator like a judicial officer must be independent and impartial. He must
refrain from doing or saying anything that might lead to the justifiable doubts that he is
lacking impartiality and independence. The term justifiable doubts to the impartiality or
independence of the arbitrator has been generally interpreted as a circumstances that lead a
reasonable man to believe that there is a real risk and possibility of the arbitrator being bias.
In interpreting this term, the courts have held that the term does not demand the arbitrator to

8
EBI Zimbabwe (Pvt) Ltd v Old Mutual Unit Trusts (Pvt) Ltd HH 55-09
9
Musonzoa (Private) Limited v Standard Fire And General Insurance Company (Private) Limited HH 85-2002
10
See above note 9
speak to his ability to be impartial and independent. All that matters is what a reasonable man
would think in the given circumstances.
REFERENCES

Arbitration Act
Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H)
Pomelo Mining v Annandale Trust HH 33-09
EBI Zimbabwe (Pvt) Ltd v Old Mutual Unit Trusts (Pvt) Ltd HH 55-09
Koh Bros Building and Civil Engineering Pte Ltd v Scotts Development (Saraca) Pte Ltd
[2003] 3 LRC
Leopard Rock Hotel Co (Pvt) Ltd & Anor v Walenn Construction (Pvt) Ltd 1994 (1) ZLR 255
(S)
Musonzoa (Private) Limited v Standard Fire And General Insurance Company (Private)
Limited HH 85-2002