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Case 233: MAL 35(1); 36(1)(b)(ii)
Zimbabwe: Harare High Court (Judge Chatikobo); Judgment No. HH-133-97
10 July and 20 August 1997
Durco (Pvt) Ltd v. Dajen (Pvt) Ltd
Original in English
Published in English in 1997(2) Zimbabwe Law Reports 199 (Harare)
Two parties, a grain producer and a miller, had submitted their dispute to a single arbitrator which resulted in an award in favour of the miller. As a third party was involved who had not been a party to the arbitration, it was feared that further proceedings might ensue. Accordingly, it was felt to be in the interests of all concerned to submit to a second arbitration which would be binding on all three parties.
The second arbitration, before a panel of three arbitrators, however, resulted in an award against the miller. The miller refused to comply with the second award and the grain producer applied to the High Court for its recognition and enforcement under article 35 MAL. The miller opposed the award on the grounds that it would be contrary to public policy to enforce the award in terms of article 36(1)(b)(ii) MAL, contending that since there was already an award it would offend the principle of finality in arbitration to enforce the second award.
The court held that, by agreeing to submit to a second arbitration, the miller had waived its rights to finality of the first award. Accordingly, the miller was now bound by the second award and the court ordered that it should be recognised and enforced. The miller appealed (see CLOUT case no. 234) to the Supreme Court.
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CASE LAW ON UNCITRAL TEXTS (CLOUT)
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