Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 121

NUMÉRO SPÉCIAL AFRIQUE
by the other two relationships between the counsel team and the respondent. The
author therefore agrees with the conclusion drawn by Akeredolu and Umeche in
their commentary.
In the Zambian case of National Pension Scheme Authority v Sherwood Greene
Limited, the applicant sought to set aside the award on the ground of public policy
due to the non-disclosure of relevant circumstances by the arbitrator. 34
In this
case, the sole arbitrator was appointed by the court on the recommendation of the
respondent which application was not opposed by the applicant. The applicant
contended that at the time of the arbitration the arbitrator failed to disclose that
her law firm was representing the respondent in a separate matter at the High
Court. The records of the arbitration showed that the applicant requested further
information from the sole arbitrator of this circumstance. The sole arbitrator in
response confirmed the circumstance and noted that the High Court matter was
being handled by an associate at the law firm and there was no relationship
between the court matter and the arbitration. The parties appear to have accepted
her clarification and the arbitration proceeded. Following the issuance of her final
award, the applicant challenged the award on this same basis.
The High Court decided that the arbitrator failed to volunteer the relevant
information on the relationship between her firm and one of the parties. In other
words, that she did not proactively disclose this information. The court found
that the arbitrator made her decision that she was impartial and fit to continue
with the arbitral proceedings without inquiring from the parties if they wished
her to continue as arbitrator 35
and, finally, that there was no evidence before the
court that either of the parties made a positive expression for the sole arbitrator
to continue. The court then concluded that therefore the sole arbitrator failed to
meet her obligation to make necessary disclosures as required under the Zambian
Arbitration Act and the Arbitration (Code of Conduct and Standards) Regulations.
The facts of this case raise several concerns. It is not clear why a participating
party in the application before the court to appoint the arbitrator did not challenge
the appointment of the arbitrator recommended by one party as the sole arbitrator.
Having so accepted the appointment, the correct course of action was for the party
to challenge the arbitrator when it came into the relevant information. But the
party decided, instead, to seek clarification, which was provided by the arbitrator.
It is arguable that the clarification provided by the arbitrator amounts to
a disclosure, and this author's opinion is that it was. This is because all parties
including the arbitrator were then aware of the relationship. If following such
'disclosure' the parties continued with the arbitration with the same arbitrator,
without raising a challenge of the arbitrator, it is tenuous for the court to find that
the parties did not make any positive assent to the continuation of the arbitration
by the sole arbitrator. The parties were duly notified of the relevant circumstances
and made an informed decision to proceed with the same arbitrator.
In addition, the court was wrong to find that the sole arbitrator decided that
she was impartial. This is because there was no challenge filed against her by
any of the parties for her to determine. The correct finding should have been that
34. National Pension Scheme Authority v Sherwood Greene Limited [2018] ZMHC 300.
35. National Pension v Sherwood, at page J25.
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Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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