What Disputes Cannot Be Arbitrated in Zambia Under the ADR Bill 2026? Practical Guidance for Businesses

Non-arbitrable disputes zambia has become a live compliance question for businesses since the introduction of the Draft Alternative Dispute Resolution Bill 2026, which for the first time attempts to codify, in modern statutory language, the categories of matters that Zambian law will not permit parties to resolve through arbitration. For in-house counsel, contract managers and commercial lawyers, the practical stakes are immediate: an arbitration clause that purports to send a non-arbitrable matter to a tribunal risks being struck down, leaving the parties exposed to costly, delayed litigation and unenforceable awards. This guide sets out which disputes fall outside the reach of arbitration, why they do, and, crucially, how to draft dispute-resolution clauses that survive challenge.

It is written for a business audience that needs actionable checklists and drafting solutions, not abstract commentary. Because the Bill remains in draft form, its contents may change before enactment, and the current governing statute for domestic and international arbitration in Zambia is the Arbitration Act No. 19 of 2000.

Quick answer: the main categories of non-arbitrable disputes in Zambia

At the highest level, the following categories are typically treated as non-arbitrable under Zambian law. The existing Arbitration Act No. 19 of 2000 expressly excludes certain matters from arbitration, and the Draft ADR Bill 2026 is expected to carry forward a similar arbitrability approach:

• Criminal matters. Offences and questions of criminal liability cannot be privately arbitrated.
• Family and personal status matters. Divorce, custody and questions of personal status are reserved for the courts.
• Certain public law and administrative decisions. Regulatory penalties, some public procurement disputes and land taken for public use.
• Insolvency and bankruptcy proceedings. Collective processes affecting the general body of creditors.
• Matters affecting the interests of minors or persons under legal disability.
• Matters touching public policy, constitutional rights and the public interest.
• Matters involving third-party non-consenting interests, such as certain fiduciary, trust or minority-shareholder rights.

The remainder of this article explains each category, the legal test Zambian courts apply, and the drafting and procedural steps businesses should take now. Because the ADR Bill 2026 remains in draft form, any specific clause numbering should be confirmed against the official text on the National Assembly of Zambia website before any contractual clause is finalised.

Legal framework and the Draft ADR Bill 2026, what changed

Arbitration in Zambia is presently governed principally by the Arbitration Act No. 19 of 2000, which is based on the UNCITRAL Model Law on International Commercial Arbitration and applies to both domestic and international arbitration. That Act sits alongside common-law principles and the international instruments to which Zambia is party. The concept of arbitrability, whether a particular subject matter is capable of being resolved by arbitration at all, is addressed partly in the Act (which sets out certain matters that may not be referred to arbitration) and partly through general principle and case law.

This has left businesses uncertain at the edges: a clause might be enforceable for a straightforward commercial dispute but unenforceable if it strayed into public-law or family territory.

The Draft ADR Bill 2026 aims to consolidate and clarify the rules governing arbitration, mediation and other consensual dispute-resolution mechanisms, and to set out more explicitly which matters remain outside the scope of private arbitration. Its approach broadly aligns with internationally accepted principles reflected in the UNCITRAL Model Law, which treats consent and subject-matter capability as the twin foundations of a valid arbitration. The direction of travel is toward greater certainty: businesses should be better able to predict, at the drafting stage, whether their chosen forum will hold. Until the Bill is enacted, however, the Arbitration Act No. 19 of 2000 remains the operative statute.

The importance of arbitrability in Zambia cannot be overstated. Even where parties have plainly agreed to arbitrate, a tribunal cannot confer on itself jurisdiction over a matter that the law reserves to the courts. An award rendered on a non-arbitrable subject is vulnerable to being set aside domestically and to refusal of recognition abroad. That is why the enforceability of arbitration agreements in Zambia depends not only on clear drafting but on the underlying subject matter being one the law permits parties to arbitrate.

Overview: ADR methods in Zambia

Businesses often ask what the main types of dispute resolution are. In practice, four principal methods are used:

• Negotiation. Direct, without third-party involvement, the least formal.
• Mediation. A neutral facilitator helps the parties reach a voluntary settlement; the mediator does not impose a decision.
• Arbitration. A tribunal hears the dispute and issues a binding award that can be enforced like a judgment.
• Litigation. Court proceedings before a judge, producing a binding, appealable judgment.

Understanding where each method fits matters because the question of non-arbitrable disputes in Zambia only arises for arbitration. Mediation and negotiation, being consensual and non-binding until settlement, are far less constrained by subject-matter limits, though a settlement of a matter reserved to the courts may still require judicial ratification to take effect. Court-annexed mediation is well established and actively promoted within the Zambian court system.

Which disputes the ADR Bill 2026 excludes from arbitration

This is the core of the analysis. Below, each category of non-arbitrable disputes in Zambia is explained with its rationale, a short example and the practical implication for businesses. Where the Draft ADR Bill 2026 introduces or refines an exclusion, the position should be verified against the enacted text before it is relied upon.

Criminal matters and offences

Criminal liability is a matter between the individual and the State. Parties cannot agree to have questions of guilt, punishment or the imposition of criminal sanctions determined privately by an arbitrator. The rationale is straightforward: the criminal justice system exists to protect the public interest, and its powers, to convict, fine or imprison, cannot be delegated to a private tribunal.

Example: a supply contract contains a broad clause referring “all disputes arising out of or in connection with this agreement” to arbitration. A dispute later involves allegations of fraud amounting to a criminal offence. The tribunal may determine the contractual consequences of the alleged conduct between the parties, but it cannot determine criminal culpability. Practical implication: keep contractual and civil consequences within the arbitration clause, and recognise that any criminal dimension will proceed separately through the courts and prosecuting authorities.

Family and personal status matters

Divorce, the dissolution of marriage, custody of children and questions of personal status are reserved to the courts. These matters engage the welfare of children and the public interest in the institution of marriage, which the law does not treat as freely disposable by private agreement.

Example: a family business shareholders’ agreement attempts to route “all family and business disputes” to arbitration. Any dispute genuinely about the business, share valuation, board deadlock, may be arbitrable; a dispute about the custody of children or the validity of a marriage is not. Practical implication: avoid conflating personal and commercial matters in a single clause, and never assume a family or personal-status question can be arbitrated.

Certain public law and administrative decisions

Decisions taken by public bodies in the exercise of statutory powers, regulatory penalties, the grant or revocation of licences, and the compulsory acquisition of land for public use, engage public-law functions and the supervisory jurisdiction of the courts. These are among the most litigated edges of arbitrability zambia, because commercial contracts increasingly touch regulated activities.

Public procurement is a particularly sensitive area. Procurement is governed by a statutory framework designed to protect public funds and ensure fairness among bidders, and disputes challenging the exercise of procurement powers may be reserved to specialist review mechanisms or the courts rather than private arbitration. Whether a given procurement dispute is arbitrable will depend on whether it is, in substance, a contractual dispute between the parties or a challenge to a public-law decision. Practical implication: in contracts with public bodies, distinguish carefully between commercial claims (which may be arbitrable) and challenges to administrative decisions (which are not), and confirm the position under the current public procurement legislation before relying on an arbitration clause.

Insolvency and bankruptcy proceedings

Insolvency is a collective process. It affects the general body of creditors and third parties who never agreed to arbitrate, and it engages the court’s power to make orders binding on the world, winding up a company, appointing a liquidator or approving a scheme. A private tribunal cannot determine the status of an insolvent entity or bind non-consenting creditors.

Example: a creditor and a company have an arbitration clause in their loan agreement. A dispute over the debt itself may be arbitrable, but the question of whether the company should be wound up, and how its assets should be distributed among all creditors, is a matter for the courts. Practical implication: an arbitration clause can govern the underlying contractual debt, but insolvency consequences will fall to the collective court process.

Employment and labour disputes with exclusive statutory jurisdiction

Zambian labour law confers protective jurisdiction on specialised institutions and courts for certain categories of employment and labour disputes. Where statute reserves exclusive jurisdiction, for example, over certain statutory dismissal protections or collective labour matters, parties generally cannot oust that jurisdiction by an arbitration clause. This is one of the clearer examples where older contracts frequently contain unenforceable language, and the precise boundary should be confirmed against the Employment Code Act and the Industrial and Labour Relations legislation in force.

Example: an employment contract states that “any dispute, including any claim for unfair dismissal, shall be finally resolved by arbitration to the exclusion of any court or tribunal.” Where the relevant statute reserves such claims to a specialised forum, that exclusion is likely to be ineffective. Practical implication: treat employment dispute clauses with caution; an express court option, rather than a blanket arbitration mandate, is usually the safer approach.

Matters touching public policy, constitutional rights and the public interest

The public policy arbitrability zambia question runs through every category above and stands on its own as a distinct limit. Even where a matter looks commercial, an arbitration or award that would offend public policy, breach fundamental constitutional rights, or undermine the public interest may be non-arbitrable or unenforceable. This is a deliberately flexible test, applied by courts to protect values that cannot be bargained away.

Example: an agreement seeks to have a tribunal determine, with binding effect, the constitutional validity of a statute or the scope of a fundamental right. That is not arbitrable. Practical implication: keep arbitration clauses focused on the parties’ private commercial rights and obligations, and do not attempt to delegate questions of public or constitutional law to a tribunal.

Matters involving third-party, non-consenting interests

Arbitration is founded on consent. A tribunal’s authority extends only to those who have agreed to arbitrate. Disputes that necessarily determine the rights of non-consenting third parties, certain fiduciary and trust matters, or the rights of minority shareholders who are not party to the arbitration agreement, sit uneasily within arbitration and may be non-arbitrable to the extent they bind outsiders.

Example: a shareholders’ agreement between two majority holders provides for arbitration, but a dispute directly affects the statutory rights of minority shareholders who are not signatories. To the extent the outcome would bind them, arbitration cannot be imposed. Practical implication: where third-party interests are foreseeable, ensure all affected parties are joined to the arbitration agreement, or accept that some issues must proceed in court.

How Zambian courts treat arbitrability and public policy

Zambian courts approach arbitrability through a combination of the Arbitration Act No. 19 of 2000 and common-law principle. The central question is whether the subject matter is one the law permits to be resolved privately, or whether it is reserved, expressly or by necessary implication, to the courts or a specialised statutory forum. The court will look past the label the parties have given the dispute to its true substance. A dispute dressed up as contractual will not be arbitrable if, in reality, it turns on a public-law decision or a matter of personal status.

Zambian authorities on stay applications, arbitrability and public policy can be located through the Zambia Legal Information Institute, and businesses relying on specific precedents should confirm the citation and holding directly. The recurring theme in the case law is that courts will uphold party autonomy and refer genuinely arbitrable disputes to arbitration, but will not permit arbitration to encroach on matters the law reserves to itself.

When courts will refuse to stay proceedings

Where a party has commenced litigation in breach of an arbitration agreement, the usual remedy is for the other party to apply for a stay so the matter proceeds to arbitration. However, a court will refuse to stay proceedings, and will retain the dispute, where the subject matter is non-arbitrable, where the arbitration agreement is null, void or inoperative, or where the agreement does not, on its true construction, cover the dispute. This is precisely why a clause that overreaches into non-arbitrable territory is dangerous: instead of securing arbitration, it invites a jurisdictional fight the arbitrating party may lose.

The public policy exception, examples

The public policy exception operates both as a bar to arbitrability and as a ground for refusing to enforce or recognise an award. An award that requires a party to perform an illegal act, that offends fundamental notions of justice, or that purports to determine a matter reserved to the public sphere may be refused enforcement on public-policy grounds. The takeaway for drafters is to keep the tribunal’s mandate within the parties’ private commercial relationship, and to build in severability so that any public-law element can be carved out without collapsing the whole clause.

Drafting practicalities, avoiding unenforceable arbitration clauses

The single most effective protection against the risk of non-arbitrable disputes in Zambia is careful clause drafting. The goal is to keep genuinely arbitrable commercial disputes within arbitration while providing a clean fallback to the courts for anything that is not. Below are three model approaches. Confirm the seat, institutional rules and any statutory references against current law before adopting them.

Model clause A, general commercial disputes (with fallback)

For ordinary commercial contracts between consenting parties:

“Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the [chosen rules], with the seat of arbitration in [Lusaka, Zambia]. Where any dispute or part of a dispute is not capable of settlement by arbitration under the applicable law, that matter shall be determined by the competent courts of Zambia, and the remainder of this clause shall continue to apply to all arbitrable matters.”

The final sentence is the critical safeguard: it preserves arbitration for what can be arbitrated and routes the rest to the courts without invalidating the clause.

Model clause B, regulated sector and public procurement (escalation and carve-out)

For contracts with public bodies or in regulated sectors, use an escalation mechanism and an express carve-out for public-law matters:

“The parties shall first attempt in good faith to resolve any dispute by negotiation, and failing that by mediation. Any unresolved commercial dispute shall then be referred to arbitration seated in [Lusaka]. Nothing in this clause applies to, or purports to submit to arbitration, any challenge to an administrative or regulatory decision, or any matter reserved by statute to a court or statutory review body, which shall be pursued through the mechanism prescribed by law.”

Model clause C, employment and consumer contexts (explicit court option)

Where statute may reserve exclusive jurisdiction, avoid a blanket arbitration mandate and preserve access to the courts:

“The parties may agree to refer any arbitrable dispute to arbitration. Nothing in this Agreement excludes or limits the jurisdiction of any court or statutory tribunal that the law reserves for employment, labour or consumer disputes, and any such matter shall be determined by that court or tribunal.”

Do this:

• Include a severability provision so an invalid element does not void the whole clause.
• Specify the seat and the institutional rules clearly.
• Provide an express court fallback for non-arbitrable matters.
• Join all parties whose interests may be affected.

Do not do this:

• Do not draft an absolute waiver of court jurisdiction over public-law, employment or family matters, this is a classic red flag that risks unenforceability.
• Do not assume a broad “all disputes” clause captures matters the law reserves to the courts.
• Do not omit a fallback forum.

If arbitrability is challenged, procedural steps for businesses

When a counterparty asserts that a dispute is non-arbitrable, the response must be prompt and tactical. The following stepwise approach helps preserve rights and avoid procedural traps.

When to apply for a stay

If the other side commences court proceedings despite an arbitration agreement, apply promptly for a stay so the matter is referred to arbitration. Timing is critical: taking a substantive step in the litigation before applying may be treated as a waiver of the right to arbitrate. Move to stay before engaging with the merits.

Bifurcation and jurisdictional hearings

Under the Arbitration Act, a tribunal is generally competent to rule on its own jurisdiction (the principle of competence-competence). Where arbitrability is contested, consider asking the tribunal to bifurcate, to decide the jurisdictional and arbitrability question first, as a preliminary issue, before incurring the cost of a full merits hearing. A clear preliminary ruling reduces the risk of a wasted process and gives an early read on enforceability.

Evidence and burden of proof

The party asserting arbitrability must demonstrate that the dispute falls within the arbitration agreement and is capable of arbitration under Zambian law. Marshal the contract, the correspondence evidencing consent, and a clear characterisation of the dispute’s true subject matter. Where the objection is that the matter is reserved to the courts, address the substance directly rather than relying on the contractual label.

Timing and tactical considerations

Consider interim relief early, a tribunal or, in appropriate cases, a court may grant interim measures to preserve the position pending resolution. Weigh the enforcement endgame from the outset: if part of the dispute is non-arbitrable, structure the proceedings so the arbitrable elements produce a clean, enforceable award and the non-arbitrable elements proceed in the correct forum. In outline, the flow is: assess arbitrability, secure or resist a stay, seek bifurcation if jurisdiction is contested, obtain a jurisdictional ruling, then proceed to the merits in the correct forum.

Enforcement risks and remedies for non-arbitrable disputes in Zambia

The most serious consequence of getting arbitrability wrong is unenforceability. An arbitration agreement that covers a matter the law reserves to the courts may be held inoperative, and an award rendered on a non-arbitrable subject is exposed to being set aside domestically and refused recognition abroad. For businesses, that means the time and cost of the arbitration may be entirely wasted, and the dispute must be re-litigated from scratch.

Cross-border enforcement adds a further dimension. Zambia is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), which permits enforcement to be refused where the subject matter is not capable of settlement by arbitration under the law of the enforcing state, or where recognition would be contrary to public policy. An award straying into non-arbitrable territory therefore faces a double risk, challenge at the seat and refusal at the place of enforcement.

Mitigation is largely a matter of foresight. Keep arbitration clauses focused on genuinely arbitrable commercial rights; build in severability and a court fallback; and, where a transaction carries residual risk, consider commercial protections such as indemnities, escrow arrangements or parent-company guarantees that do not depend on arbitrating a reserved matter. These measures give businesses a recovery route even if part of a dispute must proceed through the courts.

Courts vs arbitration in Zambia, a comparison for businesses

The practical lesson is to prefer arbitration for confidential, cross-border commercial disputes between consenting parties, and to accept, or plan for, litigation wherever the subject matter is reserved to the courts. A hybrid clause that keeps arbitrable matters in arbitration and directs the rest to the courts gives businesses the best of both.

Conclusion, an immediate checklist for your contracts

The Draft ADR Bill 2026 makes it more important than ever to understand which are non-arbitrable disputes in Zambia and to align your contracts accordingly. Use the following checklist to reduce risk now:

1. Audit your existing contract templates and material agreements for arbitration clauses.
2. Tag any clause containing an absolute waiver of court jurisdiction over public-law, employment or family matters as high-risk.
3. Add an express court fallback and severability wording to every arbitration clause.
4. Distinguish clearly between arbitrable commercial claims and reserved public-law or personal-status matters.
5. Use an escalation and carve-out clause in contracts with public bodies and in regulated sectors.
6. Join all parties whose interests may be affected by a potential arbitration.
7. Confirm the position for employment and consumer contracts, where statutory jurisdiction may apply.
8. Verify exclusions and clause references against the final enacted ADR Bill 2026 text, and against the Arbitration Act No. 19 of 2000 in the meantime, before publishing new templates.
9. Engage local counsel to review high-value and cross-border clauses.
10. Plan the enforcement endgame, ensure arbitrable elements can produce a clean, enforceable award.

Getting arbitrability right at the drafting stage is far cheaper than litigating it later. Businesses that act now to review their clauses will be well placed for the certainty the new framework is intended to bring.

Sources

1. Zambia Legal Information Institute (ZambiaLII), statutes and case law
2. National Assembly of Zambia, bills and legislative materials
3. UNCITRAL, Model Law on International Commercial Arbitration
4. United Nations Treaty Collection, New York Convention
5. Law Association of Zambia (LAZ)