A)
Legal Framework
In Mozambique, arbitration is primarily recognized by
the Constitution of the Republic[1]. Article
4 establishes that “the State recognizes
the various normative and dispute resolution systems which coexist in the
Mozambican society, as long as they do not contradict the fundamental values
and principles of the Constitution”. Specifically Article 223 states that “administrative, labour, fiscal, customs,
maritime, arbitration and communal tribunals, may exist”[2].
Arbitration in Mozambique is governed by the Law on Arbitration,
Conciliation and Mediation dated 8 July 1999[3]
(“the Arbitration Law”). It was formerly governed by provisions in the Civil
Procedure Code[4]
but it can be said that it is also based on a mixture of laws from other
jurisdictions.
Mozambique is a party to the 1958 Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)
and also a party to the 1960 Convention on the International Centre for
Settlement of Investment Disputes (ICSID).
Mozambique is a civil law jurisdiction, and therefore
does not have an established practice of binding case law. Cases are cited as
persuasive authority in the courts. Cases from the Supreme Court if quoted have
binding power on the lower courts. Mozambique also does not have a formal or
established case reporting system, and as such, it is difficult to obtain case
authorities on matters. The Supreme Court has started populating cases in its
website, but these are few and there are none on arbitration. The
Constitutional Council publishes cases on its website, but these are mostly on
electoral matters. Most cases are presently obtained from a practitioners own
experience, or through obtaining copies of cases from the Supreme Court
Registry.
The UNCITRAL Model Law on Arbitration is considered
the main source of inspiration for the Arbitration Law. However, the Arbitration
Law is a combination of diverse sources of law, and a great example of legal
pluralism established in the Constitution[5]. For example:
a)
The Arbitration
Law bases its definition of an arbitration agreement, establishment of an
autonomous arbitration clause and the format of the arbitration agreement on
the UNCITRAL´s Model Law;
b)
Referral to voluntary
labour arbitration, under special laws, is based on Argentinean and Bolivian laws;
c)
Portuguese law
has also had some influence on the Arbitration Law. This includes the stipulation
of general minimum requirements necessary to be complied with by the
arbitrators; and the inclusion of the criterion “when international trade
interests are put at stake” in the definition of international arbitration;
d)
The
inclusion of an article requiring adherence to arbitration on part of a party
in standard terms and condition contracts (adhesion contracts) which provide
for arbitration has been inspired by Brazilian Law[6].
It should be noted that treaties or multilateral or
bilateral conventions entered into by the Government of Mozambique which relate
to the scope of arbitration, conciliation and mediation will prevail over the Arbitration
Law[7] .
In relation to administrative contracts[8]
and non-contractual civil responsibility of public administration or their
heads, employees or agents for losses due to public management acts, the rules
of arbitration are provided for in the Law of Administrative Litigation
Procedure[9].
This law does not distinguish between domestic and international arbitration.
When analyzed, it seems to be primarily applicable to domestic arbitration. It
also suggests that, within this ambit, if the arbitration is international it
should be subject to the relevant international arbitration provisions in the
Arbitration Law.[10]
The Arbitration Law distinguishes domestic arbitration
(Articles 1 to 51) from international arbitration (Articles 52 to 59). International
arbitrations are arbitrations involving international trade interests and in
particular, where the following circumstances apply:
a)
At the point
of termination of the relevant contract, the parties to the arbitration agreement
are commercially domiciled in different countries;
b)
One of the
following is situated outside the country, where the parties possess their
establishment: i) the seat of arbitration (if this has been established or is
determinable in terms of the arbitration agreement); ii) any place where a substantial
part of the business relationship obligations are executed or iii) the place
that is most closely linked to the subject matter of the litigation; or
c)
The parties
have expressly agreed that more than one country is connected to the litigation
subject matter.
