Arbitration in the SAR

Interested in regulation of arbitration proceedings in South Africa? Want to know more about the main requirements for settling disputes through arbitration in the SAR? Then this article is definitely for you.

Resolving International Disputes in the SAR

The two pieces of legislation that arbitrators in the SAR rely on for their activities include UNCITRAL & the IAL. Both of them require arbitrators to make use of substantive rules which the parties have agreed on. If the parties can’t reach an agreement, lex causae should be applied.

Those seeking to settle a dispute in the SAR should keep in mind that these two arbitration organizations are most suitable for their purposes:

• AFSA;
• Chinese-African Arbitration Center.

When is it Impossible to Settle Disputes Through Arbitration in the SAR? 

Unde the IAC, only these disputes can qualify as international:

• when  parties’ businesses were in different geographic locations at the time of signing an arbitration agreement;
• parties’ businesses are located in a country which is different from the one where arbitration & performance of the contract take place;
• if there’s an agreement between parties that their arbitration agreement applies to more than one geographic location. 

Criminal cases, regulation-related disputes & certain municipal disputes can’t be submitted to arbitration. Hence, it’s impossible to resolve such disputes through arbitration in the SAR.

If found non-enforceable, an arbitration agreement can be considered valid if:

• one of the parties can’t sign it;
• it’s found invalid for a good reason;
• it’s been concluded in violation of South African laws;
• a dispute can’t be resolved through arbitration as per South African legislation;
• it’s invalid or can’t be executed.

Choosing Arbitrators in the SAR

Acting judges are prohibited from being arbitrators in private proceedings. Consent of the Justice Minister is required in order for retired judges to be able to act as arbitrators in private arbitrations. 

If there’re legal grounds for this, parties may choose their preferred language & jurisdiction. Normally, it is attorneys, retired judges & lawyers who act as arbitrators; however, the law permits other experts, such as chartered accountants, to act as arbitrators in disputes, related to their specific area of expertise. 

If there’s no agreement reached between parties as to who their arbitrator should be or what arbitration mechanism should be used to appoint one, they may request the court to appoint an arbitrator in the SAR. 

Conclusion

It is generally considered that arbitration’s more expensive than litigation. However, given that procedure for arbitration is properly spelled out n South African legislation, dispute resolution through arbitration in the SAR can be quiet fast & effective.