MARKET COMMENTARY 29
The Act contemplates a fairly streamlined process regarding the enforcement of an arbitration award. An award may, on application to a court of competent jurisdiction by any party, be made an order of court. Once an award has been made an order of court it may be enforced in the same manner as any judgment or order to the same effect. IS THERE ANY RECOURSE FOR INTERIM MEASURES? Unless the arbitration agreement provides otherwise, an arbitrator may make an interim award at any time within the period allowed for making an award. In addition, the Act conveys residual powers to the High Court to award, on application by one of the parties: • Security for costs • Disclosure of documents and the provision of interrogatories • Examination of witnesses, whether within South Africa or abroad • Production of evidence by affidavit • Inspection, preservation or sale of any property involved in arbitration proceedings • Certain injunctive relief where necessary CAN ONE APPEAL THE DECISION OF AN ARBITRATOR? Unless the agreement provides otherwise, the decision of an arbitrator (or tribunal) is final and is not subject to appeal. That being said, it is quite common for parties to agree to a right of appeal to a tribunal, subject to specific time limits and procedures. HOW DOES ONE ENFORCE FOREIGN AWARDS? South Africa acceded to the New York Convention in 1976 and to give effect to it, enacted the Recognition and Enforcement of Foreign Arbitral Awards Act the following year. Enforcement of foreign awards is one area in which South African law appears not only consistent with, but also in full harmony with prevailing international best practice in the field. A party seeking to enforce a foreign arbitral award must apply to the relevant division of the South Africa High Court having jurisdiction over the respondent party. The respondent is afforded an opportunity to oppose the enforcement (and must be given notice of the application) but will only succeed in very limited circumstances. WHAT ARE THE LIKELY COSTS OF ARBITRATION IN SOUTH AFRICA? By far the most significant component of the cost is in respect of the arbitrator and legal representation, which by international standards is competitive. Administration and ancillary charges are negligible. The indicative daily cost (excluding party representation) of an arbitration is probably in the region of USD 5,000, which is typically shared between the parties until an award is made.
CAN ONE FIND MANY SKILLED ARBITRATORS AND EXPERTS? The South African legal system is, perhaps, one of the best developed on the African continent and therefore highly skilled and experienced barristers and solicitors are in abundance. South Africa also benefits from the fact that its Universities and Law Schools lead international rankings in Africa and enjoys a very rich academic legal tradition. The result is that there are many legal academics equally capable of sitting as arbitrators. Although the second largest African economy in gross terms, South Africa still leads the services sector in Africa with the largest pool of engineers, accountants, and other professionals able to act as experts, or to sit as arbitrators themselves. TRAVEL, HOTELS, VENUES AND VISAS As a very popular destination for international tourism as well as for business, and having hosted major international events in its recent history, South Africa boasts world class infrastructure. Johannesburg and Cape Town, in particular, offer first-rate facilities. Travel to and from South Africa is possible from every major centre in the world and travel between cities is inexpensive and convenient. South Africa also possesses an abundant and very competitive hospitality industry – almost every international hotel brand maintains a local presence. Private arbitration of domestic disputes (i.e. between South African litigants) has become a very popular alternative to court proceedings and the market has responded with venues specifically designed for arbitration. As nationals of most OECD; BRICs and SADC nations are visa exempt when visiting South Africa, parties to arbitration are unlikely to have to apply for a visa unless the arbitration is expected to run for over 90 consecutive days. Those nationals who are not visa exempt will have to apply for a Visitor’s Visa in the same way as they would be required to do for a business trip. CONCLUSION Despite a failure to adopt the UNCITRAL Model Law, South Africa has the potential to serve as a reliable, economical and convenient place to conduct arbitration proceedings – particularly in relation to disputes arising on the African continent. On 21 May 2015, South Africa’s deputy Minister of Justice and Correctional Services revealed during the department’s budget vote in parliament that an overhaul was imminent and that a bill to that effect would be put to parliament. According to the Minister, the proposed legislation will allow for the adoption of the UNCITRAL Model Law. It is safe to say that the South African government accepts that arbitration is a speedier, less formal and more tailored approach to resolving disputes than court proceedings and that there is a recognition that the change is necessary. Given that similar announcements were made as long ago as December 2013, it is probably fair to suggest that developments will take place shortly. In the meantime, whilst the old Act has many deficiencies, having been in use for so long, practitioners are well versed in its application. Moreover, whilst the UNCITRAL Model Law undoubtedly permits less scope for judicial interference than the Act does, the restrictive interpretation that the South African courts have given to these provisions significantly militates against fears that the South African arbitration experience would be characterised by the undue interference of the local courts.
Made with FlippingBook flipbook maker