MARKET COMMENTARY 29
The Act contemplates a fairly streamlined process regarding the enforcement of an arbitration award. An awardmay, on application to a court of competent jurisdiction by any party, bemade an order of court. Once an award has beenmade 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 ME A SURES? Unless the arbitration agreement provides otherwise, an arbitrator maymake an interimaward 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 C AN ONE APPE AL 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 ENFOR CE 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 inwhich South African lawappears not only consistent with, but also in full harmonywith prevailing international best practice in the field. A party seeking to enforce a foreign arbitral awardmust 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 (andmust be given notice of the application) but will only succeed in very limited circumstances. WHAT ARE THE LIKELY COSTS OF ARBITRATION IN SOUTH AFRIC A? By far themost 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 ismade.
C AN 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 LawSchools lead international rankings in Africa and enjoys a very rich academic legal tradition. The result is that there aremany 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 Africawith the largest pool of engineers, accountants, and other professionals able to act as experts, or to sit as arbitrators themselves. TRAVEL, HOTELS, VENUES AND VIS A S As a very popular destination for international tourismas 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 fromSouth Africa is possible fromeverymajor 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 brandmaintains a local presence. Private arbitration of domestic disputes (i.e. between South African litigants) has become a very popular alternative to court proceedings and themarket has respondedwith 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 theywould be required to do for a business trip. CONCLUSION Despite a failure to adopt the UNCITRALModel 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 21May 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 theMinister, the proposed legislationwill 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 andmore tailored approach to resolving disputes than court proceedings and that there is a recognition that the change is necessary. Given that similar announcements weremade as long ago as December 2013, it is probably fair to suggest that developments will take place shortly. In themeantime, whilst the old Act hasmany deficiencies, having been in use for so long, practitioners are well versed in its application. Moreover, whilst the UNCITRALModel 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 significantlymilitates against fears that the South African arbitration experience would be characterised by the undue interference of the local courts.
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