INTERNATIONAL ARBITRATION 1/3LY
IN CONVERSATION WITH MICHAEL KUPER SC 03
IN CONVERS AT ION WI TH MI CHAEL KUPER SC THE ARBI TRAT ION FOUNDAT ION OF SOUTHERN AFRI C A Daniel Le Roux and Nicola Vinovrški , Partner and Legal Director at Clyde & Co, in conversation with Michael Kuper SC, The Arbitration Foundation of Southern Africa.
business community, the attorneys’ profession, the accounting profession and the Bars to collaborate in the establishment of the Arbitration Foundation, whichwould offer a fully administered local arbitral system. So we started fromscratch. We had to learn our ownway and as you know these things take time. AFSA is now the leading commercial arbitration body in the country and it has a stable and large streamof commercial andmercantile disputes. We administer fully, providing rules and facilities and overseeing panels. At any one time there are about 300 disputes under administration by the Foundation. The Centre in Johannesburg is by far the biggest venue for arbitral disputes, compared to Pretoria, Durban and Cape Town. NI COL A In terms of the types of disputes that are managed by AFSA, could you tell us a bit about that and whether you have noticed any recent trends? MI CHAEL The Centre has a stable and large stream of commercial andmercantile disputes often involvingmining ventures or banking relationships, among other things. The disputes cover every aspect of commercial life including various large construction disputes. For example, we have seen a run of well publicised disputes involving Government and foreign contractors relating to a speed train that has been designed and built here linking Pretoria, Johannesburg and the airport, a project which has given rise to a range of construction disputes. I don’t think we’ve seen any particular trends in recent years except that the amounts in dispute have probably increased. Is that a sign of changed economic circumstances or does it indicate that all levels of large disputes are going to arbitration? I’mnot entirely sure.
T HE DE V EL OPMEN T OF A RB I T R AT I ON IN SOU T H A F R I C A
NI COL A You have had a long and eventful career stretching back to the 1970s. Can I kick off by asking you howandwhere your journey in arbitration began? MI CHAEL I had a commercial practice as an advocate of the Johannesburg Bar and I was introduced to arbitration during the 1970s and the 1980s. Back then, arbitrations were all ad hoc and closely resembled the courts but without robes. These proceedings were an effective introduction to the arbitration process but the need for administered arbitration soon became apparent and that gave rise ultimately to the initiative which created the Arbitration Foundation of Southern Africa (AFSA). NI COL A Okay, so can you tell us a bit about howyou came to establish the AFSA? MI CHAEL I was the Chairman of the Johannesburg Bar, when during themid-90s I was approached by the President of the South African Chamber of Business, Mervyn King (now the doyen of corporate governance internationally). The chamber wasworriedabout thedelays and the technicalities in civil litigation. Mervyn’s viewwas that South Africa and its business communitywere lacking an administered arbitration systemand he was pointing a finger at the Bar and asking why it wasn’t actively leading the creation of a good arbitration system. In response to that invitation or challenge we set about creating a corporate partnership, bringing together the
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