The regulations in their existing draft form have been severely criticized and are likely to be subject to a number of amendments, and further publication for public comment,
In addition to the fact that the Department of Justice is currently reviewing the draft bill, there have in the last four or five years been a number of decisions of our courts which reveal an appreciation of the role of arbitration in modern society. These decisions have supported the sanctity of arbitration agreements and proceedings, and have limited intervention by the court in arbitration proceedings, and also in the review of arbitral awards. Our courts have gone so far as to say: “The South African courts not only have a legal, but a socio-economic and political duty to encourage the selection of South Africa as a venue for international arbitrations. International arbitrations in South Africa will not only foster our comity among the nations of the world, as well as international trade but will also bring about the influx of foreign spending to our country ( Zhongi Development Construction Engineering Company Limited vs Kamoto Copper Company SARL (2014) 4 ALL SA 614(SCA) )” These developments should be of interest to all involved in cross border disputes, from the points of view of predictability in the resolution of disputes, ease of enforcement of arbitral awards, and curtailment of judicial review of arbitral awards.
before they are signed into law. International arbitration
A draft International Arbitration bill is presently with the Department of Justice, for review, having been approved by the Law Development Commission. The bill, it is understood, is based on the UNCITRAL Model Law for International Arbitrations (that having been the Law Commission’s proposal in 1997). The bill will be submitted to Parliament for approval. It is a matter of speculation as to what extent the Model Law will be adjusted or tampered with – what is known is that the Law Commission had, in putting its proposal to the Department of Justice (as long ago as 1997), stressed the need to promote two main threads, these being: –– The liberalisation of International Arbitration by limiting the role of domestic courts –– The emphasizing of party autonomy by allowing parties the freedom to choose how disputes should be determined Our existing Arbitration Act of 1965 allows parties recourse to our courts in the course of arbitration proceedings on a large number of procedural matters. This of course detracts from the essence of arbitration proceedings, and so the new bill is eagerly awaited.
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