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Commercial Arbitration 2017

Last verified on Friday 12th May 2017

South Africa

Gerhard Rudolph and Michelle Wright
Baker McKenzie South Africa

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. South Africa acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards on 3 May 1976. The Convention has been in force since 1 August 1976.

      Furthermore, South Africa enacted the Recognition and Enforcement of Foreign Arbitral Awards Act No. 40 of 1977 in order to give effect to the principles of the New York Convention. South Africa has ratified the New York Convention without reservations or declarations; in other words, it has not sent a notification to the Secretary-General of the United Nations regarding its declarations or reservations pursuant to articles I, X and XI of the Convention.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. Other than the New York Convention, South Africa has not signed any conventions concerning the recognition and enforcement of foreign arbitral awards.

      In 1997, South Africa acceded to the 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of the Hague Conference on Private Law, subject to certain reservations and declarations. South Africa's accession to this convention facilitates the procurement of evidence abroad for use in litigation and arbitration in South Africa.

      South Africa has not yet ratified the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States. However, ratification of this convention was recommended by the South African Law Reform Commission (SALRC) in its 1998 report on International Commercial Arbitration. According to the SALRC, ratification will create the necessary legal framework to encourage foreign investment and further economic development in South Africa. 

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. The Arbitration Act No. 42 of 1965 currently governs both domestic and international arbitration proceedings in South Africa. Arbitration proceedings in South Africa are relatively flexible and a procedural framework is usually agreed upon between the parties with the Act underpinning and supporting the agreed upon arbitration process. However, the Act makes no distinction between domestic and international arbitration and is not based on the UNCITRAL Model Law.

      The SALRC has, however, proposed extensive reform including the implementation of an International Arbitration Act in South Africa. In order to create certainty and align South Africa with international best practice, the SALRC recommended the adoption of a draft bill closely aligned with the UNCITRAL Model Law. It argued that this would ensure that South Africa becomes a more attractive forum for international commercial arbitration due to the certainty that this alignment will bring. In line with this proposal for reform, an International Arbitration Bill was approved by the South African government on 1 March 2017 and was recently approved by Cabinet for consideration before parliament . In its current form, the main objective of the International Arbitration Bill will be to adopt the UNCITRAL Model Law on International Commercial Arbitration as the basis of the international arbitration regime in South Africa. The International Arbitration Bill aims to exclude international arbitrations falling within its ambit  from the application of the Act, which will continue to regulate domestic arbitrations.

      For international investment disputes, the Protection of Investment Act No. 22 of 2015, when it is in operation, will prescribe domestic mediation as a first step to the resolution of a foreign investment dispute, provided the foreign investor and the government can agree on the appointment of a mediator. An alternative is for foreign investors to approach the domestic courts. While the Protection of Investment Act contains a provision for the government to consent to international arbitration, this is subject to the exhaustion of domestic remedies.[1] In addition, if the government consents to international arbitration, the Protection of Investment Act will require the arbitration be state-to-state arbitration (between South Africa and the home state of the applicable investor) as opposed to an investor-state arbitration (between the foreign investor and the host state, for example, South Africa).


      [1] Protection of Investment Act 22 of 2015, section 13(5).

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. The prominent arbitral institutions in South Africa are:

      • the Arbitration Foundation of South Africa (AFSA) (www.arbitration.co.za); and
      • the Association of Arbitrators (ASA) (www.arbitrators.co.za).

      Parties may use an institution to administer the arbitration according to its own rules (known as institutional arbitration). In such an instance, the institution will carry out all the administrative tasks. Alternatively, the parties may convene ad hoc arbitration proceedings. Although they may use the procedural rules of one of the institutions, they must attend to the administration of the arbitration themselves. The standard procedural rules published by the institutions are closely aligned with those of the UNCITRAL Model Law and specifically regulate matters not regulated in the Act. This includes the ability of an arbitrator to rule on his or her own jurisdiction; and the rules of law applicable to a dispute, as well as the grounds and procedure for challenging an arbitrator's appointment. Both the ASA and the AFSA have published expedited or summary rules, which are to find application in larbitrable matters.

      A notable new development is the creation of the China Africa Joint Arbitration Centre Johannesburg (CAJAC) in cooperation with AFSA, Africa ADR (AFSA’s external arm), the Association of Arbitrators and the Shanghai International Trade Arbitration Centre. It will serve as an international arbitration venue for disputes involving parties from China and Africa. It is envisaged that CAJAC will operate from both South Africa and China and will hear disputes relating to business in Africa in Johannesburg and disputes relating to business in China in Shanghai, respectively. 

      Apart from CAJAC, there is still a need for the facilitation of other cross-boarder international arbitrations that fall outside the ambit of CAJAC. AFSA is in the process of establishing AFSA International – a specialist division of AFSA which will facilitate international arbitrations within the region. This division seeks to provide a specialised panel of arbitrators and specific rules, based on UNCITRAL Model Law and international best practice, that cater to a wide range of international dispute areas. AFSA International further enhances the arbitration infrastructure developing in South Africa, placing South Africa within the global purview. 

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Yes, there are no restrictions preventing foreign arbitral providers from operating in South Africa. This can be deduced from the fact that the restrictions applicable to appearance in Court by only lawyers who have been admitted by the High Court of South Africa to practise as legal practitioners are not applicable to arbitration proceedings in South Africa and, as such, foreign nationals can act as counsel or arbitrators in arbitrations.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. No specialist arbitration court exists. It should be noted that, even if the parties agree to arbitrate a matter in terms of an arbitration clause in their contract, the High Courts in South Africa retain in terms of the common law, inherent jurisdiction to hear the matter. Courts, however, tend to be deferent (and thus supportive) of the arbitration process and retain their power to supervise and intervene if necessary. It is hoped that the International Arbitration Bill will also modernise the court's approach with regard to international arbitration.

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. Section 1 of the Act defines an arbitration agreement as meaning "a written agreement providing for the reference to arbitration of an existing dispute or any future dispute relating to a matter specified in the agreement, whether an arbitrator is named or designated therein or not". An arbitration agreement must be in writing.

      Simply put, an arbitration agreement is a contract and, accordingly, the general principles for the conclusion of a valid contract applies.[1] This consensual contract is an ancillary contract to the main agreement that exists between the parties.

      It is not a requirement for the arbitration agreement to be signed by the parties or to be contained in a single document, although it must be in writing. For example, an exchange of correspondence may result in the conclusion of a written arbitration agreement.

      However, oral arbitration agreements are not invalid, but, are regulated by the common law and not in terms of the Act.

      Generally, most commercial arbitration agreements are in writing and are regulated by the Act. Although not a formal requirement, in practice, most arbitration agreements provide for a method of appointing an arbitrator or arbitrators as well as the seat of arbitration and the choice of law to be applied. It is common practice for an agreement to provide for specific rules of an administering body to be applied, like for example, the International Court of Arbitration of the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), or the Arbitration Foundation of Southern Africa (AFSA).

      For foreign investors, the Protection of Investment Act, when it is in operation, will require the exhaustion of local remedies, which may be mediation or process through the domestic courts, before the government can be approached to consent to international investment arbitration.

      Arbitration agreements apply to disputes that arise during the course of the parties contractual relationship, as agreed. Arbitrators are not entitled to impose an arbitration clause upon the parties in respect of disputes which may arise between them after and out of the award as the arbitrator is regarded as functus officio.


      [1] De Lange v Presiding Bishop for the time being of the Methodist Church of Southern Africa 2015 1 All SA 121 (SCA), paragraph 51.

       

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. The Act dictates that the following disputes or causes of action are not capable of resolution by way of arbitration:

      • matrimonial matters; and
      • matters relating to the status of a person.

      At common law, arbitration may not be pursued in criminal matters. Section 35(3)(c) of the Constitution of the Republic of South Africa, 1996 makes this clear. Adjudication of criminal matters is limited to the criminal courts.

      Further, any claim brought under the Promotion of Administrative Justice Act No 3 of 2000 cannot be referred to arbitration. In terms of competition law, disputes pertaining to the possible contravention of competition legislation, must be referred to the Competition Tribunal.

      For insurance-related claims, unless the contract provides otherwise, the owner of a domestic policy must enforce his or her rights against an insurer in a court of competent jurisdiction, but this does not extend to disputes relating to quantum.

      For foreign investors, the Protection of Investment Act, when it is in operation, will require the exhaustion of local remedies, which may be mediation or process through the domestic courts, before the government can be approached to consent to international investment arbitration.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. A third party will be bound by an arbitration agreement where it seeks to participate and submits to the arbitral process and all parties to the agreement have consented in other words, it becomes an additional party to the arbitration agreement, or in circumstances where a third party replaces a party to the arbitration agreement.

      In circumstances where there is failure on all parties to agree to third party involvement, there can be no joinder or binding effect on a third party as this frustrates the consensual nature of an arbitration agreement. 

      Moreover, a court may allow a third party to intervene, on good cause shown, and order that the dispute that is the subject of the arbitration proceedings be determined by way of interpleader proceedings in civil court.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. Consolidation is not possible unless the agreement provides for it. This is because the power to consolidate, either by the arbitrator or court, would frustrate the parties’ choice or agreement to arbitrate their own matter with their chosen arbitrator or tribunal. In circumstances where related contracts between different parties give rise to similar issues, a consolidation of arbitral proceedings can be agreed to.[1]


      [1] P. Ramsden The Law of Arbitration, South African and International Arbitration 2009 (Juta), page 124.

  11. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?

    1. South African law dictates that each company in a group has a separate legal personality with its own distinct rights, privileges, duties and liabilities. In other words, the holding company and its subsidiaries are separate legal entities and the acts of the holding company are not attributable to the acts of its wholly owned subsidiary or vice versa.

      Section 65 of the Close Corporation Act No. 69 of 1984 and section 20(9) of the Companies Act No. 71 of 2008 permits the court to disregard the separate juristic personality of a company and impose personal liability on directors and shareholders. The court will pierce the corporate veil where the corporate structure's separate personality has been abused or thwarted. 

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. An arbitration agreement is a contract entered into between parties that is an accessory to the parties main agreement. Generally, South African law does not endorse the principle of separability unless the contract was terminated by repudiation or due to the voidability of the contract. In such cases, the arbitration clause may be severed, surviving the termination.[1] Regarding the arbitrator's jurisdiction, although he or she may arbitrate on the issue of his or her jurisdiction, his or her decision may ultimately be taken on review. If the court on review holds the contract to be invalid, then the arbitrator's jurisdiction is compromised retrospectively and any resulting award is invalid and unenforceable. 


      [1] Section 3(1).

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. A party that disputes the jurisdiction of the arbitrator must do so at the outset. An arbitrator, when confronted with a jurisdictional objection, cannot simply recuse himself or herself from the matter until a court has clarified his position.[1]

      Where one of the parties contests the validity of the agreement containing the arbitration agreement and alleges that the arbitrator has no jurisdiction, the arbitrator is not precluded from enquiring and ruling on his or her scope of jurisdiction. The rules of all three major administered arbitration institutions in South Africa do allow for such competence. This naturally comes with the risk that such ruling may be challenged and found invalid if on review, it is found that the arbitrator has in fact, no jurisdiction to rule on the matter.[2] Where the arbitration agreement expressly provides for an arbitrator to make a ruling on its jurisdiction, courts will be reluctant to prematurely interfere prior to the requirements of the agreement being carried out.[3]

      The International Arbitration Bill incorporates the UNCITRAL Model Law which includes the principle of competence-competence in its ambit. Once promulgated, this principle will apply to international arbitrations.


      [1] Radon Projects (Pty) Ltd v NV Properties (Pty) Ltd and another [2013] 3 All SA 615 (SCA), paragraph 28.

      [2] Radon Projects (Pty) Ltd v NV Properties (Pty) Ltd and another [2013] 3 All SA 615 (SCA), paragraph 29.

      [3] Zhongji Development Construction Engineering Co Ltd v Kamoto Copper Co SARL 2014 4 All SA 617 (SCA), paragraph 54.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. In terms of validity, the arbitration clause needs to conform to the Act. The Act states that the arbitration agreement must refer an existing dispute, or any future dispute relating to a matter so specified, to arbitration and it must be in writing.

      It may be worthwhile for the parties to set out with greater particularity the rules under which they wish to arbitrate. For example, whether the arbitration will be administered by a secretariat or institution as well as provide a more detailed procedural framework.

      Generally, arbitration clauses afford the arbitrator discretion to rule on various issues and thus provides for a relatively flexible procedure. This being said, rules that allow for parties to have a fair hearing are vital and the principles that govern privilege, prejudice and onus of proof according to the standard of civil proceedings must be complied with.[1] Some of the arbitration rules, such as AFSA, for example, provide that the South African law of evidence applies to the arbitral proceedings.


      [1] Arbitration Act 42 of 1965, section 14(1)(b)(iii).

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. Domestic arbitration is frequently encountered in ad hoc referrals, typically flowing from civil court proceedings or rudimentary contractual submissions to arbitration, where the parties often agree to follow High Court Rules on process and taking evidence and the arbitrator acts as quasi judge. More frequently, and in more sophisticated domestic and cross border transactions, the arbitration submissions are likely to be institutional. Domestic arbitrations  seldom contemplate adoption of the UNCITRAL Rules in ad hoc proceedings whereas international arbitration proceedings conducted on an ad hoc basis will often use the UNCITRAL Rules, coupled with the IBA Rules on the Taking of Evidence in International Arbitration. Domestic arbitration is facilitated by AFSA and its rules are widely used. For example, AFSA's fully administered service offers specialised case management within a flexible process and a choice of rules depending on the size and complexity of the arbitration matter.

      On the other hand, the most prominent international institutions that are widely used in international arbitrations are the Court ICC and the LCIA. Accordingly, the rules of the ICC and LCIA will apply to international arbitrations.

      The parties to ad hoc domestic proceedings may also agree to choose to apply the rules of the High Court of South Africa.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. All arbitral proceedings are premised on the notion of contractual privity and consensus. There are no particular form requirements for a multiparty arbitration agreement.

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. Firstly, an arbitral tribunal must be satisfied that an arbitrable dispute exists that is covered by a valid arbitral agreement to commence an arbitration. Any party to an arbitration agreement may initiate proceedings by providing a referral notice, notifying the counterparty or parties of its intention to refer a particular dispute or disputes to arbitration and calling upon such party or parties to agree to the appointment of an arbitrator. If parties have agreed to an administered arbitration, the applicable secretariat will make or confirm his or her appointment and then a pre-arbitration meeting can set the forthcoming procedural timetable. 

      Generally, there are no limitation periods for the commencement of arbitration, save as may be contractually stipulated. The tribunal must be satisfied that stipulated time periods for commencing arbitration have been complied with, or alternatively, waived. A court has the power to extend a stipulated period of time if it considers it proper and if undue hardship would otherwise result.[1]  Parties may agree on a pre-arbitration conference to discuss logistical or procedural issues, including time periods for the delivery of process.

      In terms of the principle of extinctive prescription, certain types of obligations or debts may prescribe or become unenforceable if not exercised within the prescribed time periods. The Prescription Act No. 68 of 1969 (Prescription Act) provides for different prescription periods, depending on the type of debt and the type of debtor. The Prescription Act provides that a contractual claim is extinguished by prescription if the creditor fails to enforce the claim within three years of the date on which the debt became due. The debt is not deemed to be due until the creditor has knowledge of the identity of the debtor or could have acquired such knowledge by the exercise of reasonable care. A referral to arbitration, where the creditor claims payment of a debt, interrupts the prescriptive period.

      When it is in operation, section 13 of the Protection of Investment Act relating to disputes brought by a foreign investor will require that certain information and a prescribed form must be submitted by the foreign investor when mediation of the dispute is contemplated. These include contact details of the foreign investor; a summary of the claim, including the measures giving rise to the investment dispute; the specific organ, agency, province or other subdivision of South Africa allegedly responsible for the measures which the foreign investor alleges constitute a breach of any of the investment protection contained in the Protection of Investment Act; the provisions of the Protection of Investment Act that the foreign investor alleges have been breached and the relief sought.


      [1] Arbitration Act 42 of 1965, section 8.

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. Generally, the substantive law applicable to the dispute is agreed to by the parties as the governing law of the contract, which has the effect of superseding the governing law of the seat of arbitration unless the chosen law is contrary to public policy or prohibited by legislation. In the absence of prior agreement, the arbitral tribunal will determine which substantive law applies in accordance with the applicable principles of private international law, as applied at the seat of arbitration in relation to the contractual choice of law.

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. There are no statutory restrictions to a party's choice of an arbitrator or arbitrators in terms of the Act, provided that an arbitrator must be impartial and independent. A party is likely to opt for an arbitrator with the requisite level of expertise relevant to the dispute at hand.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. There is no restriction on the appointment of foreign arbitrators. Arbitrators travelling to South Africa for a hearing or site visit may need to comply with applicable visa requirements. 

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. Parties are likely to set out the procedure for appointment of arbitrators in their agreement. In circumstances where an arbitrator refuses or is unable to act, the party who appointed the arbitrator may appoint another in his place.[1] Where there is to be more than one arbitrator and a party does not appoint an arbitrator after notice, the appointed arbitrator will act as the sole arbitrator.[2]

      As a general rule, courts play no role in the selection and appointment of an arbitrator. However, section 12 of the Act provides that a court will, upon application by any of the parties to the arbitration agreement, intervene in the selection and appointment of an arbitrator if the parties' method of selection fails. The rules of arbitration institutions, to the extent that they are applicable, will also usually provide for a default selection procedure.


      [1] Arbitration Act 42 of 1965, section 10.

      [2] Arbitration Act 42 of 1965, section 10.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. There is no law in South Africa expressly providing for arbitrator immunity. While notionally a claim may lie against an arbitrator for breach of mandate, there is no case law precedent whereby a party to an arbitration agreement has brought a claim against an arbitrator or former arbitrator in South Africa. There is also no restriction on the arbitrator's entitlement to require the parties to arbitration to contractually indemnify him or her on acceptance of the mandate. 

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. It is common practice for the arbitrator to enter into a fee arrangement with the parties at the time of his appointment in ad hoc proceedings. Where the parties are engaged through local arbitration institutions, these entities require payment of administration fees along with deposits to serve as security for the payment of arbitrators' fees.

      Section 34(1) of the Act provides that where the fees of the arbitrator have not been fixed by an agreement, any party to the reference may, notwithstanding that such fees may already have been paid, require such fees to be taxed. These fees are taxed by a taxing master of the High Court of South Africa. Section 34(4) of the Act makes provision for the arbitrator's right to withhold his or her award pending payment of his or her fees and any expenses incurred by him or her in connection with the arbitration proceedings. An arbitrator is entitled to sue parties to recover fees, with parties being jointly liable for such fees if such right is conferred by agreement.[1]


      [1] Miller v Kirsten 1917 TPD 489 491.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. An arbitrator's mandate can be terminated by agreement between the parties. Absent any such agreement, an aggrieved party would need to apply to court and show good cause as to why the arbitrator should be removed from office, an onus borne by the applicant.[1] The Act says that "good cause" includes the following:

      • a failure on the part of an arbitrator to use all reasonable dispatch in entering on and proceeding with the arbitration and making an award; or
      • in a case where two arbitrators are unable to agree, in providing the parties with notice to this effect.

      Further, it has been held that “good cause” includes instances where bias or partiality can be proved, the test being that of a reasonable apprehension of bias. The test is whether or not a reasonable apprehension of bias exists. This entails:

      • the person considering the alleged bias must be reasonable; and
      • the apprehension of bias itself must also be reasonable in the circumstances of the case.[2]

      The test must be applied after the alleged bias has occurred.


      [1] Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews 2009 4 SA 529 (CC) paragraph 179.

      [2] President of the RSA v SA Rugby Football Union 1999 7 BCLR 725 (CC), paragraph 45.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. In accordance with section 21 read together with section 26 of the Act, a court may make an order relating to the following interim measures:

      • security for costs;
      • discovery of documents and interrogatories;
      • the giving of evidence by affidavit;
      • the examination of any witness before a commissioner in South Africa;
      • the inspection, the interim custody, the preservation, or the sale of goods or property;
      • an interim interdict or similar relief;
      • securing the amount in dispute in the reference;
      • substituted service of notices required by the Act or summonses; and
      • the appointment of a receiver.

      A court has the same powers as the arbitration tribunal for making the interim orders listed under section 21 of the Act.

      There are no reported cases where a South African court has issued an anti-suit injunction preventing a party from commencing or continuing arbitration proceedings in another jurisdiction or forum. However, a party is entitled to raise a special defence of lis pendens and demonstrate that there are proceedings pending between the parties based on the same cause of action. This usually results in the dismissal or the suspension of the secondary proceedings pending the outcome of the first proceedings.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. The Act does not specifically empower the tribunal to make an order for security for costs. The scope for interim relief from the tribunal in section 26 is vaguely phrased and allows for a tribunal to grant security for costs indirectly at any time within the period allowed for making an award. The rules of most administering bodies allow for this relief. In the absence of specific agreement or deemed agreement through the relevant applicable arbitral Rules providing for security for costs as a form of interim relief, the parties would have to apply to court for such an order. In terms of section 21(1) of the Arbitration Act, a court has the power to make an order as to security for costs.

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. Besides the empowering provisions of the Act, there are no mandatory rules governing the procedure of an arbitration in South Africa. The procedure will usually be determined by rules chosen by the parties, such as those of the arbitration institution administering the arbitration and the arbitration agreement itself.[1] In the absence of a set of rules, the parties usually agree on procedural rules specifically for purposes of arbitration.


      [1] P. Ramsden The Law of Arbitration, South African and International Arbitration 2009 (Juta), page 130.

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. The arbitrator's power to deal with a dilatory or non-compliant party is limited. This depends on the terms of the arbitration agreement and, to some extent, the Act. Although the Act does not provide for the barring of a party (as in litigation proceedings), the Act does provide for certain instances where the arbitrator can proceed with the arbitration in the absence of a dilatory party. This may occur if the party receives adequate notice of the arbitration proceedings, fails to attend the proceedings and fails to provide sufficient cause for such non-attendance.[1]

      A party who wilfully refuses to participate is deemed to have waived his right to be heard. However, the onus is on the complying party to adduce sufficient evidence for the arbitrator to make an award in the absence of the party who refuses to participate.[2]


      [1] Arbitration Act 42 of 1965, section 15(2).

      [2] P Ramsden The Law of Arbitration, South African and International Arbitration 2009 (Juta), page 143.

  29. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

    1. Sections 14 and 22 of the Act govern the powers of the arbitration tribunal in relation to the procedure and procurement of evidence. The arbitral tribunal is given the power, under section 14(1), to make discovery of documents, allow for inspection, and to appoint a commissioner to take evidence. An arbitrator has the discretion to admit any evidence which is logically probative and reliable.[1]

      The Act does not, contain any provision regarding the manner in which the arbitration tribunal is required to establish the facts of the case. As a general rule, the arbitrator will usually apply the rules of the South African Law of Evidence. There is no strict obligation to do so, however, as the arbitrator is bound only by the rules of natural justice.

      The parties to an arbitration usually determine the type of evidence that will be led and the procedure for procuring evidence. For example, expert evidence is presented in an expert report prior to the hearing and the expert will give oral evidence with reference to their report. The IBA Rules on the Taking of Evidence in International Arbitration are not used frequently by domestic arbitration tribunals and common practice is to apply the South African law of evidence and proof, corresponding to the common law principles and conventional civil court practice on standards of discovery and document production, documentary evidence, rules of privilege and admissibility of evidence, qualification of experts and the presentation of expert evidence, the need for, and conduct of, oral evidence and cross-examination of witnesses in the common law tradition. Where international arbitration proceedings are initiated on an ad hoc basis, the parties more commonly resort to adoption of the IBA Rules on the Taking of Evidence in International Arbitration. 


      [1] P. Ramsden The Law of Arbitration, South African and International Arbitration 2009 (Juta), page 146.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. In terms of section 21(1) of the Act, the court retains its ordinary powers regarding the process of discovery in relation to arbitration. In practice, however, the tribunal will direct the disclosure process in its entirety. The parties will usually only involve the court when third parties are involved. This may occur when one of the parties applies for discovery in terms of the Act vis a vis a third party and that party fails to disclose the requested item. Here, the party may then apply to court to compel the third-party discovery. 

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. There are no prevailing practices relating to document production in international arbitration in South Africa. Ordinarily, and where the South African law of evidence finds application, documents requested and declared admissible must be relevant to a key issue in the arbitration.[1] The ordinary Redfern-type process, or a Request to Produce procedure under the IBA Rules on the Taking of Evidence in International Arbitration, may find application, particularly in the area of construction and engineering disputes.


      [1] P. Ramsden The Law of Arbitration, South African and International Arbitration 2009 (Juta), page 147.

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. While the Act, AFSA and ASA procedural rules envisage a hearing, the parties may agree to dispense with a hearing and refer a stated case to the arbitrator for determination. This is possible where narrow issues are concerned that are not subject to material disputes of fact, and which do not require the leading of oral evidence.

      Arbitral tribunals are afforded the flexibility of varying the traditional adversarial procedure and may opt to be more involved in the process by intervening and questioning witnesses.[1]


      [1] Lufuno Mphaphuli & Associates (PtyLtd v Andrews 2009 6 BCLR 527 (CC).

  33. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

    1. Yes, the Act provides that parties can agree to conduct hearings and procedural meetings elsewhere irrespective as to the jurisdictional seat.[1] 


      [1] Section 14(1)(b)(i).

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Unless there is an agreement between the parties to the contrary, a decision sanctioned by the majority of the arbitral tribunal is sufficient in terms of section 14 of the Act. If there are only two arbitrators and there is disagreement, the Act provides for the appointment of an umpire to resolve the disagreement.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. Yes. For example, arbitrators are not allowed to award punitive or exemplary damages as such awards are unenforceable under South African law. 

      However, if an applicant applies to court for the setting aside of an award and in doing so, repeatedly makes unfounded allegations against the arbitrator, a punitive costs order can be granted resulting from special circumstances.[1]


      [1] Abrahams v RK Komputer SDN BHD 2009 4 SA 201, page 212.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. Yes they are permitted, but are not common in practice. An award sanctioned by the majority of an arbitration tribunal is sufficient. 

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. The legal and formal requirements for a valid and enforceable award are the following:

      • the award must be in writing and signed by all members of the arbitration tribunal;
      • the award must be made within the period prescribed by the Act or by the arbitration agreement, or within any extended period allowed by the parties or the court; and
      • the award is required to be delivered by the arbitration tribunal, the parties or their representatives being present or having been summoned to appear, unless otherwise agreed.
  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. The court may, on good cause shown, extend the time for making the award, whether it has expired or not. If the time period for making an award has expired, a party can apply to court for an extension or, alternatively, for an order that the arbitration agreement ceases to have effect.

      The Act provides that the arbitration tribunal must, unless the parties agree otherwise, deliver its award within four months of the date upon which the arbitrator was called on to act as arbitrator or on or before any later date to which the parties may agree.

      In the case of an award by an umpire (a person called upon by the parties or arbitrators to resolve a matter of procedure or any interlocutory question), the award must be made within three months of the date upon which the umpire was called on to act as umpire (or before any later date to which the parties may agree).

      The Act says that if a period of six weeks has lapsed after the publication of an award, the parties to the reference may (in writing and signed by them) remit any matter that was referred to arbitration to the arbitration tribunal for reconsideration. An arbitration tribunal may correct any award, any clerical mistake or any patent error arising from an accidental slip or omission. There is no fixed time limit on this.

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. Yes. Parties are able to recover costs incurred in the arbitration. The general principle in awarding costs is that they follow the successful party.[1] Unless, the arbitration agreement provides otherwise, the arbitration tribunal has unfettered discretion to award costs incurred in the arbitration,[2] subject to the principle of  fairness.

      The arbitration tribunal is required to give directions as to the scale on which such costs are to be taxed as well as by whom and in what manner costs, or any part, are to be paid. Further, the arbitration tribunal may tax or settle the amount of costs, or any part thereof, and may award costs as between attorney and client. Where a party applies to court to have an award made an order of court, provided that it is necessary to do so, a court will award costs in its favour.


      [1] P. Ramsden The Law of Arbitration, South African and International Arbitration 2009 (Juta), page 173.

      [2] Arbitration Act 42 of 1965, section 35(1).

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. The Act states that where an award orders the payment of a sum of money, such sum shall, unless the award provides otherwise, carry interest as from the date of the award and at the same rate as a judgment debt. Where the rate of interest on outstanding sums of money has not been agreed by the parties, the Prescribed Rate of Interest Act applies. From 1 May 2016, the applicable rate of interest is 10.5 per cent per annum, calculated daily without compounding. At common law, the in duplum rule states that the amount of interest accumulated cannot exceed the capital amount. This finds application equally to arbitration awards.[1]

      A foreign arbitral award that orders the payment of money, expressed in a foreign currency, must first be converted to rand for it to be enforceable in South Africa. In terms of section 2(2) of the Foreign Arbitral Awards Act, the award must be made an order of court as if it were an award for payment of the equivalent amount in Rand on the basis of the exchange rate prevailing at the date of the award and not at the date of the order of enforcement. The applicant therefore carries the risk of devaluation between the time of the award and the time of the order of enforcement.


      [1] P. Ramsden The Law of Arbitration, South African and International Arbitration 2009 (Juta).

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. A valid arbitration award is enforceable until such time that it is set aside or remitted to the arbitral tribunal by the court, the grounds on which the court will intervene are very narrow.[1] Neither errors of fact nor errors of law are ordinarily appealable. Section 28 of the Act provides that unless the arbitration agreement provides otherwise, an award, shall, subject to the provisions of the Act, be final and not subject to an appeal and each party to the reference shall abide by and comply with the award in accordance with its terms. The parties are only entitled to appeal the award if the arbitration agreement provides as much. 


      [1] Amalgamated Clothing & Textile Workers Union of SA v Veldspun (PtyLtd 1994 1 All SA 453 (A).

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. An award may be set aside in terms of the Act, upon application to court by either of the parties on notice, in instances where:

      • any member of the arbitration tribunal has misconducted themselves in relation to their duties as arbitrator or umpire. It is necessary to establish mala fides to set an award aside on this basis. An arbitrator is required to carry out their duties impartially and independently and a failure to do so constitutes misconduct;
      • an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings. An arbitrator must at all times ensure that the administration of justice is carried out ; and
      • an arbitration tribunal has exceeded its powers; and an award has been improperly obtained when it is based on deliberately false material evidence.

      These are difficult applications to make. If the parties agree (or an application is made to the court), a court may rule on any point of law that arises during the proceedings, but before a final award is made. This declaratory order is binding and final. If it is ignored by the arbitrator, this would constitute misconduct or a gross irregularity, unless the court's decision is effective pending the arbitrator's final decision.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. The principle of finality is a cornerstone of private commercial arbitration. There is no right of appeal unless expressly provided for in the arbitration agreement concluded between the parties. The remaining grounds of challenge to an award, as provided for above, accrue statutorily and are not capable of contractual exclusion.

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. No. In terms of the Recognition and Enforcement of Foreign Arbitral Awards Act of 1977, a court will refuse to enforce a foreign arbitral award if:

      • if the award is not yet binding on the parties; or
      • it has been set aside or suspended by a competent authority of the country in which (or in terms of the law in that country) the award was made.

      Importantly, when seeking to enforce a foreign award in South Africa, due consideration must be given to the Protection of Businesses Act No. 99 of 1978. This Act provides that no arbitral awards made outside South Africa may be enforced inside South Africa without the consent of the Minister of Economic Affairs. If the award arose from an act or transaction "connected with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership to any matter or material, of whatever nature whether within, outside, into or from [South Africa]". The wording of this Act is wide and could potentially be used to frustrate enforcement of foreign arbitral awards beyond its intended ambit.  As most awards touch on the ownership of "matter or material", the Minister's permission may well be needed in nearly every action for recognition and enforcement. This is a serious consideration for those trying to enforce.

      The new International Arbitration Bill, which has recently been approved, aims to repeal the Recognition and Enforcement of Foreign Arbitral Awards Act of 1977 and instead incorporates provisions relating to the recognition and enforcement of foreign arbitral awards into the text of the International Arbitration Bill.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. The South African courts continue to strongly support arbitration as a method of resolving commercial disputes and the Supreme Court of Appeal has affirmed the international principle that there should be minimal court intervention when reviewing and enforcing international commercial arbitration awards. As such, South Africa remains a good choice of seat for an arbitration.

      The South African position on enforcement is slowly aligning with international best practice. The International Arbitration Bill, when passed into law, will repeal the Recognition and Enforcement of Foreign Arbitral Awards Act, 1977 and will align international arbitration law in South Africa with the UNCITRAL Model Law on International Commercial Arbitration. 

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. The government of South Africa is obliged to honour judgment debts as granted against it. The State Liability Amendment Act came into force on 30 August 2011. This legislation amends and regulates the manner in which enforcement and execution proceedings should be conducted.

      The state attorney is obliged to inform the relevant government department of the existence of a court order sounding in money against it. This must be done within seven days of the final court order having been granted. The department then has 30 days in which to settle the money owed. If payment is not effected within the stipulated time period, the creditor may then apply for a writ of execution against the moveable property of the state. The Sheriff of the Court ought to attach moveable property that is not crucial for service delivery (or will threaten life if removed). The attached property may be sold by a Sheriff of the Court within 30 days of the date of attachment.

      In terms of the Foreign States Immunities Act, if a foreign state has agreed in writing that should a dispute arise and be referred to arbitration, then that state will not be immune from the jurisdiction of the courts in relation to any proceedings that arise from the arbitration.

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. The Act does not provide for the confidentiality of arbitration proceedings. However, parties may include a confidentiality clause in their arbitration agreement. Even if the parties fail to include a confidentiality clause in their arbitration agreement, such a term is considered to be implied through the common law. The ASA and AFSA procedural rules expressly provide for the confidentiality of arbitration proceedings and the final award.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. All pleadings, processes, evidence exchanged and led during the proceedings and the details of the arbitration award are confidential. The parties may, of course, waive their right to confidentiality.

      When an application is made in terms of the Act, in order to declare an award an order of court, the award becomes a matter of public record. But often this is uncontroversial since the court will only disclose limited aspects of the matter in relation to the award.

      Whether information disclosed in arbitral proceedings can be referred to and/or relied on in subsequent proceedings between the same parties will depend on whether the subsequent proceedings arise from or relate to the initial arbitration. In practice, a party might be able to compel disclosure of such documentation through the subsequent disclosure process. 

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. The tribunal is under a legal duty to conduct the arbitration proceedings fairly.[1] The arbitrator must make their decision based on the general considerations of justice and fairness.[2]


      [1] Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews 2009 4 SA 529 (CC) paragraph 221.

      [2] Amalgamated Clothing & Textile Workers Union of SA v Veldspun (Pty) Ltd 1994 1 All SA 453 (A); 1994 1 SA 162 (A) paragraph 167H.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. The arbitration process in South Africa is typically grounded in the English model of adversarial process as opposed to the inquisitorial model encountered in Europe.

      In relation to exchange of processes, the conduct of hearings and dealing with evidence, process generally follows the norms of the South African civil court,[1] although the arbitration procedures are generally more flexible and less formal.[2]


      [1] Melman v Engelman 1940 WLD 151 154; section 14(1) of the Arbitration Act 42 of 1965.

      [2] Supra. Lufuno Mphaphuli para 197.

  51. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?

    1. Third-party funding is now permitted in South Africa. Previously the position on third party funding was that these agreements were unlawful and as such, void.[1] There has since been substantial case law declaring that where a third party is to fund a proceeding, such agreement is valid in law and is not contrary to public policy.[2]

      In PricewaterhouseCoopers Inc and others v National Potato Co-operative Limited, the Supreme Court of Appeal held, that an agreement to finance litigation in exchange for a part of the proceeds is in keeping with the right of access to justice. It is not in itself an offence of "champerty". In short, the courts have held that a funding agreement will only be an abuse of process if it lacks good faith. The PricewaterhouseCoopers case has opened the way to more innovative funding of expensive litigation in South Africa, and this is an area that is gaining momentum.

      However, the courts recognise that funding of this nature could lead to an abuse of process and provision has been made for a third party funder to be held jointly and severally liable for any adverse costs orders, particularly where they are no longer impartial and are actively involved in the case.[3] There is generally no obligation on a party to disclose the existence of a third-party funding arrangement in order to bring the case.


      [1] Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd 2004 (9) BCLR 930 (SCA), paragraph 28.

      [2] Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd 2004 (9) BCLR 930 (SCA), paragraph 52.

      [3] Naidoo v EP Property Projects (Pty) Ltd (444/2012) [2014] ZASCA 97, paragraph 39 and 40.

Interested in contributing to this Know-how?

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the "group of companies doctrine" recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.

    Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?


  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.

    Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?


  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
  63. 51.

    Third-party funding
    Is third-party funding permitted in your jurisdiction?