Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.
Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.
Results: 4 Answers
International Arbitration
6.
Applicable law issues
6.1
How is the law of the arbitration agreement determined in your jurisdiction?
 
South Africa
The International Arbitration Act does not prescribe any method for determining the law of the arbitration agreement, which will be left to the discretion of the tribunal.

Article 36 of Schedule 1 to the act provides for the (discretionary) non-enforcement of an award where the contracting parties lacked capacity to conclude the agreement, determined in accordance with the law chosen by the parties. It is submitted that an inference can therefore be drawn that the substantive law of the arbitration agreement is the same as the substantive law of the arbitration agreement, unless otherwise indicated.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
6.2
Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?
 
South Africa
Yes, Article 28 of the Schedule 1 to the act obliges the tribunal to decide the dispute in accordance with the rules chosen by the parties to be applicable to the substance of the dispute.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills