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.
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Results: 4 Answers
International Arbitration
8.
The tribunal
8.1
How is the tribunal appointed?
 
South Africa
Arbitrators are appointed in accordance with Article 11 of Schedule 1 to the act, which stipulates that the parties are free to determine their own procedure for the appointment of the tribunal.

In the absence of agreement, Article 11 of Schedule 1 to the act provides as follows:

  • For a tribunal of three arbitrators, each party will elect one arbitrator and the third arbitrator will be elected by the two elected arbitrators; and
  • If a party fails to appoint an arbitrator or the two chosen arbitrators fail to elect a third within 30 days of their appointment, upon request of a party, the court specified in Article 6 of Schedule 1 to the act will make the appointment.

Should the parties be unable to agree on a sole arbitrator, the same court shall make the appointment, on application of one of the parties.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
8.2
Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
 
South Africa
The parties are free to determine the number of arbitrators. In the absence of agreement, the International Arbitration Act provides for the appointment of a sole arbitrator (Article 10 of Schedule 1 to the act).

No further requirements are prescribed by the act.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
8.3
Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
 
South Africa
Yes, Article 12 of Schedule 1 to the act stipulates the grounds for challenge of an arbitrator.

An arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence, or if he or she does not possess the qualifications agreed to by the parties. ‘Justifiable doubts’ require substantial grounds for contending that a reasonable apprehension of bias would be entertained by a reasonable person in possession of the correct facts.

A party may challenge an arbitrator whom it has appointed or in whose appointment it has participated only for reasons of which it becomes aware after the appointment has been made.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
8.4
If a challenge is successful, how is the arbitrator replaced?
 
South Africa
Article 15 of Schedule 1 to the act provides for a replacement arbitrator to be appointed in the same manner as the arbitrator being replaced.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
8.5
What duties are imposed on arbitrators? Are these all imposed by legislation?
 
South Africa
All obligations imposed on an arbitrator are derived from the International Arbitration Act.

Article 12(1) of Schedule 1 to the act obliges an arbitrator to disclose any circumstance likely to give rise to justifiable doubts as to his or her impartiality or independence. This obligation persists throughout his or her appointment.

Article 18 of Schedule 1 to the act prescribes that the parties are to be treated equally and each party shall be given a reasonable opportunity to present its case.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
8.6
What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
 
South Africa
(a) Procedure, including evidence?

Article 19(2) of Schedule 1 to the act empowers the arbitrator, in the absence of agreement by the parties, to conduct the arbitration in such a manner as it considers appropriate.

The arbitrator, in exercising this power, is free to determine the admissibility, relevance, materiality and weight of any evidence.

Article 26 empowers the arbitrator, in the absence of agreement to the contrary between the parties, to appoint an expert to the tribunal and to require any party to submit to the expert any relevant information.

Article 27 provides for the assistance of the court in the taking of evidence in the form of a subpoena for the attendance of a witness at proceedings or for the production of documents. In addition, Article 27 provides for the taking of evidence outside of the jurisdiction of the court.

(b) Interim relief?

Article 17 of Schedule 1 to the act provides for the granting of interim measures upon hearing both parties.

An arbitrator is not empowered to grant preliminary orders (ex parte).

(c) Parties which do not comply with its orders?

Interim measures may be enforced upon application to the competent court. The court order so obtained will then be enforced through the ordinary mechanism of service by sheriff and potential attachment.

(d) Issuing partial final awards?

While the concept of a partial final award is not reflected in the wording of the International Arbitration Act, the granting of such an award is not precluded.

Article 32 of Schedule 1 to the act states that proceedings are terminated by the final award of the tribunal. As a partial final award does not intend to discharge the arbitrator of his or her duties as arbitrator, it is submitted that a partial final award is not a final award as envisaged in Article 32. However, the partial final award is finally dispositive of the matters addressed in that award.

(e) The remedies it can grant in a final award?

The International Arbitration Act does not prescribe the remedies which an arbitrator can grant in a final award.

Section 7 of the International Arbitration Act requires that the dispute fall within the ambit of the agreement and relate to a matter which the parties are entitled to dispose of by agreement.

It is therefore submitted that an arbitrator is entitled to grant any relief which would otherwise be capable of being performed by agreement between the parties and which falls within the ambit of the arbitration agreement.

(f) Interest?

Article 31(5) of Schedule 1 to the act states that a tribunal may award interest on such basis and on such terms as the tribunal considers appropriate and fair in the circumstances, also having regard to the currency in which the award was made, commencing not earlier than the date on which the cause of action arose and ending not later than the date of payment.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
8.7
How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
 
South Africa
Article 25 of Schedule 1 to the act addresses instances of default by a party.

If a claimant fails to deliver its statement of claim in accordance with Article 23(1) of Schedule 1 to the act, the tribunal shall terminate the proceedings.

If a respondent fails to communicate its statement of defence in accordance with Article 23(1) of Schedule 1 to the act, the tribunal shall continue the proceedings without treating the default of the respondent as an admission of the claimant’s allegations.

If either party fails to appear at a hearing, the tribunal may continue the proceedings and make an award based on the evidence before it.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
8.8
Are arbitrators immune from liability?
 
South Africa
Section 9 of the International Arbitration Act provides that an arbitrator is not liable for any act or omission in the discharge or purported discharge of his or her functions as arbitrator, unless the act or omission is shown to be in bad faith.

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