Comparative Guides
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Results: 4 Answers
International Arbitration
9.
The role of the court during an arbitration
9.1
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?
 
South Africa
Article 5 of Schedule 1 to the act states that no court shall intervene in matters governed by the International Arbitration Act, except where so expressly provided.

Article 8 of Schedule 1 to the act obliges a court to stay court proceedings in circumstances where an arbitration agreement exists and one of the parties requests a stay of the proceedings. Such a request is to be made no later than the submission of its first statement on the substance of the dispute.

A court is not obliged to stay the court proceedings if it finds that the agreement is null and void, inoperative or incapable of being performed.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
9.2
Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?
 
South Africa
Article 9 of Schedule 1 to the act empowers a court to grant interim measures. The court is granted the same powers as conferred upon the arbitrator by Article 17J of Schedule 1 to the act.

Article 11 of Schedule 1 to the act empowers the court to appoint an arbitrator in circumstances where either the parties or the two appointed arbitrators fail, within 30 days, to appoint an arbitrator.

Article 13 of Schedule 1 to the act provides a form of appeal to a court in circumstances where a challenge of an arbitrator is unsuccessful. This application to a court is not subject to further appeal.

Article 14 of Schedule 1 to the act empowers the court to decide on the termination of the mandate of an arbitrator in circumstances where controversy regarding his or her removal exists.

Article 16 of Schedule 1 to the act empowers the court to finally rule on a determination made by the tribunal, following a challenge of the tribunal’s jurisdiction.

Article 17H of Schedule 1 to the act obliges the court to recognise an interim measure issued by the tribunal, regardless of whether the measure was issued in South Africa.

Article 17H of Schedule 1 to the act empowers the court to order that a party seeking recognition or enforcement of an award provide security, if it considers this proper, if the tribunal has not already made a determination with respect to security or if such a decision is necessary to protect the rights of third parties.

Article 17J of Schedule 1 to the act grants the court the same powers in relation to arbitration proceedings, regardless of whether the seat is in South Africa, as in proceedings before the court for:

  • preservation orders;
  • interim custody of goods;
  • an order securing the amount in dispute (but not an order for security for costs);
  • an order appointing a liquidator;
  • any other order to ensure that an award of the tribunal is not rendered ineffectual by the dissipation of assets; and
  • any interim interdict or other interim order.

Article 27 of Schedule 1 to the act empowers a court to assist with the taking of evidence in the form of issuing subpoenas to compel the attendance of witnesses and the provision of documents. The court shall also have the same power to make an order for the issue of a commission or a request for the taking of evidence outside of its jurisdiction as it would ordinarily have in civil matters before it.

Articles 34 and 35 of Schedule 1 to the act detail the court’s power in setting aside, recognising and enforcing an award.

For more information about this answer please contact: Jonathan Ripley-Evans from Herbert Smith Freehills
9.3
Can the parties exclude the court's powers by agreement?
 
South Africa
Where the legislation confers a mandatory function upon the court, the parties cannot contract out of that power.

However, if the function or power is not mandatory, there is no reason why the parties cannot by agreement agree on the matter.

Whether a provision of the International Arbitration Act is mandatory will depend on the wording of the provision concerned.

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