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Arbitral proceedings

Starting an arbitration proceeding
What is needed to commence arbitration?

A valid reference to arbitration, followed by the appointment of an arbitrator/tribunal.

Limitation periods
Are there any limitation periods for the commencement of arbitration?

Generally, there are no limitation periods for the commencement of arbitration. However, in practice, time limitations are often included in arbitration agreements by agreement between the parties.

The usual prescriptive periods for the prosecution of claims as provided for in the Prescription Act 1969 will still apply and are not excluded because the dispute is referred to arbitration. However, arbitration does interrupt the running of the prescription period.

Procedural rules
Are there any procedural rules that arbitrators must follow?

The rules are to be agreed between the parties. In the absence of agreed rules which determine the procedural steps in the arbitration, there are no particular procedural steps required by law. Absent agreement on a procedural framework or the application of existing rules under an administered arbitration, procedural directives by the arbitrator are therefore required.

Dissenting arbitrators
Are dissenting opinions permitted under the law of your jurisdiction?

Dissenting opinions are permitted, but they are not common in practice. An award sanctioned by the majority of the tribunal is sufficient.

Judicial assistance
Can local courts intervene in proceedings?

Local courts can intervene in the proceedings, insofar as a submission to arbitration does not subvert the inherent jurisdictional authority of the High Court. In terms of Section 21 of the Arbitration Act, for the purpose of and in relation to a reference to arbitration under an arbitration agreement, a court has the power to make orders in respect of any matters specified in the section that it has for the purposes of and in relation to any other action or matter in that court.

The matters specified include:

  • security for costs;
  • discovery of documents and interrogatories;
  • examination of witnesses;
  • submission of evidence by affidavit;
  • security for the amount in dispute;
  • substituted service; and
  • appointment of a receiver.

In addition, in terms of Section 20 of the Arbitration Act, a tribunal may, on application by a party or of its own volition, state any question of law arising in the course of the reference in the form of a special case for the opinion of a court or for the opinion of counsel. This must be before it makes a final award and on the application of any party to the reference or if the parties to the reference so agree. An opinion subsequently provided by the court/counsel is final and not subject to appeal, and is binding on the tribunal and the parties to the reference.

Can the local courts assist in choosing arbitrators?

If the selection mechanism fails for any reason, the court may, upon application by a party to the arbitration agreement, appoint an arbitrator in the circumstances provided for in Section 12 of the Arbitration Act.

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can they compel parties to arbitrate? Can they issue subpoenas to third parties?

A party that wilfully refuses to participate in an arbitration is deemed to have forfeited the opportunity to be heard. The Arbitration Act provides for the tribunal to proceed if a party which received adequate notice of arbitration proceedings fails to attend the proceedings and fails to provide good and sufficient cause for such non-attendance.

An arbitrator generally has the same authority to order the disclosure of documents and things as the court would have if the arbitration were a civil action pending in the court.

The Arbitration Act also provides for the summoning of witnesses. The issue of a summons to compel any person to attend before a tribunal, to give evidence and to produce books, documents or things to a tribunal may be procured by any party to a reference in the same manner and subject to the same conditions as if the reference were a civil action pending in the court with competent jurisdiction.

Third parties
In what instances can third parties be bound by an arbitration agreement or award?

Insofar as the principles of privity of contract find application in relation to arbitration proceedings, a third party may become bound by an arbitration agreement only where all other parties consent thereto, or in circumstances where a third party replaces a party to the arbitration agreement by way of assignment or succession.

Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?

There is no default language or seat, although in practice English is the language most often used in arbitrations.

Gathering evidence
How is evidence obtained by the tribunal?

Ordinary civil law principles applicable in terms of common law or statute find application in most domestic arbitrations. In terms of Section 14(1) of the Arbitration Act, on the application of any party to the reference, an arbitrator may require a party to make discovery of documents by way of affidavit or by answering interrogatories on oath, and to produce such documents for inspection. Section 14(1) further provides that an arbitrator may also examine the parties (or any other person) appearing/summoned to give evidence in relation to matters in dispute and require them to produce relevant documents/things in their possession which may be required or called for at the trial of an action.

Section 16 of the Arbitration Act provides that witnesses may be summoned to give evidence or produce any documents in the same manner and subject to the same conditions as if the reference were a civil action.

What kinds of evidence are acceptable?

Generally, the rules of evidence as observed in the South African courts are followed as far as possible. Deviation is permitted; however, the arbitrator may not disregard the substance of justice and gross disregard of the evidence will constitute an irregularity, rendering his award subject to review.

Is confidentiality ensured?

The Arbitration Act does not provide for the confidentiality of arbitration proceedings. However, even if not expressly provided in an arbitration agreement, confidentiality will be an implied term.

Witnesses are not bound by any implied term of confidentiality and are thus not obliged to adhere thereto.

Can information in arbitral proceedings be disclosed in subsequent proceedings?

If any court proceedings arise from the arbitration, the arbitration proceedings will not be protected by confidentiality.

Ethical codes
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

There is no particular ethical code regulating the general conduct of arbitrators, although legal professionals are bound by the professional codes regulating the legal profession of attorneys and advocates in South Africa.

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