https://www.polity.org.za
Deepening Democracy through Access to Information
Home / Legal Briefs / Bowmans RSS ← Back
Close

Email this article

separate emails by commas, maximum limit of 4 addresses

Sponsored by

Close

Embed Video

Arbitration gets a shot in the arm

Arbitration gets a shot in the arm

12th November 2014

SAVE THIS ARTICLE      EMAIL THIS ARTICLE

Font size: -+

“The Supreme Court of Appeal recently gave the process of arbitration a further shot in the arm by emphasising the commercial expediency and legal significance of arbitration,” said Shane Voigt, a partner at pan-African law firm Bowman Gilfillan.

Mr Voigt specialises in construction law litigation and alternative dispute resolution and was involved in the case between Zhongji Development Construction Engineering Company Limited and Komoto Copper Company SARL, from which the SCA’s judgement emanated on 1 October 2014.

He said the legal and commercial fraternity has long lobbied for a change in legislation governing arbitration - the prevailing Arbitration Act perceived as outdated, incompatible with the development of international arbitration and an obstacle to South Africa being regarded as a desirable seat for international arbitrations.

Mr Voigt explained that an asserted failing of the Act has been that it affords our courts an undesirable and substantive ability to interfere in the arbitration process. “The ability of a local court to interfere in an international arbitration generally causes discomfort amongst those from outside the country where the arbitration is taking place as they are understandably reluctant to overly expose themselves to a foreign legal regime.

“What the SCA’s judgement does is to emphatically indicate that our courts respect the sanctity of the arbitration process. It demonstrates our courts’ intention to promote global practice, and the resolution of disputes by way of arbitration. It also recognises the enforcement of arbitral awards in jurisdictions other than where the award was actually made”.

The Constitutional Court started the ball rolling in 2009 when a majority judgement by O’Regan ADCJ left little doubt in the minds of sceptics that South Africa’s law of arbitration ought to be in harmony with international best practice. The SCA noted this and endeavoured to follow the same approach, said Mr Voigt.

In coming to its decision, the SCA said that it is the “duty of our courts to support international arbitration and to give effect, where they can, to international arbitration agreements”, noting that the Recognition and Enforcement of Foreign Arbitral Awards Act bolsters this position and, as such, reinforces South Africa’s attempt to keep pace with best international practice in arbitration - as evidenced as far back as 1976 when South Africa became a party to The New York Convention on the Recognition of Foreign Arbitral Awards of 1958.

The SCA referred to section 201(1) of the Superior Courts Act, and its provision that the high court “has jurisdiction …in relation to all causes arising within its area of jurisdiction and all other matters of which it may according to law take cognisance”. The Arbitration Act is law which cloaks the courts with jurisdiction to exercise their powers and, as such, the SCA held that “Once the arbitration has commenced, the high court in Gauteng would therefore have jurisdiction to exercise its powers in terms of the Arbitration Act”.

“I agree with the pronouncement as to the courts’ jurisdiction as it aligns with the argument that we advanced on behalf of Zhongji. However, I would submit that it does not only arise once the arbitration has commenced, but arises prior thereto as such a construction accords more with the facilitative role that the Arbitration Act clearly envisages the courts to play,” said Mr Voigt.

Advertisement

EMAIL THIS ARTICLE      SAVE THIS ARTICLE

To subscribe email subscriptions@creamermedia.co.za or click here
To advertise email advertising@creamermedia.co.za or click here

Comment Guidelines

About

Polity.org.za is a product of Creamer Media.
www.creamermedia.co.za

Other Creamer Media Products include:
Engineering News
Mining Weekly
Research Channel Africa

Read more

Subscriptions

We offer a variety of subscriptions to our Magazine, Website, PDF Reports and our photo library.

Subscriptions are available via the Creamer Media Store.

View store

Advertise

Advertising on Polity.org.za is an effective way to build and consolidate a company's profile among clients and prospective clients. Email advertising@creamermedia.co.za

View options
Free daily email newsletter Register Now