Issued by: The South African Law Commission
MEDIA RELEASE BY THE SOUTH AFRICAN LAW COMMISSION WITH REGARD TO ITS INVESTIGATION CONCERNING INTERNATIONAL COMMERCIAL ARBITRATION (PROJECT 94)
Acting on a proposal by the Association of Arbitrators of South Africa, the South African Law Commission is currently investigating all facets of the law regarding international and domestic arbitration.
Political developments in South Africa are at present leading to increased regional trade and economic links with other countries. As business people regard arbitration as a favourite means of catering for dispute resolution, it is important that the country's arbitration law should be in line with international norms.
It is however being argued that the present South African law is not suitable for international commercial arbitration. The Arbitration Act 42 of 1965 contains no provisions which expressly deal with international arbitration, while the Recognition and Enforcement of Foreign Aribtral Awards Act 40 of 1977 is limited to the enforcement of foreign awards only. It is further felt that the court's statutory powers and powers of assistance and supervision during the arbitral process may be excessive.
The Commission believes that the reform of the Arbitration Act 42 of 1965 should be considered in order to create an effective legislative framework for the resolution of international trade disputes. In this process consideration should be given to the Model Law which was adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985. It provides a framework within which international arbitration can be conducted with a minimum degree of judicial intervention and a significant degree of party autonomy.
On 29 November 1996 the Commission's Working Committee approved the publication of a discussion paper on International Commercial Arbitration for general information and comment. In this discussion paper a holistic approach to international arbitration legislation is adopted. It includes South Africa's response to the Model Law; possible changes to the legislation on the New York Convention (currently set out in Act 40 of 1977); and the proposed accession by South Africa to the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States. the paper includes draft legislation with a commentary.
The issues raised in the discussion paper need to be debated thoroughly. Based on the outcome of such discussions a report, containing proposed legislation, will be submitted to the Minister of Justice. The comments of all parties which feel that they have an interest in this topic or may be affected by the type of measures discussed in this paper and therefore of vital importance to the Commission. All respondents are invited to indicate whether there are other issues that must be explored. All likely to be affected by possible legislation should participate in this debate.
Written comments or suggestions should reach the Commission by 31 March 1997 at the address given below.
The discussion paper is obtainable free of charge from the Commission on request.
Contact: AM Louw Tel: (012) 322 6440