SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
Herbert Smith Freehills Kramer 4th Floor, Biermann Towers 15 Biermann Avenue Rosebank 2196 Gauteng South Africa Tel: +27 010 500 2600 Email: soobin.park@hsfkramer.com Web: www.hsfkramer.com/locations/south-africa
1. General 1.1 Prevalence of Arbitration
South Africa is increasingly being chosen as a seat of arbitration in parties’ commercial contracts, particu - larly due to the availability of skilled arbitrators and a supportive judiciary that respects the autonomy of the arbitration process. This has made international arbitration in South Africa an attractive option for par - ties, particularly those hailing from the Southern Afri - can Development Community (SADC) region. South Africa’s courts are also currently overburdened with a high volume of cases, leading to delays and inef - ficiencies. The courts’ workload is exacerbated by systemic issues, which undermines public confidence in the legal system, and commercial litigants appear to be resorting to arbitration (whether international or domestic) more frequently for this reason as well. This notwithstanding, court litigation remains the dom - inant dispute resolution mechanism in certain sectors, particularly those involving public procurement and regulatory compliance. This is largely because those matters often involve government or regulatory bod - ies, and statutes require that these issues be resolved in the courts. There are also certain disputes that can - not be arbitrated in South Africa, such as criminal mat - ters and matters involving the status of legal persons (eg, liquidations and divorces). 1.2 Key Industries In light of the fact that arbitration awards and proceed - ings are not publicised in South Africa, it is difficult to determine whether there are any industries that have experienced significant international arbitration activ - ity in recent years.
International arbitration is being increasingly utilised in South Africa, particularly in cases involving com - plex, cross-border commercial disputes. At the end of 2017, South Africa’s legal framework was modernised and brought in line with the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”) through the adoption of the International Arbitration Act 15 of 2017 (IAA). The IAA now pro - vides a comprehensive legal regime that is conducive to international arbitration, addressing all stages of the arbitral process and limiting court intervention to specific grounds, such as procedural or jurisdictional issues. South Africa is also a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Conven - tion”), which facilitates the recognition and enforce - ment of foreign arbitral awards in the country. Since the adoption of the IAA, the prevalence of international arbitrations seated in South Africa has increased. Statistics published by the Arbitration Foundation of Southern Africa (AFSA) show this increased prevalence. According to AFSA’s 2022 report, international arbitrations constituted 65% of the overall disputes lodged with AFSA, while domes - tic arbitrations accounted for the remaining 35%. The composition of parties involved in AFSA international arbitrations reflects significant international engage - ment, with 71% hailing from the SADC region and the remaining 29% of the parties originating from non- African nations.
736 CHAMBERS.COM
Powered by FlippingBook