SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
3.2 Arbitrability In South Africa, the arbitrability of disputes is deter - mined based on public policy considerations and statutory provisions. Generally, commercial disputes are arbitrable; how - ever, certain matters are deemed to not be arbitrable, due to public interest concerns or in light of specific statutory provisions requiring a court to determine the dispute. Examples include: • disputes involving issues of the status of legal persons (such as divorce, solvency and liquidation proceedings); • criminal matters; • administrative review proceedings (for example, the review of government/public procurement deci - sions); and • family and marital disputes. These limitations ensure that matters with broader societal implications or requiring State intervention remain within the judicial domain and in the public forum. 3.3 National Courts’ Approach The Approach to Determining the Governing Law of the Agreement While not directly pronouncing on the approach to determining the governing law of an arbitration agree - ment, the South African Supreme Court of Appeal (SCA) in Tee Que Trading Services (Pty) Ltd v Oracle Corporation South Africa (Pty) Ltd and Another (Case No 065/2021) [2022] ZASCA 68 (17 May 2022) held that under South African law arbitration agreements are regarded as autonomous and distinct from the main contract in which they are embedded. This prin - ciple of separability means that an arbitration clause is treated as a self-contained agreement, capable of having its own governing law, independent of the sub - stantive contract. In line with international best practices and South Africa’s pro-arbitration stance, where the parties have not expressly chosen the law governing the arbitration agreement, South African courts will apply conflict-of- laws principles to determine the applicable law. The courts will first look for any express or tacit choice of
for Settlement of Investment Disputes (ICSID) arbitra - tion), reflecting a cautious stance towards ISDS. This stance is also reflected in the Protection of Investment Act, which makes international arbitration voluntary but not compulsory for the South African government in ISDS matters. 2.2 Changes to National Law There have been no significant amendments to the IAA in the past year; however, the ongoing interpreta - tion and application of the IAA by the courts continues to shape its implementation and effectiveness. This judicial involvement has been crucial in refining the arbitration landscape in South Africa, ensuring that the IAA evolves together with emerging legal and commercial needs. Currently, there is no pending legislation that may sig - nificantly alter the international arbitration landscape in South Africa. Arbitration agreements are contractual in nature, and accordingly the general requirements for the existence of a contract must be met. This includes the following: • the parties must be aligned in respect of the rights and obligations that they wish to create; • the parties must intend to be bound by the agree - ment; • the agreement must be lawful; and • the parties must have the legal capacity to con - tract. The IAA also specifically provides that for an arbitra - tion agreement to be enforceable it must be in writing (Article 7 of Schedule 1 to the IAA). In order for the “in writing” requirement to be satis - fied, it is not necessary that the agreement be signed, provided that all of the parties adopted and acted on the agreement. However, it is recommended that the agreement be signed to avoid potential disputes. 3. The Arbitration Agreement 3.1 Enforceability
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