SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
4. The Arbitral Tribunal 4.1 Limits on Selection
4.3 Court Intervention The South African courts may only intervene in the selection of arbitrators under specific circumstances, as outlined in the IAA. This intervention can occur in the following circum - stances: • when there is a failure in the agreed procedure for appointment and the court is requested to inter - vene; or • when a party challenges an arbitrator’s appoint - ment on grounds such as bias or lack of inde - pendence, and if its challenge under the agreed procedure is not successful (although the arbitral proceedings will continue pending this determina - tion). The court’s role is generally limited to upholding the integrity of the arbitration process and ensuring that arbitrators are impartial and independent. 4.4 Challenge and Removal of Arbitrators Under the IAA, arbitrators can be challenged and potentially removed if: • there are justifiable doubts concerning their impar - tiality or independence; or • they do not possess the qualifications agreed upon by the parties. The process for challenging arbitrators is outlined in Articles 12 and 13 of Schedule 1 of the IAA (concern - ing the UNCITRAL Model Law). 4.5 Arbitrator Requirements The IAA mandates that arbitrators: • must be independent and impartial; and • are required to disclose any potential conflicts of interest at the time of their appointment and throughout the arbitration process. The AFSA International Rules reflect these standards, requiring arbitrators to disclose any circumstances that might give rise to justifiable doubts regarding their independence or impartiality.
Under the IAA, parties enjoy broad discretion in shap - ing the composition of the arbitral tribunal, a principle that reflects the foundational value of party autonomy in international arbitration. This autonomy allows par - ties to determine key aspects of the arbitration pro - cess, including the number of arbitrators, the method of their appointment and any specific qualifications or expertise required – such as legal background or industry-specific knowledge. However, this autonomy is subject to the requirement that the appointed arbitrators must be impartial and independent. The requirement of “impartiality” means that the arbitrator must not favour either party, while “independence” requires freedom from any relation - ships or interests that could influence the arbitrator’s judgment. 4.2 Default Procedures If the parties fail to agree on the method of selecting arbitrators and there is no other chosen method, or if their chosen method fails, the IAA provides a default mechanism. Article 11 of Schedule 1 of the IAA stipulates the fol - lowing. • In an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, they will be appointed, on the request of a party, by the rel - evant court with jurisdiction (which is determined with reference to Article 6 of Schedule 1 to the IAA). • In an arbitration with three arbitrators: (a) each party must appoint one arbitrator, and the two appointed arbitrators will appoint the third arbitrator; and (b) if a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment will be made, on the request of a party, by the relevant court with jurisdiction (which is determined with reference to Article 6 of Schedule 1 to the IAA).
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