SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
5. Jurisdiction 5.1 Challenges to Jurisdiction
For instance, the following matters have been held to not be arbitrable under South African law and are therefore excluded from arbitration. • Disputes involving divorce, custody or mainte - nance are deemed inappropriate for arbitration due to their personal nature and the need for judicial oversight. • Criminal offences cannot be resolved through arbitration as they involve public prosecution and punishment, which are exclusive State functions. • Insolvency proceedings, which affect the rights of third-party creditors and involve the public interest, cannot be arbitrated. These proceedings are gov - erned by statutory frameworks and require court supervision. • The review of decisions of public and governmen - tal bodies, such as public procurement decisions. These exclusions are premised on the view that cer - tain matters require the protections and procedural guarantees provided by the court systems, and the arbitrability of these issues could undermine public policy or result in unjust outcomes. 5.2 Circumstances for Court Intervention South African courts adopt a restrained and arbi - tration-friendly approach, respecting the autonomy of arbitral tribunals and intervening only in narrow - ly defined circumstances as permitted by the IAA. According to the IAA, no court may intervene except where expressly provided therein. In the context of a jurisdictional dispute, a court is entitled, under the IAA, to intervene only in the fol - lowing scenarios. • When the tribunal has ruled on its jurisdiction as a preliminary issue, a party can, within 30 days, seek a judicial determination on this ruling, although the judicial review will not suspend the arbitration pro - ceedings (Article 16 of Schedule 1 to the IAA). • When the tribunal has ruled on its own jurisdiction in the final award: (a) a party can apply to set the award aside on the basis that the agreement is invalid or the award deals with a dispute that is not within the scope
The principle of Kompetenz-Kompetenz – which allows an arbitral tribunal to determine its own juris - diction – is firmly embedded in South African law through both legislation and judicial precedent. The IAA Article 16 of the UNCITRAL Model Law is incorporated into South African law through the IAA. This provision allows arbitral tribunals to rule on their own jurisdic - tion, including making determinations on the validity and scope of the arbitration agreement. Articles 20 (1) and 31 (3) of Schedule 1 to the IAA fur - ther empower parties to agree on the juridical seat of arbitration. If they fail to do so, the arbitral tribunal will determine the seat, taking into account the circum - stances of the case. This aligns with Article 16, which reinforces the tribunal’s jurisdictional authority under the Kompetenz-Kompetenz doctrine. Judicial Precedent This principle was also upheld by the SCA, prior to the IAA, in the case of Zhongji Development Construction Engineering Co Ltd v Kamato Copper Co Sarl 2015 (1) SA 345 (SCA), where the SCA held that the arbitration agreement must be given effect, and that it was for the arbitrator to determine the issues of jurisdiction that had been raised. The doctrine ensures that tribunals have the first opportunity to resolve jurisdictional disputes, pro - moting the efficiency and autonomy of the arbitration process. However, a party may request any such rul - ing by the arbitral tribunal to be reviewed by a court review, either at the stage of the enforcement of the award or during the proceedings and before the award (although the arbitration proceedings will not be sus - pended pending the outcome of the review). Matters Excluded From Arbitration In South Africa, not all disputes can be referred to arbitration. The IAA specifically states that, if a dispute is not capable of determination by arbitration under any law of the Republic, it may not be determined by arbitration.
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