SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
6. Preliminary and Interim Relief 6.1 Types of Relief
determined the matter, nor may it grant such an order beyond the scope of the above-listed circumstances. Interim Relief in aid of Foreign-Seated Arbitrations The IAA allows courts to issue orders in support of arbitration, irrespective of whether the seat of arbi - tration is within South Africa or abroad. The interim measures that may be ordered are the following: • an order for the preservation, interim custody or sale of any goods that are the subject matter of the dispute; • an order securing the amount in dispute, but not an order for security for costs; • an order appointing a liquidator; • any other orders to ensure that any award that may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by the other party; and • an interim interdict or other interim order. Furthermore, the South African courts are required to stay any proceedings that are brought before them if the dispute is subject to an arbitration agreement, regardless of the seat of the dispute. Anti-Suit Injunctions/Interdicts In South Africa, the only reported case pertaining to anti-suit injunctions is the case of Vedanta Resourc- es Holdings Limited v ZCCM Investment Holdings PLC 2019 JDR 1425 (GJ), which confirmed that South African courts are prepared to issue anti-suit injunc - tions in appropriate circumstances. This case related to an urgent application brought by Vedanta in South Africa for an anti-suit injunction to stop winding- up proceedings that had been instituted by ZCCM in Zambia, as a result of a dispute that had arisen under the shareholders’ agreement (which contained an arbitration clause that envisaged a South African- seated arbitration). The High Court in Vedanta held that the following requirements must be satisfied in order to obtain such relief. • The arbitration clause in the shareholders’ agree - ment must indicate that arbitration is mandatory.
Arbitral tribunals have the authority to award prelimi - nary or interim relief, at the request of a party, under the IAA. The types of interim measures that are permitted include an award requiring a party to: • maintain or restore the status quo, pending deter - mination of the dispute; • prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself; • provide a means of preserving assets out of which a subsequent award may be satisfied; • preserve evidence that may be relevant and mate - rial to the resolution of the dispute; or • provide security for costs (only against a claiming or counter-claiming party). The interim measure is recognised as binding and must be enforced, upon application, by a court, unless there are specific grounds for refusing the recognition and enforcement. The AFSA International Rules also recognise the tribu - nal’s power to grant interim relief, ensuring that these measures are enforceable and effective. 6.2 Role of Courts The Role of the Courts in Granting Interim Relief The IAA allows the South African courts to order inter - im relief upon the application of a party only in the following circumstances: • if the arbitral tribunal has not yet been appointed and the matter is urgent; • if the arbitral tribunal is not competent to grant the order; or • if the urgency of the matter means that obtain - ing the order form the arbitral tribunal would be impractical. A court may not grant such an order if the arbitral tri - bunal, being competent to grant the order, has already
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