SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
Status of decisions of emergency arbitrators According to the AFSA International Rules, emergen - cy arbitrators may make any decision or order that the arbitral tribunal could make under the arbitration agreement. These decisions are binding on the par - ties, although they may be subject to review, modifi - cation or revocation by the subsequently appointed tribunal. Court intervention in the context of emergency arbitrators As mentioned above, South African national laws do not expressly deal with emergency arbitrators. How - ever, the IAA defines an “arbitration” as “ any arbi- tration whether or not administered by a permanent arbitral institution” and an ”arbitral tribunal” as a “ sole arbitrator or a panel of arbitrators ”. An “emergency arbitrator” and the proceedings con - ducted under that arbitrator’s appointment are likely to fall within the definitions of “arbitration” and “arbitral tribunal”; given the South African courts’ approach to limiting interference in arbitrations, it is likely that they would adopt a similar approach in the context of emergency arbitration proceedings. South African courts are generally supportive of arbitration, recog - nising the principle of party autonomy and favouring the approach that court interference in arbitration should be restricted. However, as noted previously, the South African courts do retain the power to enforce or set aside arbitral awards if there are grounds to do so, such as when the decision is contrary to public policy or when the arbitrator exceeded their mandate (although the courts’ intervention is limited to ensuring the proper administration of justice and upholding the integrity of the arbitral process). It is expected that the courts would continue to have such powers in the context of
• The dispute referred to the foreign courts must fall within the ambit of the arbitration agreement, and the nature of the dispute must be one capable of resolution by arbitration (arbitrability). • The applicant must also show the requirements for an interdict, namely that: (a) it has a clear right to the relief (which may include the existence of a written arbitration agreement, an existing and defined dispute between the parties, that the arbitration provi - sions apply to the dispute, and that the precon - ditions for commencing arbitration have been complied with (if any)); (b) it has a well-grounded apprehension of irrepa - rable harm in the event that the injunction is not granted; (c) the balance of convenience favours the grant - ing of the injunction; and (d) there is no adequate alternative remedy avail - able to it. In the event that the above requirements are satisfied, the South African courts do not seem to be deterred by the possibility that the anti-suit injunction may be seen as an “interference” with the proceedings of a foreign court. It is therefore reasonable to expect that South African courts would be inclined to grant anti-suit injunctions, as well as interdicts, to effectively enforce arbitration agreements, if all the relevant requirements are met. However, the current lack of sufficient case law means that this position is not yet fully confirmed. Emergency Arbitrators Provisions under national legislation and arbitral rules The IAA is silent on the use of emergency arbitrators, and this has not been expressly dealt with under South Africa’s national legislation or in any court decisions. To the extent that the dispute has been referred to arbitration under the auspices of AFSA, the AFSA International Rules permit the use of emergency arbi - trators to grant urgent interim or conservatory relief, before the arbitral tribunal has been constituted.
an emergency arbitration. 6.3 Security for Costs
Under the IAA, arbitral tribunals have the power to order security for costs, although this is limited only to the claimant and counter-claimant. This measure can be crucial in preventing frivolous claims.
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