SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
The South African courts are not empowered to order security for costs in arbitration proceedings, though they can make an order securing the amount in dis - pute.
reasons for the tribunal to direct otherwise (Section 11 of the IAA). 7.3 Powers and Duties of Arbitrators Powers and Duties Under the IAA The IAA confers the following powers and duties on arbitrators. Powers of arbitrators • Power to decide on their own jurisdiction (Article 16 of Schedule 1 to the IAA). • Power to grant interim measures at the request of a party, unless otherwise agreed by the parties (Article 16 of Schedule 1 to the IAA). • Power to order security for costs (only as against the claimant and counter-claimant) (Article 17 (2)(e) read with Article 17 (3) of Schedule 1 to the IAA). • Power to modify, suspend or terminate an interim measure that the tribunal has granted, upon appli - cation by any party or upon prior notice to the par - ties, on the arbitral tribunal’s own initiative (Article 17D of Schedule 1 to the IAA). • Power to require the party requesting an interim measure to provide appropriate security in connec - tion with the measure (Article 17E of Schedule 1 to the IAA). • Power to award any costs and damages to the party requesting an interim measure at any point during the proceedings (Article 17G of Schedule 1 to the IAA). • Power to conduct the arbitration in a manner that the tribunal considers appropriate, in the absence of the parties’ agreement. This includes the power to determine the admissibility, relevance, materiali - ty and weight of any evidence (Article 19 of Sched - ule 1 to the IAA). • Power to determine the applicable law and the juridical seat of the arbitration (Article 28 and 20 of Schedule 1 to the IAA). • Power to determine the language of the arbitration, in the absence of the parties’ agreement (Article 22 of Schedule 1 to the IAA). • Power to decide whether it is necessary to hold oral hearings for the presentation of oral argu - ments, subject to any contrary agreement by the parties (Article 24 of Schedule 1 to the IAA).
7. Procedure 7.1 Governing Rules The IAA
International arbitration in South Africa is primarily governed by the IAA, which incorporates the UNCI - TRAL Model Law. The IAA sets out the framework for the conduct of international arbitration proceedings, ensuring com - pliance with international standards, and contains fall- back provisions relating to various procedural aspects that may not have been agreed to by the parties (or in the event that their elected mechanism failed) includ - ing:
• the appointment of arbitrators; • the conduct of the proceedings; • the presentation of evidence; and • the issuing of awards. AFSA
The main arbitral institution in South Africa, AFSA, has also published the AFSA International Rules, which provide detailed procedural guidelines and which par - ties may adopt if they choose to arbitrate under the auspices of the AFSA International Rules. 7.2 Procedural Steps Arbitral proceedings seated in South Africa are gov - erned by the arbitration agreement, and parties can decide on the rules that are to regulate the proceed - ings or agree to submit to the rules of an arbitral insti - tution. The majority of the procedural steps set out in the IAA are subject to any other agreement having been reached by the parties, and are not mandatory. While the IAA provides a flexible framework, it does require that proceedings to which a public body is a party must be held in public, unless there are compelling
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