SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
8. Evidence 8.1 Collection and Submission of Evidence General Approach to Evidence in International Arbitrations Seated in South Africa In international arbitration proceedings seated in South Africa, the approach to evidence collection and submission is generally governed by: • the rules agreed upon by the parties; • the rules of the chosen arbitral institution; or • in the absence of such agreement, the discretion of the arbitral tribunal. The IAA and AFSA International Rules also offer guid - ance in this regard but are not as prescriptive as the rules that are applied in the domestic courts. South Africa is a common law jurisdiction and, to the extent that the parties choose to appoint a South Afri - can arbitrator, the arbitrator would generally expect disclosure to take place as well as witnesses to be called at the hearing. Until recently, the collection and submission of evi - dence in South African arbitrations often closely mir - rored the High Court procedure, with many parties agreeing to apply the High Court rules. However, in recent years there has been a marked shift from this practice and a noticeable modernisation in the way arbitrations are conducted in this regard. Discovery/Disclosure of Evidence The process of discovery (also referred to as disclo - sure) in arbitrations is usually less formal and more flexible compared to court litigation. Unlike court liti - gation, there is no automatic right to broad discovery. Parties in international arbitrations often agree to apply the International Bar Association Rules on the Taking of Evidence in International Arbitrations (the “IBA Rules”) and typically agree to exchange Redfern Schedules where requests for relevant documents that are material to the outcome of the proceedings (subject to the relevant exclusions in the IBA Rules) are exchanged, before disclosure takes place.
Duties of arbitrators • To not exceed the limits of the powers granted by the arbitration agreement or as agreed between the parties. • To disclose any circumstances likely to give rise to justifiable doubts as to the tribunal’s impartiality or independence, at the time of appointment and throughout the proceedings (Article 12 of Schedule 1 to the IAA). • To maintain the confidentiality of the award and all documents created for the arbitration (Section 11 (2) of the IAA). 7.4 Legal Representatives In South Africa, there is a traditional division between advocates and attorneys, although the distinction has become less prominent since the enactment of the Legal Practice Act. Traditionally, however, advocates specialise in court advocacy and attorneys are less involved in this aspect of practice, unless they have specifically obtained the right to appear in the High Court. In respect of international arbitrations seated in South Africa (and domestic arbitrations), there is no specific requirement for a “right of appearance” or any addi - tional local qualification, and the distinction between advocates and attorneys in this area is becoming less rigid. Although historically advocates primarily han - dled advocacy, attorneys are increasingly taking on this role. Legal representatives may also be from different jurisdictions, provided they are qualified and capa - ble of representing their clients’ interests effectively. This flexibility aligns with international arbitration’s transnational nature, allowing parties to select legal representatives who possess specific expertise or experience relevant to the dispute, regardless of their jurisdictional qualifications.
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