SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
9. Confidentiality 9.1 Extent of Confidentiality The General Position
• where a party challenges an arbitral award in court, the court may require disclosure of certain aspects of the arbitration, such as the pleadings or the award, to assess the validity of the challenge. Arbitrations Involving Public Bodies According to Section 11 (1) of the IAA, unless the arbi - tral tribunal directs otherwise for compelling reasons, arbitration proceedings to which a public body is a party are held in public. Lifting the veil of confidential - ity in the case of an arbitration involving public bodies aligns with the principle of public policy. Although the law is not yet settled on this matter, it is reasonably expected that the disclosure would also extend to the pleadings and other documents disclosed in the arbi - tral proceedings, unless the arbitral tribunal directs otherwise. The IAA contains specific requirements with which an arbitral award in an international arbitration seated in South Africa must comply, as follows. • The award must be in writing (Article 31 (1) of Schedule 1 to the IAA). • The award must be signed by the arbitrator(s). If there is more than one arbitrator, the signatures of the majority are sufficient, provided the reason for any omitted signature is stated (Article 31 (1) of Schedule 1 to the IAA). • The award must state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is on agreed terms (Article 31 (2) of Schedule 1 to the IAA). • The award must state its date and the place of arbitration as determined in accordance with the agreement of the parties or, failing such agreement, the place determined by the tribunal (Article 31 (3) of Schedule 1 to the IAA). 10. The Award 10.1 Legal Requirements The IAA does not specify a strict time limit for the delivery of the award, unless the parties have agreed otherwise. However, the chosen arbitral institution may have its own rules regarding the timeframe for delivering awards.
In South Africa, arbitration proceedings are gener - ally considered confidential, although there are some exceptions to the rule. In this regard, the IAA provides that where the arbitra - tion is held in private the award and all documents, which are not otherwise in the public domain, must be kept confidential by the parties and tribunal, except where disclosure of those documents may be required for legal reasons (Section 11 (2) of the IAA). The confidentiality of these components is also often explicitly stated in the arbitration agreement or the rules of the chosen arbitral institution. For instance, the AFSA International Rules include provisions for maintaining the confidentiality of the arbitration pro - cess. Confidentiality typically extends to: • pleadings and submissions; • documents submitted as evidence; • the hearing process; and • the arbitral award. Exceptions to the Rule While confidentiality is the default position in South Africa, it is not absolute. There are circumstances under which information from arbitral proceedings may be disclosed in subsequent proceedings. Some of these exceptions include the following: • if there is a legal duty or right to disclose, such as in the case of court-ordered disclosure or a statu - tory requirement, confidentiality may be overrid - den; • disclosure may also be permitted where it is neces - sary to protect the public interest, such as in cases involving allegations of corruption or criminal activ - ity; • the parties to the arbitration may agree to waive confidentiality, allowing the information to be dis - closed; and
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