SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
discretion of the arbitrators. It should be noted, how - ever, that to the extent that a South African arbitrator is appointed the arbitrator may be inclined to revert to the “tariff” approach, unless expressly agreed between the parties. It should be noted that, historically in South Africa, the general practice regarding the awarding of costs in arbitration has traditionally involved arbitrators award- ing costs but deferring the detailed quantification to courts or third parties, such as taxing masters. This approach often leads to delays, additional expens - es and challenges in enforcing the award. However, aligned with the approach to modernising internation - al arbitration in South Africa, there is a growing expec - tation that arbitrators should include both the allo - cation and quantification of costs in the final award. This practice will ensure that the award is complete, final and more easily enforceable, aligning with inter - national standards and preserving the efficiency and autonomy of the arbitration process. In South Africa, unless the parties have expressly agreed that there will be a right to appeal the merits of the award, arbitral awards are not appealable. Judicial Reviews of Arbitral Awards Notwithstanding that an appeal mechanism may not have been included in the arbitration agreement, par - ties are entitled to judicially review the award in one of two ways: • by way of application to set aside the award – this application must be made to the High Court within three months of the date on which the party mak - ing the application received the award; and • by opposing an application to enforce the award. Under the IAA, an award may only be judicially reviewed on the following grounds. • If the arbitration agreement is found to be invalid. 11. Review of an Award 11.1 Grounds for Appeal Appeals of Arbitral Awards
• If there were procedural irregularities in the arbitra - tion, on the following grounds: (a) a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to pre - sent their case. (b) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement or the IAA. • If the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration (lack of jurisdiction). • If the court finds that the subject matter of the dispute is not capable of settlement by arbitration under South African law. • If the court finds that the award is in conflict with the public policy of South Africa. 11.2 Excluding/Expanding the Scope of Appeal Inclusion of an Appeal Mechanism Parties in international arbitrations seated in South Africa can agree to include an appeal mechanism in their arbitration agreement, even though this is not expressly provided for under the IAA. Excluding/Expanding the Judicial Review Grounds There is no precedent in South Africa for a situation where parties have attempted to exclude or expand the grounds of judicial review as set out in the IAA. It appears unlikely that they will be able to do so, as the provisions of the IAA that set these grounds are mandatory provisions which do not expressly allow the parties to vary them, and as their purpose is to protect the integrity, finality and efficiency of arbitra - tion in South Africa. 11.3 Standard of Judicial Review The standard of judicial review for arbitral awards in South Africa is typically deferential rather than de novo. South African courts respect the autonomy of the arbi - tral process and will not re-examine the merits of the case. Instead, judicial reviews are aimed at ensuring that the arbitral proceedings were conducted fairly and
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