SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
in accordance with the agreed procedural rules and applicable law. The courts will intervene only on the narrow grounds set out previously (see 11.1 Grounds for Appeal ), such as serious procedural irregularities, lack of jurisdiction or if the award contravenes public policy. This deferential standard is viewed as necessary in order to uphold the integrity, finality and efficiency of arbitration as a dispute resolution mechanism. 12. Enforcement of an Award 12.1 New York Convention South Africa has signed and ratified the New York Convention without any reservations. The New York Convention was initially incorporat - ed into domestic law through the Recognition and Enforcement of Foreign Arbitral Awards Act, but this was subsequently repealed following the enactment of the IAA. The IAA now incorporates the New York Convention (Chapter 3 read with Schedule 3). 12.2 Enforcement Procedure Procedures and Standards for Recognising and Enforcing a Foreign Arbitral Award The IAA states that a foreign arbitral award must be recognised and enforced in South Africa, except as expressly provided for in the IAA. The procedure for enforcing an arbitral award (wheth - er foreign or otherwise) requires an application to be made to the High Court, producing: • the original (if foreign, this must be authenticated) or certified copy of the award; • the authenticated original (if foreign, this must be authenticated) or certified copy of the arbitration agreement; and • if the agreement or award is in a foreign language, an authenticated sworn translation. However, the IAA states that the court may accept other documentary evidence regarding the existence of a foreign arbitral award and arbitration agreement
as sufficient proof where the court considers it appro - priate to do so. Grounds for Refusing to Recognise and Enforce a Foreign Arbitral Award The court must enforce the award unless one of the grounds for refusal under the New York Convention is established, namely as follows. • If the court finds that: (a) a reference to arbitration of the subject matter of the dispute is not permissible under the law of South Africa; or (b) the recognition or enforcement of the award is contrary to the public policy of South Africa. • If the opposing party proves to the satisfaction of the court that: (a) a party to the arbitration agreement had no capacity to contract under the law applicable to that party; (b) the arbitration agreement is invalid under the law to which the parties have subjected it, or where the parties have not subjected it to any law, the arbitration agreement is invalid under the law of the country in which the award was made; (c) they did not receive the required notice regard - ing the appointment of the arbitrator or of the arbitration proceedings, or were otherwise not able to present their case; (d) the award deals with a dispute not contem - plated by or not falling within the terms of the reference to arbitration, or contains decisions on matters beyond the scope of the reference to arbitration (partial recognition and enforce - ment may be awarded if certain decisions did fall within the scope); (e) the constitution of the arbitration tribunal or the arbitration procedure was not in accordance with the relevant arbitration agreement or, if the agreement does not provide for such matters, with the law of the country in which the arbitra - tion took place; or (f) the award is not yet binding on the parties, or has been set aside or suspended by a compe - tent authority of the country in which, or under the law of which, the award was made.
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