SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
The AFSA International Rules also allow for consolida - tion in these instances, and subject to the following. • Prior to the constitution of any arbitral tribunal in the arbitrations sought to be consolidated, a party may file an application to consolidate, provided that: (a) all parties have agreed; or (b) all the claims in the arbitrations are made un - der the same arbitration agreement. • After the constitution of any arbitral tribunal in the arbitrations sought to be consolidated, a party may file an application to consolidate, provided that: (a) all parties have agreed to the consolidation; (b) all the claims in the arbitrations are made un - der the same arbitration agreement; (c) the same arbitral tribunal has been constituted in each of the arbitrations; or (d) no arbitral tribunal has been constituted in other arbitrations. 13.5 Binding of Third Parties In South Africa, the general principle is that only the parties who have agreed to an arbitration agreement are bound by it. However, there are certain circumstances under which third parties can be bound by an arbitration agreement or award. This may occur through doctrines such as agency, assignment, succession or subrogation. For example, if a third party steps into the shoes of an original party to the contract (eg, through assign - ment of rights or obligations), they may be bound by the arbitration agreement contained in that contract. Additionally, third parties can be bound if they have explicitly consented to the arbitration agreement.
Group or multi-party arbitration can also bind third parties if the arbitration agreement explicitly includes provisions that bind such parties, or if all parties con - sent to a consolidated or joint arbitration process. The AFSA International Rules and other institutional rules may facilitate such arrangements, provided there is clear consent and agreement from all involved parties. South African national courts do not generally have the jurisdiction to bind foreign third parties to an arbi - tration agreement or award unless those third parties have a direct connection to the arbitration agreement or the underlying contractual relationship. The prin - ciple of privity of contract dictates that arbitration agreements typically bind only the parties that have expressly agreed to them. However, there may be exceptions based on reciprocity principles, or if the foreign third party has engaged in conduct that brings them within the jurisdiction of South African courts.
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