SOUTH AFRICA Trends and Developments Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Kyle Melville and SooBin Park, Herbert Smith Freehills Kramer
AFSA: Continuing as a Truly International Institution
as the United Kingdom, France and the United States. The breadth of its caseload spans a wide array of sec - tors. Between 2013 and 2023, 32% of AFSA’s matters originated in the financial services sector, with over 20% arising from mining. Other significant sectors include industrial and manufacturing (11%), com - modities trading (9%) and energy and resources (5%). While AFSA’s progress is notable, it still operates in the shadow of more established institutions. The ICC, for example, remains the preferred institution for many sub-Saharan African parties, having registered 719 arbitrations over the same period, including 291 from the Southern African Development Community (SADC) region alone. However, the trend is shifting. South African parties, once among the most frequent African users of the International Chamber of Com - merce (ICC), have shown a marked decline in referrals to the ICC since 2018 – a development that may well be attributed to the emergence and growing credibil - ity of AFSA International and a repatriation of African disputes to Africa. From a quantum perspective, AFSA International has seen a steady rise in the value of claims. In 2019, the total value of claims approached the USD200 million mark. After a temporary slowdown during the COVID-19 pandemic, the institution rebounded strongly, with total claims reaching USD265 million in 2023. While these figures may appear modest when compared to global averages – AFSA’s average claim value sits at approximately USD40,000, compared to USD97,000 at the London Court of International Arbi - tration (LCIA) and USD199,000 at the ICC – this differ - ential is partly explained by AFSA’s cost-effective fee structure and the impact of a weaker local currency. In line with global sustainability trends, AFSA has also signed the Green Pledge under the Campaign for Greener Arbitrations. Since May 2024, it has incor - porated the Campaign’s Green Model Clause into its appointment letters, aligning its operations with the growing imperative to conduct arbitrations in an envi - ronmentally responsible manner. AFSA’s commitment to long-term development is also evident in its broader initiatives. The launch of “Young
Following the enactment of the IAA, AFSA moved swiftly to establish its International Division, signal - ling its intent to become a serious player in the global arbitration arena. In 2021, AFSA unveiled a new set of international arbi - tration rules, developed under the guidance of Pro - fessor Dr Maxi Scherer and a distinguished drafting committee that included Professor Lise Bosman, Ms Ndanga Kamau, Professor David Butler, Jonny Lim, Greg Travaini and Jonathan Ripley-Evans. Their work was supported by an eminent advisory board com - prising Rt Hon Lord Hoffmann, Professor Dr Julian DM Lew KC and Mr Fui Tsikata. The result was a modern, globally attuned set of rules that reflect international best practice while preserving AFSA’s characteristi - cally non-interventionist approach. One of the most notable innovations introduced by the new rules was the establishment of the AFSA International Court – an institutional feature previ - ously unseen in South Africa. The AFSA International Court is composed of globally respected arbitration practitioners, including retired Chief Justice Sandile Ngcobo as President, and Edwin Glasgow CBE KC and Dr Remy Gerbay as Vice-Presidents, alongside others (including Professor Dr Maxi Scherer and Jus - tice Nageswara Rao). This leadership structure has significantly enhanced AFSA’s credibility and visibility on the international stage. The revised rules also introduced key procedural enhancements, such as the provision for emergency arbitrator appointments and mandatory disclosure of third-party funding, which are features now stand - ard among leading arbitral institutions. These devel - opments have helped position AFSA as a modern, responsive institution capable of meeting the expecta - tions of international users. AFSA International’s growing caseload is a testament to its rising global profile. Since its inception in 2018, it has administered more than 121 international arbi - trations involving parties from 54 jurisdictions, rang - ing from Brazil to Australia, Bermuda and India, and including parties from traditional arbitration hubs such
758 CHAMBERS.COM
Powered by FlippingBook