SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
2. Governing Legislation 2.1 Governing Law
which cross-border, complex and high-value disputes are prevalent. 1.3 Arbitration Institutions AFSA is South Africa’s leading arbitral institution. In 2021, the AFSA International Court was established under the revised AFSA International Arbitration Rules (the “AFSA International Rules”), expanding AFSA’s offering to encompass both domestic and interna - tional disputes across diverse sectors. It is the first institution of its kind in South Africa. The AFSA International Court is responsible for taking decisions on behalf of AFSA, including the appoint - ment of arbitrators and the determination of chal - lenges to appointments and jurisdictional issues. Its membership comprises prominent South African practitioners alongside experienced practitioners from France, the UK, China, Botswana and Kenya. The China-Africa Joint Arbitration Centre (CAJAC Johannesburg) is a subsidiary of AFSA established to provide a credible dispute resolution mechanism for China-Africa matters, driven by the growth in trade between the two regions. 1.4 National Courts South Africa does not have courts specifically desig - nated for arbitration disputes. However, in the Gauteng Province, the Commercial Court, a specialist division of the Gauteng High Courts, is available to resolve arbitration-related matters expediently. Through the assignment of judges with appropriate expertise and the appointment of case managers where necessary, it minimises delays by providing a fast-track mecha - nism for arbitration-related proceedings, thereby pre - serving and promoting the efficiency that arbitration is intended to offer. This position was expressly confirmed in October 2025, when the Acting Judge President of the Gaut - eng High Court issued a notice confirming that arbi - tration-related disputes are eligible to be heard in the Commercial Court. This ensures that urgent arbitra - tion-related court proceedings, such as stay applica - tions, can be heard and determined expeditiously by experienced and commercial judges.
International arbitrations in South Africa are governed by the IAA, which came into force in December 2017. The IAA The IAA explicitly incorporates the UNCITRAL Model Law into South African law, establishing it as the foun - dational framework for international arbitration. The IAA also governs the recognition and enforcement of foreign arbitral awards. In Kingdom of Lesotho v Frazer Solar GmbH and Oth- ers [2026] ZASCA 75, the Supreme Court of Appeal confirmed that interpretation of the IAA should be consistent and uniform with the interpretation in oth - er Model Law jurisdictions, ensuring alignment with global standards and providing a predictable legal environment for international arbitrations. While the IAA closely follows the UNCITRAL Model Law, there are two primary distinctions, discussed as follows. Public policy and state parties Particular emphasis is placed on public policy con - siderations where a party is a state, and arbitration proceedings involving public bodies are conducted publicly, departing from the UNCITRAL Model Law’s traditional confidentiality provisions. Investor-state dispute settlement (ISDS) The IAA does not provide for automatic recourse to ISDS mechanisms, such as arbitration before the Inter - national Centre for Settlement of Investment Disputes (ICSID). This reflects South Africa’s cautious approach to ISDS, reinforced by its Protection of Investment Act 22 of 2015, under which ISDS is voluntary rather than compulsory for the South African government. 2.2 Changes to National Law The IAA has not been subject to any significant amendments in the past year. However, the ongoing interpretation and application of the IAA by the courts continues to shape its implementation (including in respect of Kingdom of Lesotho mentioned above),
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