SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
ensuring that the legislation evolves in line with emerg - ing requirements. There is no pending legislation expected to materially alter the international arbitration landscape in South Africa.
These exclusions are designed to ensure that matters with broader societal implications, or requiring State intervention, remain within the judicial domain and in the public forum. 3.3 National Courts’ Approach The Approach to Determining the Governing Law of the Agreement In Tee Que Trading Services ( Pty ) Ltd v Oracle Cor- poration South Africa ( Pty ) Ltd and Another (Case No 065/2021) [2022] ZASCA 68 (17 May 2022), the Supreme Court held that arbitration agreements are autonomous and distinct from the main contract in which they are embedded. This principle of separa - bility means that an arbitration clause is capable of having its own governing law independent of the sub - stantive contract. Where the parties have not expressly chosen the law governing the arbitration agreement, South African courts will apply conflict-of-laws principles to deter - mine the applicable law, first looking for any express or tacit choice of law. If none is evident, the courts will identify the legal system with which the arbitration agreement has the closest and most real connection, considering factors such as the seat of arbitration, the language of the proceedings and the institutional rules chosen by the parties. This approach aligns with Article 28 of the UNCITRAL Model Law, incorporated into South African law through the IAA. The Approach to Enforcement of Arbitration Agreements South African courts consistently uphold arbitration agreements, respecting party autonomy and the prin - ciple of separability. Where a valid arbitration agree - ment exists and does not contravene public policy, courts will refer matters to arbitration and enforce arbitral awards, in accordance with the statutory framework established by the IAA and applicable common law principles. The following cases illustrate this pro-arbitration stance and the courts’ reluctance to intervene in arbitral proceedings. The Tee Que judgment The principle of party autonomy was central to the Supreme Court’s decision, holding that, save where an arbitration agreement is void or inapplicable, court
3. The Arbitration Agreement 3.1 Enforceability
Arbitration agreements are contractual in nature and must therefore satisfy the general requirements for a valid contract: namely that the parties are aligned on the rights and obligations to be created, intend to be bound, have the legal capacity to contract, and that the agreement is lawful. The IAA further requires that an arbitration agreement must be in writing in order to be enforceable (Article 7 of Schedule 1 to the IAA). This requirement does not necessitate a signed agreement, provided that all parties have adopted and acted upon it. That said, it is advisable to ensure that the agreement is signed, so as to minimise the risk of future disputes regarding its existence or terms. 3.2 Arbitrability While commercial disputes are generally arbitrable, certain matters are not arbitrable under South African law. In this regard, arbitrability is determined by refer - ence to: • public policy considerations (including the public interest); and • certain statutory provisions that reserve particular matters for judicial determination. Non-arbitrable matters include: • disputes concerning the status of legal persons, such as divorce, solvency and liquidation proceed - ings; • criminal matters; • administrative review proceedings, including the review of government and public procurement decisions; and • family and marital disputes.
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