SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
The court’s role is generally limited to upholding the integrity of the arbitration process and ensuring that arbitrators are impartial and independent. 4.4 Challenge and Removal of Arbitrators Articles 12 and 13 of Schedule 1 of the IAA provide that arbitrators can be challenged and potentially removed if: • there are justifiable doubts concerning their impar - tiality or independence; or • they do not possess the qualifications agreed upon by the parties. 4.5 Arbitrator Requirements The IAA mandates that arbitrators: • must be independent and impartial; and • are required to disclose any potential conflicts of interest at the time of their appointment and throughout the arbitration process. The AFSA International Rules reflect these standards, requiring arbitrators to disclose any circumstances that might give rise to justifiable doubts regarding their independence or impartiality. South African law recognises and upholds (via both legislation and judicial precedent) the internationally recognised principle of Kompetenz - Kompetenz (com - petence-competence), allowing an arbitral tribunal to determine its own jurisdiction. The IAA Article 16 of the UNCITRAL Model Law is incorporated into South African law through the IAA, giving a tribu - nal authority to rule on its own jurisdiction, including making determinations on the validity and scope of the arbitration agreement. Articles 20 (1) and 31 (3) of Schedule 1 to the IAA fur - ther empower parties to agree on the juridical seat of arbitration. If they fail to do so, the arbitral tribunal will determine the seat, taking into account the circum - 5. Jurisdiction 5.1 Challenges to Jurisdiction
stances of the case. This aligns with Article 16, which reinforces the tribunal’s jurisdictional authority under the Kompetenz - Kompetenz doctrine. Judicial Precedent The aforementioned principle was also upheld by the Supreme Court, prior to the enactment of the IAA, in the case of Zhongji Development Construction Engi- neering Co Ltd v Kamato Copper Co Sarl 2015 (1) SA 345 (SCA). In that case, the court held that the arbitra - tion agreement must be given effect to, and that it was for the arbitrator to determine the jurisdictional issues that had been raised. The doctrine ensures that tribunals have the first opportunity to resolve jurisdictional disputes, thereby promoting the efficiency and autonomy of the arbitral process. However, a party may request that any such ruling by the arbitral tribunal be reviewed by a court, either at the enforcement stage or during the proceed - ings before the award is rendered. The arbitration pro - ceedings will not be suspended pending the outcome of any such review. Matters Excluded From Arbitration Not all types of disputes are arbitrable. The IAA expressly notes that if a dispute is not capable of determination by arbitration under any law of the Republic it may not be determined by arbitration – for example, as follows. • Insolvency proceedings implicate the rights of third-party creditors and engage the public inter - est, and as such cannot be submitted to arbitra - tion. Such proceedings are governed by dedicated statutory frameworks and are subject to court supervision. • Criminal offences fall beyond the reach of arbitra - tion, as they involve public prosecution and the imposition of punishment, both of which are func - tions reserved exclusively to the State. • Disputes concerning divorce, custody or main - tenance are considered unsuitable for arbitration given their inherently personal nature and the necessity of judicial oversight in such matters. • The administrative review of decisions made by public and governmental bodies is also not arbitra - ble.
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