SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
harm; (c) that the balance of convenience favours the granting of the injunction; and (d) that no adequate alternative remedy is avail - able. It is therefore reasonable to expect that South African courts would be inclined to grant anti-suit injunctions to enforce arbitration agreements where all relevant requirements are met, though the current lack of suf - ficient case law, or precedent confirming the posi - tion from the Supreme Court of Appeal, means that this position is not yet fully confirmed throughout the country. Emergency Arbitrators Provisions under national legislation and arbitral rules The IAA is silent on the use of emergency arbitrators, and this has not been expressly dealt with under South Africa’s national legislation or in any court decisions. To the extent that the dispute has been referred to arbitration under the auspices of AFSA, the AFSA International Rules permit the use of emergency arbi - trators to grant urgent interim or conservatory relief, before the arbitral tribunal has been constituted. Status of decisions of emergency arbitrators According to the AFSA International Rules, emergen - cy arbitrators may make any decision or order that the arbitral tribunal could make under the arbitration agreement. These decisions are binding on the par - ties, although they may be subject to review, modifi - cation or revocation by the subsequently appointed tribunal. Although the IAA makes no express provision for emergency arbitrators, it defines “arbitration” as “any arbitration whether or not administered by a perma - nent arbitral institution” and “arbitral tribunal” as a “sole arbitrator or a panel of arbitrators”. Emergency arbitration proceedings are likely to satisfy both defini - tions. South African courts have consistently sought to minimise interference in arbitral matters, and it is reasonable to expect that this judicial restraint would extend to emergency arbitration. However, the courts retain the power to enforce or set aside awards where
grounds exist to do so, and it is expected that this supervisory role would apply with equal force to awards rendered in emergency arbitration proceed - ings. 6.3 Security for Costs Under the IAA, arbitral tribunals are empowered to order security for costs, though this power is confined to claimants and counterclaimants. Such a measure can prove significant in deterring frivolous or unmeri - torious claims from proceeding to a full hearing. The South African courts do not enjoy a correspond - ing power to order security for costs in international arbitration proceedings. Their role in this regard is narrower, being limited to making orders that secure the amount in dispute rather than the costs of the arbitration itself.
7. Procedure 7.1 Governing Rules The IAA
International arbitration in South Africa is primarily governed by the IAA, which incorporates the UNCI - TRAL Model Law. The IAA establishes the framework for international arbitration proceedings in compliance with international standards, and provides default pro - visions for procedural aspects not agreed upon by the parties, including:
• the appointment of arbitrators; • the conduct of the proceedings; • the presentation of evidence; and • the issuing of awards. AFSA
The main arbitral institution in South Africa, AFSA, has also published the AFSA International Rules, which provide detailed procedural guidelines and which par - ties may adopt if they choose to arbitrate under the auspices of the AFSA International Rules. 7.2 Procedural Steps Arbitral proceedings seated in South Africa are gov - erned by the arbitration agreement, and parties may
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