SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
agree on the rules that regulate the proceedings or submit to the rules of an arbitral institution. The majority of the procedural steps set out in the IAA are not mandatory and are subject to any con - trary agreement reached by the parties. While the IAA provides a flexible framework, it does require that pro - ceedings to which a public body is a party be held in public, unless there are compelling reasons for the tribunal to direct otherwise (Section 11 of the IAA). 7.3 Powers and Duties of Arbitrators Powers and Duties Under the IAA The IAA confers the following powers and duties on arbitrators. Powers • To decide on their own jurisdiction (Article 16 of Schedule 1 to the IAA). • To grant interim measures at the request of a party, unless otherwise agreed by the parties (Article 17 of Schedule 1 to the IAA). • To order security for costs (only as against the claimant and counterclaimant) (Article 17 (2)(e) read with Article 17 (3) of Schedule 1 to the IAA). • To modify, suspend or terminate an interim meas - ure, upon application by any party or on the tribu - nal’s own initiative (Article 17D of Schedule 1 to the IAA). • To require the party requesting an interim meas - ure to provide appropriate security (Article 17E of Schedule 1 to the IAA). • To award costs and damages to the party request - ing an interim measure (Article 17G of Schedule 1 to the IAA). • To conduct the arbitration as the tribunal considers appropriate, including determining the admissibil - ity, relevance, materiality and weight of evidence, in the absence of the parties’ agreement (Article 19 of Schedule 1 to the IAA). • To determine the applicable law and the juridical seat of the arbitration (Articles 20 and 28 of Sched - ule 1 to the IAA). • To determine the language of the arbitration, in the absence of the parties’ agreement (Article 22 of Schedule 1 to the IAA).
• To decide whether oral hearings are necessary, subject to any contrary agreement by the parties (Article 24 of Schedule 1 to the IAA). Duties • To not exceed powers granted by the arbitration agreement or agreed between the parties. • To disclose any circumstances likely to give rise to justifiable doubts as to impartiality or independ - ence (Article 12 of Schedule 1 to the IAA). • To maintain the confidentiality of the award and all documents created for the arbitration (Section 11 (2) of the IAA). 7.4 Legal Representatives South Africa maintains a long-standing division between advocates and attorneys, though the Legal Practice Act has gradually eroded that distinction. Traditionally, court advocacy fell within the exclusive domain of advocates, with attorneys unable to appear unless they had obtained High Court appearance rights. In arbitration, whether international or domes - tic, these professional distinctions carry less weight. Neither a right of appearance nor any additional local qualification is required. Legal representatives in South African-seated inter - national arbitrations are not required to hold South African qualifications, with competence and effective client representation being the sole practical require - ments. This reflects the transnational character of international arbitration, enabling parties to appoint counsel based on expertise rather than jurisdictional affiliation. 8. Evidence 8.1 Collection and Submission of Evidence General Approach to Evidence in International Arbitrations Seated in South Africa In international arbitrations seated in South Africa, evidence collection and submission is generally gov - erned by: • the rules agreed upon by the parties; • the rules of the chosen arbitral institution; or
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