SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
8.3 Powers of Compulsion Arbitral tribunals seated in South Africa do not pos - sess the same powers as courts to compel the pro - duction of documents or the attendance of witnesses. However, under Article 27 of Schedule 1 to the IAA, tribunals may request the assistance of South African courts in these matters. Parties Involved in the Arbitration For parties involved in the arbitration, compliance with the tribunal’s orders regarding evidence and witness attendance is expected, as failure to do so may result in adverse inferences being drawn. Non-Parties to the Arbitration The courts may issue subpoenas or orders compelling non-parties to produce documents or appear as wit - nesses, if such assistance is requested. South African courts are generally supportive of arbitration and are likely to enforce such requests, provided they are rea - sonable and necessary for the proceedings. Arbitration proceedings in South Africa are generally confidential, subject to certain exceptions. Where pro - ceedings are held in private, Section 11 (2) of the IAA requires both the parties and the tribunal to maintain the confidentiality of the award and all documents not otherwise in the public domain, save where disclosure is required by law. Confidentiality obligations are frequently reinforced by the arbitration agreement itself or the rules of the chosen institution, as is the case with the AFSA Inter - national Rules, which contain express provisions to that effect. Confidentiality typically extends to: • pleadings and submissions; • documents submitted as evidence; • the hearing process; and • the arbitral award. 9. Confidentiality 9.1 Extent of Confidentiality The General Position
Exceptions to the Rule While confidentiality is the default position in South Africa, it is not absolute (and reference is made to arbitrations involving public bodies below). There are circumstances under which information from arbitral proceedings may be disclosed in subse - quent proceedings. Some of these exceptions include the following: • if there is a legal duty or right to disclose, such as in the case of court-ordered disclosure or a statu - tory requirement, confidentiality may be overrid - den; • disclosure may also be permitted where it is neces - sary to protect the public interest, such as in cases involving allegations of corruption or criminal activ - ity; • the parties to the arbitration may agree to waive confidentiality, allowing the information to be dis - closed; and • where a party challenges an arbitral award in court, the court may require disclosure of certain aspects of the arbitration, such as the pleadings or the award, to assess the validity of the challenge. Arbitrations Involving Public Bodies Private commercial entities entering into arbitration agreements with public bodies should be aware that Section 11 (1) of the IAA provides that arbitration pro - ceedings to which a public body is a party shall be held in public, unless the arbitral tribunal directs oth - erwise for compelling reasons. This departure from the usual confidentiality of arbi - tration reflects the public policy considerations that attach to proceedings involving public bodies. While the law on this point remains unsettled, it is reason - ably expected that the obligation of disclosure will extend to pleadings and documents produced in the course of the proceedings, subject to any contrary direction by the tribunal.
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