SOUTH AFRICA Law and Practice Contributed by: Jonathan Ripley-Evans, Fiorella Noriega Del Valle, Veronica Connolly and Kyle Melville, Herbert Smith Freehills Kramer
13. Miscellaneous 13.1 Class Action or Group Arbitration Neither class action nor group arbitration is accommo - dated within South Africa’s current legal framework, and the authors are not aware of any such proceed - ings having been instituted to date. The IAA is directed at bilateral arbitrations between identified parties who have specifically consented to resolve their disputes through arbitration. This consent-based foundation gives rise to inher - ent limitations on the arbitrability of collective claims. Where multiple claimants seek to consolidate their disputes, the requirement for individualised consent becomes difficult to satisfy, as the collective char - acter of such claims sits uneasily with the principle that arbitration derives its authority from the specific agreement of the parties. 13.2 Ethical Codes Legal Counsel Lawyers practising in South Africa are bound by the ethical codes and professional standards applicable to legal practitioners in the country. These standards are primarily governed by the Legal Practice Act 2014, which regulates the conduct of attorneys and advo - cates, and the Code of Conduct issued by the Legal Practice Council (LPC). The LPC is the statutory body responsible for regulating the professional and ethi - cal conduct of legal practitioners and candidate legal practitioners. Its Code of Conduct outlines core duties such as integrity, independence, confidentiality, avoid - ance of conflicts of interest, and respect for the rule of law. Attorneys are also typically affiliated with the Law Soci - ety of South Africa (LSSA), while advocates are often members of the General Council of the Bar (GCB). These bodies provide additional ethical guidelines. There are no specific restrictions applicable to non- South African legal counsel appearing in an interna - tional arbitration seated in South Africa. However, such practitioners remain bound by their own domes - tic ethical standards. Unethical conduct during the arbitration may give rise to grounds for judicial review or higher costs against the offending party.
Arbitrators Ethical obligations govern the conduct of arbitrators in South Africa, with compliance required under the standards set by relevant professional bodies and affiliated arbitral institutions. AFSA and the Association of Arbitrators (Southern Africa) have each adopted Codes of Conduct, the central tenets of which are impartiality, independence and full disclosure of any potential conflicts of interest. At the international level, the IBA Guidelines on Con - flicts of Interest in International Arbitration and the IBA Rules of Ethics for International Arbitrators are widely observed, serving as authoritative reference points for the fair and transparent conduct of proceedings. 13.3 Third-Party Funding Third-party funding is permitted in South Africa. There is no specific regulation or legislation governing its use. The arbitral rules selected by the parties may, how - ever, address the matter directly. Under the AFSA International Rules, for instance, a funded party is required to disclose both the existence of any fund - ing agreement and the identity of the funder, either in the Request for Arbitration or as soon as practicable after the funding arrangement has been entered into. 13.4 Consolidation Section 10 of the IAA permits parties to agree to the consolidation of separate arbitral proceedings, but precludes consolidation by order of the tribunal in the absence of party agreement. The AFSA International Rules also allow for consolida - tion in these instances, and subject to the following. • Prior to the constitution of any arbitral tribunal in the relevant arbitrations, a party may apply to con - solidate, provided that: (a) all parties have agreed; or (b) all the claims in the arbitrations are made un - der the same arbitration agreement. • After the constitution of any arbitral tribunal in the relevant arbitrations, a party may apply to consoli - date, provided that: (a) all parties have agreed to the consolidation;
896 CHAMBERS.COM
Powered by FlippingBook