Domestic arbitrationsSection 1 of the Arbitration Act requires a written agreement providing for the reference to arbitration of any existing or future disputes relating to a matter specified in the agreement, whether an arbitrator is named or designated therein or not. If the above elements are present, the arbitration agreement is valid.
International arbitrationSchedule 1, Chapter II, Article 7 of the International Arbitration Act requires an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
The International Arbitration Act further states that the arbitration agreement must be ‘in writing’ (ie, "its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means").
An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?
South African courts will generally enforce arbitration agreements. Enforcement usually takes the form of a court declining jurisdiction to entertain a matter in the face of a valid arbitration agreement.
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?
The only legal provision providing for consolidation is found in Section 10 of the International Arbitration Act, which states that the parties to an arbitration agreement may agree that the arbitral proceedings be consolidated with other arbitral proceedings.
The domestic Arbitration Act does not deal with consolidation, but the courts are likely to order a consolidation if the parties have agreed to it.
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
Article 28 of Schedule 1, Chapter IV of the International Arbitration Act stipulates that, failing any agreement by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.
Insofar as the South African conflict of laws rules are applicable, a court will first determine if any tacit choice of law exists.
If no tacit choice exists, the court will determine which legal system is most closely connected to the contract. This is usually either the place where the contract was concluded or where it was performed.
The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur (ie, according to what is fair and just in the circumstances) only if the parties have expressly authorised it to do so.
Article 28 of Schedule 1, Chapter IV of the International Arbitration Act provides that an arbitral tribunal is bound to determine the dispute in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.
Are there any provisions on the separability of arbitration agreements?
Domestic arbitrationSection 3(1) of the domestic Arbitration Act makes provision for an arbitration agreement to survive the termination of the main agreement but does not expressly provide for the separability of the main agreement.
However, the concept of separability is recognised in the common law.
International arbitrationSchedule 1, Chapter IV, Article 16 of the International Arbitration Act states that an arbitration clause shall be treated as an agreement independent of the other terms of the contract and "a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause".
Are multiparty agreements recognised?
Click here to view full article.
