South Africa - Baker and McKenzie International Arbitration Yearbook 2014-2015
Originally from Baker and McKenzie International Arbitration Yearbook 2014-2015
A. LEGISLATION, TRENDS AND TENDENCIES
The law of arbitration in South Africa derives from common law, legislation and the Constitution of the Republic of South Africa 1996. It is primarily regulated by the Arbitration Act 42 of 1965 (the “Arbitration Act”).
The Arbitration Act is extensively influenced by the English Arbitration Acts of 1889 and 1950, recognizes the binding effect of an agreement to arbitrate and the referral of a dispute for determination by way of arbitration. The Arbitration Act follows traditional English principles, essentially reflecting English law as it stood in 1965. While the English statutes have since been amended to accommodate the development of international commercial law, the Arbitration Act remains unamended.
The Arbitration Act applies to both international and domestic arbitration proceedings. Parties are essentially free to adopt procedures of their choice within the framework of the Arbitration Act; indeed the arbitration agreement may itself specify the rules of procedure to be followed, or the parties may leave it to the arbitrator to decide the procedure, subject essentially to the principles of natural justice and broad procedural framework envisaged by the Arbitration Act.
Domestic arbitrations are typically conducted in terms of comprehensive rules adopted by agreement between the parties, importing either the Uniform Rules of Court3 or the rules published and administered by the Arbitration Foundation of Southern Africa (“AFSA”) or the Association of Arbitrators (“ASA”), being the major private arbitral institutions within South Africa. International disputes are typically governed by the rules of the International Chamber of Commerce (“ICC”) or the London Court of International Arbitration (“LCIA”).