South Africa - Baker & McKenzie International Arbitration Yearbook: 2012-2013
Gerhard Rudolph is a Partner in Baker & McKenzie’s Johannesburg office. His practice involves dispute resolution and arbitration for a broad range of areas of practice, including banking, insurance, construction and engineering, mining and resources, and general primarily commercial corporate and commercial issues.
Darryl Bernstein is a Partner in Baker & McKenzie’s Johannesburg office. He regularly represents clients in international litigation and arbitration proceedings, often in the spheres of banking, insurance, information technology, mining and resources, and insolvency.
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”).
This Act, 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 unchanged.
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.
A. Legislation, Trends and Tendencies
A.2 Proposed Changes to the Arbitration Act
A.3 Trends and Tendencies
B.1 Lufuno Mphaphuli & Associates (Pty) Ltd. v. Andrews and Another
B.2 Road Accident Fund v. Cloete NO and Others
C. The Grant and Enforcement of Interim Measures in International Arbitration
C.1 Tribunal-Ordered Interim Measures
C.2 Court-Ordered Interim Measures