There are limited grounds under the South African Arbitration Act for setting aside arbitration awards:
- There is misconduct of the arbitrator.
- There is a gross irregularity in the conduct of the proceedings by the arbitrator.
- The arbitrator exceeds its powers.
- The award is improperly obtained.
Our courts have no other powers to set aside arbitration awards. And the courts have no additional powers under the common law to review arbitral awards.
The Constitutional Court has held that the Bill of Rights section 34 right of access to court to resolve disputes does not have direct application to private arbitrations (see for example Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews). Parties who enter into a private arbitration agreement, have chosen not to exercise the right otherwise enjoyed in section 34.
In a number of judgments, our courts have indicated a firm unwillingness to meddle in arbitration awards. The narrow grounds for review have been restrictively interpreted by our courts. Parties who have elected to resolve disputes by way of arbitration should not expect the courts to come to their aid where they are dissatisfied by the outcome.
Without an express agreement permitting an appeal of the arbitration award to an arbitration appeal panel, there is no right of appeal.