South African Courts can enforce an arbitration award arising out of an arbitration which did not take place in South Africa, is not governed by South African law, does not involve any South African parties and relates to a transaction that is not linked to South Africa. All that is required is that the party against whom the judgment is to be enforced, owns assets in South Africa.
Under the common law, a South African court would not have jurisdiction over such a matter. However, the Recognition and Enforcement of Foreign Arbitral Awards Act creates a statutory basis for the jurisdiction of the courts. The Act must be interpreted in this manner in order to give effect to South Africa’s obligations under the New York Convention.
This finding of the Johannesburg High Court in ex parte Balkan Energy Limited confirms an earlier decision of the Durban High Court and echoes the sentiments of the Constitutional Court which stated that there is a ‘need to ensure that lawful judgments are not…evaded with impunity by any state or person in the global village’.
