In an arbitration relating to obligations under a written lease agreement, the arbitrator made a ruling that an overpaid amount was recoverable. The lessor contended that the arbitrator was not allowed to make an enrichment claim award. The Supreme Court of Appeal held that the arbitration clause which referred to “any dispute or difference or
The UK Chancery Division held that an arbitration clause, which could be invoked over a dispute whether there had been ‘any major physical or financial change in circumstances affecting the operation’ of Tata Steel which imported goods through a Welsh port, was not void for uncertainty.
The court quoted a nice passage from a previous
The UK Chancery Division held that an arbitration clause relating to any dispute regarding a contractual undertaking to renegotiate port licensing conditions in the event of ‘any major physical or financial change in circumstances affecting the operation’ of the importer’s works, was broad enough to cover a dispute about the fees for the use of
An arbitrator has no power to fix the scope of the arbitrator’s jurisdiction. Jurisdiction must be fixed by the terms of reference of the arbitration. Its scope must be objectively ascertainable in advance of the arbitration.
An arbitrator cannot make a decision conferring jurisdiction on the arbitrator that is not possessed in law. That is
A statute should be construed to conform with the common law unless the statute itself evidences a plain intention on the part of the legislature to change the common law.
This observation was made in Engen Petroleum Limited v The Business Zone 1010 CC t/a Emmarentia Convenience Centre. The court found that section 12B
Class actions have the potential to be abused by plaintiffs, for example where a large number of claims are brought for trifling amounts and there is no public policy issue. Whether a class action for a small recovery can be pursued will be decided at the certification stage of proceedings, but by then large amounts
There is no reason why foreign companies and individuals should not arbitrate their disputes in South Africa according to South African law. The South African courts will encourage the selection of South Africa as a venue for international arbitrations.
Where a dispute “arising out of” the relationship between the parties is subject to arbitration, the
In a UK case, the contract included a provision that “the parties will endeavour to first resolve the matter through Swiss arbitration. Should a resolution not be forthcoming the courts of England will have non-exclusive jurisdiction”. It was held that this is not an arbitration agreement.
The parties did not specifically agree to refer
An arbitration clause should never be drawn so broadly that the arbitrator determines the wording of the contract. Arbitrators should be asked to interpret contracts and not make them for the parties.
The consequences of such a broad arbitration clause could be that the arbitrator imposes contract terms on the parties which they would never
A clause in a contract requiring the parties to refer their disputes to arbitration is not necessarily enforceable if the contract itself is invalid. Every arbitration clause should be coupled with a provision that the validity of the agreement may be determined by arbitration even though the existence of the agreement itself is being questioned.