Tag archives: Arbitration clause

Arbitration clause is widely interpreted as to arbitrator’s powers

By Patrick Bracher (ZA) on August 2, 2023 Posted in General

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 … Continue reading

Arbitration clause not void for vagueness (UK)

By Patrick Bracher (ZA) on July 3, 2018 Posted in General

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 … Continue reading

Scope of arbitration clause (UK)

By Patrick Bracher (ZA) on June 20, 2018 Posted in General

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 … Continue reading

Arbitrator cannot fix scope of arbitration

By Patrick Bracher (ZA) on January 13, 2016 Posted in Drafting tips

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 … Continue reading

Statutes interpreted in conformance with common law

By Patrick Bracher (ZA) on December 7, 2015 Posted in Drafting tips

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 of the Petroleum … Continue reading

Arbitration clauses could prevent class actions

By Jeffrey Kron and Yasmin Kadwa on November 25, 2015 Posted in General

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 … Continue reading

Arbitration by foreigners in South Africa

By Patrick Bracher (ZA) on January 20, 2015 Posted in Drafting tips

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 … Continue reading

Drafting tips: How not to draft an arbitration clause

By Patrick Bracher (ZA) on September 23, 2014 Posted in Drafting tips

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 the … Continue reading

Don’t allow arbitrators to make the contract

By Patrick Bracher (ZA) on June 4, 2014 Posted in Drafting tips

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 … Continue reading

An arbitration clause may die with the contract

By Patrick Bracher (ZA) on January 24, 2014 Posted in Drafting tips

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. … Continue reading

There are very limited grounds to set aside an arbitration award

By Patrick Bracher (ZA) on January 7, 2014 Posted in Drafting tips

When you agree to an arbitration clause in an agreement bear in mind that the arbitration award, whether you like it or not, is likely to be the final word. The guiding principle of an agreed arbitration is finality – right or wrong. The arbitration agreement must provide for the right of appeal if the … Continue reading