Tag archives: Arbitration

Some important principles of arbitrations and appeal arbitrations

By Patrick Bracher (ZA) on February 23, 2023 Posted in General

The Supreme Court of Appeal has reaffirmed some important principles about arbitrations. An arbitrator ‘has the right to be wrong’ on the merits of the case and being wrong does not mean that the arbitrator misconceived the nature of the enquiry. Secondly, an arbitrator only has the powers afforded to them in terms of the … Continue reading

Arbitration clauses usually do not survive termination of contract for fraud

By Donald Dinnie and Patrick Bracher (ZA) on July 21, 2020 Posted in General

An arbitration or similar adjudication clause, contained in an agreement that is found to have been induced by fraud, does not survive the avoidance of the agreement. That would be offensive to justice. The position can only change if the parties specifically make provision in their contract for a dispute regarding fraud, misrepresentation or concealment … Continue reading

An arbitrator’s notes are irrelevant and not part of the record on review

By Siyabonga Mathe on May 11, 2020 Posted in General

An arbitrator’s notes do not form part of the record of arbitration proceedings, and the losing party, intent on a review, cannot compel the disclosure of the notes. In Zamani Marketing and Management Consultants v HCI Invest 15 Holdco, the claimant instituted proceedings in terms of the Arbitration Act 1965 to review and set aside … Continue reading

An arbitrator is allowed to be wrong: Setting aside an award under section 33(1)(b) of the Arbitration Act 1965

By Jeffrey Kron and Sarah Forshaw on April 9, 2020 Posted in General

The case of Khum MK Investments and Bie Joint Venture (Pty) Limited v Eskom Holdings Soc illustrates our courts’ reluctance to interfere with arbitration awards except in the limited circumstances set out in the Arbitration Act. The applicant must not only allege that the arbitrator’s decision was legally wrong. It must show that no reasonable … Continue reading

Extension of time for arbitration for undue hardship

By Patrick Bracher (ZA) on February 16, 2020 Posted in Drafting tips

Section 8 of the Arbitration Act 1965 allows a court to extend the period allowed for arbitration in terms of an arbitration agreement if ‘undue hardship would otherwise be caused’. The Johannesburg High Court held that it would cause ‘undue hardship’ to refuse to extend a time-bar in circumstances where the events that caused the … Continue reading

Setting aside arbitration finding for fraud discovered after award (UK)

By Patrick Bracher (ZA) on August 7, 2019 Posted in General

The English commercial court set out the limited basis on which an arbitration award can be set aside when it is alleged that evidence of fraud that would have affected the decision only came to light after the award. The merits of an arbitration award are rarely reviewed. Public policy exceptions such as fraud can … Continue reading

Enforce your arbitration award right away or the debt may prescribe

By Todd Petersen and Daniel McConnell on May 31, 2018 Posted in General

An arbitration award does not create a new debt for purposes of prescription. Parties who wait more than one year to have an arbitration award made an order of court with a 30 year prescription period may find that, when they attempt to enforce the award, the underlying debt has prescribed. Parties should deal expressly … Continue reading

Revamped international arbitration legislation enacted by Parliament

By Adriaan Louw (ZA) and Patrick Bracher (ZA) on January 16, 2018 Posted in General

In late December 2017, Parliament enacted the long-awaited International Arbitration Act which brings about an overhaul of the international arbitration framework. The Act commenced on 20 December 2017. The new Arbitration Act regulates international arbitration proceedings in South Africa and governs the enforcement of foreign arbitral awards. The Act, which incorporates the Model Law on … Continue reading

Limited right to challenge arbitrator’s decision (UK)

By Patrick Bracher (ZA) on November 16, 2017 Posted in General

The losing party before an arbitration tribunal cannot challenge the decision of the tribunal based on an alleged failure to deal with the evidence properly unless in exceptional cases the tribunal genuinely overlooked evidence that really mattered, or got the wrong end of the stick in misunderstanding really important evidence. The arbitrator’s role is to … Continue reading

Enforcing arbitration awards against foreign parties with assets in South Africa

By Daniel McConnell on August 24, 2017 Posted in General

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 … Continue reading

Setting aside arbitrator’s award for going beyond the dispute

By Patrick Bracher (ZA) on March 22, 2017 Posted in Drafting tips

Arbitration clauses must be construed liberally to give effect to their essential purpose which is to resolve legal disputes arising from commercial relationships before privately agreed tribunals, instead of through the courts. When business people choose to arbitrate their disputes they generally intend that all their disputes will be determined by the same tribunal unless … Continue reading

Arbitration decision nearly 70 years later

By Patrick Bracher (ZA) on July 26, 2016 Posted in General

In an important case both historically and legally, Pakistan sued India for losses resulting from the invasion and annexation of Hyderabad in September 1948. After the invasion the Pakistani finance minister and other officials arranged for the transfer of approximately GBP1 million (at today’s value about GBP35 million) in the name of the High Commissioner for Pakistan … Continue reading

Setting aside an arbitration agreement

By Donald Dinnie on January 29, 2016 Posted in General

The Constitutional Court judgment in De Lange v Presiding Bishop of the Methodist Church of Southern Africa dealt with a number of interesting issues. One was whether good cause existed, as contemplated by the Arbitration Act, to set aside an arbitration agreement concluded between the parties. Neither the Arbitration Act nor our courts have expressly … 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

Judicial review of arbitration awards

By Donald Dinnie on January 1, 2015 Posted in General

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 … Continue reading

New arbitration rules make arbitration more efficient and arbitrators more accountable

By Fabio Miceli and Claudia Eisenberg Jackson on September 8, 2014 Posted in General

The London Court of International Arbitration (LCIA) has revised its arbitration rules to make the arbitration process more efficient using requirements that include timetables, guidelines, emergency procedures and consolidation processes. These changes to the LCIA arbitration rules are in effect from 1 October 2014 and track the similar amendments to the UNCITRAL and the ICC … Continue reading

Limited powers to set aside arbitrator’s decision

By Fabio Miceli on August 28, 2014 Posted in General

The appeal court has again reminded us that when the parties choose to submit their dispute to arbitration and the arbitrator’s decision is final without a right to appeal in an appeal tribunal, the grounds for setting aside the arbitrator’s award are very limited. Objections to the jurisdiction of the arbitrator or allegations of bias … Continue reading