South Africa: Does The Arbitration Bill Make South Africa An Attractive Seat Of Arbitration?

Last Updated: 24 July 2017
Article by Richard Power

On 1 March 2017 the South African international Arbitration Bill was approved. When enacted (anticipated in the next couple of months) the ensuing Act will largely incorporate the UNCITRAL Model Law on International Commercial Arbitration into South African Law.

This in effect modernises the law for international (not domestic) arbitrations including:

  • encouraging party autonomy to agree the procedure to be followed by the tribunal (within the Model Law)
  • adopting the principle of kompetenz-kompetenz
  • ensuring equality between the parties in their opportunity to present their case
  • providing a structure for the arbitration from the arbitration through to recognition and enforcement
  • allowing limited court involvement in arbitration
  • providing limited grounds for challenging the award – giving effect to the New York Convention (note these provisions already applied in South Africa but this brings the provisions together)

Having international-standard arbitration legislation is a fundamental step towards encouraging international arbitration between commercial parties in South Africa. It also signals that South Africa is open for business as a seat of international arbitration and a place for enforcement of awards.

This is part of a 'movement' in Africa to embrace arbitration and to attract international disputes, particularly those involving one of more African parties. Mauritius is keen to be the seat of choice in Africa and has taken steps including hosting the ICCA Conference 2016 to raise its profile and there are well-known institutions in other African states such as those in Nairobi and Lagos. At present however it is still fair to say that many African-related disputes are determined in Europe and Asia and there is currently no African seat competing effectively on the world-stage.

What makes an attractive seat?

In 2015 the Chartered Institute of Arbitrators issued guidance on the ten principles for an 'effective, efficient and safe seat', namely:

  • law: a clear, effective and modern arbitration law that recognises and respects the parties' choice to arbitrate by providing a framework for facilitating fair and just resolution of disputes through the arbitration process
  • judiciary: an independent judiciary experienced in international commercial arbitration and respectful of party autonomy
  • legal expertise: a legal profession experienced in international commercial arbitration and international dispute resolution, offering choice to those seeking representation in arbitration and before the national courts
  • education: a commitment to education of all key players and to the development of learning in the field
  • right of representation: a clear right for parties to be represented in arbitration by party representatives of their choice whether from inside or outside the seat
  • accessibility and safety: easy accessibility, adequate safety and protection for parties, their documentation and information
  • facilities: functional facilities for the provision of all services required to run an effective and efficient arbitration
  • ethics: professional and other norms embracing a diversity of legal and cultural traditions and the developing norms of international ethical principles governing the behaviour of arbitrators and party representatives
  • immunity: a clear right to arbitrator immunity from civil liability for matters done, or omitted to be done, in good faith in capacity as arbitrator

Can South Africa measure up?

Measuring South Africa against the CIArb principles:

  • law: with the introduction of the forthcoming Act South Africa addresses its critics on this point. A note of caution should be raised here however in the context of Investment Treaty Arbitration which is governed in South Africa by the Protection of Investment Act 2015. This Act essentially (after a 'run off period') replaces South Africa's Bilateral Investment Treaties (BITs) with other countries. Under this Act, disputes between the South African state and foreign investors will be determined by mediation or state-to-state arbitration only after the parties have exhausted remedies available in the South African courts. This is likely to be unsatisfactory to many incoming investors – even leaving aside concerns about neutrality, South African courts face considerable backlogs and delays - and could deter investment. The law will therefore improve for commercial arbitration this year but those involved in investor-state arbitration will not view South Africa as a progressive forum
  • judiciary: South African courts are known to have a pro-arbitration attitude and case law indicates that they adopt a non-interventionist approach. The more the caseload increases and the more complex cases become there may be a requirement for some training but indications are that the judiciary would take a pro-arbitration approach consistent with the New York Convention
  • legal expertise: there are many fine law firms in South Africa, often working in conjunction with larger global law firms. There is therefore some regional expertise in international arbitration but there is still room for an increased number of African arbitrators to be available to determine these disputes – a catch twenty-two situation of arbitrators requiring experience to become experienced
  • education: arbitration is taught in many South African universities (as the author can testify) and commercial dispute resolution attorneys, advocates and Judges should be familiar with its key concepts
  • right of representation: foreign lawyers are permitted to practise their home jurisdiction law and arbitration in South Africa
  • accessibility and safety: South Africa has good air links and internal transportation infrastructure. Safety concerns may be greater than in some other countries, particularly Europe and the USA, but business districts (where arbitrations are likely to take place) are usually well policed and protected
  • facilities: South Africa has excellent facilities to support arbitrations – quality accommodation and conference facilities, IT and telecommunications services, transcription and translation services etc.
  • ethics: South Africa's legal professional ethics measure up to those in Western jurisdictions
  • immunity: section 9 of the Bill provides for immunity for arbitrators and arbitral institutions as provided for in the UNCITRAL Model law

A bright future?

It is clear that adopting the UNCITRAL Model Law is a positive step both in terms of improving South Africa's arbitration law and improving its international standing in this regard. Alongside President Jacob Zuma's direction to 'make it easy to do business in South Africa' and a recovering economy it may well be the right time for South Africa to come to the fore as a seat of commercial arbitration and enable the personnel and infrastructure required to develop. The Bill is not a quick fix but as part of a long-term plan it is one with good prospects.

Does the Arbitration Bill make South Africa an attractive seat of arbitration?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions