The International Arbitration Bill has been passed on to parliament, and will most likely be approved. This means that we may be subject to new International Arbitration Law within the next few years. What does this mean for South Africa, and how does it in any way affect mediation in the legal sense?
The South African courts have gone a long way in promoting mediation as an alternative form of dispute resolution between parties, especially regarding commercial interests. Arbitration allows parties to formally settle disputes in private (where the arbitration does not include the state), saving businesses a lot of money that would otherwise be spent on legal fees. Additionally, arbitration reduces the pressure that courts and legal professionals experience in alleviating the vast number of commercial dispute resolution cases.
Old Arbitral Procedures
International arbitral procedures, alternatively, has always been an issue within the profession. This is because cases of international arbitration fell within the limits of the outdated Arbitration Act, No 42 of 1965. With the new International Arbitration Act in place, international arbitral procedures will be distinguished from domestic arbitration, and will be governed by as per UNCITRAL Model Law set out in the New York Convention.
New Arbitral Procedures
Although the force of law will still be maintained by executive powers within South Africa, arbitral procedures between international parties will be governed by the laws outlined in the UNCITRAL Conciliation Rules, essentially freeing up the local judiciary and offering commercial parties to settle disputes on their own terms. With the Act in place, foreign arbitral awards will not require government authorization with regards to their enforcement. Additionally, arbitral awards will need to be made an order of the court where parties are acting in good faith. They are not required to make an order of the court if the subject matter is not arbitrable in South Africa.
The new Act, some may say, has been a long time coming, and will certainly make South Africa an inviting location for international dispute resolution.