News and Overviews

The Association of Arbitrators was set up in 1979 to promote arbitration as a mean of dispute settlement, to facilitate the case-management by arbitrators and to increase the effectiveness of arbitration as a whole. To date the Association comprises a group of competent and reputable arbitrators and mediators who are capable of meeting any needs in effective alternative dispute resolution in the Region. Its head office is located in Sandown, South Africa.

Arbitration Rules

The 6th edition of the Arbitration Rules adopted by the Association is available on its website.

According to information provided on the Association’s website the 7th edition of the Rules has already been adopted. This last edition shall apply to the conduct of arbitrations with effect from January 2013 unless the parties agree to adopt alternative rules or to adopt the Restricted Representation Arbitration Rules (formerly the Summary Procedure Rules).

Unfortunately, by the time of this review the 7th edition had been neither uploaded to the Association’s website nor made available in other open sources we are familiar with. Yet, under the brief description of the last edition which is available on the website and Association’s newsletters, it varies significantly from the previous editions. The only thing one might be sure about is that the 7th edition closely resembles the UNCITRAL Arbitration Rules 2010, since this fact has been stressed by the Association on several occasions.

The possibility of appeal in arbitrations governed by the 6th edition of the Rules

© Felix Gottwald

As for the 6th edition of the Rules, which might apply to arbitration if the parties so agree, Article 40 thereof seems to be of special interest. It provides for appeal against arbitral awards (it should be however mentioned that the option is available for parties only if they so agree).

When a party chooses to make use of the appeal procedure it has to give a written notice to the other party, to the Arbitrator(s) and to the Chairman of the Association of its intention to refer the Award to an Appeal Tribunal.

he Notice of Appeal shall state whether the whole or part only of the Award is appealed against and if only part of such Award is appealed against, it shall state which part, and it shall further specify the findings of fact and/or rulings of law appealed against and the grounds upon which the Appeal is founded.

The Chairman of the Association will appoint an Appeal Tribunal consisting of no less than three members and will give notice to the parties of the date or dates on which and the place where the Appeal will be heard and will secure a suitable venue for the hearing.

Within 10 days of giving Notice of Appeal the Appellant shall complete, sign and submit to the Association due and proper security to the satisfaction of the Chairman of the Association for the payment of all fees and costs in relation to or concerning the Appeal, this security shall be interim and the Chairman shall have the right to request further security from time to time failing payment of which the Chairman shall have the right to terminate the Appeal. The Parties shall be jointly and severally liable for the costs of the Appeal.

The Arbitrator(s) may submit to the Appeal Tribunal any motivation or reasons for the Award within 10 days of receiving the Notice of Appeal and shall submit copies of such motivation or reasons to the parties.

The Appeal Tribunal shall be entitled, but not derogating from its general powers:

- to dismiss the Appeal on its merits;

- to vary the Award;

- to substitute its own Award;

- to direct that the Award, either in whole or in part, be referred back to the Arbitrator(s) for further consideration and for the making of a new or revised Award; and

- to dismiss the Appeal for non-compliance with the provisions of this Rule;

- to make any directive regarding the award of costs in regard to the Appeal.

In the event that the Appeal Tribunal refers the Award back to the Arbitrator(s) the Arbitrator(s) shall, within 30 days of the date on which the Award was so referred back to him, make and publish a new or a revised Award with the proviso that the Appeal Tribunal may, on good cause shown, extend such time for making a new or revised Award.

The decision of the Appeal Tribunal shall be final and binding on the parties, constitute an Award for all purposes and be deemed to constitute the Award of the Arbitrator(s).

The practical directions (notes) designed by the Association on different issues of arbitration may also be of some interest for lawyers. In particular, they cover issues of the Liability of Arbitrators, availability of Hearsay Evidence, etc.

06.02.2013

Specialists of Genuine Arbitration Service, Ltd. represent clients’ interests in arbitration administered by the Association and will be happy to provide you with any possible assistance in arbitral proceedings governed by the arbitration rules of the Association.