TRANSCRIPTION OF THE
INTERNATIONAL ARBITRATION THE DAWN OF A NEW ERA IN SOUTH AFRICA
Johannesburg Stock Exchange Auditorium 14 October 2016
Sponsored by:
WHITE & CASE Co-organised by: the International Court of Arbitration of the International Chamber of Commerce, The Arbitration Foundation of Southern Africa NPC and South Africa International Chamber of Commerce
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
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[PROCEEDINGS ON 14 OCTOBER 2016]
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institutions including particularly the ICC and it is on
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[09:11] MR WILLIAMS:
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that note that I asked Sami Houerbi to say a few words on
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welcome. And I welcome particularly to our keynote speaker
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behalf of the ICC.
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this morning. The Deputy Minister of Justice and
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Constitutional development, Mr John Jeffrey. Welcome to
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to all of you. Let me first express my pleasure being back
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those of you have travelled from afar to be here with us
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here to the Johannesburg, among my friends and my
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today and there are many of you and who by your presence
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colleagues. It's really pleasant for me. Second I would
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here today have confirmed your interest in and commitment
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like to join this to express my gratitude to AFSA, to ICC
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to international arbitration in South Africa and the
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South Africa and to the sponsor White and Case for making
Good morning everyone and
MR HOUERBI:
Thank you, thank you, thank
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development of International Arbitration in this country.
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this event happen. Later on Tunde will tell you more about
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I do want to make special mention of our sponsors,
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the development of arbitration in Africa. You would know
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represented here today by Luiz Aboim from White and Case's
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that Africa is gaining huge importance in ICC arbitration.
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London office. This event would not have been possible
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The number of parties coming from Africa is increasing
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without White and Case's generous sponsorship. So thank
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every single year.
you.
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On a different note the place of arbitration in
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As you know today's conference is organised
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Africa it's stagnant and decreasing in some countries. For
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jointly by the ICC and AFSA. Although I also wear an AFSA
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many reasons some of them, some country are missing modern
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hat as the South African representative on the ICC Court
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arbitration law. We hope that with the new arbitration law
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and Chairman of ICC South Africa it is representing AFSA
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in South Africa, South Africa will play it's natural role
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that I welcome you here today. Over the past 20 years AFSA
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being the forum of arbitration in the region. ICC will
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has played a leading role in the development of arbitration
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push you for that and I think ICC will do it's role to help
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in South Africa. In the early years AFSA's focus was on
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and to make of South Africa a natural hub of International
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domestic arbitration. But throughout its existence AFSA
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Arbitration in the region. I hope we will have an
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has been involved in and committed to the development of
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interesting day and to listen more about the Bill and about
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South Africa as a regional arbitration centre and to that
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any development of arbitration in the region. Thank you to
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end the modernisation of our arbitration legislation. We
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will be hearing a lot about the International Arbitration
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bill which as you all know was published earlier this year
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privilege to introduce our keynote speaker this morning.
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and we are particularly looking forward to Professor
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The Deputy Minister of Justice and Constitutional
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Butler's presentation on the Bill and the Model Law. This
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Development, Mr John Jeffrey. He is an admitted attorney
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will be followed by a discussion focusing on the added
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but he is perhaps better known for the various roles that
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values of the arbitral institutions and my people will
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he played in politics, as a struggle activist, as a member
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address issue from an AFSA perspective. For this afternoon
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of the KwaZulu Natal Provincial legislature, as a member of
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we look forward to Judge Louis Harms who is very well
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all of you. MR WILLIAMS:
It is now my great
the national assembly, a member of the Justice and
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qualified to speak about both the courts and the
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Constitutional Development Portfolio Committee and most
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arbitration from the perspective of both a judge and an
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recently as Deputy Minister of Justice and Constitutional
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arbitrator. Luiz Aboim will address the important topic of
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development. He has been instrumental in shaping a number
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the resurgence of arbitration in Southern Africa, in Africa
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of pieces of important legislation including the Superior
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and in the Lusophone and Francophone countries and this
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Courts Act, the Protection of Personal Information Act and
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will lead to the final session where our panellists will
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the Legal Practice Act. But in welcoming him here today we
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discuss the bigger picture, challenges and opportunities
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thank him particularly for the important role that he is
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for International Arbitration in Africa. These are indeed
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playing in modernising South African arbitration
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exciting times for international arbitration in South
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legislation and thereby making it possible for South Africa
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Africa and I know that AFSA will continue to play a central
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to develop as an important regional arbitration centre and
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and vitally important role in the development of
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so on that note let me hand over to Mr John Jeffrey.
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International Arbitration in the Southern African region.
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But we must also remember that AFSA is not alone and that 22
Williams, and good morning everybody. Professor Frank D
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if we are to succeed the initiative must be a broader
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Emerson writing in 1970, in the 1970 Cleveland State Law
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African initiative. We must ensure that there is ongoing
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Review said that and I quote "long before laws before
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cooperation with other arbitration organisations and
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established or courts were organised or judges formulated
Tel: 011 440 3647 Fax: 011 440 9119
MR JEFFREY:
That's very much, Mr
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
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principles of law men had resorted to arbitration for the
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international if the parties to an arbitration agreement
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resolving of discord, the adjustment of differences and the
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have at the time of the conclusion of that agreement their
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settlement of disputes. One of the earliest known
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places of business in different states. This definition is
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arbitrators he says was King Solomon. Noting that the
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used to determine which arbitration matters qualify as
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procedure used by King Solomon was in any many respects
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international and are therefore subject to the Model Law.
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quite similar to that used by arbitrators today". I'm not
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The intention is that the recognition and enforcement of
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so sure about that but, commercial arbitration was known to
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foreign arbitral awards act of 1977 be repelled and
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the desert caravans in Marco Polo's time and was a common
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substituted by the Model Law which deals expressly with the
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practice amongst Phoenician and Greek traders.
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recognition and enforcement of foreign arbitral awards and
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International arbitration was also known to the ancient
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rectifies certain other defects in the wording of the
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world. In a dispute between Athens and Megara for the
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existing legislation regarding the definition of foreign
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possession of the island of Salamis in about 600BC the
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arbitral award on the ground, and the grounds on which
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matter was referred to arbitration with the island being
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recognition and enforcement may be refused.
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allotted to Athens. A boundary line in dispute between the
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Genovese and Victorians were settled by arbitration in a
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into South African law the provisions of the Bill therefore
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117BC with the award having been recorded upon a bronze
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reflect many of the provisions of the Model Law. It is
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tablet which was earthed near Genoa. So what these
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important to note that the transitional arrangements.
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examples show is that the practice of arbitration is not
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Provision is made for the Model Law to apply to all
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something new or strange. In fact it seems very much to be
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international agreements irrespective of whether the
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part of human nature to want to have one's dispute
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agreement was entered into before or after the commencement
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arbitrated. The second important thing is it shows that
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of the envisaged legislation. However the Bill will not
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the practice of arbitration must keep up with the times.
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apply to the proceedings for the enforcement of awards
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The development of our new International Arbitration bill
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under the recognition and enforcement of foreign arbitral
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indeed brings with it the dawn of a new era in arbitration.
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awards act or for the enforcement setting aside or omittal
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It is how we ensure that the practice of arbitration in our
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of an award under the Arbitration Act. It is envisaged
As the Bill seeks to incorporate the Model Law
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country does keep up with the times. The new Bill comes at
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that the reforms contained in the Bill will ensure that the
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an opportune time for our country to opt into the
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arbitration legislation remains at the forefront of
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international standard for the resolution of commercial
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international best practices. The proposed legislation
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disputes. Not only does it have the potential to attract
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will not only assist South African businesses in resolving
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foreign direct investment but also to give greater legal
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their international commercial disputes but will also
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protection to South African investments abroad.
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ensure that South Africa is an attractive venue for parties
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around the world to resolve their commercial disputes.
7 8
South Africa is a party to the New York Convention. In 1976 South Africa acceded to the convention
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Now Cabinet did approve the Bill for
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without reservation. Furthermore South Africa enacted the
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introduction, I think it was in about April this year into
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recognition and enforcement a foreign arbitral awards Act
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parliament. But after the approval and so it should it
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in 1977 in order to give effect to the principles of the
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have been, could have even been passed or partially passed
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convention. The Arbitration Act of 1965 governs
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by at least one of the houses but after the introduction
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arbitration proceedings in South Africa however the act
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our department received advise that the UNCITRAL Model Law
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makes no distinction between domestic and International
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could be adapted in order to accommodate local
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Arbitration and the act is not based on the UNCITRAL Model
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circumstances and we therefore thought it expedient to
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Law. The International Arbitration bill thus emanates from
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adapt certain provisions of the Model Law in order to cater
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a report of the South African Law Reform Commission dealing 17
specifically for South African circumstances rather than to
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with International Arbitration. The main thrust of the
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incorporate it as is. We're now in the process because
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Bill is the incorporation of the UNCITRAL Model Law as the
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it's resulting in changes of going back to cabinet with the
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cornerstone of the International Arbitration regime in
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suggested amendments for noting and endorsement before
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South Africa. The Model Law as you know was developed to
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proceeding with the introduction of the Bill into
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address the wide divergence of approaches taken in
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parliament. And we expect that the introduction would be
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International Arbitration throughout the world and to
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before the end of the year.
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provide a modern and easily adapted alternative to national
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regimes. The Model Law defines arbitration as
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Tel: 011 440 3647 Fax: 011 440 9119
Just for those of you that don't know, the legislative process. Bills get introduced by the
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
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executive, but all bills go through cabinet. So you don't
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amendment gives the tribunal express powers to award
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have a Bill for example from the Minister of Finance going
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interests and costs unless the parties agree otherwise. It
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to parliament unless that Bill has been approved by cabinet
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is suggested that the tribunal should have these powers
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and that would apply to all legislation and obviously, so
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where the parties fail to make their own arrangements. A
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cabinet had approved but there are changes which cabinet
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few sets of International Arbitration rules deal with the
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needs to be informed of and needs to note. Some of the
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question of interest.
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proposed amendments include the following. Firstly the
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So those are the amendments then that are being
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Model Law envisages a state adopting this law to exercise a
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proposed to the UNCITRAL Model Law. As we know arbitration
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choice between options 1 and 2 in article 7 of the Model
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offers many advantages. Parties may choose arbitration
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Law regarding the form of an arbitration agreement. It's
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over litigation because of its neutrality, confidentiality,
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proposed that option 1 be selected because it reflects
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finality, enforceability, procedural flexibility and the
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existing South African law by requiring an arbitration
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ability to choose the arbitrators. A 2015 survey called
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agreement to be in writing.
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Improvements and Innovations in International Arbitration
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carried out by the school of International Arbitration at Queen Mary University of London as part of an empirical
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Secondly article 9 of the Model Law states that
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the principle that for a court to order interim measures
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regarding a dispute subject to arbitration is not
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investigation into arbitration practices and trends
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inconsistent with the arbitration agreement. It does not
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worldwide found that 90% of respondents indicate that
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however provide any indication of the scope of the court's
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International Arbitration is their preferred dispute
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powers. It was therefore suggested that a paragraph be
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resolution mechanism either as a standalone method that's
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added with the reference to the article which sets out the
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56% or together with other forms of ADR that's 34%.
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scope of these powers. Article 10 allows state parties the
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freedom to determine the number of arbitrators for
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most valuable characteristic followed by avoiding specific
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appointment. Failing which the default position in the
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legal systems, flexibility and selection of arbitrators.
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Model Law is three arbitrators. The proposal that the
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The five most preferred and widely used seats are London,
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default position should be one arbitrator is in line with
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Paris, Hong Kong, Singapore and Geneva. The primary factor
Enforceability of awards is seen as arbitration's
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existing South African law and also promotes a less
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driving the selection of a seat is its reputation and
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expensive process. Article 12 provides for an arbitrator
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recognition. Respondent's preferences for certain seats
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to be challenged where there are justifiable doubts
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are predominantly based on their appraisal of the seats
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regarding his or her independence and impartiality.
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established formal legal infrastructure, the neutrality and
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There's recently been an increase in the number of
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impartiality of the legal system, the national arbitration
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challenges being made in International Arbitration. A new
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law and it's track record for enforcing agreements to
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paragraph is therefore proposed which sets out the current
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arbitrate an arbitral awards. And then lastly they found
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South African standard regarding removal of an arbitrator
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that the respondents express the view that the most improved arbitral seat taken over the past five years is
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on the basis of bias. The other ground for removal which
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is used in some of the other jurisdictions is a real danger
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of bias as opposed to a reasonable apprehension of bias,
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I'm confident that we will see an African
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the preferred ground in South Africa. It's proposed that
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arbitral seat on that list in the very near future as well
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article 18 be amended to state that each party shall be
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as an increased use of African arbitrators. According to
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given a reasonable opportunity instead of a full
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the global arbitration review statistics from leading
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opportunity of presenting its case. This is in line with
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global arbitral institutions they show that the number of
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the 2010 UNCITRAL conciliation rules and discourages court
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arbitration cases involving African parties and in
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applications based on minor procedural irregularities.
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particular parties from Sub-Saharan Africa is on the rise.
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This is also in line with the approach of our
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The London Court of International Arbitration figures which
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Constitutional Court in the Lefulo Mapupoli case.
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shows that the nationalities of the parties to
Then it is suggested that the term seat of
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Singapore followed by Hong Kong.
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international arbitrations reflect 5.6% as African in 2014
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arbitration which is used in South African practice be used
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going up to 6.4% in 2015. Despite this growth in case load
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rather than the term place of the arbitration is used in
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however it is notable that few of the arbitrators nominated
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the UNCITRAL text. The wording has been clarified to
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to hear these disputes were African themselves. It is
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distinguish clearly between the juridical seat and the
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therefore important for arbitral tribunals to be more
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geographic location of a hearing and the lastly a further
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diverse and to reflect the community of users.
Tel: 011 440 3647 Fax: 011 440 9119
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
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We have many reasons to be positive about the
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don’t have the proposals in front of me but, ja, so I would
2
growth of arbitral institutions in Africa. Africa
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rather that you sort of saw a copy of the Bill. I think
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possesses certain arbitral institutions including the Cairo
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that would probably the best thing, that you see the latest
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Regional Centre for international commercial arbitration
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copy.
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initiated in 1979, the Lagos regional centre established in
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6
1989 and the Core commune de justice d'arbitrage in Cote
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are questions about, why the (inaudible) of the Model Law
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d'Ivoire established in 2001, please excuse my French.
7
and about the Bill, perhaps the matter is going to be
8
(inaudible) to deal with it that way when he has an
9
opportunity, but any other general questions for the Deputy
8 9
In 2012 we saw the establishment of a new, of new arbitral institutions in Africa such as the Kigali Centre
MR WILLIAMS:
Yes, I think that is, these
10
for International Arbitration, the Lagos Court of
10
11
Arbitration and the LCIAMIAC arbitration centre, a
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12
collaborative union between LCIA in London and the
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Where can one get hold of a copy of the revised Bill, the
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government of Mauritius and the Mauritius International
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one that incorporates the proposed changes because I’ve
14
Arbitration Centre. Last year the arbitration foundation
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actually seen on the website there is the one that was
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of Southern Africa announced the creation of the China
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approved in Cabinet on the 13th of April?
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Africa Joint Arbitration Centre Johannesburg, CAJAC which
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17
established South Africa on the International Arbitration
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actually need to get up, just looking at the officials of
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stage. The establishment of the CAJAC, of the CAIAC is
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the back, you know maybe just before that, you know I was
19
particularly important as it will serve as an International
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asked how long will the Bill take to go through Parliament
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Arbitration venue for disputes involving parties from China
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and the answer to that is, it depends on how much consensus
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and the whole of Africa. These modern arbitral
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there is on the Bill. There will be public hearings the
22
institutions are attracting international recognition and
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National Assembly Committee will hold. If, there is a lot
23
also mean that African lawyers are developing specialist
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of divergent views it will take longer. So I do think it
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arbitration skills to be able to meet growing demands. In
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would be useful, sorry, Mr (inaudible) and Ms Ross at the
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2014 Morocco launched an annual arbitration conference,
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back there, if we do put the Bill up. I’m just trying to
1
Casa Blanca arbitration days in conjunction with a number
1
think whether it is before the cabinet process or
2
of international arbitral institutions and organisations.
2
afterwards, probably before, - I mean, sorry, probably
3
This initiative sought to establish Casa Blanca as a seat
3
afterwards but before it is introduced to parliament, just
4
of arbitration and earlier this year the international
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to see if there are further problems that people have, but
5
counsel for commercial arbitration congress was held in
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if there are big disputes in the public hearings in
6
Mauritius. This conference aimed to showcase the
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Parliament it will take longer.
7
opportunities for arbitration across Africa. Against the
7
SPEAKER:
[Inaudible].
8
backdrop of all these developments our new Bill will
8
SPEAKER:
[Inaudible].
Minister? Yes? JOHN:
MR JEFFREY:
My name is John from Botswana.
Just looking at, - I
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further stimulate the development of South Africa as a
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MR JEFFREY:
Ja, look, I mean obviously
10
regional arbitration centre.
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domestic arbitration can take place and it is very good and
11
[09:31] All of these developments and initiatives also
11
it reduces the burden on the courts. There are concerns
12
present us as a country, a region and the continent with
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about the type of people that are being selected as
13
new and exciting opportunities to become an important role-
13
arbitrators, so for example if any judge wants to, gets
14
player in International Arbitration. Thank you for your
14
asked to arbitrate or be an arbitrator in a matter they
15
attention.
15
have to get permission from the minister. So that will
16
come through me as well. I’m not aware, I’m just speaking
16
MR WILLIAMS:
Thank you very much. The
17
Deputy Minister has indicated that he will take one or two
17
through memory but I’m not aware of any request for a judge
18
questions. We don’t really have much time but we certainly
18
to act as an arbitrator where that judge wasn’t a white
19
can take a question or two, so any questions from you?
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male.
20
SPEAKER:
Good morning, (inaudible) from
20
There is the issue then of concern that some of
21
White Case. You mentioned all the changes that (inaudible)
21
the commercial parties may get to court, see a judge on the
22
relating to the powers of the court. Would you mind
22
bench and then decide to rush off to arbitration rather
23
explaining which powers in your view you would like to
23
than having that judge settle the matter, which obviously
24
propose to the courts?
24
doesn’t read much confidence or does not exactly show
25
confidence in our justice system. So those are some of the
25
MR JEFFREY:
Look, I had just listed, I
Tel: 011 440 3647 Fax: 011 440 9119
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
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concerns but I do think the issue of, as with all aspects
1
how to do it, you know. So that I just want you to
2
of South African society the participants need to reflect
2
explain, it would be quite helpful for all the participants
3
the race and gender demographics in South Africa. You
3
instead of each one of us applying separately to go through
4
can’t have arbitrators being effectively a group of white
4
AFSA and the department. That would be one point. The
5
men and so that’s a general concern.
5
other thing is that we’ve been given an examination by
6
Maybe just to say that we are, there is a pilot
6
Michael Kuper to design a dispute resolution system for
7
project on mediation in the magistrate’s courts, so in
7
BRICS. That is our assignment that’s due at the end of the
8
certain courts basically people were encouraged to put
8
month. China invests in arbitration centres as a
9
their names down on a list for each court and the parties
9
government and I want to know, you’ve just mentioned that
10
would have the opportunity to go to mediation in certain
10
you want to stimulate South Africa as a regional centre of
11
magistrate’s courts in the Northwest and in Gauteng. I
11
arbitration. To what extent are you going to as a
12
haven’t yet seen an evaluation of that. It was a pilot but
12
department and government, going to invest as a public
13
the idea would be to spread that out across the country to
13
private partnership in arbitration centres or are you
14
enable people to go to mediation in the magistrate’s courts
14
leaving it to the private sector? Thank you.
15
rather than arguing the case fully. The parties obviously
15
16
elect whether they want to go to mediation and they would 16
17
end up paying the mediator as well.
18
SPEAKER:
[Inaudible] in line with Mr
MR JEFFREY:
No, that’s something we can
look at. I think the main priority at this stage is to get
17
the International Arbitration Bill passed and it is a bit
18
frustrating and a bit embarrassing that is taking longer
19
(inaudible) question, my concern is in International
19
than expected. So that would be the priority and then we
20
Arbitration most of what I do is arbitration related. If
20
can start engaging with how can we promote South Africa,
21
the arbitrators are respected in certain respects as to how
21
whether it be Johannesburg, whether it be Cape Town as an
22
they can deal with the legal issues, they are not allowed
22
arbitration centre.
23
to develop law, they have to apply the law and
23
24
unfortunately the restrictions that arbitration place on
24
very much, Deputy Minister. Alright, moving on then to the
25
matters sometimes the outcome is not ideal, appeal is not
25
next item on the programme, it again is my pleasure to
1
possible. So inasmuch as arbitration might be a forum for
1
welcome Prof David Butler. David Butler has been referred
2
saving money and perhaps saving time it is not always the
2
to as Mr Arbitration Southern Africa and he has had, I
3
case, but the ability then to challenge that particular
3
think as you all know a long and very distinguished
4
award is quite difficult under the current regime. So the
4
academic career, starting when he joined Stellenbosch
5
question that I have is whether that is under
5
University’s Department of Mercantile Law in 1979. His
6
consideration.
6
first and lasting loves were Company Law and Arbitration at
7
a very early stage and most of us here today will know him
8
for his book and other texts on arbitration and
MR WILLIAMS:
Alright, well, thank you
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MR JEFFREY:
Not really, I mean we have
8
to, obviously the Bill I’ve spoken about is the
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International Arbitration Bill. There would have to be
9
10
revision but that would take much longer to domestic
10
African Law Reform Commissions project on arbitration which
11
arbitration legislation. I think it is something that
11
resulted in the publication of the Law Commissions Reports
12
would still need to be more debated. I mean obviously the
12
on International Arbitration in 1998 and Domestic
13
one benefit of arbitration is that it is largely a final
13
Arbitration in 2001. David Butler has always been at the
14
resolution to a dispute. If you can continue to challenge
14
forefront of arbitration initiatives above the domestic and
15
that then that undermines the whole process. So it is
15
international levels and we are therefore looking forward
16
something I think probably to be debated when we start
16
enormously to hearing what he has to say about the Bill and
17
dealing with the domestic arbitration legislation.
17
the Model Law and particularly why the proposed changes are
18
necessary, so David.
18 19 20
MR WILLIAMS:
Yes, one final question
because we must move on, yes. SPEAKER:
Deputy Minister, (inaudible)
19
particularly for his role as the main advisor on the South
PROF BUTLER:
Honourable Deputy Minister,
20
ladies and gentlemen, it is a great privilege to take part
21
in this conference today and we are particularly grateful
21
through AFSA on mediation and arbitration and (inaudible)
22
and I’m also a participant in the programme. The challenge 22
to the honourable Deputy Minister that at last after many
23
first of all I just want to mention is that I tried the
23
years we again have a political champion for driving the
24
minister’s office relating to getting appointed onto that
24
reform of International Arbitration forward and we are
25
panel of mediators and actually nobody in the office knows
25
really very appreciative of the efforts that you are making
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The Dawn of a New Era in South Africa
International Arbitration
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1
in this regard. Now my brief today is to speak on the
1
courts under the influence of our constitution have
2
International Arbitration Bill and the Model Law and what
2
produced a number of very important judgments on
3
are the changes that are being proposed in the South
3
arbitration which can be characterised as being extremely
4
African context to the Model Law and why are these changes
4
arbitration friendly and these judgments stress in the
5
necessary.
5
first place the crucial role of party autonomy in private
6
So I am going to start with an introduction which
6
arbitration. In the second place, starting in the Funa
7
puts my brief, I hope in perspective and then again in an
7
Mafula case but in several other judgments the courts have
8
South African context I’m going to say something
8
stressed a need for circumspection by the courts when
9
specifically about the form in which the Model Law should
9
exercising their supervisory powers.
10
be adopted in South Africa given experience elsewhere. I
10
11
will then look at chapter 2 of the Bill which is the
11
undermine the goals of private arbitration and then also
12
chapter that implements the Model Law into South African
12
very importantly, our courts have developed the powers of
13
law and then look at the schedule 1 and the minor
13
the arbitral tribunal outside the act under the common law
14
modifications which are proposed to the text of the Model
14
to bring South African law closer to the standard set by
15
Law, several of which have already been dealt with by the
15
the Model Law. Perhaps a most important example would be
16
Deputy Minister. I will then very briefly look at chapter
16
the trilogy of cases represented by North East Finance,
17
3, the legislation dealing with the New York Convention and
17
Rayden and the Zhongji case and in these cases competence,
18
schedule 4 on the Protection of Businesses Act and an
18
competence, the power of the tribunal to decide on its own
19
important amendment that is planned there and then make
19
jurisdiction and the doctrine of the severability of the
20
some concluding comments.
20
arbitration clause from the main contract are now
21
Now in July 1998 the South African Law Reform
If the courts are too keen to intervene this will
21
undeniably are part of South African law. It took 20 years
22
Commission published a report with a draft international
22
of judgments to do that but we have at last arrived at that
23
Bill and the legislation in this report was based on three
23
position.
24
core proposals. In the first place the introduction of the
24
25
UNCITRAL Model Law in South Africa for International
25
Arbitration, the South African Government is rightly
1
Arbitration, the question of domestic arbitration was left
1
alarmed by the potential threat of arbitral awards in
2
over, then to make improvements to the existing legislation
2
Investment Arbitrations, and I will explain the concept
3
giving effect to the New York Convention, because the 1977
3
Investment Arbitration in a moment, to South Africa’s
4
legislation had serious defects.
4
constitutional imperatives as a developmental state. Now
5
an Investment Arbitration is typically an arbitration
Now turning to the position of Investment
Page 22
5
At that stage in 1998 South Africa had entered
Page 24
6
into a number of bilateral investment treaties which
6
between the host state and the foreign investor where the
7
foresaw the possibility of investors bringing arbitration
7
investor alleges that the host state has breached some or
8
proceedings under ICSID, the International Centre of
8
other obligation under international law, typically a
9
Dispute Settlement, or for the Settlement of Disputes
9
bilateral treaty between the host state and the investors’
10
rather, the ICSID Convention. And we will see that the
10
home state. And the Foresti case which challenged some of
11
State policy on that particular proposal has since changed.
11
our mining legislation really underlined the potential
12
Now this report back in 1998 was arguably the first visible
12
dangers here to the government with the result that
13
sign of the Dawn of a New Era, the theme of our conference
13
bilateral investment treaties were scrapped and replaced by
14
today. The psalmist in the Old English Version refers to
14
the Protection of Investment Act of 2015.
15
the watchman yearning for the lord with all the keenness of
15
16
somebody on the morning watch, the morning watch being the 16
17
one before dawn. And in these circumstances the morning
17
is the State’s intention that where investment disputes
18
watch has unfortunately been particularly long.
18
arise between government, not necessarily the broader
Now it is quite clear from the dispute resolution clause or section, Section 13 of this legislation that it
19
public sector but between government and a foreign
20
significant developments relevant to the introduction of
20
investor, the investor will not have the right to proceed
21
the Model Law in South Africa which I want to deal with
21
by way private arbitration absent – although the Act does
22
briefly. In the first place UNCITRAL itself introduced
22
not say this, absent some form of agreement.
23
significant amendments to the Model Law in 2006 and it was
23
[09:51] So we have moved away from an era where, under
24
necessary that the 1998 Bill be updated to take account of
24
bilateral investment treaties, foreign investors possibly
25
these changes. Then in the last 20 years the South African
25
had the right to demand arbitration in accordance with
19
Now during the interim there have been three
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International Arbitration
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1
principles of international law applying to the merits to
1
such changes as it deems necessary when incorporating the
2
deal with these disputes.
2
Model Law into its domestic legislation. Now UNCITRAL,
3
Now during 2012 the Department of Justice
3
back in 1985, very deliberately chose the format of a Model
4
requested the South African Law Reform Commission to update
4
Law so that such adaptations could be made.
5
the draft International Arbitration Bill contained in the
5
6
1998 report, also having regard to the amendments to the
6
being adopted in the text? Now, one of the problems here
7
Model Law in 2006. So a revised draft was prepared in the
7
is that the Model Law does not deal with aspects of the law
8
Commission and this draft was discussed by a representative
8
pertaining to International Arbitration, so typically the
9
committee of experts in arbitration law and also
9
adopting state will make various additions and the result
Now what about the possibility of the Model Law
10
arbitration users at a meeting chaired by Judge LTC Harms
10
of this can be that the provisions of the Model Law will be
11
in August 2013. And basically this Bill was further worked
11
rearranged in the text of the adopting legislation and
12
on by the Department of Justice and then, as the Deputy
12
interspersed with these additional provisions, to the point
13
Minister has said, approved in April 2016 with a view to
13
- and the Mauritian International Arbitration Act of 2008
14
the Bill being introduced in parliament after the local
14
is the classic example – it becomes difficult to see if all
15
government elections.
15
the important provisions of the Model Law have been
16
included. Fortunately the Mauritian Act – and there’s no
16
Now according to its long title, the
17
International Arbitration Bill of 2016 aims to do the
17
harm in occasionally knocking one of our nearer geographic
18
following: in the first place to incorporate the 2006
18
competitors on an occasion like this – but fortunately the
19
version of the Model Law into South African law; in the
19
third schedule of the Mauritian Act provides an essential
20
second place to repeal and replace the defective
20
map which tells you which section of the Act deals with
21
legislation regarding the New York Convention so that South
21
which article of the Model Law and that map is highly
22
Africa fully complies with our treaty obligations, and then
22
necessary.
23
the amend the Protection of Businesses Act of 1978 so that
23
24
it will no longer apply to arbitral awards.
24
Law Reform Commission was acutely aware that the drafting
25
style of the Model Law is significantly different from the
25
Now as appears from my paper’s title, my brief
Now, what about the Model Law in a schedule? The
Page 26
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1
today is to focus on the changes proposed in the
1
style used by drafters of legislation in South Africa. Now
2
International Arbitration Bill to the 2006 version of the
2
this can, in practice, create an interpretation problem
3
Model Law and to explain why these changes are considered
3
because the user of the Model Law can see that the text is
4
necessary. I would like to stress that these are minor
4
significantly different from the original. Was it intended
5
changes and they certainly do not alter any principles of
5
to change the scope of the legislation and its application
6
the Model Law. It has been an aim right through the
6
in the process? Maybe it wasn't, but of course a clever
7
process to ensure that South Africa is an attractive venue
7
lawyer, if it suits his client, will argue that it was. So
8
for international users of International Arbitration.
8
this sort of problem can be avoided by sticking to the
9
Model Law text in the schedule.
9
Now I’d like to make some reference to the form
10
in which the Model Law should be adopted and there are
10
The Commission, back in 1998, therefore
11
basically two ways in which South Africa can go about
11
recommended that the official English text of the Model
12
adopting the Model Law. The first is to include the Model
12
Law, with the minor modifications required, should be
13
Law as a schedule to the legislation and that is the
13
incorporated in schedule 1 and the same approach has been
14
proposed route. Alternatively, the text of the Model Law
14
proposed for the International Arbitration Bill of 2016.
15
can be rewritten in the text of the legislation, having
15
Now, that brings me to chapter 2 of the
16
regard to the statutory drafting style of the adopting
16
International Arbitration Bill, the chapter which has as
17
state and that has been done in many jurisdictions, also
17
its purpose to implement the 2006 version into South
18
states with English as an official language.
18
African law. Now the South African Law Reform Commission
19
back in 1998 identified three main aims on the part of the
19
Now at this point it’s perhaps necessary to
20
emphasise the difference between a convention or
20
drafters of the Model Law. In the first place, the
21
international treaty and a Model Law. A state adopting and
21
liberalisation of International Arbitration by limiting the
22
implementing a treaty into its domestic law must basically
22
role of national courts and by emphasising the principle of
23
adopt the entire package without alteration, unless the
23
party autonomy.
24
treaty makes it possible to make certain reservations.
24
25
However, in the case of a Model Law a state is free to make
25
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1
and it has been stated by our Constitutional Court that it
1
2
is a requirement of our common law as well that arbitration
2
3
must be fair.
3
Arbitration Bill bring? Now if we look at the situation of
4
a commercial contract entered into by a special purpose
4
Now, in the third place the Model Law had to
quickly from the airport to Sandton. Now what change will the International
5
provide adequate default powers for the arbitral tribunal.
5
vehicle, which could well have overseas participants but
6
So if the parties under party autonomy have failed to agree
6
it’s registered in South Africa and a public body as
7
on a procedure that they want to follow, the tribunal still
7
defined in the Bill, basically this will fall outside the
8
has effective powers to be able to complete the arbitration
8
definition of an International Arbitration because the SPV
9
where one of the parties is perhaps being deliberately
9
is registered in South Africa and therefore this
10 11
disruptive. Now back in 1998 the Law Reform Commission tried
10
arbitration will continue to be covered by the 1965
11
Arbitration Act.
12
to keep the changes to the Model Law to a minimum and this
12
13
was for two reasons. Firstly, this would promote
13
adopting the Model Law is to try to interpret and apply the
Now, one of the challenges for a jurisdiction and
14
UNCITRAL’s own goal of harmonisation. Secondly, minimum
14
Model Law in the way that is being done in other Model Law
15
changes would best promote South Africa as an attractive
15
jurisdictions and therefore section 8 of the Bill provides
16
Model Law seat for foreign users.
16
that the interpreter, the court or the tribunal may resort
17
to relevant reports of UNCITRAL and its secretariat to
18
updated version in 2013, took a slightly broader view by
18
interpret the Model Law and such provisions are common in
19
restricting recommendations for changes to those reasonably
19
English language Model Law jurisdictions.
20
necessary for the effective implementation of the 2006
20
21
version of the Model Law in South Africa.
21
provisions on matters relevant to arbitration which are not
22
regulated by the law, the Model Law itself, so these are therefore additions.
17
22
Now the committee of experts looking at the
Now as has been indicated several times already
23
this morning, the South African arbitration and commercial
23
24
communities have waited a long, long time for this
24
25
legislation. Therefore all involved in the drafting of the
25
Now the remainder of chapter 2 contains
Now, the Model Law article 1(5) offers no guidance as to what disputes are not arbitrable. This must
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1
International Arbitration Bill of 2016 have been careful to
1
be determined by looking at other rules of law in the
2
avoid or to eliminate controversial provisions which could
2
particular jurisdiction.
3
retard the process of enacting the legislation or the Bill,
3
4
rather, into law.
4
being done in other jurisdictions and decided that the most
5
appropriate general test is that a matter will be regarded
5
Now, before we look at additions proposed to the
The Law Reform Commission looked at what was
6
Model Law in chapter 2 of the Bill, it’s necessary briefly
6
as arbitrable if it is a matter which the parties are
7
to refer to the application of the Model Law in South
7
entitled to dispose of by agreement. Can they validly
8
Africa. The Model Law in South Africa is to apply to
8
settle this dispute by agreement? If so, it is arbitrable.
9
international commercial arbitration and as the Deputy
9
However, there are three qualifications.
10
Firstly, of course, the other legislation like the Patents
10
Minister has indicated, the concept “international” is
11 12
defined in the Model Law and an arbitration, among other 11 12 possibilities, will be international if the parties have
13
their places of business in different states.
14
The International Arbitration Bill also goes on
Act can specifically exclude the use of arbitration to certain disputes. Secondly, the arbitration agreement must
13
not be contrary to public policy and, thirdly, the mere
14
fact that legislation refers to a specific court to deal
15
to bind public bodies, as defined, so various organs of
15
with certain disputes does not, by itself, exclude
16
state including state-owned entities, state-owned
16
arbitration. There would have to be a further policy
17
companies, but subject to section 13 of the Protection of
17
consideration before it could be held that that provision
18
Investment Bill to which I have already referred. The Bill
18
was intended to exclude arbitration.
19
also excludes the application of the Arbitration Act 42 of
19
20
1965 to arbitrations covered by the Bill.
Now we turn to the issue of confidentiality.
20
Now, the confidentiality of private arbitration has
21
At this point then we can ask, what is the
21
traditionally been regarded by many users of arbitration to
22
interaction of these provisions or, from a more practical
22
be one of its most important advantages but from the mid-
23
perspective, we are all aware that there are arbitrations
23
1990s it was increasingly asked: what is the basis of any
24
taking place or competed regarding major infrastructure
24
such duty of confidentiality? Is there a legal basis at
25
projects in South Africa, including the method of getting
25
all? And if we look at current arbitration rules in use
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International Arbitration
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1
there is a difference of approach. The LCIA rules have a
1
2
very specific provision for confidentiality, the ICC rules
2
3
regard this as a matter that should be discussed between
3
provisions on conciliation or mediation intended to promote
4
the parties and, if necessary, decided on by the tribunal.
4
the use of that method of dispute resolution in the context
5
There’s no ground in the ICC’s view for a one size fits all
5
of arbitration proceedings. Now some of these provisions
6
approach.
6
dealt specifically with so-called med-arb where the same
7
person in the same proceedings acts as both mediator and
7
Now, the South African courts to date have been
faith. The 1998 Draft Bill had fairly detailed
8
able to avoid this question because each time the question
8
arbitrator.
9
of confidentiality has cropped up, the matter has been
9
[10:11] These provisions were regarded as being
10
covered by one of the recognised exceptions to
10
controversial and therefore they have been omitted in the
11
confidentiality which cannot be an absolute rule and which
11
2016 Bill and all that virtually remains now is section 12
12
therefore justified disclosure on those circumstances.
12
which in effect reminds disputants of the advisability of
13
Now, the 2016 Bill contains a specific provision
13
referring a dispute covered by an arbitration agreement to
14
on confidentiality in section 11(2) and this reads that,
14
mediation before becoming embroiled in long and costly
15
“Where the arbitration is held in private, the award and
15
arbitration proceedings. That brings us to schedule 1 and
16
all documents created for the arbitration which are not
16
most of the minor changes had already been outlined by the
17
otherwise in the public domain, must be kept confidential
17
honourable Deputy Minister. Now, schedule 1 sets out the
18
by the parties and tribunal, except to the extent that the
18
Model Law 2006 version with the minor modifications
19
disclosure of such documents may be required by reason of a
19
proposed to facilitate its successful implementation in
20
legal duty or to protect or enforce a legal right.”
20
South Africa.
21
Now this provision does proceed from as its – or
21
Now, generally the Model Law only applies to an
22
take as its point of departure that if arbitration is held
22
arbitration with its seat in South Africa but certain
23
in private, no spectators or press present, then it makes
23
provisions in terms of the standard Model Law have
24
sense that the arbitration also be confidential and the
24
extraterritorial application with the result that South
25
rest of the provision is largely based on the LCIA
25
African courts could be required to exercise their powers
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1
arbitration rules in an attempt to keep the provisions
1
of support under the Model Law to enforce an arbitration
2
short. New Zealand and Australia now have legislation of
2
agreement or to grant interim measures in respect of an
3
several pages dealing with the question of confidentiality
3
arbitration which will have its seat in a foreign
4
and that is hardly user friendly.
4
jurisdiction.
5
Now section 11(1) is a very interesting and
5
Now, the competent court for purposes of the
6
important provision because it envisages a different system
6
Model Law is determined with reference to article 6 and
7
regarding confidentiality for arbitrations to which a
7
that will usually be a division of the High Court and
8
public body is a party. Such arbitrations must, as a rule,
8
unlike previous versions of the Bill the default power to
9
be held in public unless, for compelling reasons, the
9
appoint an arbitrator where the parties have not made their
10
arbitral tribunal directs otherwise. I suggest that this
10
own arrangement or where their agreed mechanism has failed
11
provision is mandatory and would override provisions on
11
to function will now be vested in the court. There was a
12
privacy in institutional rules but clearly once again I
12
question earlier about the scope of the court’s powers
13
don't think it should be interpreted as an all or nothing
13
under the Bill and article 5 has been adopted without
14
approach, that either the whole arbitration must be open to
14
alteration.
15
the public or it must all be held in private. I believe
15
In matters covered by the Model Law the court may
16
that a private arbitrator, on application, could direct
16
only intervene where the Model Law so provides. Now, as
17
that part of the proceedings should be kept confidential
17
already mentioned article 7 option 1 has been adopted so
18
and held in private to protect trade secrets and
18
the arbitration agreement is required to be in writing for
19
confidential information.
19
the Model Law to be applied. The main complication of the 1985 version which required the arbitration agreement to be
20
Now to – there is no general rule internationally
20
21
as to whether or not arbitrators enjoy immunity against
21
signed by the parties or to be contained in an exchange of
22
claims based on their negligent conduct at the proceedings
22
documents has been omitted but we basically would now adopt
23
and therefore the Bill in section 12 contains the provision
23
article 7 option 1.
24
that arbitrators and arbitral institutions have immunity
24
Now, interim measures is a topic that deserves
25
unless the act or omission is shown to have been in bad
25
brief mention. The new chapter 4A of the Model Law in 2006
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International Arbitration
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1
has considerably expanded the original provisions on
1
enacted to give effect to South Africa’s succession to the
2
interim measures. And they now comprise about 25% by
2
NYC was seriously defective. In addition the Protection of
3
volume of the Model Law and it is proposed that these
3
Businesses Act of 1978 requires the consent of the minister
4
provisions should be accepted by South Africa with two
4
of trade and industry before certain arbitral awards can be
5
major reservation and with one minor refinement. Now, one
5
enforced in South Africa.
6
of the controversial issues is whether or not an arbitrator
6
In other words the Act provides for executive
7
should have the power to grant relief ex parte.
7
interference in a situation where the New York Convention
8
requires the matter to be left to the courts. In addition
9
the legislation is unnecessary in the context of
8 9
And the Model Law gives the tribunal the power to grant preliminary orders on an ex parte basis. But these
10
orders are unenforceable until the order has been converted
10
arbitration because the public policy defence is always
11
into an interim measure by the tribunal after hearing both
11
available. So the integrational Arbitration Bill addresses
12
parties. And this requirement defeats the entire object of
12
both these problems based on the Law Reform Commission’s
13
ex parte measures which basically infer that the other
13
proposals of 1998. Nearly done.
14
party cannot be trusted to carry out the measure if given
14
15
advance warning. So for that reason it is recommended that
15
that the amendments and modifications to the Model Law
16
article 17B and 17C should be omitted as has been done by
16
referred to by me and also by the Deputy Minister are
17
at least three other jurisdictions.
Now, by way of concluding comments it’s submitted
17
reasonably necessary for South Africa to adopt the law
18
The second reservation relates to the interim
18
model and to implement it effectively and should attract
19
measures granted not by the tribunal but by the court and
19
rather than discourage foreign users when considering South
20
article 17J in 2006 adopts a lowest common denominator
20
Africa for the seat of an International Arbitration. Our
21
approach. The court has the same power to order an interim 21
courts have also demonstrated that they are supportive of
22
measure in relation to arbitration as it has in relation to
22
private arbitration and well equipped to exercise their
23
court proceedings which tells a foreign user absolutely
23
powers under the new legislation in an appropriate way.
24
nothing. In 1998 the Law Commission drafted a provision
24
25
which exhaustively set out the powers of the court and also
25
However I do believe that the question needs to be asked are some of our arbitrators and legal
Page 38
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1
indicated when it was appropriate to approach the court
1
practitioners ready for the Model Law. There are some
2
instead of the tribunal.
2
dinosaurs particularly in the Western Cape who like to run
3
And it is proposed that this provision should be
3
their arbitrations under the High Court rules. And what is
4
substituted for the original 17J. The minor refinement
4
the main sin in doing that? The arbitrator has absolutely
5
concerns security for costs against a claiming or
5
no powers of case management. The court has inherent
6
counterclaiming party. Basically only the tribunal should
6
powers. A private arbitrator does not have inherent
7
have this power. Unless the power is excluded by agreement
7
powers.
8
the court should not be involved in granting security for
8
9
costs in private arbitration. As the Deputy Minister has
9
Now it has been said that case management by the arbitral tribunal is one of the foundational elements of
10
mentioned article 31 has two additions, a power to award
10
the International Arbitration process. The ICC arbitration
11
interest for the tribunal and the power to award costs.
11
rules of 2012 articles 22 and 24 require case management
12
from the arbitral tribunal and spell out in some detail how
12
Now, one of the grounds on which an award can be
13
set aside or on which enforcement of an award can be
13
this can be done. The AFSA commercial rules of 2015
14
refused by the court asked to enforce the award is public
14
empower the tribunal to engage in effective case management
15
policy and a partial definition of public policy has been
15
in the clearest terms. So I say to the dinosaurs that our
16
included to make it clear that public policy in this
16
arbitrators need to be effective case managers. If you
17
context includes gross procedural errors by the tribunal if
17
don’t like that you won’t be getting repeat appointments.
18
they result in a substantial injustice and also the award’s
18
Thank you, ladies and gentlemen.
19
enforcement or will be refused or its setting aside will be
19
20
justified where the award was induced by fraud or
20
very much for that. I think you’ve covered a huge amount
21
corruption.
21
of ground there and covered it very comprehensively. I
22
And there are a number of other minor technical
MR WILLIAMS:
David Butler, thank you
22
expect that there will be some questions arising from – and
23
refinements some of which the Deputy Minister has referred
23
so you’re happy to take some questions.
24
to but they don’t affect any key principles. Now, very
24
PROF BUTLER:
Yes.
25
briefly in line, chapter 3 in schedule 4 the legislation
25
MR WILLIAMS:
So please, yes (inaudible).
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International Arbitration
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1
MALE SPEAKER:
Thanks, Professor. The
Page 43
1
Minister to say and that is also my understanding of the
2
new arbitration law seeks to replace the old (inaudible)
2
transitional provisions that the Bill or the Act once it
3
under the schedule B. My concern with that arises because
3
becomes an Act will apply to an arbitration agreement even
4
there is the general application of the new Bill to public
4
if the arbitration agreement was concluded before the Act
5
bodies except where they’re performing certain functions
5
commences. Where arbitration proceedings have already
6
which is then cross-referenced to the promotion of,
6
commenced under the old regime they will continue under the
7
Protection of Investments Act. Now, that’s quite wide
7
old regime. Where there are already pending applications
8
ranging and the question I have is if under those
8
for setting aside or enforcement they will still be dealt
9
circumstances public bodies are excluded what will happen
9
with under the old regime.
10
to foreign arbitral awards involving those public bodies
10
11
and how do you recognise them in South Africa?
11
12
PROF BUTLER:
Well, in the first place
12
MR WILLIAMS:
Right, any other questions
before we have a coffee break? Yes. FEMALE SPEAKER:
I just want to ask you
13
arbitral awards are still enforceable under the common law.
13
about, you know, we talk about Africa and we want to unite
14
In the second place chapter 3 of the Bill on the
14
with Africa. We are part of Africa. We cannot just think
15
enforcement of arbitral awards under the New York
15
of ourselves right down in the south. But having said that
16
Convention is self-contained. So basically the Model Law
16
I know, I read the Bill. But I’ve also looked at the West
17
in chapter 2 and the New York Convention in chapter 3 offer 17
African, you know, they have, 16 countries have signed a
18
competing, sorry, they offer complementary methods of
18
treaty to harmonise their law with the Model Law. To what
19
enforcing the award. So I’m reasonably confident that
19
extent have you look at that West African treaty?
20
lawyers with the traditional ingenuity found that ENS will
20
21
be able to find a solution to the problem.
21
that you are referring to OHADA and I know that it is
22
stated that the OHADA Arbitration Act and the OHADA treaty
23
are based on the Model Law but I would personally disagree
24
with that. I would think obviously the Model Law has had
25
some influence on them but the OHADA treaty and the OHADA
22 23
MR WILLIAMS:
Any other questions? Yes,
(inaudible).
24
FEMALE SPEAKER:
25
MR WILLIAMS:
Shall we start here? Okay, let’s go up here.
PROF BUTLER:
Well, I wouldn’t – I assume
Page 42
1
That will be easiest.
Page 44
1
Arbitration Act are much more heavily influenced by the
2
French arbitration legislation of 1981. So it’s a parallel
3
from White & Case. With regard to the incorporation of the
3
situation with Mozambique in Southern Africa where
4
New York Convention to the Bill I have a question on
4
Mozambique has adopted arbitration legislation which
5
section 18(1)(a)(2) which deals with the occasions in which
5
complies with UNCITRAL principles but there are so many
6
the court may refuse to recognise or enforce the award. In
6
differences on matter of detail that one could not call
7
the particular provision the New York Convention limits the
7
Mozambique a Model Law jurisdiction and in my view the same
8
text to that enforcement may be denied if the award is
8
applies for the whole of OHADA.
9
contrary to the public policy. Now, the Bill adds or was
2
10 11
MR ABOIM:
Professor Butler, Luiz Aboim
made in bad faith. PROF BUTLER:
Yes, that phrase has been
9
We also in West Africa have the situation that
10
Nigeria was the first country to adopt the Model Law
11
whereas Ghana after careful consideration decided not to
12
omitted in the redrafting process. A lot of effort has
12
adopt the Model Law. So there is unfortunately a lack of a
13
been made to try and get chapter 3 so that there can be no
13
uniform approach on our continent but I really don’t – as
14
conflict with the provisions of the convention because we
14
long as the legislation is modern that is not likely to be
15
have been struggling about with this since 1976 and we
15
a major problem in practice. It could have an effect on
16
don’t want to get it wrong this time.
16
the choice of the seat that our whole idea with our version
17
of the Model Law is that a foreign lawyer sitting in
18
London, Lagos or wherever would be able to see very quickly
19
that we have the Model Law with no objectionable additions.
17 18
MR ABOIM:
That’s very good news.
That’s very good news, thanks.
19
MR WILLIAMS:
20
MR LEEDS:
Right. Professor, it’s Bruce Leeds
20
FEMALE SPEAKER: MR WILLIAMS:
Thank you.
21
from the Jo’burg Bar. Will the Bill apply to arbitrations
21
22
that haven’t yet commenced or will it apply to agreements
22
South Africa will now be the 11th African country to adopt
23
that haven’t yet been concluded at the time of the
23
the Model Law so it’s not as if there are only one or two
24
implementation?
24
of them.
25
PROF BUTLER:
I understood the Deputy
Tel: 011 440 3647 Fax: 011 440 9119
25
PROF BUTLER:
The fact is too is that
Yes.
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 45
1 2 3 4
MR WILLIAMS:
of African countries have already adopted them. FEMALE SPEAKER: MR WILLIAMS:
6
Good, well, thank you.
8 9 10 11
Well, the 16 countries
signed that.
5 7
There are a significant lot
Page 47
1
Michael Kuper first and ask him to speak first and
2
thereafter I shall introduce our second speaker and ask him
3
to share his views with us.
4 Ja. Any more questions?
FEMALE SPEAKER:
Sorry, one more
question. MR WILLIAMS:
Oh one more over there. I
don’t want to leave anyone out. MALE SPEAKER:
Just a practical question.
Michael is going to be speaking about the AFSA
5
perspective but before he does so, perhaps a few words
6
about him by way of introduction. Michael is a senior
7
South African commercial advocate or barrister and
8
arbitrator in practice at the Johannesburg Bar. He has
9
served on arbitration panels appointed by the International
10
Chamber of Commerce and by the London Court of
11
International Arbitration. He has acted as lead counsel on
12
If you have for example Coca Cola as one of your litigants
12
behalf of South Africa in arbitration proceedings before
13
or your arbitral parties the fact that it’s got a foreign
13
the Permanent Court of Arbitration. He is country
14
presence, does that give you a choice between the local or
14
rapporteur for South Africa to the International Chamber of
15
the domestic Arbitration Act and the international Act or
15
Commerce and to the United Nations Commission on
16
does there have to be some international quality to the
16
International Trade Law.
17
dispute to render it under this Act?
17
18
PROF BUTLER:
The definition of
Significantly, Michael is the chairman of the
18
Arbitration Foundation of Southern Africa, a non-profit
19
joint venture company between the business, legal and
19
international in the UNCITRAL Model Law is multifaceted.
20
The most common category, if we had the two parties come 20
accounting professions. AFSA provides administered
21
from different parties and therefore if we’re looking at
21
arbitration and mediation services throughout Southern
22
that situation only and the dispute is say between a South
22
Africa and its work has, in our view, transformed
23
African registered company and Coca Cola’s South African
23
arbitration in this country.
24
registered subsidiary then the International Arbitration
24
25
Act would not apply unless it can be said again in terms of
25
the China Africa Joint Arbitration Centre, Johannesburg,
Michael has been appointed chairman designate of
Page 46
Page 48
1
the definition that the arbitration has some feature that
1
which we call CAJAC which, together with the China Africa
2
makes it international.
2
Arbitration Centre, Shanghai, deal with trade and
3
investment disputes between Chinese African nationals under
3
You could make it international by deciding to
4
have your arbitration seat in Mauritius but obviously our
4
the aegis of the China Law Society. But I leave perhaps
5
courts in applying this provision will be looking for
5
the best till last, Michael was formerly the disciplinary
6
evasion. The Law Commission picked up on this. So if
6
commissioner for Cricket South Africa and I'm reliably
7
parties stipulate in their contract that the contract must
7
informed that we have him to thank for the 5-0 whitewash of
8
be regarded as an international nature and we’re talking
8
Australia.
9
about two home-grown companies with no foreign connections
9
Thank you very much, Michael. Michael, might I
10
whatsoever and the contract has to be performed in South
10
hand over to you to give us the AFSA perspective? Thank
11
Africa that’s a clear attempt to evade the law.
11
you very much, looking forward to hearing what you have to
12
say. Thank you.
12
MR WILLIAMS:
Okay. Is that the final
13
question? Thank you very much. We really appreciate that.
13
14
Let’s have a coffee break and we’ll see you later.
14
kind words, much appreciated. Deputy Minister, ladies and
MEETING RESUMES]
15
gentlemen, let me start with a really heartfelt tribute to
Thank you very much,
16
three people who, more than any others, are responsible for
15
[MEETING ADJOURNS
MR KUPER SC:
Thanks Stuart for those
16
[11:04] MR McCAFFERTY:
17
ladies and gentlemen. Now that we have been refreshed and
17
the fact that we are gathering here today to discuss one of
18
broken bread, I can get rid of all the formalities save
18
the most exciting new chapters in South African legal and
19
that I see the Deputy Minister is still with us but I
19
business history.
20
believe that with such a successful morning we’re all
20
21
entitled to call one another friends.
21
the first Minister of Justice in the democratic
22
Ours is session 3, it’s very interesting. We
The first of them is the late Dullah Omar who, as
22
dispensation, made it his work to commence the research and
23
have two very distinguished speakers. The topic is
23
the intent of bringing to South Africa an equivalent of the
24
“international arbitration in South Africa – the Added
24
Model Law. He was one of the most enterprising of the
25
Values of the Arbitral Institutions.” I shall introduce
25
justice ministers and indeed of any ministry and this day
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Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 49
1
is, to a large extent, a fitting memorial to his memory.
2
The second is Prof David Butler whose dedication
Page 51
1
business and investment communities the service of
2
International Arbitration, such a country lacks the ability to provide an essential service.
3
to the task, whose excellence in the academic lustre which
3
4
he has brought to his work, has given us a Draft Bill which
4
Ask Paris what would happen if the ICC was taken
5
I think ranks with any other of those throughout the world
5
from Paris and what effect it would have on France. Ask
6
which have adopted or are adopting a variant of the Model
6
London what effect it would have if the LCIA left London.
7
Law.
7
These are institutions which cast a reputational lustre on
8
And the third is to the Deputy Minister, to John
8
the cities and in the countries in which they operate and
9
Jeffrey who has driven this initiative in its final form –
9
it has been a matter of dismal failure on our part that we
10
at least we hope its final form – to fruition and who is
10
11
thereby responsible to complete the work that, more than 18 11
12
years ago, Dullah Omar began.
have languished so long without such legislation. And look at South Africa from its position, from
12
its infrastructure, both financial and legal, from the
13
Now that tribute allows me to articulate one
13
richness of its resources, from its accessibility to the
14
grievance. When the Bill was first formulated I was shown
14
world as a gateway to a continent, how is it possible that
15
it and asked whether I had any comment to make. I said I
15
South Africa did not take up for so long its rightful place
16
had no real comments to make apart from changing one
16
in the International Arbitration world? Well, David Butler
17
section, but my real intent was that this was manna from
17
talked of the long wait for the new dawn. We are at that
18
heaven and that the sooner this Bill was passed into law,
18
stage and so what now, where to and how?
19
the better for everyone. And it therefore was something of
19
20
a worry when I spoke to David Butler and he suggested that 20
view of the arbitral institutions and I think that is an
21
there were still important improvements that could be made
21
exceptionally relevant consideration because what the
22
to the Bill and should be made to the Bill.
22
government has done is, it has provided, through this
23
legislation, the tools to do the job of becoming a player
23
And so I was champing at the bit – he was
Stuart has asked us to talk from the point of
24
determined on excellence and the Deputy Minister was
24
in International Arbitration. But all the government can
25
impolite enough this morning to remind me that I had said
25
do and all the legislation can do is to provide the tools.
1
the Bill was in good and proper form and should be passed
1
Someone must take the responsibility for doing the job and
2
and that David Butler had come along and said, well, there
2
that responsibility falls on the arbitration and mediation
3
are all those variants that should now be introduced. So I
3
institutions, both local and international.
4
said to the Minister, Deputy Minister, I said well, who did
4
5
you believe, me or David Butler – to which he responded
5
dedicated itself. AFSA, as Stuart has mentioned, was born
6
without hesitation, David Butler.
6
of a non-profit partnership between the legal communities,
7
the advocates and the attorneys, the accounting profession
8
and the institutional representatives of business and it
Page 50
7
Well, having heard David talking about the
8
particular improvements with which he has been intimately
9
involved, I suppose we can all afford to wait another six
10 11
months, just so long as it is only another six months. I speak on this topic from an AFSA perspective,
Page 52
9 10 11
It is a task to which for 20 years AFSA has
was there to give to business an alternative path in access to justice. Indeed the objectives of AFSA were well-
12
which is to say a South African perspective. AFSA is only
12
enunciated by Dullah Omar who launched it, making a speech
13
one of the arbitral institutions active in the country but
13
in which he said two things, one generally and one specific
14
I would think it is the leading one and certainly it is the
14
and let me take a moment just to remind you of his
15
one which is most involved in trying to fashion for South
15
perception of the work that AFSA and that arbitration were
16
Africa a genuine International Arbitration presence. But
16
called upon to do. He said, “Any objective assessment of
17
before going on, can I pose the obviously question and give
17
our complex industrialised and commercial society indicates
18
you the obvious answer: why all the fuss? Why was it
18
that even where an effective, efficient and professional
19
necessary to pass this Bill? What is the prospect that
19
judicial system is in place, there is yet a need at every
20
this Bill holds out for South Africa? The answer is,
20
level of society for alternative dispute resolution
21
arbitration is a method of service to the business and
21
mechanisms. This is so because even in the most advanced
22
investment community. It is one of the necessary services
22
groups, business, labour, religious groups, cultural groups
23
to facilitate and oil the wheels of commerce and commerce
23
or community groups continually look for more speedy, more
24
and investment does not stop at the border of South Africa
24
effective, more efficacious, less cumbersome, less
25
and therefore unless a country is in a position to offer
25
expensive and often less abrasive ways of resolving
Tel: 011 440 3647 Fax: 011 440 9119
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 53
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1
disputes and problems and our country is no exception in
1
the Silk Road there was a mutual harmony between the
2
that regard.”
2
countries who participated in that great trading route, a
3
And then he went on, “Business has the right to
3
belief that it is a question of mutual respect and
4
know that there are legitimate mechanisms in place through
4
cooperation that gives rise to solutions when it comes to
5
which disputes may be resolved effectively, efficiently,
5
oiling the wheels of trade. And so China had formulated an
6
speedily and in the most economical possible way. AFSA
6
approach quite unlike that encountered in Europe, which was
7
will fill this void and I wish it every success. We should
7
a wish to engage with arbitral institutions in the
8
devote our collective energy to ensure that the AFSA
8
countries with which China traded and to do so on the basis
9
project is a success and becomes a component of a larger
9
of a mutual cooperative effort. South Africa is the major
10
vision which ensures that all South Africa’s people enjoy
10
11
access to justice.”
11
12
Well, in the 20 years since he made that speech
12
destination in Africa for Chinese investment. China is, depending on your criteria, the single most important trade partner of South Africa. And so it
13
AFSA has set itself up throughout South Africa and Southern 13
was not surprising that China seriously considered and
14
Africa, it has put together a sophisticated, fully
14
researched the possibility of creating arbitral
15
administered system with trained case managers. It deals
15
partnerships with South Africa and after a long period
16
with a workload which involves the commercial disputes of
16
getting to know each other and at the instance of the China
17
Southern Africa in an efficient and in a significant
17
Law Society, exercising what in China is called soft
18
fashion. It trains, it teaches, it widens the pool of
18
diplomatic power. There was brought into being a China
19
skills and it seeks to give to South Africa, insofar as it
19
Africa Joint Arbitration Centre, the idea being that
20
can, a highly efficient arbitral system and in all of that
20
arbitral institutions should not just set up shop, should
21
AFSA has largely succeeded, save in one respect and that
21
not just arm themselves with the necessary skills and
22
was to put South Africa in its legitimate place as a
22
resources and wait like a shop for customers to patronise
23
supplier of International Arbitration services and as a
23
it. The Chinese approach was a different one, it was that
24
welcome destination for arbitral disputes to be resolved.
24
the arbitral service should be regarded as a particular
25
And for many years we believed that that acceptance lay in
25
specialised service available to enhance China Africa trade
Page 54
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1
the relationships that we could create between ourselves
1
and if that was what was to be done then one wanted to
2
and the great European institutions and so the direction of
2
create a specialist arbitral institution shared by both
3
our thinking was always western. And we were always met
3
countries, available to give a specialised familiar service
4
with a sympathetic but distant response from the leading
4
to the users in both countries.
5
institutions of Europe, namely that without the
5
6
legislation, without the Model Law South Africa was not an
6
Shanghai International Arbitration Centre to provide for
7
acceptable place, an acceptable destination for arbitration
7
China and Africa an umbrella organisation to deal with and
8
and if this were so, then South Africa constituted a place
8
to address disputes, commercial and investment, between the
9
of very little interest to the European institutions.
9
business and investment and government communities of China
10
And so for 20 years we made very little progress
So the idea was that AFSA should partner with the
10
and Africa. The original initiative at the stage it has
11
and South Africa was robbed of the opportunity to create
11
now developed involves the active provision of service in
12
here the necessary skills, the necessary archival and
12
Johannesburg and through South Africa and in Shanghai.
13
institutional memories that drive a competent international
13
[11:24] But the Chinese initiative is one for expansion,
14
arbitral institution. The training, the skills, the
14
the Chinese initiative has brought into the picture the
15
exposure, the exposure to our legal practitioners, both as
15
great institutions such as CIETAC, such as the Beijing
16
practitioners in such arbitrations and as arbitrators in
16
International Arbitration Centre so that there is a wider
17
such arbitrations were all closed to us to a significant
17
representation of China and is the idea is as well that on
18
degree. But we were wrong to have looked West, we should 18
the template provided between the CAJAC as now presently
19
have looked East.
19
constituted and that which it would become there should be participation throughout Africa in the great centres of
20
Three years ago and after a long interval of
20
21
meetings, China proactively sought to create a relationship
21
African arbitral institution, in Cairo, in East Africa, in
22
that would put South Africa legitimately on the world stage
22
Francophone Africa.
23
in arbitration. The approach from China is driven by a
23
24
philosophy, a philosophy which seeks to resurrect at least
24
of one arbitral initiative, that which has been initiated
25
the ethos of the Silk Road, a belief that in the times of
25
by China. And so we saw a very different development in
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There is good reason to come together in support
Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 57
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1
our role in International Arbitration. It was not a matter
1
Portuguese. There has to be some bridge to cross the
2
of waiting for Europe and waiting for acceptance by Europe
2
divides not only between our nearest neighbours but
3
which never seemed to come. It was a matter of proactively
3
throughout the continent of Africa. And what is that
4
building services where they were needed and they were
4
except to join together in one common initiative but what
5
needed in the trade between China and Africa. And equally
5
would that initiative be?
6
they are needed in other areas as well.
6
7
Inevitably one looks to India and sees the scope
What would the contribution of the legal
7
communities of Africa best make to the continent? It can
8
for the replication of such a partnership institution
8
only be the creation of a shared arbitral systems which
9
between South Africa and India and I may say we have taken
9
would operate in the same way and in accordance with the
10
the initiative to talk to the authorities of India at the
10
same standards throughout the continent, a way of bringing
11
invitation of the government of India in order to see
11
to Africa its legitimate entitlement to have its disputes
12
whether such a proposal will work. It won’t work at the
12
decided in Africa and not decided elsewhere by way of
13
moment because India has not legislated its recognition of
13
subcontracting out to remote and hugely expensive
14
South Africa as a New York Convention country and until it
14
institutions elsewhere.
15
does that there is no scope for this grand initiative but
15
16
it will do so.
16
together, hugely challenging, many problems but that task
And that task, that task of bringing Africa
17
And when it does then this South African
17
is a task that the arbitral institutions of South Africa
18
institution which is AFSA will look to the creation of an
18
cannot leave alone. It is the contribution we are called
19
Indo-African dispute resolution facility. And if you talk
19
upon to make. And we have stretched out, our
20
India and if you talk China, well, then you must talk
20
representatives have gone to conferences throughout Africa.
21
BRICS. If BRICS is to be a regional international market,
21
There are strong arbitral institutions throughout Africa.
22
if it is to become a trade bloc, if it is to meet the great
22
We will work together and on the strength of having our own
23
expectations of the governments of the BRICS countries then
23
well-legislated home base for regional arbitration we will
24
it will need the safety net, the glue, of an arbitral
24
seek to turn it into a continental shared arbitral system
25
institution catering for it, catering in the same
25
and look West. Well, the West remain key investors and key
Page 58
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1
specialised way for BRICS as a China Africa arbitral
1
commercial partners with us.
2
institution and an Indo-African arbitral institution
2
And it is incumbent upon us to offer a service
3
caters.
3
whose quality attracts even those who are used to the great
4
services of the western institutions which means that our
5
conferences recently held both in Shanghai and in New Delhi
5
institutions must gather together now the skills and the
6
given over to the debate and the discussion of how a BRICS
6
practitioners which allow us to stand tall in the world of
7
arbitral mechanism might look. And so South Africa which
7
International Arbitration and offer services of similar
8
had no voice and no part in International Arbitration three
8
quality to those offered elsewhere which is why AFSA under
9
years ago has become an important and active player looking
9
the name of AFSA International is putting together panels
4
And so AFSA has been to a number of the
10
East and I may say is a strong and constructive voice in
10
of arbitrators drawn from lead arbitrators all over the
11
the architecture of a BRICS mechanism.
11
world to deal with that glorious chapter which now opens up
12
to us which is to take our rightful place in world arbitral
12
But having said all that, having said that the
13
answer has come in an unexpected way by looking East let me
13
stage always in the light of the specific circumstances
14
go back to two other directions very briefly. The one is
14
which apply to us, not as I say the general shop but one
15
to look North, to look at this continent with its divisive
15
specialising in the major trade partners and the problems
16
legacy of colonial jurisprudence which separates one
16
of our major trade partners by way of cooperative arbitral
17
country from its neighbour. All of you in the legal
17
mechanisms. So let me end as I have begun. We have the
18
profession who are here today can get into a motorcar and
18
responsibility. We are seeking to discharge that
19
drive next door, go to Mozambique within a matter of hours
19
responsibility. The sun is shining as far as South
20
or two.
20
Africa’s role in International Arbitration and again I have
21
three people to thank, Omar, David Butler and John Jeffrey. Thank you.
21
They are our neighbours but they are not your
22
neighbours in terms of working together as legal
22
23
communities. You don’t understand its legal system, nor do
23
24
they understand yours. The one is an inheritance of the
24
indeed, Michael. Ladies and gentlemen, there’ll be room
25
Roman-Dutch. The other is an inheritance of the
25
and space for questions at the end of these two
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MR McCAFFERTY:
Thank you very much
Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
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1
perspectives and I suggest we hold off until then but it’s
1
places of arbitration in the cities it’s 97 and you would
2
now my great pleasure to introduce our second speaker and a
2
think there would be core African cities who are already
3
very warm welcome to you too, sir. Tunde Ogunseitan is a
3
doing good things vis-à-vis arbitration but that’s really
4
counsel of the Commonwealth team of the ICC International
4
never the case.
5
Court of Arbitration in Paris, France.
5
6
Prior to joining the ICC Tunde practiced in the
The other figure I would like to point out here
6
is a procedure of emergency arbitration and the rules we
7
London offices of Steptoe & Johnson and Cadwalader,
7
introduced in 2012. It’s incredibly effective in the sense
8
Wickersham and Tate, Taft, I beg your pardon, LLP where he
8
that it allows parties quick resolution outside the court
9
specialised in dispute resolution, structured finance and
9
system to get injunctions and parties have been readily
10
debt capital markets. He’s admitted as a solicitor of the
10
using this. We started this in 2012 and so far we’ve had
11
Supreme Court of England and Wales and a solicitor and
11
39 in total. And the good thing about it is parties
12
advocate of the Supreme Court of Nigeria. Tunde, again a
12
usually respect the order. These are the economic
13
warm welcome. We look forward to hearing from you.
13
activities.
14
MR OGUNSEITAN:
Thank you very much and
14
15
good morning, Deputy Minister, ladies and gentlemen. It’s
15
this business because if we look at construction and
16
always a pleasure to come back home because I would say
16
engineering there’s a lot of that going on in Southern
17
this is home for me and talking about something which is
17
Africa, in East Africa and these disputes that are
18
very dear to my heart which is African arbitration. Most
18
generated from these activities should not be going
19
people as Mr Kuper says don’t think of African arbitration
19
anywhere but the countries they originally originated from.
20
as International Arbitration but I beg to differ. One
20
We are seeing increased spikes in telecoms and finance and
21
thing I would add to what he said is that he mentioned the
21
insurance for the first time. This is where it gets
22
rightful place and for some of us we’ve been looking to
22
interesting. The number there is very instructive and it’s
23
South Africa to take that rightful place. We think that
23
the number at the bottom of the slide, 30 South African
24
the delay might be necessary to get it right but once it’s
24
parties.
25
right it’s there.
25
And why Africa is poised to take a large chunk of
One thing I must point out with respect to the
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What is all the fuss about? The fuss is about
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1
ICC is we don’t consider ourselves a Paris based
2
the business of arbitration. But when we talk about the
2
organisation. I handle the common law team but there are
3
business of arbitration what we must look to understand is
3
also nine other counsels around which handle different
4
that while we can develop the skills we have locally we
4
regions. There’s America. We’re opening up in Brazil.
5
should not shy away from understanding what is in the
5
There’s the Paris team. There’s the Eastern European team.
6
broader world and look out as well as in. The skills we
6
There’s a team that deals with the Middle East. There’s a
7
need to develop our own arbitration centres and the values
7
team that deals with the Germans and with the Swiss.
8
in those skills are already here.
8
9
But why did it take South Africa so long? Your
9
So in a way we float around the world without having a seat. I would point out that there’s a difference
10
jurisprudence is clearly strong as a branch of the common
10
between an institution rooted to its jurisdiction and an
11
law tree. Your precedents are well regarded and your
11
institution which allows itself to go to whichever
12
judges sound. But that’s a question I suppose for another
12
jurisdiction the parties – and the key word here is the
13
forum. In order to understand the role of arbitral
13
parties. So I’m going to point my hands at the council and
14
institutions we must look at what those institutions do for
14
say you put the arbitration clauses in, you determine the
15
African arbitration. Is it about saying you’re doing
15
seat. You choose who your arbitrators are. And I’ll come
16
arbitration and continuing to High Court litigation in
16
back to that later.
17
arbitration by importing the various procedures that we
17
So if it’s going to Europe then you have to ask
18
see?
18
yourselves why it is going to Europe. It is not in their
19
Is it about empowering your own advocates to be
19
hands but ours. And there’s an important distinction there
20
arbitrators, to be counsel? What we see mostly in Africa
20
why do we go to Europe. It is not a question for me to
21
is that it gets imported or shall I say exported to Europe.
21
answer because clearly from all the talent in this room
22
Why is that? And I will point out why that is through
22
there is no need. So we have to ask ourselves why. Over
23
stats. If I run through just general statistics as a base
23
the years we’ve seen in ICC arbitrations and when I talk
24
ground we have as at 2015 801 cases in the ICC with overall
24
about ICC arbitrations I’m talking about arbitrations that
25
management of over 1 000. But when you look at how many 25
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are taking place in Africa because that’s what I want to
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focus on. I’m not here to talk about other international
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1
Arbitration with the kind of contracts we're talking about
2
the fees, the institution and the guarantee for quality is
3
arbitrations but African centred arbitrations because it’s
3
relative to what the product you get at the end of the day.
4
really important to understand that it is impossible to
4
Interestingly when we read awards, what's in there as well
5
have an ICC arbitration in let’s say Lagos, Lagos counsel,
5
that nobody seems to mention, is the costs the lawyers
6
Lagos law, the seat is Lagos, the arbitrators are all
6
charge and when you compare those costs vis-à-vis the cost
7
Nigerian, fully happening in Lagos, multimillion dollar
7
of the arbitrator's fees and the institution it is 10 to
8
dispute, the award will be rendered in Lagos and most
8
15%. That is what it costs to what one side's lawyer's
9
likely enforced in Lagos. There is absolutely nothing
9
fees are, not both sides. So relative for what you get the
10
European about it. It is just the rules which can operate
10
speed, if it's properly managed it's actually a very cost
11
anywhere and float around which are the ICC’s.
11
efficient system to resolve your dispute. When the request
12
for arbitration is notified, we affix the provisional
13
costs and a fully administered system that will not yield
13
advance which is the advance which gets the arbitral
14
any nasty surprises. And we all know what I mean by that.
14
tribunal to the terms of reference, all this happens within
15
Arbitration at least when I was learning about it in school
15
30 days of the respondent coming back with an answer and a
16
was supposed to be an efficient and cost-effective way
16
request can literally be two pages. Saying this is who I
17
until ego and the lawyers dig their heels in. And I’m a
17
am, these are my claims, this is the contract for which I'm
18
lawyer as well, arbitration lawyer, so I’m not digging at
18
suing under, that stuff. The answer is the same thing and
19
lawyers. Sometimes it’s at the instructions of the party
19
then we deal with the tricky bits of it, the jurisdictional
20
that delays happen. One of the – why are you delaying?
20
objections, the joinders, people wanting to add additional
21
Clients want delay. So you give the clients delay.
12
And what do those rules give you? Efficiency,
21
parties, these are the things that make arbitration
22
But let me get back to another issue, the place
22
expensive but what we have done at the court is devised a
23
of arbitration. We can all see the traditional places all
23
system which speeds this through, at the same time we're
24
around the world but when the parties fail to select these
24
trying to constitute the arbitral tribunal. Do you have
25
places what we do in the court is we fix a place of
25
one or three arbitrators, who selects these arbitrators,
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arbitration and everybody has already mentioned that the
1
the institutions, the parties, the parties and the lawyers
2
lack of a Model Law didn’t allow people to come into South
2
and then after all that is done we transmit the file to the
3
Africa and look at it as arbitration friendly, actually at
3
arbitral tribunal and of course at that time we're fixing
4
the ICC was actually one of the sure jurisdictions we could
4
the advance on costs as well. Now by the time we fixed the
5
actually fix in Africa, Lagos being the other one.
5
provisional advance they're already advanced in their work,
6
[11:44] Kigali is a new one and Mauritius is the last
6
we've transmitted the file to them and they're going on
7
one. So the perception I think is more skewed then the
7
with getting the parties to a focal point which is the TOR
8
reality. I would point the bottom right of the screen and
8
and that's the terms of reference. At that point everybody knows where they stand, if there's jurisdictional
9
ask why those numbers are low. Again I will point to the
9
10
lawyers, these are the number of places of arbitration in
10
objections it's sort of being partly dealt with through the
11
Sub-Saharan African in international arbitrations 843 and
11
3 and 6 ball procedure which sort of bypasses all the
12
that's not what we fix but what the parties and their
12
bickering, going to court, determining whether the arbitral
13
solicitors put in their contracts. Maybe if we endeavoured
13
tribunal has jurisdiction. All that is removed and
14
to look inward and have confidence in ourselves I suppose
14
centralised because ultimately it's competence.
15
we would be able to make the progress we so desire. Moving
15
So why don't you look at it, make a prima facie
16
forward I will then deal with the technical points of why
16
decision through the institutional rules and then get to
17
International Arbitration through an institution might be
17
the, get to the arbitral tribunal to actually decide on
18
better than the local ad hoc one because essentially I want
18
their own competence as quickly as possible. Then you have
19
to focus on rules and the efficiency and the costs as
19
the case management conference and then you start getting
20
opposed to saying we do an ad hoc procedure. These are our
20
involved in the arbitration itself, the submissions, to
21
steps in International Arbitration and this is how we
21
hearings, closing of the proceedings and then you have your
22
control the procedure at the ICC. A quick run through, a
22
arbitral award. As simple as that. If it's run
23
claimant files a request for arbitration, pays his fees, $3
23
efficiently then there is no reason for delay and this is
24
000 and I have heard that that is expensive and somebody
24
the added value. I'll go into a little bit more details
25
mentioned cost today, but when you do International
25
about what happens during this process. There are lots of
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small technical details that usually delay arbitrations.
1
moves along and being on the back of the arbitral tribunal
2
For example the costs, getting the arbitrators into the
2
to say what are you doing, are you contacting the parties,
3
part, with the parties to discuss fees, all that is removed
3
have they disappeared which happens more than you think.
4
and used to move the procedure forward. I'm sure, who is
4
It is quite surprising that when you deal with
5
head of the Getma case here, hands. Just one, anybody
5
state institutions for example on the continent you will
6
else? Right the Getma case was a case that happened in the
6
find that it takes two months for them to wake up. What we
7
CCJ, I'll go into it briefly where arbitrators outside the
7
do is we appoint, and I'll get to the appointment positions
8
institution decided to agree their own fees outside the
8
later. We appoint for the state institutions and three
9
institutional structure. Ultimately that award got struck
9
months later after we've appointed an arbitration for them
10
down because it violated the institution's rules. But why
10
suddenly they realise, they wake up and say oh we want to
11
should you put arbitrators in a position, because what one
11
participate after all but they've already had, lost a
12
party argued at the end of it is our hands were tied and we
12
chance to have input in the proceedings. As I said we
13
were practically blackmailed to agree these fees. When you
13
provide communication between the parties, transmission of
14
take that responsibility away from the arbitral tribunal it
14
the file to the arbitral tribunal and then ensuring that
15
frees them and allows them to perform efficiently without
15
the file is adequately communicated to the arbitral
16
having to feel that they have to haggle for their own fees
16
tribunal. Once the terms of reference starts then we need
17
as well. Once the request is transmitted to the arbitral
17
to be careful as to what happens, who is agreeing to what.
18
tribunal then we deal with everything from like the request
18
Is there a responding party, is there a non-responding
19
for extension of time and request for joinder, which is not
19
party, do we know that the respondent is there but not
20
as straightforward as it sounds but I am going to pass
20
quite there. The transparency of the prima facie decision,
21
through that very quickly because of time constraints.
21
what are the documents in front of us on the requests. Is
22
All this happens in a period of 10 days between
22
there evidence that that entity performed the contract? Is
23
the first two bits and then later once we've transmitted
23
there evidence that they signed the contract? Is there
24
the request, we've dealt with article 6.3 joinders and
24
evidence in the form of emails, in the form of letters that
25
basically objections to jurisdiction. What we then do is
25
this entity that the claimant wants to sue participated in
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1
take a preliminary view on whether the arbitration should
1
any, it might be a guarantee? That allows us to move the
2
proceed. What I see in a lot of ad hoc arbitration is that
2
arbitration forward to the arbitral tribunal so that they
3
what the parties first do is go to court and the time it
3
can make a determination as to their own jurisdiction. The
4
takes to go through the court system in order to enquire
4
secretary general acts as that gatekeeper. He reviews the
5
whether the jurisdiction of the arbitral tribunal is valid
5
documents. Looks at it and allows it to proceed. If it's
6
as supposed to just taking a prima facie look on the
6
more complex then it goes to the court and the court will
7
institutional level to decide whether the arbitration
7
make a prima facie decision as to whether the arbitration
8
should go through. The parties are asked whether they want
8
should proceed. It's in fact more complex than that
9
because you have sometimes 10, 15 parties, you don't know
9
anybody joined just before we constitute the arbitral
10
tribunal. Something which looks straight forward but is
10
who performed what and the court will do on its face
11
never straightforward. All the first section happens in 30
11
analysis as to see which party participated and at that
12
days. The arbitral tribunal is constituted, we send the
12
stage make a call and to say this, there's no evidence that
13
file, terms of reference and the case management and
13
Mr B, D and F ever participated, so they're out and we will
14
procedural timetable but that's not it. Once the file is
14
administer this arbitrator with these parties going
15
transmitted what I realised that happens in most ad hoc
15
forward. The amount of time that takes is roughly about
16
proceedings is that there is delay and from an
16
two weeks from the last comment, still you have your
17
institutional point of view even sometimes arbitral
17
decision. So it's an incredibly speedy system.
18
tribunals will sit on their hands after getting a file and
18
19
do nothing for a month just because they're busy, just
19
which is constitution of the arbitral tribunal. Parties
20
because the parties haven't got their act together and they
20
will always choose arbitrators they know. I will quote
21
don't want to move forward as quickly as possible.
21
Charles Nerack who said counsel are sheep. Counsel are
22
Sometimes it's as a result of management having cold feet
22
sheep because they go with what they know and they follow
23
after initiating the arbitration to start with, sometimes
23
each other. So if you hear that this guy is good then you
24
it's a myriad of other reasons but what we try and do at
24
will go with this guy, which is why most arbitrators end up
25
institutional level is to manage this and to ensure that it
25
being Europeans because they're the people that are known.
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I come to a matter which is close to my heart,
Email:
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That does mean there are not good arbitrators in this room
1
independence, impartiality and availability. This is
2
but until counsel as in local African counsel start
2
something we take very, very, very serious at the ICC.
3
appointing Africans in international arbitrations then
3
It's as simple as arbitrators disclosing relevant facts
4
those people become well-known and as you see later we've
4
when they're taking an arbitration. That duty of
5
tried to encourage that at the ICC by publishing the names
5
disclosure is always ongoing and we monitor it closely.
6
of arbitrators as they are confirmed by the court. All
6
The other thing is availability and we realising
7
arbitrators nominated by parties will be confirmed by the
7
that more and more people are doing arbitration as a
8
court of secretary general depending on whether there are
8
business and so they're busy and if they're busy they don't
9
objections or no objections but I'll come back to that
9
have time and if they don't have time they're going to be
10 11
later. When you're constituting each tribunal depending
10
delayed in rendering their awards. There is of course a
11
new approach the court has adopted to deal with that which
12
on whether you have a sole arbitrator or a three man panel,
12
I shall come to later. Parties may nominate the sole
13
each side nominates an arbitrator, the parties can jointly
13
arbitrator within 30 days of which the request for
14
nominate a sole arbitrator but I would say that people
14
arbitration has been received by the other party. But if
15
should resist the urge of messing with simple arbitration
15
they don't jointly nominate then the court will appoint,
16
agreements as to the constitution of the tribunal. People
16
again matching that sole arbitrator to the jurisdiction in
17
would usually try and over specify the qualities of the
17
point. If on the other hand it's a three member panel and
18
arbitrator they want and they don't understand that the
18
one party is not participating we will also nominate for
19
dispute they're envisaging at the time they made the
19
that party. If, after the nominations and the
20
contract might not be the dispute that comes before a
20
confirmations they still can't agree to the president we
21
tribunal and so you've sort of limited the pool which you
21
will also nominate for the parties after giving them 30
22
can get by agreeing beforehand. But if they decide to take
22
days to try and agree a precedent.
23
a global list we can provide them with arbitrators and this
23
24
is where it gets interesting because what we try and do at
24
but then I want to come to something else which is the
25
the ICC is match your arbitration to your arbitrator. In
25
challenge of arbitrators which is what takes time if you
1
the sense that if it's an African dispute more than likely
1
are doing ad hoc and this is again another added value of
2
it's not going to be European who is going to administer
2
an institution. Usually when the arbitrators are nominated
3
it, it's going to be an African who is going to, so if you
3
and confirmed you wait to challenge them at the court. But
4
have a South African dispute what we will do is through our
4
the court takes and when I mean the court, the ICC court
5
national committees reach out and find a suitable South
5
takes two approaches to this. First of all when there's a
6
African in this region or elsewhere, it could be a South
6
nomination provided there is no objection by one party for
7
African arbitration, the place could be London, what we
7
whatever reason about that arbitrator and there's no
8
will try and find is a South African who is in London,
8
qualified disclosure on his form then there's
9
through the South African national committee to actually
For the most part, I've already explained this
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9
straightforward confirmed. If there is an objection then
10
administer your arbitration because there are cultural
10
the court will look at this objection and the court has a
11
nuances to be understood. There's background which a
11
higher threshold for actually not confirming arbitrators if
12
European will never bring to an African dispute and this is
12
they have availability issues, if they have a substantial
13
what the court tries to encompass overall.
13
disclosure the court will look at that disclosure and I've
14
As you see the majority of arbitrators as at 2014
14
seen everything from I play mini golf with him on weekends
15
are still nominated by the parties which is I say in order
15
to my wife’s mother’s cousin is his first cousin.
16
to promote African arbitration is really down to the
16
[12:04] These are – increasingly we are finding that
17
parties and their counsel. If there's no nomination as to
17
these are disclosable items and some counsel will take
18
the number of arbitration, arbitrators the court will make
18
issue, delaying the procedure by you know, objection to
19
a decision as to whether it's one or three and depending on
19
sometimes what is clearly frivolous disclosures but
20
a lot of factors such as the amount in dispute, the
20
sometimes these disclosures do merit careful consideration
21
complexity of the dispute, what is involved, how heavy we
21
and balance.
22
see the work load is, the court will take a variety of
22
23
factors into consideration in trying to make sure that you
23
disclosed that her late husband was a board member of the
24
have the right number of arbitrators dealing with a
24
subsidiary of a company against who the claimant had other
25
dispute. What I would like to mention in there is the
25
claims and somebody objected and we had to look at this in
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extreme detail to see whether there were any emotional ties
1
limitation in the kind of tribunals you will get or your
2
which could possibly create a bias situation. But what
2
ability to be on some tribunals when international work –
3
happens in special cases like state entities? In that case
3
so it’s never too late to pick up a language and it’s
4
we don't use the national committee because we understand
4
probably – in Africa it’s simple, you speak a commercial
5
that the implication for awards against state entities are
5
language, English, French, a little bit of Portuguese,
6
quite so grave that we directly appoint the most qualified
6
that’s that, you’re done. But I wouldn't say too lightly
7
people we can get to represent those state entities. And I
7
that the requirement for language skills is actually quite
8
mention that particularly because I mentioned earlier
8
important.
9
because sometimes on the continent it takes time for state
9
When the court appoints arbitrators, as I said,
10
entities to react to arbitration. I don't know why that is
11
but they sometimes take their time and what you don't want 11
the key factor is that we try and make sure that it’s
12
when the arbitration process has gone through is to get an
12
neutral and as far as the rules are concerned, the
13
institution to say look who they appointed to represent us.
13
president or sole arbitrator should not be from the
14
So we take our time to ensure that we get the most
14
nationality of any of the parties and that’s a very
15
qualified people.
10
it goes to the national committees or the ICC groups but
15
important factor. I've been reading the CAJAC rules and
16
When there are multiple respondents the court
16
I'm wondering how they propose to deal with this in terms
17
retains the right to nominate all three members of the
17
of the neutrality of either the sole arbitrator or possibly
18
arbitral tribunal, that again can create so much problems.
18
the president of the arbitral tribunal but the ICC has
19
Imagine we have a claimant and respondent who start a
19
already envisaged this and this is something we definitely
20
matter and then somebody, usually the respondent or
20
look into.
21
sometimes the claimant, decides to join an additional
21
22
party. Now all this is done before the arbitration starts
22
decide to waive these rules as a master of the procedure
23
but the respondent has cross-claims against the additional
23
themselves, that we will not confirm or appoint somebody
24
party, so none of their interests are aligned and they
24
who is of that nationality. The parties, after all, are
25
cannot agree because usually it’s for the claimant and
25
paying the bills so whichever way they decide to point the
However, that’s not to say that if the parties
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respondent to each nominate one and that additional party
1
2
might want to join one of them or might decline to join
2
3
another, either one of them and that creates an almighty
3
tribunal which we insist on, you know, you cannot emphasise
4
mess because you cannot have an additional party who has
4
how much comfort a court will get when there are certain
5
not contributed to the constitution of the arbitral
5
things on paper vis-à-vis the arbitral tribunal. That the
6
tribunal.
6
person is available, speaks to efficiency; that he will
7
give the party equal hearing is entrenched into the rules;
7
Through the procedure of 12(8), if there is no
gun, we’ll help them pull the trigger that way as well. Now in terms of the obligations of the arbitral
8
joint nomination then the court retains the right to select
8
that he will draw the terms of reference pulling the
9
all three members of the arbitral tribunal. This is key
9
parties together, getting their agreement on the choice of
10
because it then allows the procedure to move as quickly as
10
law, VAT issues, the tribunal’s obligations, getting their
11
possible. As I said, we will look at nationality,
11
names right – for one. It sounds so simple but you would
12
residence, their availability is becoming very key and
12
be surprised how many times somebody comes six months later
13
language skills. You wouldn't think it’s a big problem but
13
after the arbitral tribunal has been constituted and things
14
to try and find a Rumanian speaker in Europe and you
14
start and they say, actually that’s not my proper name and
15
realise that not many people speak Rumanian outside, you
15
then you wonder, but you signed this name in the terms of
16
know, Rumania.
16
reference, did you not spot this at this time? And making
17
It’s becoming an interesting factor in terms of
17
sure all these little details – there’s no point having an
18
being an international arbitrator and that’s something I
18
award you can't enforce because there is an “S” missing at
19
think, on the continent, which we have to realise. I am
19
the end of claimant’s name and it’s turned out that “S” has
20
Nigerian and West Africa is – I think Southern Africa is
20
made the award practically useless. So the terms of
21
unique, it’s mostly English speaking with a few Lusophone
21
reference is where you shake this down and it’s important
22
countries dotted around. West Africa is odd in the sense
22
that the arbitral tribunal are on top of this very quickly.
23
that you have English, French, English, French, English and
23
I spoke about the origins of arbitrators. Green,
24
for some bizarre reason most people are not bilingual in
24
let’s all focus on the green and let’s all focus on the
25
West Africa. It’s extremely strange and that creates a
25
dark blue and let’s look at the numbers on top, the second
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column. 1 327 and let’s focus at the numbers below. We
1
2
have qualified people on the continent and I don't know why
2
we encourage within the rules, I think that was mentioned
3
we’re not doing more but given that the parties select most
3
earlier today, it kind of goes without saying that we
4
of the arbitrators then I will put this in the parties’
4
encourage arbitrators, while not interfering with the
5
hands and not the institution’s hands because at the
5
procedure itself, to ensure that they give the parties all
6
institutional level it is our job, through our national
6
available means to settle their disputes, bifurcate their
7
committees, to select from the local pool. So it’s
7
disputes, because sometimes once it’s bifurcated and it’s
8
definitely the parties who must do the heaving lifting vis-
8
not going to go through the end, once one party reaches a
9
à-vis ensuring, at least in Africa and Sub-Saharan Africa,
9
stage and you see which way the wind is blowing, that saves
10 11
that the arbitrators come from the region. I now want to talk about what we will do
Now in terms of case management techniques which
10
time and costs as well, but at the centre of all this is to
11
ensure that the time and the costs are being saved.
12
And one thing I would like to point out which is
12
regarding arbitral tribunals going forward. We've already
13
established and from August we started publishing the names 13
14
of arbitrators who are currently working for the ICC. The
14
arbitrators in the room will testify to, is we’re very
15
point of that is to cast the traditionally shadowy world of
15
retentive about the scrutiny of our awards. We take this
16
arbitration and arbitrators into the open. You can see
16
very seriously and people don't understand – how many
17
who’s doing what, where. If you want an arbitrator you can
17
people have received an award with a typo in it? If that
18
go to that list and see – now that list, I must say as a
18
typo is a missing zero in your damages, as it usually is,
19
disclaimer, is not a disclaimer of quality because
19
or your interest is missing or your cost decision went
20
sometimes the parties do nominate arbitrators who are – but
20
missing or claim number 7.2.3(b) is missing, that is time
21
at the same time it gives you an idea that we’re not afraid
21
and effort that has to be taken to make those decisions
22
to say this is who is working for the court currently and
22
again because what will happen is at that point - somebody
23
this is who’s out there. These are the people who have
23
pointed out earlier that there is no right of appeal, so
24
been nominated and if you go through the current list which
24
you would take it to the High Court, you would get it then
25
looks like that – I don't know whether you can see that –
25
remitted back to the arbitrator. These are the kind of
1
they come from all over the world. I think this snapshot
1
things that scrutiny is supposed to check for and you would
2
was taken as of last month and of course the usual
2
not imagine – I spend my days reading awards. Actually my
3
countries, as you can see, are prominent there. France,
3
weekends really but – and you would not believe the kind of
4
Switzerland – strangely enough no UK, that’s very
4
basic errors a tired mind will make. I don't blame the
5
disappointing. Ah, you see – and South African, so.
5
arbitrators because I suppose a blank sheet of paper to 250
unique still to the ICC in the level of detail, as some
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6
So it gives you an idea of the transparency the
6
pages in a technical construction award dealing with in
7
court has tried to encompass and push forward to make you
7
excess of 200 heads of claim might be tricky, it might just
8
understand how diverse this list is. This is just number 1
8
be a little bit tricky but the point of the scrutiny
9
process is to ensure that every dot is in the right place,
9
to 13 on that list but there you can see how diverse the
10
list is as it is. Hey, wait, I didn't even notice the
10
every figure is checked and re-checked. Every – lawyers
11
South African in there, so yay.
11
are really bad at numbers. It’s not – people used to say
12
when I was a little bit younger, but now I know they’re bad
12
Our other policies of transparency at the moment
13
is communicating reasons why we do certain things,
13
at numbers because for some basic reasons we can’t get math
14
especially with regards to challenges which is something
14
right, or most of us anyway and simple additions go awry in
15
very close to the parties’ minds especially when they feel
15
awards.
16
that they have a reason to want to eject an arbitral
16
Now in an ad hoc award where you draft and then
17
tribunal, one, or all. And we used to take these decisions
17
you just send to the parties, those mistakes are just there
18
at the plenary session which happens once a month. You
18
and then the parties haggle over it. I had an award three
19
have in excess of 20 well qualified arbitrators looking at
19
weeks ago where, at the final stage, the arbitrator put a
20
this April challenge in order to decide whether to accept
20
figure at the end of a sentence we had checked three times,
21
or reject the challenge and the parties can now call for
21
it wasn't there and right at the end of the award before
22
reasons as to why the court has taken a certain decision.
22
she – we notified the – that figure slipped in there. That
23
There’s been two in the LA team and there’s been in the
23
figure was not discovered for another four months after the
24
Eastern Mediterranean team which is effectively the Middle
24
award and as a result the parties had to have an addendum
25
East and the European team as well.
25
and it was clearly an error, everybody knew it was an error
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but the lawyers again – not pointing fingers at you guys,
1
an institutional level and you can’t beat that kind of
2
everybody knew what the figure was supposed to be but
2
quality control because once you then take your award to
3
because it was a different figure in the award the lawyers
3
any state court who understands what the process is and we
4
decided to hush it up for another two months and then have
4
endeavour to ensure that we engage with various judiciary
5
an addendum to this award.
5
around the world to make them understand what our scrutiny
6
6
process is, you’ll find out the award sails through most
7
picks up and the court – it will come to the court, it’s
So the kind of basic errors and the scrutiny
7
enforcement procedures unless it’s Dubai. Now, what
8
usually a three member court or if it’s a state entity or
8
happens when you’re late with your award and that’s
9
dissenting opinion it will go to a larger court which is
9
something quite important that we want to talk about really
10
the plenary which happens once a month. And there’s
10
quickly, if you’re more than a couple of months late your
11
nothing like 20 lawyers or more looking at an award and
11
fees get deducted 5%.
12
giving comments to say, tell him to fix that, that, that,
12
13
that, that, that and sometimes the comments can run into
13
fees being deducted so we encourage them not to be late as
14
pages. If it is very bad, we won't approve it.
14
well. But that’s not only what we do. If it’s later it’s
15
So let me take you through the process quickly.
And as incentive arbitrators don’t like their
15
10%. If it’s much later it’s 15%. Now, if we are late
16
The draft is sent to the secretariat. So the first thing,
16
with it as well these same rates apply to our fees. So if
17
I review it and I prepare an agenda and say I don't – this
17
we delay your award in the scrutiny process we also get our
18
is what I think. Then it goes to the secretary general,
18
fees deducted. And this is very important in the new note
19
the secretary general managing counsel and he reads it and
19
we’ve put out quite recently to ensure that arbitrators are
20
then he adds to my comments and says, I agree with you or I
20
speedy.
21
don't agree with you. So we have a ding-dong about it
21
22
before it even goes to the three man court. Now at that
22
institution and should we do all this but I think it’s
23
level two things or three things can happen. More than
23
extremely important to realise that without institutions
24
likely it’s approved with comments, which is usually the
24
like ours to control the procedure it becomes increasingly
25
case, at which point we send it back to the arbitrator, he
25
hard to maintain the control of arbitral awards and the
Again you ask yourself is this necessary by an
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1
makes his comments but it’s subject to comments. So if he
1
time it takes. The point is not to – I think the phrase I
2
doesn't agree with us we might not allow the award to go
2
always hear when I was in Lagos was justice delayed is
3
out. Usually it‘s approved and that’s a very rare thing
3
justice denied, not really, but that’s because that’s the
4
when you read a report and there are no comments at all, or
4
High Court but here someone is paying for a service and if
5
typos. You do get some freaky awards like that and they
5
you go to a restaurant and the waiter is late you get
6
actually, you read them twice again because you're not sure
6
really angry. It’s the same thing if you’re waiting for a
7
because you get paranoid because in case you missed
7
multimillion dollar award. And that’s it from me.
8
something. Or if they’re extremely bad, they start the
8
9
process again. Once it’s approved the tribunal takes in
9
MR McCAFFERTY:
Thank you very much,
Tunde. We have some time, not much, for questions but I’d
10
the comments, then it gets signed and sent back to us and
10
like, Michael, are you in a position perhaps just to
11
then we notify the award.
11
respond to the query that was put by Tunde relating to the
12
CAJAC rules. That will be I think helpful in the first
12
All draft awards are scrutinised by a committee
13
of the court comprising of three members or as I said, the
13
instance. Thank you.
14
plenary session if it’s a state entity or dissenting
14
MR KUPER SC:
15
opinion.
15
understood it was how in CAJAC do we accommodate the need
16
for neutral arbitrators particularly as the chairpersons of
16
Usually it should take two to three weeks or
Yes, the question if I
17
depending on how many comments it is, it should take three 17
the commission and it’s a very interesting question. It
18
to four weeks. If it’s a straightforward award then
18
gave rise to very interesting discussions with our partners
19
there’s nothing but sometimes it does take a bit longer and
19
in China and with the China Law Society. There is in China
20
you will wonder why you don't get your awards on time.
20
as there is in India a very strong belief that the
21
It’s because we’re having an almighty battle with the
21
nationalities should not necessarily accommodate neutral
22
arbitral tribunal, telling them that that’s wrong and you
22
chairpersons.
23
have to fix it and if you don't fix it, it won't pass
23
And that is odd to us and it comes from some
24
through our doors. And that’s quality control.
24
bitter experiences that have been experienced both in China
25
[12:24] And that’s quality control you are paying for at
25
and in India which has given rise to perceptions of
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institutional bias and the like. Our standpoint is that
1
2
the panel which is a shared panel between ours and Shanghai
2
3
must include neutral arbitrators. And of course there is
3
4
room to find those neutral arbitrators in places like Hong
4
(inaudible) from Nairobi. During Mr Kuper’s presentation
5
Kong or in places in Africa where there are many fine
5
he made reference to the ICC and the LCIA as international
6
arbitrators and there is no debate between China and
6
institutions of prominence and I think there’s no dispute.
7
ourselves in that regard.
7
They both have international reach and international
8
outlook. In fact with regard to the LCIA for instance in
9
the last 20 years despite being based in London there
8 9
And there will be always neutral arbitrators within that meaning. But the debate between ourselves and
MR McCAFFERTY:
Questions, gentleman in
the front row, thank you very much. MALE SPEAKER:
Thank you. My name is
10
China really centres on the use of European arbitrators
10
11
where our feeling is that they should be accommodated just
11
12
the way any other neutral arbitrator should and in fact if
12
Regarding AFSA is AFSA reaching out continentally or
13
you look at the Model Law you will see that nationality is
13
internationally? Is it doing anything about that? And
14
not a basis for exclusion. And there we need to carry our
14
also bearing in mind that South Africa is yet to bring out
15
point with China and I have no doubt we will do so and you
15
its Act on international commercial arbitration is AFSA in
16
will find that within the CAJAC context the neutrality of
16
a position to promote the process through its
17
the chair arbitrators is as well-defined as in any other
17
continentality or internationality? That is one aspect of
18
institution.
18
my question.
19
MR OGUNSEITAN:
I just wanted to ask, Mr
hasn’t been an English president. So this is an indication of its internationality.
19
The other aspect is this, regarding CAJAC you
20
Kuper, as well whether he felt that at least in the Sub-
20
have made some very impressive declarations about it so the
21
Saharan region outside the CCJA which other arbitral
21
brief question is this. Are there as we speak now some
22
institutions he thought would carry the torch for Sub-
22
concrete building blocks upon which we’re going to build in
23
Saharan Africa.
23
fact the future of this partnership or are we very much at
24
a foundational stage? That is to say we’re going back to
25
dig the foundations first. Thank you very much.
24 25
MR KUPER SC:
Let me preface my answer by
saying I saw in the presentation statistics which dealt Page 90
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1
with Sub-Saharan Africa and I did want to say that while
1
2
they were not large percentages I did want to say that Sub-
2
my name is Sami Houerbi from the ICC. I would like to come
3
Saharan Africa is a pretty big place. And if you’re saying
3
back to the sensitive issue raised by Tunde regarding the
4
that 3% of arbitrators come from Sub-Saharan Africa you’re
4
appointment of Africa arbitrators. I think one of the
5
not saying a great deal about representivity within the
5
explanation to add to the explanation of the increasing of
6
countries of Sub-Saharan Africa and there are arbitral
6
the small number of African arbitrator and arbitration
7
institutions of importance in Sub-Saharan Africa outside of
7
involving African parties may concern the identity of the
8
South Africa.
8
counsel of the parties. In the majority of the cases
9
I have one comment just to –
9
African parties are retaining outside counsel and almost
10
have the LCIA wearing its Mauritian garb. Whether that
10
automatically this counsel would rather, would appoint
11
qualifies as an African institution we may debate. But
11
people they know from Europe. And I think this is what we
12
East Africa is a place in which arbitration is well
12
are missing, the role that more African counsel should be
13
understood and well-practiced and East Africa is a fair
13
more involved in African arbitration and then maybe play a
14
centre. The Francophone countries and particularly OHADA
14
role in putting and appointing African arbitrators.
15
countries and whilst I’m not thinking of my geography very
15
16
well as to whether they are Sub-Sahara or above Sahara they 16
17
are important.
18
If one starts I suppose in Mauritius there you
MR HOUERBI:
Ja, I would think South Africa, Mauritius, East
MR McCAFFERTY: MR KUPER SC:
Michael, your response? Insofar as AFSA is
17
concerned AFSA has always tried to promote not only South
18
Africa as an arbitral destination but has tried to promote
19
Africa, West Africa are the places. The last time I looked
19
Africa, has tried to build bridges through Africa. It has
20
Nigeria was a powerhouse for arbitration as well. So when
20
always sought to do that whether it was or was not well-
21
we talk of the continent, yes, those would be the Sub-
21
positioned to conduct International Arbitration. My
22
Saharan entities with which we would want to engage and
22
colleague, Daleen Beukes, who is the CEO of CAJAC has
23
partner. And then of course above the Sahara there are the
23
attended almost every conference being held in Africa in
24
North African countries which are very important centres of
24
the last period of time in order to spread the word and in
25
arbitration.
25
order to network among the African arbitral institutions.
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And we’ve always sought to partner African
Page 95
1
institution or is there and ready to work the answer is the latter. Thank you.
2
arbitral institutions notwithstanding some difficult
2
3
relationships that went wrong notwithstanding the best
3
4
intentions that we had. And our position remains
4
Johannesburg Bar. I have a joint question to Michael and
5
unchanged. We look to an arbitral system for Africa and we
5
to Tunde and I had the privilege of engaging with Tunde
6
look to a shared China Africa arbitral system and our
6
over a long period in a reference. Michael, to you with
7
invitation is genuine and it is expanded to the continent
7
the exciting developments with CAJAC and also with AFSA
8
as a whole. We plan at the end of next year to convene a
8
International do you see a place for a collaboration with
9
major CAJAC conference for Africa in order by then to
9
the ICC to draw on what, and I say this with no disrespect
MR GRAVES SC:
I’m Noel Graves from the
10
welcome those African centres which have come to join the
10
to AFSA, the international reputation of the ICC to make
11
CAJAC project and which together with ourselves and our
11
sure that the arbitral processes that are in fact conducted
12
partners in China can discuss the way forward in the
12
do have the confidence and are able to draw the confidence
13
integration of these various institutions within one
13
of the parties.
14
umbrella institution.
14
15
You asked me are we merely digging the
And then to Tunde if I may, Tunde, just three
15
points that came out of your address which was the fully
16
foundations or have we gone further. Well, let me tell you
16
administered, speed and the scrutiny of the awards with the
17
what CAJAC is and how far it has gone. CAJAC arose from
17
quality control. You and I have had some discussions and
18
agreements and declarations made in Beijing in June of last
18
differences over that. But would you see if there is from
19
year and made in Johannesburg in November, August of last
19
the ICC’s side a desire and a willingness to have some
20
year. In November of last year the CAJAC doors were opened
20
collaborative process with the exciting developments, the
21
both in Shanghai and in Johannesburg. The panels of the
21
CAJAC developments, would you see scope for what would be a
22
first arbitrators of the CAJAC, joint CAJAC institution
22
slightly simpler process because it’s only your eloquence
23
were announced and were appointed. They were arbitrators
23
that could describe that process which in your many slides
24
who met both South African and Africa criteria and who met
24
described that as simple. It is clear and it does in fact
25
Chinese criteria.
25
have a structure but it is quite complex and it can be time
Page 94
1
In March of next year the panel is moving, the
Page 96
1
consuming so is there, sorry, rather long question, is there scope for that?
2
South African panel is visiting Shanghai on an extended
2
3
visit to address those kind of cultural differences that
3
4
were earlier noted and that is so important in giving both
4
answer to the question that was directed to me is I don’t
5
parties a feeling that their position has been understood
5
know. I don’t know what the attitude of the ICC would be
6
and that the tribunal is sensitive to their positions and
6
and I don’t know what the direction of any such proposals
7
we have arranged for that to do. So the doors are open.
7
would be. But we have always sought to cooperate, to
8
The website are there.
8
share, to work together as far as we can and I have no
9
As we understand it from reports the agreements
9
MR KUPER SC:
Noel, I think the easy
doubt that if those opportunities arise and if the ICC is
10
are being written. The panel is there. The case handling
10
11
function which is provided in this country by AFSA and in
11
12
Shanghai by the Shanghai International Arbitration Centre,
12
be gotten from partnership arrangements of that sort. All
13
by SHIAC, are all in place. There were two instances in
13
I can say to you is we have an undistinguished precedent.
14
the last month where we thought the first matter was
14
There was a case I remember very clearly where the parties
15
actually going through our doors but in the one the parties
15
decided that AFSA would nominate the arbitrator but that
16
chose the AFSA rules rather than the CAJAC and in the other 16
the ICC would administer it. And that case is the
17
we’re waiting to hear from our partners in Shanghai how the 17
Telcordia case. So we appointed the arbitrator and all
18
matter is progressing.
18
hell broke loose, not because of the ICC but because of the
receptive to such a suggestion we could work on it. And I quite agree with you, there is strength to
19
So I would think we are well beyond turning the
19
Pretoria High Court and we’ve got the judge who put it
20
turf for the first time. What we are doing is waiting for
20
right speaking later this afternoon.
21
the sufficient agreements to be written and for the parties
21
22
then to lose patience with each other and produce disputes
22
23
on which CAJAC can operate. But if your question went to
23
already sort of answered the question in the sense that
24
our openness to a genuine African partnership the answer is
24
there’s always the scope, always for cooperation and this
25
yes. And if your question went to whether CAJAC is a paper
25
is the beginning of the cooperation. There’s always talk
Tel: 011 440 3647 Fax: 011 440 9119
MR McCAFFERTY:
Tunde.
MR OGUNSEITAN:
I think Mr Kuper has
Email:
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International Arbitration
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between the man who wears two hats, Des, who is also part
1
MR OGUNSEITAN:
2
of AFSA and lets us into what’s happening in South Africa
2
SPEAKER:
3
all the time. And the ICC is also an institution which
3
distributing lists of our Sub-Saharan African arbitrators
4
believes in sharing. Our goal is to improve dispute
4
to the ICC.
5
resolution and arbitration wherever I is in the world. And
5
6
if that means using local partners to drive that so that
6
are. In terms of our appointment, if you look at – the
7
the brand of arbitration as a whole is improved then I
7
figures I put up was that 45% of parties or more than that,
8
believe we are definitely in line to that.
8
65% of parties actually choose their own arbitrators and
9
[12:44] As to how that process will look will depend on a
9
that goes to the point Sami was making that it is the
I agree.
And surely one should focus on
MR OGUNSEITAN:
I think we know who they
10
lot of factors and right at this moment I cannot speak to
10
counsel which the local parties – I don't understand why a
11
that but I'm sure it will take some constructive form.
11
Botswanan entity would instruct English solicitors. And
12
once that happens, the English – you know what I said,
12
On your other question on speed and simplicity,
13
speed is always something we look at. You and I have very, 13
counsel are sheep, they will go with what they know and
14
very different views about the scrutiny process but it is
14
they don't want to take the risk and it’s an inherent risk.
15
simple, in my view, but it can be complex to the
15
This is me, you're my client asking me for advice, so if
16
uninitiated and the complexity is the protection of the
16
the case has been farmed out to an English solicitor they
17
brand. If we are not satisfied that your award is kosher –
17
will go with who they know, who is, you know, their fellow
18
I’ll use that word – then it’s a Gandalf situation, you
18
European but again that goes back to Africans doing African
19
shall not pass and it sounds like something quite trivial
19
cases and that’s the situation. It’s actually a lot of
20
to say but I would say that the essence of the scrutiny
20
factors why Africans are not appointed as arbitrators and
21
process is, if you put the award down then the court which
21
it’s something we are trying to address when we are in the
22
chooses not to enforce it will have a pretty good job in
22
position to actually nominate for a party, i.e. where
23
finding a reason not to and that is the essence of it.
23
there’s a state entity and they’re not responding or the
24
Does it take time sometimes? Yes, it does. Do we agree
24
parties can't agree, then we will find somebody local. So
25
massively with arbitrators from all over the world, even
25
I'm very aware that there are enough qualified arbitrators
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1
very prominent ones, arbitration Buddhas sometimes and the
1
in Africa and I don't shy away from it when I need to do it
2
powerhouses who we all know will have dingdongs with
2
because as I said, the understanding of the local nuance in
3
counsel for weeks over points which we will not take
3
arbitration – I would, for example I can't imagine anybody
4
because we understand. The last time that happened we
4
doing an arbitration in South Africa where the parties have
5
allowed an arbitrator to make a call on an award of
5
agreed to a local procedural rules – I was talking to
6
interest, the place of arbitration was Paris. I remember
6
somebody earlier about that, that most counsel in South
7
because I remember the Court of Cassation striking this
7
Africa prefer to use the local procedural High Court rules
8
award down and the first thing we all went to do is we ran
8
to do their arbitration. If they’ve agreed to do that and
9
back to the letters we wrote to the arbitrator. Lo and
9
you have an arbitration from London he’ll be lost
10
behold, the point was made on that interest point and he
10
completely and so it’s better to go local, especially when
11
stuck to his heels, when he was getting stupidly delayed.
11
you’re trying to deal with your disputes.
12
We were like, fine, you're a party appointed arbitrator,
12
13
which is also a factor. The parties – sometimes this thing
13
14
is beyond us, they decided to select an arbitrator. You’re
14
MR KUPER SC:
15
a party appointed arbitrator, if we delayed this any long
15
SPEAKER:
- your answer.
16
then we’ll be seen as people encouraging the delay. We let
16
SPEAKER:
Is it on?
17
it pass, it got struck down in the Court of Cassation.
17
SPEAKER:
It’s on, yes. My question is
18
MR KUPER SC:
I am Gandalf for the
SPEAKER:
There should be more
encouragement though in that regard, I think. May I just –
18
written there. One of the reasons that we talk about, and
19
purposes of further questions. You've got to be very brave
19
I heard it again this morning, for locating arbitrations in
20
but I think this lady had her hand up quite some time ago.
20
Africa using local institutions is costs and you mentioned
21
Yes, madam?
21
again, okay, the CCJA and one way of looking at it is that
22
SPEAKER:
Basically your speech indicated
22
it was a bit of a setup for disaster by having such low
23
that very, practically low figure of arbitrators were
23
fees for the arbitrators, 60 000 euros or something and
24
appointed in Africa. That’s of great concern be we have
24
then arbitrators who wanted to accept an important
25
very good arbitrators in Africa.
25
nomination but didn't want to accept the low fees. So my
Tel: 011 440 3647 Fax: 011 440 9119
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 101
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1
question is whether you think there is an opening for lower
1
2
fees or whether there’s sort of a constraint of the
2
3
international system and a desire to have well-known
3
4
international arbitrators in setting those fees. And I say
4
terms of a diversion programme in terms of South Africans
5
that again perfectly acknowledging what you said earlier,
5
or arbitrators in South Africa being introduced into the
6
that the fees of firms like mine are 80 to 90% of the
6
international market, because South Africa is relatively
7
costs.
7
new in terms of the facet, in terms of the list of South
8
I would think if we look
Sorry, you've been waiting
a long time, thank you. SPEAKER:
The ICC, what is its view in
8
African arbitrators within the ICC. So in terms of your
9
at it in a certain way, we’ve just introduced the expedited
9
smaller cases, would the ICC promote in terms of a
10
rules dealing with disputes of a certain amount where the
10
secretarial point of view, a South African arbitrator –
11
costs will be capped and they will be done in an expedited
11
MR OGUNSEITAN:
12
way, but as one of our court members who is very Russian
12
SPEAKER:
13
puts it, for example – and this is why I said there’s
13
MR OGUNSEITAN:
14
partnership between local institutions to be had – he puts
14
If there’s a dispute in Tanzania for example, we would
15
it this way and I have been scolded many times for saying
15
reach out to the national committee and if we don't know
16
this but I like it anyway so I'm going to say it, the ICC
16
anybody in Tanzania we’ll reach out to the national
17
is the Rolls Royce of arbitration institutions. If you
17
committee to ask for a South African to do it.
18
want a ladder, you go elsewhere. But in saying that, the
18
19
quality and the amount you pay is relative to the amount in
19
fact which is very clear, South Africans are heterogeneous
20
dispute in ICC cases.
20
in terms of all its languages and in terms of that it would
21
MR OGUNSEITAN:
MR KUPER SC:
Now when you’re talking about a $200 million, as
SPEAKER:
Yes.
- or a Sub-Saharan arbitrator. We do that all the time.
Yes, because you mentioned a
21
be, you know, more beneficial if the ICC would promote for
22
is most African disputes, that’s why when people talk about
22
instance, you know like I said, South Africa which – we’ve
23
African arbitration they think we’re talking about tea and
23
got so many languages and language being a key factor in
24
biscuits. We’re talking about resources most of the time
24
different countries within Africa.
25
and the prices are insane. Now nobody is going to do that
25
MR OGUNSEITAN:
I think that’s one of the
Page 102
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1
for peanuts and arbitrators, good arbitrators should be
1
factors. Depending on the kind of dispute and whether we
2
paid and they should be paid well. There’s consequences
2
can find the exact expertise we’re looking for in the
3
for them not delivering once they’re paid for that service
3
jurisdiction where it is, there’s a language issue, there’s
4
but the idea that they shouldn't be paid because what the
4
also a skill issue. Is it a construction dispute, is it –
5
parties are disputing is not worth the money, if it’s a
5
for example I know that if you get a renewable, you’re very
6
small case then the amount they get paid will be
6
big into renewables now and if we’re looking about
7
commensurate to that amount. They’re huge cases. What can
7
renewables in Africa, this is probably the jurisdiction
8
I say, it’s still a fraction of the costs so I think the
8
where you would find somebody who knows something about
9
costs in every institution – if you look at most
9
that. The question is will he have arbitration experience?
10
institutions they use skills which are ad valorem similar
10
There are a number of factors that you look into when
11
to the ICC, so I don't think the costs are any different.
11
you're looking for arbitrators. For example, if you are
12
looking for an oil expert you will go to Lagos for that or
12
The Getma case, as I said the Getma case is a
13
special, special situation and I think there’s a lot of
13
possibly Angola, so depending on where the dispute is in
14
fault on both sides and I think even they have reviewed
14
Africa as a whole, we would consider as one of the few
15
that system because they know it cannot work. I mean it
15
places where we have national committees – I think there
16
wasn't – it was kind of very delicate because it’s just
16
are four in total, one Francophone country, one in Ghana,
17
their procedure that they needed to tune. As I said about
17
one in Nigeria and South Africa as a common – it is one of
18
the CCJA, they’re a toddler institution and quite recently
18
our go to jurisdictions.
19
I said to another room like this one, in any jurisdiction
19
20
what do we do to toddlers who run and fall down? We smile,
20
Ladies and gentlemen, we are just about out of time but I
21
we nod, we pick them up and we encourage them to move
21
think we can take two last questions. I’ll do this lady
22
along. We don't kick a toddler, we try and understand why
22
first and then Nick, will you follow on after that?
23
the toddler has fallen and we pick them up and we encourage
23
24
it to run a little bit more, that’s what we do. So I think
24
name is Ramola Naidoo again. I just want to know, Phillip
25
the CCJA should get a pass on that one.
25
Kanwal gave us an idea and he showed us the columns of
Tel: 011 440 3647 Fax: 011 440 9119
MR KUPER SC:
DR NAIDOO:
Thank you very much.
My questions go to the – my
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 105
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1
where you capped the figures but you know you were talking
1
know, and why don't we have these people on the ICC as
2
about – he was talking about for instance the $4 billion
2
arbitrators perhaps for those big cases or for – even if
3
dispute. And to follow up on some of the other questions
3
you have the under $50 000 claims, why don't you create the
4
here is that to me it seems that whether we are talking
4
possibility to open up access?
5
about, for instance African, Asian, the developing
5
6
countries basically, Latin America, we are talking about
6
the ICC. The access is down to the parties. If you have
7
access, fair, equitable access to markets. ICC is a
7
anything about a $200 million claim there’s going to be a
8
business. Arbitration, it’s not just a profession, it’s
8
White & Case, a Clifford Chance, a Norton Rose at work in
9
also – you are a business person.
9
the room. They will dictate who the arbitrators are.
10
MR OGUNSEITAN:
10
Depending on the clause, the arbitrators they choose will
11
DR NAIDOO:
11
dictate who the chairman is. At that point you can –
True. Right. So you're talking
MR OGUNSEITAN:
The access is not down to
12
about big contracts here, you know, so you know let’s take
12
they’ve already, an arbitration panel is not as easy as
13
cricket for instance. You know, if people know cricket
13
sticking somebody in. There are dynamics. There are
14
that you get the umpires who come from around the world for
14
complex, complex dynamics involved. You cannot put – you
15
the test match. Now why don't you have a list? It doesn't
15
have to see, for example if we’re nominating a president,
16
have to be a person from that jurisdiction or nationality.
16
will he be able to sit, who are his co-arbitrators who will
17
Philip would be – we had a fierce debate with him you know,
17
be selected by the party? I don't know if you understand
18
just a month ago, and we asked him where do these
18
the concept of being able – will he be unduly influenced by
19
arbitrators come from, who chooses them? You know we’re
19
one or the other? And so you have to look at that and the
20
starting arbitration and then we want to enter the market,
20
same names will come up because they’re the people who have
21
how do we do that? And then he said, well, you go to your
21
the skill to do what you need to do.
22
working group, the ICC has this group. So we said we
22
23
didn't even know about this group, so that was one problem.
23
are starting out, I don't think it’s possible to give a
24
But having said that, if you look at the numbers it’s
24
$200 million dispute to a first timer who has never seen an
25
ridiculous.
25
award –
In terms of giving opportunities to people who
Page 106
1
So the thing is, arbitration is not promoted and
Page 108
1
DR NAIDOO:
May I, just to follow up.
2
marketed as a form of dispute resolution. Then you have
2
MR OGUNSEITAN:
3
other forms of resolution, mediation and in Africa, in
3
DR NAIDOO:
Please.
4
other developing nations we’ve got to be realistic. You
4
that South Africa post-1994 started discussing and
5
know I've spoken to some major construction companies now.
5
complaining about the Bretton Woods institutions.
6
They say, well, they’re not going to go to arbitration,
6
MR OGUNSEITAN:
7
they would rather give and take and resolve their matter
7
DR NAIDOO:
8
privately. They’re simply not going to do that, but there
8
now, instead of the World Bank and IMF we have a BRICS Development Bank. So there is nothing wrong with now South
What I'm trying to say is
Yes. Today it has come – we have
9
are people who are emerging contractors and construction is
9
10
your biggest field there where you showed the round wheel,
10
Africa and the BRICS countries coming up with an
11
then the slice of the pie of going to construction for
11
alternative centre because they feel that they cannot have
12
instance.
12
any access to the ICC.
13
If Africa is on the move then we’ve got these
13
14
opportunities for emerging contractors. If they have
14
15
disputes are they going to just, you know, say well, we’re
15
16
not going to have, resolve this dispute, we’d be able to
16
17
settle. So why can't the ICC, why can't AFSA for instance
17
18
and other arbitration centres around the world – I mean
18
parties, I think it’s important – what is important to
19
India is discussing it next week, they’re having a very
19
realise is that ultimately we’re custodians of a process
20
serious discussion about it you know. The Chinese, the
20
and not the action itself. You must differentiate what the
21
Russians, the Brazilians, they’re all deeply aggrieved
21
court does, which is not to administer the dispute but to
22
about this. Why is the ICC not choosing somebody of the
22
be custodians of the process. Whichever, the parties
23
calibre of – you know say for instance you can have an
23
ultimately dictate with the cheque books and their
24
Indian professional from New Delhi, an extremely capable
24
decisions, they could choose ICC or they shouldn't go
25
advocate there, you could have somebody from Brazil you
25
elsewhere.
Tel: 011 440 3647 Fax: 011 440 9119
MR OGUNSEITAN:
I think everybody has
access to the ICC, whether you are DR NAIDOO:
Well, not necessarily. I'm
talking about – MR OGUNSEITAN:
As arbitrators or as
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 109
1 2
MR McCAFFERTY:
Page 111
1 2
sorry?
3
SPEAKER:
4
MR McCAFFERTY:
5
Ladies and gentlemen –
Can I just have one sentence? One sentence, if you
don't mind.
Telcordia versus Telkom case. He is an internationally recognised legal
3
practitioner, a great servant of the republic and a son of
4
the soil. Even at retirement he is an active participant
5
developing legal practitioners, conducting seminars for
6
judges and law enforcement agents. He is also a panellist
7
big firms who do control this nomination process and I
7
for AFSA. Ladies and gentlemen, I would like you to join
8
agree with everything Tunde said.
8
me in welcoming and asking the retired judge of the Supreme
9
[13:04] One of the reasons why we cover it like this is
9
Court of Appeal, former deputy president of the Supreme
10
to get to know other people so that we are not only with
10
Court of Appeal, Judge Louis Harms. He will be talking to
11
the same people that we know, who we have coffee with. So 11
12
we are trying to branch out and meeting other people so we
12
arbitration, the role of courts, past, present and future.
13
will feel comfortable in nominating them.
13
Thank you. Thank you, Judge.
6
14
SPEAKER:
One sentence in defence of the
MR McCAFFERTY:
On that happy note can I
14
us today on a topic that has been penned as the court and
HARMS J:
You would have noticed that he
15
tell you this session is closed unless there is one. I am
15
was talking about the past. The title is a formidable
16
advised by our controllers that by virtue of our most
16
title, past, present and future, and I’ll try and deal with
17
interesting debate we have run quite short of time. So may
17
it appropriately. I just want to see how this thing works.
18
I ask that after you have your lunch and you return here,
18
We tend to refer to divide arbitrations between domestic
19
Daleen, by about 20 to 2. So free lunch, there is no such
19
and international but as you will see in due course that
20
thing as a free lunch but it will be a quick one. Thank
20
this is an oversimplification. International arbitrations
21
you all very much and thank you to our two distinguished
21
may also be divided into two categories and the one being
22
speakers a very interesting informative session.
22
foreign and the other local.
23
[MEETING ADJOURNS
MEETING RESUMES] - must start get going. We
23
But before I get to the details by way of
24
introduction the relationship between the judicial system
25
and arbitration has not always been a very happy one.
24
[13:47] MR BADELA:
25
all know that today is a Friday and I know that myself and
1
the coming session are standing between the weekend and
1
There’s a degree of suspicion between the two, the one
2
what we are doing. However I’ve got first a small
2
suspecting the other of hijacking what properly belongs to
3
announcement that I would like to make. I’ve been
3
it. Some judges extracurially at least have expressed a
4
requested by people at the reception that those who have
4
reversion to arbitrations openly, one reason being that
5
parked at central 24 can approach the reception for parking
5
arbitrators could not be trusted to decide legal issues.
6
vouchers so that you don’t have to pay for the day’s
6
7
parking.
7
has not been updated in more than 50 years. A change of
8
judicial heart tends to follow on retirement with the
9
prospect of being appointed as an arbitrator. Arbitrators
Page 110
8
And without further ado, my name is Ghandi
9
Badela. I’m a member of AFSA. I’ve been tasked today to
Page 112
This may explain why the Arbitration Act of 1965
10
do an introduction, a very, very interesting introduction I
10
on the other hand are picked by courts second-guessing and
11
am going to do in terms of the session that we are now
11
criticising and rectifying their work which is supposed to
12
having. I have the honour to introduce a man who’s done so
12
be free of judicial oversight. In this respect arbitrators
13
much, achieved so much, a man loved so much and a man, and 13
14
I speak as a counsel this time, who was feared so much.
14
15
I’m introducing to you a renowned legal practitioner, a
15
arbitration agreements usually at a stage when they least
16
teacher of note, a mentor, in true words a man of all
16
suspect or expect litigation. All is well as long as they
17
seasons.
17
prevail but once they lose they have a change of heart.
18
Where they originally may have had a measure of distrust in
18
He has authored a number of publications
are no different from ordinary judges of first instance. Parties are ambivalent. They enter into
19
including enforcement of intellectual property rights,
19
the judicial system they regain confidence in the system
20
investigation and prosecution of intellectual property
20
and turn to the judiciary to overrule the award more often
21
crime chapter in the law of South Africa, of Africa,
21
than not on spurious grounds.
22
principles of pleadings, civil practice in superior courts.
22
Today our courts generally accept that
23
His judgments have been a source of reference for many
23
arbitration is an adjudication which follows from the
24
legal practitioners at home and abroad. Already we have
24
consent of the parties expressed in an agreement the
25
heard that he penned a judgment that is known under the
25
important aspect being that the parties defined the powers
Tel: 011 440 3647 Fax: 011 440 9119
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 113
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1
of adjudication to prescribe the process and they may
1
their places of business in different states or one of the
2
withdraw or modify the process. But this does not mean
2
following places is situated outside the state in which the
3
that courts don’t still have a role to play. This is a
3
parties have their places of business, the place of
4
list of the relevant statutes and treaties. There’s the
4
arbitration, the place where a substantial part of their
5
Arbitration Act, the New York Convention, the Recognition
5
obligations are too be performed or the place with which
6
Act, the Protection of Businesses Act and the UNCITRAL
6
the subject matter of a dispute is most closely connected
7
Model Law. The powers of an arbitrator and those of
7
or lastly the parties have expressly agreed that the
8
judiciary in respect of arbitrations in our country are
8
subject matter of the arbitration agreement relates to more
9
generally derived from the Act, the Arbitration Act. It
9
than one country.
10
was at the time an exemplary law. It is no longer up to
11
date, something recognise by the Law Reform Commission in 11
becomes law the role of courts will as far as International
12
its reports and noted with regret by our courts.
12
Arbitration is concerned be materially different. The
13
Recognition Act will be repealed. The Protection Act will
13
The Act does not distinguish between domestic and
10
Now, if this new International Arbitration bill
14
international arbitrations because at the time South Africa
14
not apply. Sorry, the Protection Act will no longer apply
15
had not yet acceded to the convention, the New York
15
to foreign arbitral awards. The Convention will apply
16
Convention. Accession without reservation took place on 1
16
fully. The Model Law will become local law. International
17
August 1976 and in an attempt to make it part of our
17
arbitrations will be excluded from the Act and the
18
municipal law the Recognition and Enforcement Act of ‘77
18
discretionary powers of the court will disappear.
19
was adopted. As its title indicates it deals with the
19
20
recognition and enforcement of foreign arbitral awards and
20
begin with its place within the constitutional
21
that has specifically been defined and limits the power of
21
dispensation. And here we have a problem that we had at
22
our courts to refuse to make such awards an order of court.
22
the time a new Constitution and its effect on arbitrations
23
was not fully understood. The important aspect here is
23
During the period of international sanctions the
Any discussion of any law in our country must
24
then government backtracked from its commitment to the
24
that the Constitution states or tells us what is public
25
convention with the adoption of the Protection of
25
policy and public policy does play a role in recognition
Page 114
Page 116
1
Businesses Act of ‘78. It’s important to note it has not
1
2
been repealed. It provides inter alia that except with the
2
And as I said public policy is informed by the
3
permission of the minister of economic affairs, now the
3
Constitution and the courts have to determine public policy
4
minister of trade and industries, no arbitration award
4
in the light of the Constitution. The first section of the
5
given or issued or emanating from outside the republic in
5
Constitution which gave problems was section 33 which deals
6
connection with any civil proceedings and arising from any
6
with administrative justice and as you know that has been
7
act or transaction as defined in the Act may be enforced in
7
restated in a sense in PAJA. And the argument was that the
8
this country.
8
grounds for review in the common law or in PAJA should
9
apply to arbitral awards.
9
The act or transaction falling within the
and enforcement of international awards.
10
prohibition is one, connected with the mining, production,
10
11
importation, exportation, refinement, use et cetera to any
11
conclusion and said that the grounds are those in the
12
matter or material of whatever nature whether within,
12
Arbitration Act and those are not affected by the
13
outside, into or from the republic. This means that save
13
Constitution basically for the following two reasons, an
14
as provided in the Recognition Act our courts have to treat
14
arbitrator does not dispense administrative justice because
15
domestic and international arbitrations on the same basis
15
an arbitrator does not exercise a public power or perform a
16
under the Arbitration Act and that in spite of the
16
public function in terms of an empowering provision. The
17
Recognition Act ministerial consent is required for the
17
next provision that gave problems was section 34 which
18
enforcement of foreign awards. The further development and
18
deals with the access to courts.
19
you probably know all this by now was the adoption of the
19
20
UNCITRAL Model Law in 1985 as amended in 2006. It deals
20
dispute that can be resolved by the abdication of law
21
with our international arbitrations as defined and I would
21
decided in a fair public hearing before a court or where
22
like just to emphasise this because it becomes relevant
22
appropriate another independent and impartial tribunal or
23
later.
23
forum.” And it really deals with, the problem really arose
24
as to what does fairness mean. Does a general false sense
25
of fairness apply to arbitration or do the parties decide
24 25
It is international if firstly the parties to the agreement have at the time of conclusion of the agreement
Tel: 011 440 3647 Fax: 011 440 9119
The courts came fortunately to a different
And it reads, “Everyone has the right to have any
Email:
[email protected]
14th October 2016
The Dawn of a New Era in South Africa
International Arbitration
Page 117
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1
what would be fair in their case? Now, the Constitutional
1
this regard our courts have approached the Arbitration Act
2
Court held that, by majority and a strong majority I should
2
accordingly and they had due regard to foreign and
3
add, that this does not apply to arbitrations. It is a
3
international law including the convention and the Model
4
private process and therefore it is not – the parties agree
4
Law simply as a model. For instance in respect of the
5
to a private process so it cannot be a public hearing and
5
power to scrutinise the Constitutional Court held as
6
the section only applies to public hearings. It also said,
6
follows. “It seems to me that the values of our
7
the statement that I’ve doubt about that arbitrators do not
7
Constitution will not necessarily best be served by
8
have to be independent in the full sense required of courts
8
interpreting the Arbitration Act in a manner that enhances
9
and tribunals, did not really say what full sense means.
9
the power of courts to set aside private arbitration
10
And it said that the parties choose not to exercise their
10
awards. Indeed the contrary seems to be the case. The
11
rights to a public hearing and therefore the provision does
11
international and comparative law suggests that courts
12
not apply.
12
should be careful not to undermine the achievement or the
13
goals of private arbitration by enlarging the powers of
14
scrutiny imprudently.” That is the introduction. Now I
13
But it said that doesn’t mean they waive their
14
right. Now, there’s a bit of I don’t know what the
15
difference is between waiving and not exercising but in any 15
16
event it doesn’t matter. The important point is the end
16
Arbitration Act.
17
result, mainly that parties by agreement determine the
17
[14:07] Our courts have expressed the view and they've
18
issues, the identity of the arbitrator and the process and
18
held repeatedly that they have in terms of the act a
19
it’s not for the courts to impose their sense of judicial
19
general right and duty of oversight over arbitration
20
fairness which applies in the usual procedural system,
20
proceedings through interference and enforcement. This
21
procedural rules on arbitrations.
21
general statement has been misinterpreted from time to time but I shall leave that for another date. I intend to limit
come to the subject, the role of the courts under the
22
Now, our courts had opportunity to deal with the
22
23
approach to international awards although as I said they
23
my discussion to a few salient points. An arbitration
24
are not separately dealt with in the Act, in the
24
clause on its own does not oust the jurisdiction of a
25
Arbitration Act, because it does not distinguish between
25
court. A party to an arbitration agreement faced with
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1
the courts. Our courts accept that international
1
court proceedings must invoke the arbitration provision.
2
arbitrations require a higher degree of deference in
2
It does not operate automatically. You must invoke it. In
3
accordance with international practice. The autonomy of
3
a recent case in the Supreme Court of Appeal, Fuezi Africa
4
the forums selected by the parties is to be respected and
4
the following was said and I quote "a foreign jurisdiction
5
judicial intervention minimised.
5
or arbitration clause does not exclude the court's
6
jurisdiction. Parties to a contract cannot exclude the jurisdiction of a court by their own agreement and where a party wishes to invoke the protection of a foreign
6
The Supreme Court of Appeal quoted the statement
7
from the US Supreme Court where the judge said the
7
8
following. “The controversies that international arbitral
8
9
institutions are called upon to resolve have increased in
9
10
diversity as well as in complexity. If they are to take a
10
of a special or dilatory plea seeking a stay of
11
central place in international legal order national courts
11
proceedings". That's the end of the quote.
12
will need to shake off the old judicial hostility to
12
13
arbitration and also their customary and understandable
13
conviction and the Model Law is concerned. The court added
14
unwillingness to cede jurisdiction of a claim arising under
14
"that that having been done the court will then be called
15
domestic law to a foreign or transnational tribunal.
15
upon to exercise its discretion whether or not to enforce
16
the clause in question". There is no such discretion in
16
To this extent at least it will be necessary for
jurisdiction or arbitration clause it should do so by way
So far nearly right I would say. As far as the
17
the national courts to subordinate domestic notions of
17
the Model Law. The request not to enforce may only be
18
arbitrability to the international policy favouring
18
granted if the agreement is null and void, inoperative or
19
commercial arbitration. Now, similar sentiments have been 19
20
expressed since in the Constitutional Court in the Lefumo
20
this statement was made in the context of an International
21
case and more recently in the Supreme Court of Appeal in
21
Arbitration clause. I do not say that the end result of
22
Zongi Development. Then another aspect where the court
22
the judgment was wrong, it's just part of the reasoning I
23
plays a role is in relation to interpretation.
23
respectfully have to disagree with.
24
And as we have been told daily contracts and laws
24
25
have to be interpreted contextually and purposely. And in
25
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incapable of being performed and unfortunately as I said
Then furthermore it is important to note that under the act and under the Model Law courts retain
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1
residual procedural powers. Some of them are concurrent
1
out of an arbitration hearing and by formulating a point
2
powers and in other words although the arbitrator is
2
which I would have considered bum but the arbitrator felt
3
subject to the terms of appointment in control of the
3
himself bound to just postpone the matter and refer the so-
4
procedure courts retain often concurrent powers in respect
4
called legal opinion, the legal question for opinion. Now
5
of issues that are primarily procedural and these are set
5
I don't want to waste too much time but even under our act
6
out especially in section 21 of the act. They relate
6
it must not be one of fact, mixed fact and law or a value
7
mainly to security for costs, discovery, evidence on
7
judgment dressed up as a question of law. It must be real
8
commission and the like. But the important ones are
8
and substantial and not hypothetical. It must arise in the
9
interim interdicts and similar relief and Anton Piller and
9
course of the arbitration which means that if the issue was
10
related orders and as I said one finds this also in the
10
referred to arbitration it cannot arise in the course of
11
Model Law, in very similar terms. So under the Bill,
11
the arbitration and therefore it cannot be referred. It
12
international Bill the court, our courts will still retain
12
must be made, referred to before the award and then lastly
13
certain procedural powers which are as I said concurrent
13
the court has a discretion, a discretion which it should
14
because one can imagine that it's very difficult to obtain
14
not easily exercise. But as I said this jurisdiction will
15
and enforce for instance an interim interdict in
15
disappear and will not apply to international arbitrations.
16
arbitration proceedings.
16
Then there is the question of judicial scrutiny
17
of awards under the act section 33. It has a number of
18
and that is the power of our courts to set aside an
18
specific provisions that a court may set aside an award on
19
arbitration agreement. The court may on good cause set
19
one of these grounds. Where any member of a tribunal has
20
aside the agreement or it may order that any particular
20
misconducted himself, and I assume herself, in relation to
21
dispute shall not be referred to arbitration or order that
21
the duties as arbitrator, where a tribunal has committed
22
the agreement shall cease to have effect with reference to
22
any gross irregularity in the conduct of the proceedings or
23
any dispute referred. In other words what this does is it
23
has exceeded its powers or if the award was improperly
24
grants the court a discretion. Which is already, it is
24
obtained. As to the first ground, misconduct this denotes
25
based on a judgment of what is good cause. Now what often 25
17
Now here is the big problem under the present act
some element of moral turpitude or mala fides and not
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1
happens is, if you have a phrase like good cause courts
1
2
tend to find synonyms and then they say good cause means a
2
3
strong case or compelling reasons but eventually we're back
3
errors or law or fact. Whether a court agrees with the
4
to good cause. So here we have a situation where courts
4
conclusion arrived at is of no consequence. An
5
may on what they consider good cause ignore an arbitration
5
irregularity in proceedings does not mean an incorrect
6
agreement and this power, this discretion of courts will
6
judgment. It refers to the result, lapses in the process
7
disappear if the Bill is adopted because a Model Law does
7
which prevent the aggrieved party from having the case
8
not make provision for something like that. But our act is
8
fully and fairly determined. In a recent judgment in the
9
Supreme Court of Appeal, the Dex Group case it was said
9
in a certain sense ambivalent. Under jurisdiction the
include mistake. As to the second ground this does not include
10
court may exercise jurisdiction to deal with matters
10
that the advantages of arbitration are diminished or
11
concerning arbitration under the act that court is the
11
destroyed entirely if arbitrators are confined in a
12
court of the seat of the arbitration. This jurisdiction
12
straightjacket of legal formalism that the parties to the
13
the act says is limited because it may not pronounce on the
13
arbitration have sought to escape. Arbitrators should be
14
arbitral issues because they are within the province of the
14
free to adopt such procedures as they regard as appropriate
15
arbitrator in terms of the agreement unless the court has
15
for the resolution of the dispute before them unless the
16
set aside the agreement or certain of its provisions. So
16
agreement precludes them from doing so and as we know that
17
we have the situation that on the one hand the court has
17
is the norm nowadays. Although the proceedings must in
18
the power or discretion to ignore the agreement but if it
18
general be fair, as I said earlier it's not fairness as
19
does not do so it may not pronounce on those issues.
19
understood in section 33 of the constitution. Unfairness
20
on its own is not a ground for review.
20
Another power that will disappear, that our
21
courts have under the act in terms of the Bill is the
21
22
question of legal opinion. Our act says in section 20 that
22
arbitration agreement is determined contextually and not to
23
the arbitrator may refer any question of law arising during
23
be equated with what is fair in court proceedings. The
24
the arbitration for the opinion of the court or of counsel.
24
third ground if the tribunal has exceeded its powers. As
25
Now I may have abused this clause I have to admit to get
25
you know the jurisdiction is determined by the agreement
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Fairness is something usually implied in the
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1
often with reference to pleadings. In other words the
1
receiving payment for the particular services and the court
2
parties define the dispute. Unlike a court arbitrators
2
debated at length the question of whether under those
3
therefore have no inherent powers to determine issues or to
3
circumstances it should refuse to recognise the award or to
4
grant alternative relief outside the agreement and one must
4
make it an order of court on the question of whether the
5
distinguish in this regard between cases where a tribunal
5
illegality is such that it is contrary to public policy,
6
mistakenly exercise a power that it does have and those
6
would be contrary policy to enforce it. So it said a court
7
where a tribunal exercise a power that it does not have.
7
cannot be expected of a court to disregard a clear
8
The former is not an irregularity. The latter type is a
8
statutory prohibition. But that is not to say that a court
9
case where the tribunal exceeds its power and then it may
9
can never enforce an arbitral award that is at odds with
10
be set aside. To exceed one's power does not go to merit
10
the statutory prohibition and it explained what it meant by
11
but to jurisdiction.
11
that. My time is running out.
12
Then while a tribunal is not competent to
12
Now I turn to the Recognition Act which will be
13
determine its own jurisdiction that only means that it has
13
replaced, if the Bill becomes law. It deals with the
14
no power to fix the scope of its jurisdiction. The scope
14
recognition of what is defined foreign arbitral awards and
15
is fixed by the terms of reference. The tribunal has no
15
there are two categories. The second category I don't
16
power to alter its scope by its own decision in the absence
16
understand, so I'm not going to deal with it. But the, and
17
of an agreement to the contrary. But that does not
17
I must admit I ask Michael and he gave me a long
18
preclude it from enquiring into the scope of its
18
explanation which I also didn't understand. But the point
19
jurisdiction and even ruling upon it when jurisdictional
19
is it's an award made outside the republic and any such
20
objections are raised. The tribunal does so at the risk of
20
award may be made an order of court subject to the
21
being wrong in which case the award may well be invalid.
21
Protection Act, Protection of Businesses Act as explained
22
But in some cases and I think quite often it might be
22
earlier. You require the ministerial consent. At present
23
convenient to enter upon the arbitration nonetheless. In
23
the awards made within South Africa in respect of
24
terms of the Model Law a tribunal may rule on its own
24
international arbitrations as defined in the Model Law are
25
jurisdiction and on the validity of the arbitration
25
not covered by this act and have to be dealt with under the
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1
provision but as one could expect an incorrect finding on
1
Arbitration Act because as you will realise that the
2
jurisdiction or the validity of the agreement may be a
2
definition of an International Arbitration is not an
3
ground for the setting aside of the award or for refusing
3
arbitration conducted outside of the republic.
4
to recognise or enforce the award.
4
So the two definitions are not the same. Foreign
5
arbitral award is one made outside the republic and
aspect. The award of an arbitrator is a final adjudication
6
International Arbitration can be many things as I tried to
7
of the dispute between the parties and may be raised as, in
7
explain earlier. Now this is in accordance, the
8
the plea of res judicata. Any award may in terms of the
8
Recognition Act is in this regard, except of the Protection
9
act on application to a High Court of common jurisdiction
9
of Business Act in accordance with the, with the New York
5 6
Then enforcement which, is really the important
10
be made an order of that court and whereupon it becomes
10
Convention. Now because the New York Convention applies to
11
enforceable as such. Since the award is final it would
11
the recognition of enforcement of arbitral awards made in
12
appear that the court does not exercise any discretion in
12
the territory of the State other than the State where the
13
this regard. An unsuccessful party may oppose the
13
recognition and enforcement of such awards are sought.
14
application for enforcement on the ground that the award is 14
15
invalid. However, until set aside by a court an award is
15
change the position. Chapter 3 of the Bill which deals
16
considered to be valid. Grounds of invalidity would
16
with the issue also defines a foreign arbitral award as an
17
include exceeding its jurisdiction, failure to decide the
17
arbitral award made in the territory of a State other than
18
matters, where the award is illegal or contrary to public
18
the republic. So what, so in other words not all, the
19
policy or the award is incapable of enforcement.
19
enforcement provision of the Bill is limited to this type
20
of foreign arbitral awards.
20
In the recent Constitutional Court judgment in
According to my reading the Bill if it becomes law does not
21
Cool Ideas the court has to consider whether to make an
21
[14:27] The grounds on which under the present Act, may
22
award an order of court under circumstances where the
22
refuse to grant an application to recognise or enforce a
23
correctness of the award was not in issue but where it was
23
foreign arbitral award under the present Recognition Act
24
realised ex post facto that payment of the award would be
24
but based on the New York Convention and they are
25
in conflict with the law which prohibited the claimant from
25
replicated in the Model Law and in the Bill and this is why
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this is to be appealed. Let me then quickly run through what the Model
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1
prohibition must be weighed against the important goals of
2
private arbitration that this court has recognised.”
3
Law says about recognition because I also have to talk
3
Now let us not be complacent, the Bill is not yet
4
about the future. Now as emphasised in article 5 of Model
4
an Act and if it becomes an Act it still has to be signed
5
Law, no court may intervene in matters governed by that
5
and we still need a new Act dealing with domestic
6
clause except where so provided by the Model Law. And
6
arbitrations. Different regimes dealing with basically the
7
there are these three provisions, setting aside the
7
same matter cannot be justified. Thank you.
8
recognition and grounds for refusing enforcement. That’s a
8
9
bit quick. Now, it’s convenient to start with article 35.
9
MR BADELA:
Thank you very much for that
presentation and I think at this moment we will then call
10
“An arbitral award, irrespective of the country in which it
10
11
was made, must be recognised as binding and, upon
11
12
application, must be enforced.” That’s the principle.
12
indicated that there was, that the bona mores, if you will,
13
of society are prescribed by the Model Law. Obviously in
13
However, it is possible to apply for the setting
for a few questions. SPEAKER:
The previous speaker has
14
aside of an award or for a court to refuse to recognise and
14
the sense that this is what is public policy and you will
15
enforce the award. The limited grounds are carefully
15
enforce public policy in the following manner, but surely
16
circumscribed and virtually identical. Firstly, the party
16
our Constitution would trump any obligations imposed by an
17
making the application must furnish proof that a party to
17
outside Model Law and we could then look at our
18
the arbitration agreement was under some incapacity. All
18
Constitution and say yes, but our Constitution says the
19
that means, that the agreement was void. Also that the
19
following values must apply. How would you go about
20
agreement was not valid. The failure of the audi
20
reconciling those?
21
principle. The lack of arbitral jurisdiction and where the
21
22
composition of the tribunal or the procedure was not in
22
reconcile it because the Bill states clearly that it is
23
accordance with the agreement of the parties.
23
subject to the Constitution and the Act is subject to the
24
Constitution.
24 25
Secondly, and this is independent of what the parties prove, the court finds the subject matter of the
25
HARMS J:
I don't think it’s necessary to
MR BADELA:
Thank you. We have another
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1
dispute is not capable of settlement by arbitration under
1
question in the front row. SPEAKER:
Thank you
2
local law - in our case it would be matrimonial matters and
2
very much. Judge Harms, I have two quick questions. The
3
status matters – or the award is in conflict with the
3
first one is this, bearing in mind UNCITRAL’s approach to
4
public policy of the state. As I said, these two instances
4
resort to court by delimiting judicial intervention on the
5
do not draw any onus.
5
article 5 and also bearing in mind the need for expeditious
6
So to conclude, if the Bill becomes law the role
6
disposal of cases, arbitration cases borne or – supported
7
of the judiciary in relation to international arbitrations
7
by the principle of finality, what is your take on appeals.
8
will be quite different from what it is today. Its general
8
Specifically would you go for delimiting further the resort to court or eliminate it altogether or extend the general
9
oversight role and discretionary powers contained in the
9
10
Arbitration Act will no longer apply to such arbitrations.
10
11
However, the enforcement and recognition of awards that
11
12
result from international arbitrations as defined in the
12
aspirations of Lord Wilberforce, an English law lord who is
13
Model Law will differ, depending on whether the award was
13
on record as midwifing the English Arbitration Act of 1966
14
made within South Africa or within the territory of another
14
and his aspiration that arbitration may one day stand
15
state. That having been said, there will be overlap
15
alone, governed by its own laws, procedures and practices
16
between the two regimes. Recognition and enforcement in
16
and without having to resort anywhere. And now more
17
both instances will be determined by inter alia the
17
recently the expressions of Lord Mance, also an English law
18
validity of the agreement, compliance with the audi
18
lord who says that arbitration should not be a law unto
19
principle or procedural requirements of the agreement, the
19
itself. So now my question is this, can or should
20
terms of reference and public policy issues.
20
arbitration standalone by its own laws, jurisprudence and
21
enforcement processes?
21
As to the last point, one can only agree with the
right of appeal? That is question 2. The second question brings to mind the
22
statement of the Constitutional Court that, “So it will
22
MR BADELA:
23
often be contrary to public policy for a court to enforce
23
HARMS J:
24
an arbitral award that is at odds with a statutory
24
question, I don't think any system can stand alone. It
25
prohibition but it will not always be so. The force of the
25
must always be subject to the law. I think what I tried to
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Thank you. If I may deal with the second
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emphasise is the discretionary powers of courts.
1
Aboim of White & Case. Now let me first say that we have a
2
Arbitration cannot work or co-exist with, if courts have a
2
bias towards Luiz because he is one of our products at the
3
discretionary power but if it deals with legalities,
3
ICC and when I mean products, I think Luiz is an experience
4
legality must always be under the control of a court as far
4
international arbitrator and also acts as counsel in
5
as that is concerned.
5
various cases, whether ICC or LCIA and other institutions as well.
6
As far as the first question is concerned, well,
6
7
I may have misunderstood you. One thing that irritates me
7
8
if I sit as an arbitrator of first instance is the
8
is Brazilian – you wouldn't know it to look at him but he
9
agreement to appeal to an arbitral body but on the other
9
is – and in that essence I was mentioning earlier about
Why I say he’s one of our products is this, Luiz
10
hand if I sit as a member of an arbitral tribunal I love it
10
International Arbitration and arbitrators being truly
11
because it reminds me of the old days. But coming back to
11
international. Luiz has been working in various
12
the question, no, unless – this is a matter for the
12
jurisdictions over the year and he is an example of what we
13
parties. The parties decide they want arbitration, they
13
try to encourage in the ICC. I believe he got his first
14
place themselves outside of the legal system. For them
14
appointment as an arbitrator at 34 and he was in a South
15
then to jump back to go and use the appeal structure I
15
African case, no less. So he had the requisite expertise
16
think is, in principle, wrong. If there is something
16
to do what needed to be done and he’s acted in several
17
materially wrong, as I indicated, with the award then one
17
other cases for the ICC ever since in disputes in Liberia
18
can have a review but not an appeal.
18
and he has also acted in Angolan law cases.
19 20
MR BADELA:
Any other questions? The
last question here on the second row.
19
More importantly, I would say that over the last
20
couple of years what we’ve seen – somebody asked me about
21
it recently, do you need to be common law or civil law to
22
point of good cause, that it would be excluded in the Model
22
be an international arbitrator. I think you just need to
23
Law. Do you think it’s a good idea or bad?
23
be a good lawyer. Luiz is a Brazilian lawyer who is also
24
qualified in Paris and that international experience allows
21
SPEAKER:
24 25
HARMS J:
Judge Harms, you mentioned the
On the good cause issue, that
arose in the context that a court may ignore the agreement. 25
him to bring a different dynamic to the table which, I
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1
All I say is I believe that courts should not ignore
1
suppose Brazil and Paris, I mean that’s as extreme an end
2
agreements. I have certain strong views about that which
2
as you have. He is also a member of the ICC Latin American
3
I've expressed elsewhere but the whole idea, and this is
3
group and of the ICC Commission of Arbitration. He’s a
4
how the Constitutional Court sees it, is that the parties
4
rapporteur for Brazil for the Permanent Task Force on
5
choose their remedy. They choose their dispute, they
5
Recognition and Enforcement of Awards under the New York
6
choose their – call it their Judges, they choose their
6
Convention. I think no further introductions are necessary
7
procedure. The Constitutional Court said we must respect
7
beyond that. Luiz, everyone.
8
that. So as long as we keep a good cause situation we give
8
MR ABOIM:
As a good salesman, don't
9
the judges a discretion back and I don't, as I said I think
9
believe in everything that he said – but it’s true, I think
10
in principle what the Model Law does, what this Bill does,
10
I should be very grateful for the ICC for the opportunity.
11
it takes the discretion away. It doesn't take the legality
11
I think over the past 12 years I think I've visited more
12
away, the courts still control what happens. If the
12
countries than I could ever imagine. I would – when I was
13
agreement is void they set it aside. If the arbitrator
13
a corporate lawyer back in Brazil in, I won't say the year.
14
didn't apply the audi rule, you set it aside. It goes to
14
So when I was invited to this panel I kind of think about
15
the legality but not simply because it’s unfair or
15
the word resurgence and now just before we started I had to
16
whatever.
16
Google it. It actually means an increase or revival after
17
periods of little activity, popularity or occurrence. So
17
MR BADELA:
Thank you very much. If you
18
may allow me then I would like to release the Judge on that 18
I'm not sure whether resurgence is the right word here but
19
note and we will have the next session set up. Thank you.
19
I think it is, I would say improvement, development and
20
At this point I would like to call Tunde Ogunseitan, thank
20
let’s look at the future.
21
you.
21
So I'm being challenged to speak a little bit
22
about the South African situation after so many talented
23
next session is the resurgence of arbitration in Southern
23
speakers, so forgive me if I misstate some of the
24
Africa and Lusophone and Francophone and African
24
statements. What I wanted to do is the exercise that you
25
jurisdictions and this session is going to be taken by Luiz
25
do when a client knocks on your door and says, hi Luiz, we
22
MR OGUNSEITAN:
Thank you everyone. Our
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just have this project financing in Brazil, could you
1
challenge the arbitration clause, the absence of the
2
please have a look at it and (inaudible) agreements, the
2
competence/competence principle. That’s the key thing.
3
client you know is coming, the ICC is knocking the door and
3
And South Africa, even if you go through that
4
you know how you pull this together, where we should
4
hurdle you spend, you know, two years in court or perhaps
5
arbitrate, where we should do our disputes. And I decided
5
more trying to agree to disagree about what, you know,
6
to narrow a little bit the scope for the presentation just
6
whether the arbitration clause works or not. The court can
7
to cover South Africa. I'm going to speak briefly about
7
still suspend the proceedings. So you’re pretty much in
8
Lusophone Africa and while in Mozambique where I had some
8
the hands of the court. There is a point of, you know, not
9
experience and then speak about the new kid on the block in
9
having the full rules. I think if you have a strong
10
the Francophone space, obviously you know also has English
10
judiciary and directs at the rules the arbitral tribunal
11
as one of its languages but in other words was interesting
11
will pick it up. But if you are in ad hoc arbitration that
12
to talk about all those jurisdictions. So you can see that
12
can be a bit more tricky.
13
when you want to position yourself as a player in this
13
14
field, a law alone doesn't help. You can have a fantastic
14
know, explained today and I think the key word here is
15
law.
15
loosely. The current Act is just loosely based on the New
16
York Convention. That creates a number of issues when you
16
There was a question here about whether the
Now, the Foreign Awards Act Professor Butler, you
17
arbitration takes, you know, the work out of the courts.
17
want to enforce an award. The Protection of Business Act
18
My experience is that, one, it doesn't and second, it
18
which I know if the new Act is repealed, becomes in force
19
strengthens the courts. In my experience in Brazil after
19
it will be repealed on the point of, you know, requiring
20
the Arbitration Act was enacted and you know, arbitration
20
consent of the ministry of trade and ministry for the
21
suddenly took off, you saw this of Tunde today. Brazil in
21
enforcement of certain awards in critical industry. Again
22
2014 was the third in number of cases in ICC arbitration,
22
that’s probably not an issue anymore soon.
23
it was the sixth last year just because economies lightly
23
24
slumped because of, you know, all the crises that you read
24
South Africa is being criticised for withdrawing some of
25
in the paper.
25
the BITs and the question is do you need BITs. Perhaps
Then let’s spend a minute on BITs. Obviously
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So, Brazilian courts have never been so good.
Page 140
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some time ago you needed BITs. I come from a country that
2
Commercial, special commercial courts have been set up.
2
has a record investment in the continent. We don’t have a
3
There’s a huge dialogue between the arbitrator community
3
single BIT. We don’t have a single BIT and I’ll tell you
4
and the judiciary. Judges support openly, the Supreme
4
what. If Brazil had BITs we would be in the same situation
5
Court supports openly arbitration and as a result today if
5
as Argentina because we (inaudible) state. You know, the
6
I have a client that has investments in Brazil I say
6
members of the government change its mind, changes
7
something you’ll never say 10 years ago which is, look, the
7
legislation and you could be sued for step out of the,
8
key thing is where the assets are, when you want to force
8
beyond the line. That could be quite tricky. So I’m not
9
award, you know, where does the breach is likely to be.
9
terribly fussed about this and I’ll explain why in a
10
[14:47] Make your decision based on that because if you
10
minute. Then you have the protocol, the protocol creates,
11
have a dispute and the assets are in Brazil a corporate
11
you know, it’s particular, the SADC protocol. It creates
12
dispute have an investment you get access to the shares or
12
an investment treaty system in a confined number of
13
put shares on someone’s based in Brazil just arbitrate in
13
countries in which then that makes sense to me South Africa
14
Brazil. I sit as an arbitrator now in an over $3 million
14
does business with.
15
dollar case, purely Brazilian parties, and you see that as
15
16
I see arbitration (inaudible) because of the size of the
16
countries. You know, you’re likely to have some influence
17
case. No one there use other rules for that dispute. So
17
on. So again I don’t have a problem with that. And you
18
without much ado I’ll just turn to a view from Rio as it
18
have heard today you have good arbitral institutions. That
19
were from, you know, what South African situation is.
19
gives you some flexibility. If you had a megaproject here
20
and Tunde - you don’t want to have all the contracts and,
20
So we heard a lot about the different Acts. When
So again you’re having such mechanisms with the
21
you look at those instruments you pretty much tick all the
21
you know, million dollar contract with access to the
22
good boxes so I’m going to speak just about what would be
22
arbitration clause. It’s much easier to have, you know, a
23
of concern. Now, the Act, I think we have heard today that
23
local institution.
24
the key thing that, you know, someone from outside would
24
Then if the local institutions up their game and
25
struggle with is the fact that you can go to the courts and
25
they can play international level as AFSA seems to be
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doing, even better. You have more options. So the
1
try to bring the domestic arbitration in in that process so
2
benefits of the local institutions, they are part of the
2
I think you should go ahead but, you know obviously some
3
system and they are generally more affordable. They are
3
jurisdictions adopted the Model Law for both the local
4
generally, you know, they know the local market a little
4
domestic and international arbitrations so that could be
5
bit better. It’s easier. But you need to know who the
5
something that to think about.
6
institution are. Knowing this I have no problem in going
6
Then the criteria of, you know, how you, how
7
for AFSA but, you know, this has not been the case in my
7
characterise a dispute that’s, one, under the new Bill.
8
country for many years.
8
The idea of the juridical seat of the parties or the
9
nationality of the parties depending on how you look at it
9
You couldn’t have an institution where you think,
10
okay, it’s now a bunch of friends who decided to have, you
10
has been – today is quite artificial. Some legislation
11
know, we had a lot of arbitral tribunals and people selling
11
require you to constitute an SPC for tax reasons.
12
courses so you became an arbitrator judge and people were 12
Sometimes they’re required to do that. To get a tax
13
going around with the badges. It was horrible. But now,
13
incentive you’re required to do that. No one really buys
14
you know, after 15 years you have serious players in the
14
shares directly in a company like this.
15
market. So having a quick look on what’s relevant, you
15
So I think hopefully the common law will address
16
know, for someone like me when looking to what I can, you 16
that but hopefully, you know, if you have, you know, the
17
know, bring, accept arbitration I guess the South African
17
SAB Miller deal for instance (inaudible) is an
18
party with no assets outside South Africa, then I look at
18
international player. And if they have a big arbitration
19
the, you know, how you enforce awards.
19
here with sensitive issues and, you know, a big case they
20
don’t, you know, I’m not talking for them but I assume they
20
And it seems to me that the case law is quite
21
positive so generally a pro-arbitration stance in line with
21
won’t be able to – they won’t be willing to have a dispute
22
the New York Convention, i.e. we’re not going to get to
22
under the old Act. So the ability for – or you can see
23
the merits. If you can tick the right boxes it’s a sort of
23
some of the, you know, other jurisdictions look, let’s
24
formal review. The finality of awards, no review of the
24
agree it’s an international dispute.
25
merits of the underlying disputes, respect of the seat, you
25
I’m local. You know, like in Brazil Volkswagen,
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1
know, this is the certain case, the case where the
1
I thought it was a Brazilian carmaker until I was, you
2
allegations of fraud (inaudible) enforcement stage. The
2
know, at the age old enough to understand it’s a German
3
seat was Paris just as a tribute to Tunde. And there was a
3
company but people at Volkswagen in Brazil they, you know,
4
lot of fraud in Paris apparently, but it was not alleged,
4
they feel it’s a Brazilian company, yet you have a German
5
you know, during the arbitration, you know, Paris, you
5
interest there. You have, you know, some of the things
6
know. Anyway, but South Africa is a serious place. They
6
that you need to balance. Now, briefly through the changes
7
said, no, hang on a minute, if you want to highlight fraud
7
and Tunde I have no idea exactly what time I should stop so
8
you do it at the seat, not here. Now, there are a few
8
will you keep an eye on it? Now, Professor Butler just gave me a great relief today. He said, you know, he
9
cases in which recognition was refused and, you know, it
9
10
seems sensible to me that one, in the absence of a valid
10
11
arbitration clause even without the UNCITRAL Model Law you 11
12
have the New York Convention and that’s a reason not to
12
13
enforce the award. So the Phoenix case looks fine to me.
deleted the bad faith justification for to refuse recognition. So let’s talk about the greatest thing and that I
13
see in this Act. It bind public companies. There has been
14
And then you have the Cool Ideas case where the
14
enormous debate. In France it’s actually still today
15
courts had the cool idea of not enforcing an award that if
15
forbidden and my colleague, Elizabeth, may confirm it. You
16
enforced it would breach, you know, your criminal statute
16
know, in Brazil it’s so important that the public sector
17
essentially and they quoted Professor Butler in that
17
buys into it because a lot of the infrastructure, a lot of
18
decision where Professor Butler says, you know, an award,
18
the development that, you know, the country needs requires
19
it’s a legal contract (inaudible) policy. You know, it can
19
dealing with the public entities, with the public
20
now be enforced. So again a great degree of confidence in
20
organisations.
21
that aspect.
21
And so what in my view the Act does in the
22
So what caught my attention in the Bill though is
22
context where South Africa is being criticised from
23
that you will, you know, you’re carving out domestic
23
withdrawing from the investor arbitration scenario. Look,
24
arbitration. I can see that the logistic process is
24
very few clients of mine wants to sue a state. Believe me.
25
difficult so I’m not suggesting that you stop and actually
25
That’s the last thing you want to do. You’re going to be
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public enemy number one. Right, so it’s bad for business.
1
international arbitration in South Africa and in the long
2
It’s bad for business. So except if you want to sue the
2
term this will attract investment because big players, big
3
Argentines which a Brazilian would think is a sensible
3
hedge funds, big private equity houses they can put their
4
thing to do no one wants to do that. If you, you know, I
4
money anywhere.
5
work for a lot of construction companies and they go
5
If you talk to Helios, to Harris, I mean, they
6
through endless, endless, you know, soul-searching’s to
6
have to decide sometimes window of opportunity, where
7
avoid suing states and I’ve done cases in Libya, in Liberia
7
they’re going to put their money. And if disputes is
8
and they don’t sue. They’re not going to sue the state.
8
something they can take off their plate that increases
9
In Mozambique, I never had an arbitration in Mozambique,
9
investment. So and on top of that obviously major sponsors
10
I’m very frustrated because - no client wants to sue the
10
will, you know, think okay, it’s less expensive than I
11
state. So what is the, so when I pitch South Africa under
11
would otherwise think to invest in South Africa. Now, on
12
the new Bill so it should be passed, why I say look, the
12
that note I just speak briefly about Lusophone Africa.
13
government’s sending a clear message thereby giving you
13
14
Investment Arbitration which is complex, burdensome et
14
all the countries that either speak Portuguese, have an
15
cetera and creates problems with the, you know, mining
15
interest in countries that speak Portuguese and we call
16
legislation, resources which is difficult.
16
associate observers for their community of Portuguese
17
But they are giving you something that’s actually
What is Lusophone? I just have a map here with
17
language countries. You see there’s at least from this
18
much more effective. They give you the ability to sue the
18
country have five of them in Africa, so they’re just going
19
direct party with which you’re contracting. So the, you
19
to talk about Northern Mozambique because they are the most
20
know, the local, the state entity that you’re contracting
20
relevant to you and more relevant generally given that
21
with, the public body that you’re contracting with, so get
21
their size.
22
that – relevant, you know, all taxpayers across South
22
23
Africa pay for that. You get, you know, commercial
23
size of the population is – there is a massive difference.
24
arbitration under the New York Convention that you can
24
But why an interest in those countries? They are your
25
enforce readily and much faster. Then you’re going to
25
neighbours and international arbitration in South Africa
Still when compared to Brazil we can see that the
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accede, then going to annulment proceedings, then God knows
1
has a direct relationship with, you know, oil and gas
2
what. So think about it. So I don’t think - on balance
2
projects, infrastructure projects in those jurisdictions.
3
there’s quite a nice move from the government and, you
3
And you can see the size of the GDP of Angola compare up
4
know, taking on the one hand but giving with the other.
4
and these are 2014 figures because after that it’s a big
5
mess.
5
Now moving on these are all things that have been
6
said. There are two things that I think I should mention
6
So I wanted to get before things went really
7
here that the Act is very forward looking. It’s what I
7
wild. I mean, I think this is where you can actually
8
call the, you know, cost savings signposts. It’s giving
8
compare things. So you can see obviously Mozambique their
9
parties comfort to say let’s mediate. Let’s, you know,
9
side of the ground it’s going to be – and Nacala is
10
let’s consolidate procedures. Let’s not create this
10
actually working. You still have a lot of donations and
11
multiple number of battles. And that ties in nicely with
11
GDP is still not relevant but again there’s a big
12
the (inaudible) survey and the copies outside that we did
12
opportunity. There’s a lot of things happening there. And
13
with (inaudible) which shows that the parties don’t, they
13
why grouping like this? It’s not us. I mean, arbitration
14
don’t speed. They want the costs of the whole dispute.
14
is not something that’s created for people to do business
15
Now, the investment Bill obviously, you know, will be – I
15
around. It’s the other way around. So our clients are
16
understand this still had no, it’s not in force yet but
16
organising themselves like this. The professional service
17
will soon come into force.
17
is understood. I have to make a disclaimer here because
18
I’m not getting any money out of publicity to (inaudible)
18
So when you criticise about the Bill you say,
19
look, we’re just changing the game and from an investor
19
but they do have a Lusophone group and that’s pretty much
20
perspective provided that the game is clear then you
20
how we organise ourselves. We have a big number of
21
understand why you sue, you make the right provisions for
21
Portuguese speaking teams that work with me because that’s
22
it. You get, you know, the security you need and you price
22
what you need.
23
the investment accordingly. So I think there is an
23
You need access to the documents and the
24
opportunity short term through these dispositive changes to
24
language. I have four minutes, right. So just a snapshot
25
promote South Africa International Arbitration,
25
on Angola it’s no secret that the biggest development of
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their accession to the New York Convention a month, last
1
framework and settling disputes. So it's, and in the,
2
month but it’s a very difficult place to do anything. So
2
sorry there's another statistic but anyway we have enough
3
that’s the proof that this Arbitration Act doesn’t, you
3
to go here. Anyway they are doing very well and it's not
4
know, get you much far and I have $2 million dollars in
4
something that they did overnight. You see they started,
5
cases in that country and it’s not pretty.
5
they accede to the convention 79, New York Convention 2006,
6
So we’re doing some investment there. We did the
6
commercial courts 2008, run the new act in the same year
7
first (inaudible) ICC in November 2014 to train the public
7
and today and that's something that I don't know if they're
8
officers, the public attorneys and try to get the judiciary
8
very good in public relations but everybody's says Rwanda
9
on board and everything and change is needed. The other
9
is a political stable, well-functioning institutions and
10
well, the only well-known decision has been publicised, the
10
you know the rule of law is applied and you know corruption
11
decision in which the Angolan courts allow parties to sue
11
numbers are low. This is - a part of it is theoretical
12
arbitrators who had (inaudible) against the government. So 12
because all you can check the right boxes. Now South
13
there’s not, so there’s are the, you know, some of our
13
Africa has a fantastic business, actual business, they
14
friends.
14
don't need to attract, you know all the business of Africa
15
and try to be a centre of anything, here it's already a
15
So anyway, we’ll move to Mozambique. Again
16
recent arbitration law, Model Law based, a slightly
16
fantastic place. So once you get the Bill in it seems to
17
different approach from South Africa. It was embedded in
17
me that all things sort of fall in place. Now the
18
the text, a very challenging seat to arbitrate and
18
interesting feature the Rwanda law is that they are, they
19
litigate. And you know, I didn’t put this in the slide but
19
want to be, they're thirsty, they're hungry so most of the
20
we did also the training and the first ICC training ever in
20
articles that they changed when they incorporated the Model
21
Mozambique in January this year and that got the Supreme
21
Law, the key difference is that they, they provide for
22
Court to get together and do some analysis of how foreign
22
shorter periods for everything. Let’s see if it's going to
23
awards have been enforced in Mozambique over the past X
23
work. But it looks like, it looks fast. The only
number of years. I don’t know. I think it’s five years.
24
criticism we can spot at the moment is that obviously you
25
know setting aside an award, there was a tweak in the
24 25
And anyone has an idea of how many awards have Page 150
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1
been enforced there? Two. Average delay to recognise an
1
article 47 of the act instead of public policy they say
2
award? One year? Two? Five? Ten? I heard 17. 18
2
public security. So it's yet to be tested whether you know
3
years, one, and 20 the other. Now, I’ve been since January
3
awards will be set aside on grounds of public security and
4
asking for copies of those decisions and I haven’t got it
4
just to conclude we have a panel and we can come back to
5
yet so hopefully for the next year’s seminar I can – so
5
that later.
6
this is not fun. It is not fun. We work on one of the
6
But just the other element of, you know making a
7
largest infrastructure projects in the country and when you
7
good place to arbitrate, I mentioned earlier is having the
8
start putting together documentation it’s hell because, you
8
local institutions and the Kigali Centre initially
9
know, if there’s a problem with the major sponsor, fine,
9
financially sponsored by the government has done a good
10
(inaudible). They don’t even think about it. But what you
10
job. So it has a structure and rules that mimic a little
11
do with the supply contracts, local suppliers, you know,
11
bit the ICC, the (inaudible) the deadlines are shorter and
12
you don’t want to go to arbitration necessarily just to
12
when they look at the secretariat you have people with
13
make Tunde happy. You know, you need local courts. You
13
fantastic experience (inaudible) but the people who
14
need a strong judiciary to help with that. Now, just one
14
actually, you know understand what we're doing there is not
15
last minute and that’s the jealous session. It’s just to
15
someone who is, you know politically appointed or someone
16
show – sorry, jealousy session. It’s just to show, I can
16
who has no idea of arbitration, you have a good secretariat
17
speak about the whole Francophone Africa obviously but I
17
and they get, they have cases and that's key. So you can
18
thought what is the new nice thing everybody is talking
18
see the number of the cases filed for, you know submitted
19
about? Rwanda.
19
to the rules 30, they have 18 awarded rendered since, this
20
[15:07] So Rwanda very quickly managed to come from, you
20
is data from July and you'll be surprised that a lot of the
21
know post genocide era into becoming the second after
21
case load comes from the courts. So the courts look at the
22
Mauritius, second advocate country in the ranking of the
22
arbitration clause and say you go arbitrate guys, you have
23
business of doing business. They did a fantastic job in
23
an arbitration clause and remember that Tunde was talking
24
the global competitiveness report for this year. They're
24
about the Getma case in which the case was, a couple of
25
the second after South Africa in efficiency of legal
25
hundred million, the arbitrators offered 40 000, Euros or
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Dollars, I don't remember exactly. Here when you look at
1
2
the figures here this is a pretty decent amount of money
2
absence of uniformity in arbitration laws and practices is
3
for a $5 million case. I want to be an arbitrator in
3
often used or seen as an obstacle to the development and
4
Kigali. You will attract talent. It will attract talent,
4
promotion of the commonalities on the continent. But
5
for $5 million case I get a $100 000, you know I can go to
5
others see the phenomenon of diversity as a challenge that
6
Paris and have lunch with them, no.
6
offers opportunities for harnessing and deploying available
7
best efforts, knowledge and expertise and the abundant
7
The courts there's not much yet from the courts.
These observations come to mind because the
8
So it takes time for the whole thing to go around but I've
8
capital available on the continent in terms of human
9
been informed that there are no cases, you know setting
9
resources which are locked up in our several African states
10
aside awards so far and one thing to highlight is it
10
should harness this creating modern systems, mechanisms to
11
doesn't, so you can have a good law. You can have a good
11
combat the perceived obstacles to continental growth and
12
arbitration institution with these rules, fast, but the
12
advancement.
13
clients want the money and that's where it matters and here 13
14
you can see that if you get a, you know an award in Rwanda 14
arbitration practice. Arbitration practitioners of long
15
you get it to be stamped at the right place and you can
15
standing are aware of the increasing importance of the
16
just go, as, I think Paris is the case you go to a bailiff
16
arbitration in resolving disputes and conflicts which are
17
and enforce. Someone needs to start a case against you if
17
generated by trade, commerce, business transactions and
18
they want to, to challenge that but basically you're not,
18
other legal relationships, nationally and internationally
19
you have faster access to money and with that I will
19
and to do so as quickly and efficiently as possible. There
20
conclude and thank you for keeping awake.
20
are also issues of high costs and delays in modern dispute
21
I'm not going to keep
21
resolution which challenge the traditional advantages
22
everyone from their drinks of tea. If you have any
22
claimed by arbitration over other processes. There is also
23
questions for Luiz, please feel free to, anyone. No.
23
concern with arbitration today as the highly sophisticated
24
Thank you all very much for listening. Thank you all.
24
procedurally complex and exhaustive process dominated by
25
its own domain experts using detailed frameworks and rules
25
MR WILLIAMS:
Subheading increasing importance and growth in
[MEETING ADJOURNS
MEETING RESUMES] Page 154
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1
[15:39] TORGBOR J:
Hello. Good afternoon and
1
that emphasise legal accuracy, precision and certainty that
2
welcome back to the last session of this conference. My
2
have overtaken the ad hoc compromise oriented systems. I
3
name is Edward Torgbor. I reside in Nairobi although I'm
3
borrow remarks from Sindaresh Menon. The need here
4
Ghanaian by birth. The topic for this session is
4
therefore is for arbitration to do what parties and uses
5
arbitration in Africa, the bigger picture and I've been
5
require it to do. That is to say to resolve party's
6
invited to pick up on some significant points in
6
disputes by their own chosen procedure within the timetable
7
arbitration practice. They are all known to you but to
7
they've agreed upon to deliver a fair, just and final
8
address them very briefly and then turn it over to the
8
award. It bears mentioning therefore that the term users includes investors, local and international government,
9
panellists over there. I'll introduce them to you in a few
9
10
moments. But let me get on straight to it by saying that
10
state entities and their advisors whose expectations
11
there is no uniformity or homogeneity in arbitration laws,
11
include fair and equal treatment, confidentiality in
12
procedures and practices in Africa's 54 states. Therefore
12
commercial arbitration, expertise in the area of dispute,
13
the term African arbitration commonly used by the unwary is 13
14
clearly a misnomer and inaccurate. There are also
14
15
significant difference in the evaluation and levels of
15
correlates or goes hand in hand with the increasing growth
16
development for EDR practices across the continent some of
16
in arbitration practice. Disputes from various fields and
17
which are very deeply rooted in the traditional and
17
sectors, financial, commercial, industrial investment and
18
cultural practices of the continent and within our
18
business transactions across borders have opened up new
19
diversified communities. We cannot therefore assume that
19
opportunities for an ever expanding arbitration industry.
20
our experienced in domestic arbitration practice transfers
20
If the surveys and monitors and publications of the IMF and
21
smoothly across national borders and jurisdiction or
21
the Unctad World Investment Records that are reliable then
22
smoothly into the international domain. The legal and
22
one can readily believe that some of the fastest growing
23
technical distinctions between domestic and International
23
economies in the world since the year 2000 are located in
24
Arbitration as well as the practical requirements make this
24
Africa and foreign direct investment has increased in the
25
point very clear.
25
last ten years from $11 million in 2002 to over 56 billion
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finality of the decision and unenforceable award. The increasing importance of arbitration
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in 2013. Another subheading, opportunities and benefits.
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for a viable arbitration institution are known to include
2
effective arbitration rules, efficient administrative and
3
There are also emerging opportunities for arbitration
3
technological facilities, safety and security of
4
institutions, arbitrators and practitioners offered by the
4
infrastructural facilities and availability of expert and
5
ongoing industrial institutionalisation initiatives in the
5
competent staff.
6
five political economic regions of the African Union.
6
7
These being the Arab Maghreb Union of North Africa, the
7
Arbitration institutions and the organisation or entities
8
economic community of West African State ECOWAS, the East
8
with the core function of administering arbitration
9
African community ECA, the economic community of Central
9
disputes refer to them, that is therefore their function is
10
The institutionalisation of arbitration.
managing the arbitral reference. A management agreement
10
African States and the Southern African Development
11
Community SADC including the common market for Eastern and 11
12
Southern Africa COMESA. These initiatives are within the
12
statutes and so on set out what the institution and its
13
context of the African Union plan of action for accelerated
13
constituent organs will do, what the disputants can do and
14
industrial development in Africa which are aimed at
14
of course the costs of these services and activities and
15
building an integrated prosperous and peaceful Africa
15
their liabilities. The changing face of arbitration in
16
driven and managed by its own citizens and representing a
16
Africa is to a considerable extent augmented by the
17
dynamic force in the international arena. Therefore what
17
numerical growth of arbitration institutions across the
18
is needed by role-players and stakeholders is action and
18
continent. The arbitration growth is therefore a trend
19
implementation. The benefits of arbitration follow the
19
that prompts a critical appraisal of the abilities and
20
jurisdiction chosen as seats for arbitration such benefit
20
capabilities of these institutions and the adequacy or
21
impact on the stakeholders of whom the following are
21
otherwise of the services the institutions provide. Very
22
prominent. Arbitrators, arbitration users and
22
important is that they provide administrative assistance,
23
practitioners, these are primarily commercial entities,
23
procedural rules and guidance for parties and arbitrators
24
primary users and the lawyers who advise and represent
24
for conducting the arbitration proceedings so as to ensure
25
disputants. Then there are the arbitrators themselves.
25
the integrity of the process and ultimately the final
comprising the arbitration rules and internal rules,
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1
These share their best practices, experience and dispute
1
award. They also share responsibility with other role-
2
resolution and support for the arbitral process in domestic
2
players for inspiring confidence in the uses and winning
3
disputes and those arising from intra African and
3
respect and popularity for arbitration as a justice
4
international transactions.
4
provider of choice. Available data show that there are
5
Then there are the courts and judges. These are
5
arbitration institutions that administer arbitral
6
the opportunity to make judicial pronouncements on the
6
references in various African countries yet most
7
arbitration laws and the disputes they adjudicate and
7
disputants, even Africans in African registered companies
8
thereby they contribute to the development of global
8
nominate arbitration institution in other parts of the
9
world to administer their disputes. It is a major concern
10
exercise will therefore contribute to shaping global
10
for all of us. It is therefore not enough for a conference
11
arbitral jurisprudence and the scholarship of the decisions
11
participant merely to be aware of this phenomenon
12
and judicial reasoning can engender respect and confidence
12
especially where the dispute involves an African party of
13
in the judiciaries of their countries.
9
arbitration jurisprudence. African participation in this
13
parties but also to endeavour to design the strategies and
14
Then there are the States. Those that provide
14
techniques and find clear pathways of arresting the
15
modernised laws and regulatory frameworks can benefit from
15
unfortunate trend.
16
higher taxable income from legal services and other related
16
17
businesses including hospitality, tourism, transportation
17
will each deal with any of the arbitration institutions
18
and communication and expansion of the legal services
18
that I've mentioned in this conference with which they are
19
market, particularly to international law firms and it can
19
familiar. They are all very familiar with specific
20
also attract for them reputational advantages. Another
20
arbitration institutions. So I shall leave that to them.
21
stakeholder, the arbitration centres and institutions.
21
Now a description of arbitration institutions stated as
22
These have the opportunity to increase their caseloads,
22
follows. An arbitration institution guarantees stability
23
render services of globally recognisable standards with
23
and functioning for the foreseeable future. The
24
networking opportunities that enhance profile, efficient
24
institution further offers clearly described services and
25
service delivery and profitability. The building blocks
25
indicates what rules and procedures they apply. An
Tel: 011 440 3647 Fax: 011 440 9119
I have here the panellists, five of them. They
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arbitration institution should offer more than merely to
1
accompanied in particular by fragmentation, staff shortage
2
act as appointing authorities, either under their own rules
2
and the provision of substandard service.
3
or occasionally under other rules. Their services also
3
4
must include some administrative activities and they must
4
visibility on the International Arbitration landscape for
5
have permanent staff which is professionally trained for
5
various reasons. These reasons are repeatedly thrown at
6
this purpose. Now from this one can extrapolate the
6
Africans at various conferences. I need not repeat them,
7
structural format of an arbitration institution as one that
7
they include inadequate facilities, lack of court support
8
defines its internal managerial operation and structure of
8
and et cetera. It is therefore essential for arbitration
9
command. It defines its jurisdiction and its scope. It
9
conferences such as this to continue reviewing these
I conclude with the observation that Africa lacks
10
drafts its own arbitration rules and identifies the
10
reasons which are very often in the form of old prejudices
11
applicable rules and in these documents the functions of
11
in pursuit of solutions and progress. The arbitrators and
12
the institution, the tribunal and the disputing parties are
12
practitioners must share their experiences for the creation
13
clearly defined. The institution itself, either through
13
of an enduring arbitration culture for the practice of
14
its registrar, it's court or administrator makes all the
14
arbitration in Africa in which all stakeholders can be
15
important administrative, i.e. not adjudicative decisions
15
leading role-players. The institutions for their part must
16
relating to the arbitral reference but not the substance,
16
aim at fulfilling the requirements of their users as part
17
the substantive dispute between the parties.
17
of the progression towards the greater participation of
18
In summary therefore the institution should have
18
African arbitrators and the use of African venues, seats
19
legal capacity or legal personality, the physical presence
19
and cities in the bigger global arbitration space. Thank
20
or office, adequate staff of trained professionals,
20
you very much.
21
accessible rules of practice, a board or code of
21
Now to the panellists. The first on my left is a
22
independent experts to oversee the management team and
22
man you know very well, you've seen him a lot this morning,
23
publish its own annual activities. The African arbitration
23
throughout the day, very elegant appearance Mr Des
24
institutions of which we've become aware starting with the
24
Williams. The next to her, to him is Dorothy Ufot from
25
ARCO institutions, Cairo, Lagos and now Nairobi these have
25
Nigeria. Then Lindi from South Africa, Sami from Tunisia.
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got distinct characteristics. There are other institutions
1
Then Louis is the man you've just been hearing recently.
2
in Africa, there are over 70 arbitration institutions all
2
These are all very experienced people and they're going to
3
of them at different levels of development and growth and
3
tell you specifically about the institutions with which
4
all of them with diverse characteristics and services. So
4
they are familiar and I'm asking them to lead in, because
5
there's a clear need for African arbitration institutions
5
so much has been said about the institutions already, they
6
to make serious effort to merge their efforts to
6
are to hook into the significant contributions which their
7
interconnect or interlink or network, whichever word you
7
institutions can make for the progress of arbitration plus
8
choose to enable to get maximum, maximum result from the
8
any other comments which they're able to make from their
9
collective experience. So Des.
10
simply grouping and you continue to group until you learn
10
MR WILLIAMS:
11
the lesson of coming together. So it is a must, it is very
11
that note I am going to keep this short. This is a panel
12
necessary that we think very seriously about how best to
12
discussion, I'm not sitting here making a speech. But
13
marshal our efforts together. The standards and
13
there are a few points that I do want to make and they are
14
complexities of modern arbitration practice require skilled
14
in connection with AFSA. We had some discussion this
15
managers for the business of arbitration and the phenomenon
15
morning about whether we should be looking East or West or
16
of high costs and the equally high income expectations of
16
North. I think the one thing that we all agree on is that
17
practitioners require professionalised and specialist
17
we don't need to look to the South. But it does, and I
18
arbitration institutions to regulate their membership and
18
would suggest that we actually don't need to be making that
19
keep costs within reasonable limits. While these centres
19
choice. It's not a choice that we, it's not one of these,
20
and institutions are indicators of continental achievement
20
it is in fact all of them and there are a couple of points
21
in the establishment, management and administration of
21
I want to make in connection with that because I think
22
dispute resolution with varying degrees of competence we
22
there are some realities that we must remind ourselves of.
23
ought to be mindful that proliferation of institutions is
23
The first thing I think to bear in mind always is that the
24
not akin to progress or excellence in performance.
24
main source of arbitration work is and always will be the
25
Proliferation cannot be good for arbitration where it is
25
arbitration clause in the commercial agreement. That’s
9
services. Without it all these 70 plus institutions are
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Well let me kick off and on
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where it all comes from, that’s where it all stems from.
1
there, they’re in place, the infrastructure is there, AFSA
2
[15:59] Now in many South African commercial agreements
2
provides a very good service and that’s the kind of thing
3
certainly at this point there will be an AFSA arbitration
3
that, through closer cooperation, we could start developing
4
clause. AFSA has had a very successful 20 years. It
4
a more cooperative relationship between the two
5
started slowly and getting those clauses into the
5
organisations.
6
agreements took some time but they are there now and so we
6
7
are certainly seeing AFSA arbitration clauses on a very
7
difficult is that arbitrator appointments could possibly be
8
regular basis in commercial agreements and this will also
8
made with some input from AFSA and with reference to AFSA
9
increasingly extend beyond South Africa.
9
panels. You know I must make the point here that when it
Another possibility and perhaps a little more
10
comes to appointments it’s not as if there are dozens of
11
in numerous commercial agreements throughout the world,
11
appointments that are made in South Africa every year. It
12
including agreements involving African parties and I
12
really is a very small number and it’s not as it is in some
13
venture to say if you take any example of, say, think about
13
countries that the national committees will have their
14
a Canadian company in a commercial agreement with a South
14
large independent panels and that they can do this with
15
African company, you are more likely to find an ICC
15
reference to their panels and to nothing else. So I think
16
arbitration clause than an AFSA one. So that’s important
16
there certainly is room for some greater cooperation there
17
for us to bear in mind.
10
However, ICC arbitration clauses are also found
17
and use of – AFSA has very good, a very good, tried and
18
From the ICC perspective it’s clearly important
18
tested panel and very good arbitrators and there certainly
19
that the ICC must be able to respond to the demand that is
19
is room there I think for some level of cooperation when it
20
there for more ICC arbitrations to be seated in South
20
comes to appointment of arbitrators.
21
Africa and to be using African arbitrators and AFSA on its
21
22
side must recognise that the ICC does provide a benchmark
22
because all of those would be little steps and those little
23
for arbitration excellence and that there is much to be
23
steps could possibly lead to more, because I know certainly
24
gained from being seen to be associated with the ICC.
24
that on the ICC side that the ICC is conscious of criticism
25
that there has been about arbitration in Africa and African
25
Well, then that raises just the practical
So I mention those just as possible examples
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question. If all of that is so and if we need the ICC and
1
arbitrators not being sufficiently representative. I do
2
we need AFSA and we need other arbitration organisations as
2
want to come back a little later to the question of equal
3
well, how do we actually go about co-operating and at what
3
representation in arbitration from a different perspective
4
level can we operate? And I do believe that there are a
4
altogether but we’ll come back to that later. But that by
5
number of real opportunities in South Africa for
5
way of preliminary comment, let’s leave it there.
6
organisations such as AFSA and the ICC to work more closely
6
7
together.
7
think you can hear me from here, can't you? Yes, of
8
course. Now we can lead on with a short, well, a comment
9
from Dorothy.
8 9
As I have mentioned, the ICC is acutely aware of the fact that there is a need to have more arbitrations
TORGBOR J:
Do I have a microphone or – I
10
seated in Africa and more African arbitrators and of
10
11
course, as has been mentioned here this morning, there is
11
gentlemen. One of the most prominent institutions,
12
absolutely no reason at all why ICC arbitrations should not
12
arbitration institutions in Nigeria, AALCO in Nigeria is
13
be seated in South Africa and the leading case on all of
13
the Lagos Regional Court for International Commercial
14
this is still Telcordia and Telkom. The Telcordia case was
14
Arbitration. The Lagos Regional Court, Regional Centre for
15
an ICC arbitration and it was seated in Johannesburg. A
15
International Commercial Arbitration was established in
16
number of hearings were held in London but it was ICC and
16
1989, that’s about almost 27 or thereabouts years ago,
17
it was seated here in Johannesburg. But in those
17
under the Asia-African Legal Consultative Organisation
18
situations certainly where ICC arbitrations are seated in
18
AALCO and to take it from where Des has stopped, where is
19
Johannesburg, there is no reason why there should not be
19
the Lagos Regional Centre for International Commercial
20
closer cooperation with organisations such as AFSA in the
20
Arbitration today, almost 30 years after its establishment?
21
administration of the arbitration without in any role
21
I happen to be on the roster of that institution
22
diminishing the role played by the ICC Court in Paris.
22
and I would not be embarrassed to say that that institution
23
And so this can happen at a very simple level.
23
is not doing very well today, as old as it is.
24
Take simple things like a venue for the arbitration,
24
25
secretarial facilities, all those sort of facilities are
25
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MS UFOT:
Yes, good evening ladies and
The institution has adopted rules, its rules is – you know, has adopted the Model Law. They have a good
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roster of local and foreign, well-renowned and
1
and LCIA said no, wait a minute, don't try that – and then
2
internationally recognised arbitrators. I had to call one
2
the name was changed to the Lagos Court of Arbitration,
3
of the counsel in, in the centre this afternoon before
3
LCA. And before I made this trip I had made a call to the
4
coming to get the latest statistics of the case load of
4
Lagos Court. It was established by law in 2009 and the
5
that centre and I was informed that in almost 30 years they
5
court, the institution came on stream in 2012 and between
6
have not gone beyond about 60 cases, and it is doubtful
6
2012 and now I think that they’ve had seven arbitration
7
that most of those 60 cases have gone on to arrive at the
7
cases, two originating from arbitration, you know, clauses,
8
destination of a formal award that can be enforced. And so
8
agreements that had inserted in the agreement the Lagos
9
that leads me to the conclusion and we all in Nigeria know
9
Court and they’ve acted as fund holders for two. Again
10
that things are not going well with that institution, but
10
they’re making, in fairness to the Lagos Court of
11
as you have also heard this morning, that is an institution
11
Arbitration, they’re really making efforts to gain a market
12
that ought to have been encouraged, all hands ought to have
12
presence but there are still a lot of things to be done.
13
been on deck – but rather we have today in Nigeria the
13
14
proliferation of arbitration institutions, whatever you
14
afoot, Kigali today. So the setting up of those courts,
15
call them. Despite this, and I know for certain Nigerian
15
you have to look very clearly. If it’s just a bunch of
16
business organisations would always prefer to insert an ICC
16
friends coming together or you really want to act as an
17
arbitration clause in the contracts.
17
International Arbitration institution, so there are
18
challenges. The Court of Appeal, now there is an issue.
18
And that leads me to the question, why is that
Competition is stiff, new institutions are coming
19
the case? So we need to go back to the drawing board to
19
When you now, you know, have an arbitration, don't forget
20
ask ourselves, not just in Nigeria, in many other African
20
the Arbitration Act has been on and then this is the Lagos
21
countries – do we really need this proliferation of
21
Court, Lagos Arbitration Act. The issue now that we see
22
arbitration institutions or do we need to collaborate
22
often in court, under what rules are you, you know, having
23
amongst ourselves and ensure that we practice best
23
this dispute? And then people are saying oh, because now
24
practices.
24
you know we have a Lagos Court so we should do these
25
disputes, irrespective of what’s in your contract, we
25
For instance I can recall that I have had at
1
least five appointments as an arbitrator from the Lagos
1
should do these disputes under the rules of the Lagos
2
Regional Centre and I'm not embarrassed to say that not one
2
Court. And the Court of Appeal has come up recently to say
3
of them has seen the light of day. It’s either the
3
that any arbitration agreement that was entered into before
4
arbitration clause has not been couched well or even
4
2009, obviously the parties had in mind the Arbitration Act
5
Nigerian parties are saying no, you cannot act as an
5
of 1938. So there’s still this, you know, wrangling
6
appointing authority, whereas their mandate includes, you
6
between these institutions as we have in other places.
7
know, acting as a fund holder and as an appointed
7
When you come to arbitration practitioners I will
8
authority. Or the director-general is not from the part of
8
concede that gone are the days when people used to say that
9
Nigeria that I come from, so I'm not going to have anything
9
there is a dearth of qualified arbitration practitioners in
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10
to do with this centre. Well, this is an international
10
Africa, in Nigeria. Nobody can say that today. There are
11
centre. So it’s immaterial who is at the helm of affairs.
11
qualified arbitration practitioners in Africa, in Nigeria,
12
but we need to go back to the drawing board and ask
12
And so there are many challenges and bottlenecks,
13
so what people are going to have to do is, let’s not
13
ourselves, in Nigeria for instance – as we’ve heard from
14
support this and then they also have the problem of funding
14
Judge Torgbor, even Nigerian parties don't insert those
15
and the cat and mouse game of who becomes the next
15
clauses, don't appoint Nigerian arbitrators, don't choose
16
director-general. And then this, the appointment of the
16
Nigeria as the seat of the arbitration. And so to that
17
director-general is now brought to a level of a political
17
extent the ICC has become very active in Nigeria for
18
appointment and we then expect international commercial
18
instance today. There are many ICC arbitrations going on
19
parties to insert these clauses in the arbitration award, I
19
in Nigeria today with ICC, with African arbitrators being
20
mean in the agreement.
20
the arbitrators. But one thing the ICC does which gladdens
21
my heart, I don't know whether that erodes the principle of
21
The next institution that appears to have come on
22
board and everyone has taken cognizance of that
22
party autonomy, I know that in a few cases parties have
23
instruction, is the Lagos Court of Arbitration. Initially
23
appointed or have nominated these particular – because when
24
the Lagos Court of Arbitration set out by wanting to call
24
the ICC has said no, we don't think so, send us another
25
itself the Lagos Court of International Arbitration, LCIA
25
name. So that is one of the mechanisms is adopting to
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ensure that it lives up to its Bill as far as arbitration
1
also said that. So we have to tidy that up first and
2
in Africa is concerned.
2
having done that we have to then leverage, talk to Michael
3
In a recent conference in Nigeria the president
3
Kuper, the grandfather of arbitration in South Africa –
4
of the ICC Court said publicly that ICC needs Africa and
4
that’s what people call you sometimes, I don't know if it’s
5
Africa needs ICC arbitration. So I think the ball is in
5
an accurate description. But leverage, ladies and
6
our court to look at our institutions again and make our
6
gentlemen, on the experience, the vast experience that AFSA
7
institutions internationally competitive. I think I would
7
has gathered over the past 20 years of its existence.
8
like to stop there for the time being.
8
9
TORGBOR J:
Thank you, Dorothy. Thank
9
You heard during the course of today that AFSA is not only regionally based, it is engaged actively
10
you for very enlightening comment on what is happening in
10
internationally. It has forged a relationship with CAJAC,
11
Nigeria. I had the privilege and honour of conducting the
11
it is in the course of negotiating some kind of an
12
very first arbitration at the Lagos Court of Arbitration
12
arrangement with India, which I trust will be successful.
13
last year, so I can tell you that it is worthwhile
13
There is, however, an impediment, a tiny one I must add,
14
following that lead. They have spanking new buildings
14
that I have no doubt will be resolved in no time. So
15
located on the shores of the azure blue waters of the
15
learning on experiences of such institutions as AFSA would
16
Atlantic – ja, so very good point. Lindi?
16
go a long way in helping us achieve the dream of
17
establishing a shared African arbitration mechanism for
18
you. Thanks, Judge Torgbor and good evening ladies and
18
Africa.
19
gentlemen. Although my initial intention was to deal with
19
20
AFSA as directed by the Judge, but I think enough has been 20
as AFSA as we champion this mighty project would be to
21
said about AFSA, we are all well aware of what AFSA stands 21
solicit governmental support. One of the speakers today
22
for, its credibility and its track record both locally and
22
mentioned that the Chinese government is behind the – I
23
internationally. So I propose to deal rather with the road
23
think it’s SHIAC, the Shanghai International Arbitration
24
ahead, where to from here.
24
Centre – and during when one had had the privilege of
25
attending a seminar in India, a similar sentiment was
17
25
MS NKOSI-THOMAS SC:
Nkosi-Thomas, thank
We have heard all about the International
Another issue to think about as South Africa and
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1
Arbitration Bill that is about to be passed into law, we
1
expressed, that the Indian government is very much behind
2
have heard a moment ago about the challenges that Nigeria
2
the Indian Centre of Arbitration. So in order for our
3
is confronted with from an International Arbitration
3
project, this grandiose project that I am suggesting we
4
perspective. Then the question becomes, wherein lies the
4
should work towards, we do need governmental support and I
5
solution for African arbitration for Africa and ladies and
5
think those would be my comments. Thank you.
6
gentlemen, allow me to suggest that the solution lies with
6
7
us. It lies from within ourselves. We have to work
7
for your comments. I should just mention that – I think we
8
towards establishing an arbitral mechanism, a shared and
8
all know the passing of laws is not an end in its itself.
9
universal arbitral mechanism for Africa. We have to
9
It’s not a panacea for anything. When the law comes into
TORGBOR J:
Thank you very much, Lindi,
10
establish that.
10
existence it’s got to be tried and tested over a long
11
[16:19] I am by no means suggesting that that is going to
11
period. Lawyers are very good at testing these things,
12
be an easy thing to do but that is something that we do
12
they go back and forth and back and forth. You get one
13
have to work towards, establish a universal, a shared
13
kind of challenge, you get one result, you go to the next.
14
mechanism for ourselves, start from the very beginning,
14
You heard me ask Judge Harms about appeals. This is
15
training, agreeing the rules, agreeing all those issues
15
because the problem of appeals has been troublesome in
16
that need to be put in place so as to make it a success.
16
various jurisdictions. Some of the jurisdictions in Africa
17
Where do we start?
17
don't know how to handle the appeal. Some people feel that
18
you could never move the courts out of the arbitration
18
I suggest that we should start with getting South
19
Africa to first of all pass the International Arbitration
19
system. When the courts are there, you use them. They
20
Bill into law because one of the speakers today suggesting
20
must have final say on the interpretation of the law.
21
that by taking as long as we have to get to a point where
21
On the other hand, if you think about it you can
22
it’s about to be passed into law, we have squandered a
22
have an arbitration conducted from beginning to end without
23
brilliant opportunity. And it’s not only South African
23
worrying too much about the technicalities of the law
24
speakers who have said, who have articulated that
24
provided you, the arbitrator, you know your stuff, you
25
sentiment, indeed also – I think you mentioned, Tunde, you
25
deliver an award which is enforceable.
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So this court thing in our minds is in fact
1
2
frustrating. One of the important tenets of arbitration,
2
it’s quite important for us in Africa to focus on the
3
one of the proclaimed advantages is namely expeditious
3
capacity building on – and secondly, on the importance of
4
disposal of disputes. So we move on from good law to being
4
the role we should have and the relation we should have
5
tested and hopefully to making something out of it. I have
5
with the judiciary locally.
6
been on the South African scene for some time, to be aware
6
7
of the capabilities. You have lots of good practitioners,
7
identify arbitration, qualified arbitrators in Africa.
8
both arbitrators and lawyers. You have cumulative
8
There are qualified people but maybe they are lacking of
9
experience going back over many years, so you've got what
9
experience and this is – we can, we now here in the room
And I will point on these two issues here, why
You can ask Tunde how difficult it would be to
10
it takes to be able to implement, you can get there very
10
that is enough people but globally it would be hard for ICC
11
quickly and then to be willing to share and extend your
11
to identify in every single country arbitrators with
12
experiences beyond the confines and borders of South Africa
12
experience for big cases. I go through two examples
13
and I encourage you to do that. Thank you very much,
13
because I used to work at the ICC, I have experience to see
14
Lindi. Our next speaker is Sami.
14
this experience.
15
MR HOUERBI:
15
Thank you. Like Lindi,
You know a country like Algeria is in Africa,
16
initially I was about to talk about ICC but Tunde has done
16
Algeria you can hardly today list 10 international
17
it in the best way, better than I can do and I was thinking
17
arbitrators although Algeria industry – a company in
18
what to say about the challenges in Africa. I will share
18
Algeria I would mention, Sonatrach, the oil company, had at
19
with you my little experience because I used to work for
19
least for the last 50 years 100 arbitration cases, most
20
the ICC for many years, like Tune, within the secretariat.
20
complex arbitration cases. And I was thinking when I used
21
Then I left and now I am advising ICC in the Middle East
21
to work with ICC why these cases have been only handled
22
and Africa and I can tell you my thoughts about what is
22
only by international law firms, which is alright because
23
going on and what, my feeling about arbitration in Africa.
23
the matter involved complex legal issues and a lot of
24
We all agree that arbitration, International
24
money. But if you imagine if the Algerians, they put in
25
Arbitration has become for the last years (inaudible) the
25
every single arbitration local practitioners to watch the
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case, very competitive – for the main reason not only
1
case and to follow the case with the big international law
2
because arbitration does provide justice or because
2
firms, because it was – they were right to ask the big law
3
arbitration does encourage, attract investors in each
3
firms to defend the Algerian country because the matter was
4
country but because International Arbitration becomes a
4
very complex but no single case, no single Algerian lawyer
5
business, it’s a business, millions – business for the
5
was involved in this case. And imagine if for the last 50
6
legal community, for the hotels, for everything. Look like
6
years we had every year two or three young Algerian
7
cities like Paris, London and Dubai, Singapore, governments
7
practitioners, we would have today many, many, many
8
and the politicians are putting a way to attract
8
Algerians able to run these international cases.
9
arbitration and to improve arbitration to attract for this
10 11
business. What to do in Africa, we know that in order to
9
Why I'm mentioning this Algerian case, because as
10
a country we have another experience that I have seen at
11
ICC a couple of years ago. I mentioned the country Iran,
12
improve the arbitration, we have been listening the whole
12
for many reasons you know after the revolution Iran had to
13
day about the importance of enactment of model arbitration
13
face many international arbitrations because of the
14
law. This is the case in many countries, many countries in
14
revolution and for political reasons Iran was reluctant to
15
Africa and everywhere have enacted very – Model Law. That 15
hire American law firms and the Iranian Bill they call the
16
is true, it’s very important and we have heard about the
16
BILS, the Bureau of International Legal Services. The role
17
importance of establishing arbitration centres. I don't
17
of this office, the Iranian public office was to hire
18
believe this is the most (inaudible) solution to establish
18
Iranian lawyers to accompany the European law firm that
19
arbitration centres. Have a look at Germany or France or
19
were defending the Iranian companies in the International
20
Switzerland, major places of arbitration, you can hardly
20
Arbitration and today if you go to Iran, I know some people
21
mention two, three centres in these countries although they
21
there, they started very young training in this and the
22
are major places of arbitration because they put the
22
BILS and now they are able to run their own arbitration
23
importance on other criteria, in my understanding, which is
23
proceedings internationally.
24
capacity building, human resources on one hand and the role 24
25
of the judiciary.
Tel: 011 440 3647 Fax: 011 440 9119
25
That is a good example how, how international law firms can participate in the transfer of knowledge because
Email:
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I think there is a duty on the international law firms to
1
became – it was a criterion that disqualified a lot of
2
transfer the knowledge to the younger generation in Africa.
2
people who wanted to be on the list, that was regrettable.
3
This is the first thing I have to underline, what we are
3
Some of them were very distinguished arbitrators, some of
4
missing in many countries and this applies to other
4
them were retired judges and it’s the retired judges
5
countries. They say in Congo many, many, many African
5
phenomenon, judges who feel that because they’ve finished
6
countries they have huge complex arbitration for the ICC
6
with the bench they can transfer easily onto the ADR field.
7
and if you look at these cases, no single participation or
7
It doesn't work that way at all. I said earlier that
8
involvement of locals in this arbitration and this brings
8
arbitration today has become a very sophisticated and
9
us to think of the way for the future to run these
9
complex system of dispute resolution. Therefore you do
10
proceedings and considering seriously the co-counselling,
11
but the really good counselling not the way – you know how 11
12
it works today, co-counselling, you are sitting in your
12
13
office in Tunis and you get an e-mail from an international
13
Very fortunately a number of people in South Africa are
14
law firm just asking you one single question without
14
already on the list, they qualify. That is very helpful
15
explaining to you what’s going on, one single question on
15
because through them they can also introduce others who are
16
the Tunisian law. And you understand this is – your answer
16
coming on board. The message is that the list is not
17
will be put in the memorandum by this international law
17
closed, so keep your eyes and ears open and you can assist
18
firm for the ICC.
18
the process of bridging the gap. That exercise in itself
10
need to learn the processes, the techniques and procedures before you can begin to practice. So we are trying to identify and to build a list.
19
What we should ask for co-counselling, co-
19
could be a building block for, if you like, building the
20
counselling is a way to share the knowledge between this
20
transfer of experience that we are talking about in an
21
international law firm that has the knowledge and the local
21
interconnected way. Thank you again, Sami, and our last
22
counsel for the future. This is something I have to insist
22
panellist is Luiz.
23
on, this capacity building.
23
24 25
The second issue we are missing it’s the role of the judiciary because we know how important the judiciary
MR ABOIM:
Right, so I’ll not talk about
24
Kigali because you've heard enough and I'm happy to forward
25
a copy of my slides. I chose a different institution which
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1
are for the success of the arbitration process and this is
1
equates with my thinking about, you know, is it right to
2
what we are missing in Africa. I think if we, again if we
2
talk about arbitration, African arbitration. What that
3
go – to take the example of France, why the arbitration
3
means is it’s different countries and anyone working in the
4
system in France is successful, not because we have the
4
region understands that something that might work in, you
5
best arbitrator or arbitrators in Paris, not because we
5
know, South Africa might not work in Libya because of the
6
have the ICC in Paris, because in France there is a
6
total political context, legislation, etcetera.
7
judiciary very supportive to arbitration and the most
7
8
courageous arbitration decision to protect arbitration, to
8
9
support arbitration, they came from the judiciary, from the
Now, do most countries have an interest of being part of the international scene? I think the answer is yes
9
and in the old days back in Latin America I was always
10
Court de Cassation in Paris and because they believe in
10
pushed for, my peers in Brazil not to focus on doing the
11
France it is a way to improve arbitration. It can only
11
Brazilian arbitrations the Brazilian way but actually build
12
come from the judiciary.
12
up their game and be an international player, which they have done, I think.
13
I think this is my understanding of the most
13
14
important criteria in order to improve arbitration in
14
15
Africa. Thank you.
15
institution that has not been mentioned that has been
16
making interesting inroads in Africa, which is the PCA. We
16
TORGBOR J:
Thank you very much, Sami.
So in that regard I think we – there is one
17
One remark which you made which struck me was the
17
have Túlio Toledo here, with the beard there, so anyone who
18
difficulty of identifying African arbitrators. It is not
18
wants to know more details about it can approach him. But
19
easy, it is not easy at all. On the other hand it’s very
19
essentially the PCA has set up the first office out of The
20
easy to find any number of domestic arbitrators across
20
Hague since 1899 in Mauritius. So Túlio is going to be a
21
Africa. Now, so recently to try and fill the gap we’ve
21
very good kite-surfer very soon but before he gets there
22
created an advisory board charged with the effort of
22
I'm sure the PCA will do well there and if I got the
23
marshalling, finding the persons who can qualify as
23
information he e-mailed me correctly, the PCA had already
24
experienced arbitrators. The emphasis was on arbitrators
24
two cases there. They’re confidential so they’re not
25
with experience in International Arbitration. Now that
25
public. They have two cases of challenges in which a point
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Email:
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was made under the 2008 Mauritius Act and for those who
1
viewed as litigation by another name. So when you talk of
2
don't know the PCA, they have not only great infrastructure
2
training, what do you actually mean?
3
back in The Hague but they can function as appointing
3
[16:39] MR ABOIM:
4
authority.
4
types. Something that we do a lot is to come, in
Well, there are two different
5
So if you have a, you know, difficult political
5
particular in the Lusophone world where I operate more
6
environment in which you're doing business in Africa, you
6
often, we come and do training with judges – my colleague
7
can appoint, nominate the PCA to be the appointing
7
here, Elizabeth was here, she goes to Ghana a lot, to Lagos
8
authority. No one seriously would say they are not
8
to train judges, to train the public lawyers so they can
9
competent and they are not neutral. They have a number of
9
understand, you know, what’s happening in the environment
10
services that you can plug in combined with some of, you
10
we’re dealing with, especially in investment cases. In the
11
know, institutional rules and local laws. So that’s on the
11
past we did a lot of training in Argentina because I had a
12
institutional side.
12
lot of cases against Argentina. So that’s the training at
13
Then in response to Sami’s provocation about
13
that, you know –
14
sharing knowledge, at one stage all the Latin American team
14
SPEAKER:
15
at the secretariat, except for the counsel in the team, had
15
16
been my previous trainees. I fully believe that training
16
17
and large firms help the, you know, new practitioners to
17
documents into, you know, a 70 page pleading that can
18
understand how big law firms operate and work. Now are big
18
convince an arbitrator to decide your case in your favour,
19
law firms useful and necessary for every case? No, so if
19
that’s essentially it. So there’s cross-examination, there
20
you're interested in doing this there are many ways and
20
is all sorts of how you present the evidence, how you work
21
there’s International Lawyers Foundation for Africa, ILFA –
21
with experts and in some large jurisdictions and Brazil is
22
so I may have gotten the acronym wrong but I have – you see
22
certainly one of them, there’s a tendency of you know,
23
the Kigali’s lights, I have a Rwandan lawyer sitting with
23
you're running all possible arguments that you can -
24
me in my office and we do take this very seriously. In one
24
necessarily attaching all the evidence and you know you
25
case we have ILFA secondees in many of our offices every
25
learn to be like, to write not as you are writing to a
Is it techniques of
arbitration? MR ABOIM:
Yes, how you transform 3 000
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year, so that’s the way to build the knowledge. And on co-counselling, in Brazil I had in many of
Page 188
1
court judge but you are writing to, you know, to a
2
businessman – like short, on the point, attaching the
3
my cases brought in-house local counsel to work from our
3
evidence, making it easier for the tribunal to understand
4
offices and spend two, three months working on the same
4
what you're talking about. So if you have local counsel
5
case but working as part of our team. You know, you can
5
sitting with you, they understand that, they understand why
6
always discuss the financials, who pays what, but that’s a
6
when you ask – you know, if some people do - you say okay,
7
fantastic knowledge, to build your knowledge from the
7
comment on article X of the law, you don't need to know the
8
country. But also when the secondees go back to their
8
past 100 years of what happened. You need, one, what the
9
law means when it says something and are there any other
9
jurisdictions you have people you can trust, who speak your
10
language, to deliver the service at the level that your
10
cases, are there any court decisions because you know, if
11
client requires. So it’s a win-win game and on that note
11
you see in London deciding a case that has a Brazilian
12
I’ll stop and leave it to Judge Torgbor.
12
component, they’re not, he’s not interested in the 100
13
years of case law, he understands it. He wants to
14
thought you were going to talk about OHADA but I think what
14
understand what the law is at the moment. So anyway, these
15
you said is good enough.
15
kinds of things and it can make, you know – so training is
16
MR ABOIM:
16
wide in that sense. It can be either training directly or
13
TORGBOR J:
Thank you very much, Luiz. I
Thank you.
17
having done work with you. Sorry, I hope I answered the
18
questions, so the floor is open to anybody who wants to
18
question.
19
raise any particular question on the points arising. Yes?
19
17
20
TORGBOR J:
SPEAKER:
Now there’s time for a few
A question to Luiz, what do you
TORGBOR, J:
I will add onto that by
20
saying the training is necessary because it is not enough
21
mean by training? I just want to preface it by saying, you
21
to be familiar with the provisions of a specific statutory
22
know, arbitrators are by and large, certainly in South
22
legislation. One must understand the scheme, the total
23
Africa, drawn from the ranks of retired judges and silks
23
scheme of the Act, the purposes and objectives of
24
and so on. These are people who have had a lifetime of
24
arbitration and it requires a bit of familiarity with
25
litigation and one fears that sometimes an arbitration is
25
practice to be able to get those experiences. I say this
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Email:
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International Arbitration
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because in a country of, say, 150 judges, only about 10 of
1
also another reason but it takes skill, real skill to be
2
them who have some exposure to arbitration, it is very,
2
able to deliver an award that the parties will look at and
3
very difficult. When you have a very experienced
3
the counsel will be able to hold it to his client and say,
4
arbitrator like Mr Kuper who’s delivered an award which is
4
there, we did our best but this is as far as it goes.
5
perfect but for some reason it has to be reviewed or
5
6
appealed to a court manned by a novice judge who doesn't
6
what you say about the difference between arbitration and
7
anything about arbitration but the only reason why he’s
7
litigation because I think that is absolutely fundamental,
8
receiving this application or appeal is because the law
8
I think the South African experience even in large law
9
permits him, statute permits him to receive appeals.
9
firms has been that you have litigation departments and you
10
MR ABOIM:
11
TORGBOR, J:
12 13
Judge – Sorry, yes. No, carry on,
yes? MR ABOIM:
No, it’s just – I just give
MR WILLIAMS:
Tunde, just to follow up on
10
have one or two people who do arbitration as well, but it’s
11
really always in the past been regarded as one of those
12
things that you also do, although your main practice is
13
being a litigator. And I think what we are starting to see
14
you one small example. One of my co-counsel who came given
14
happening now is that that is changing and different firms
15
my previous law firm at the time I was still in Paris, I
15
will do it in different ways but you're seeing for example
16
asked him, can you please draft a (inaudible) to the ICC.
16
arbitration practice groups being established in firms. So
17
And I get this fantastic piece of literature, you know,
17
when we start talking about training, if you've got a
18
asking the court to kindly grant attached – and after three
18
proper arbitration practice group, one of the things that
19
months he was writing “Dear Tunde,” you know, or dear
19
will happen is that the young lawyers in the firm will be
20
whatever the counsel, you know we need this and that, these
20
coming regularly to sessions in those arbitration practice
21
are the articles of the law or the rules. So just to the
21
groups where we’re talking about all, a whole number of the
22
point because when you're writing to the secretariat you're
22
issues that we've covered here today about what the
23
not writing to the court, the court will never see your
23
differences are, what the recent cases have been that are
24
pleadings. So by training you want to say oh, hang on a
24
important in relation to arbitration, how one should run
25
minute, you know I'm actually drafting to the secretariat
25
arbitrations, the things that distinguish them
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1
and I need to actually give them everything very simple,
1
fundamentally from the way that they’ve got used to, being
2
short, so they can actually make – you know, make my pitch
2
litigators within their practices.
3
to the court and give me what I want.
3
4
MR OGUNSEITAN:
Sitting where I sit and
And I think that the kind of experience that we
4
have is shared by a number of the other larger firms, that
5
seeing various types of submissions all day, there’s a
5
there’s increasingly that focus on arbitration as a
6
distinction that must be made between arbitration and
6
specialised practice field. Stuart and Nick, I'd be
7
litigation. They’re not the same thing and I see it in
7
interested to know what you think, how you see that.
8
most African jurisdictions that they try and run their
8
9
arbitrations like litigation, which is completely wrong and
9
SPEAKER:
Des, I think you're entirely
right. In our firm Webber Wentzel we’ve also, we’ve moved
10
it takes a very strong-willed arbitrator to make this
10
exactly the same way. If I could just add further to the
11
distinction.
11
debate, I think one of the fundamental shifts in mind-set
12
between litigation and arbitration is the presentation of
12
The other bit I want to say and any judges in the
13
room, please forgive me for the statement I'm about to
13
evidence and in a court case it’s completely different to
14
make, judges sometimes don't make the best arbitrators.
14
perhaps IBA rules and one has got to be very, very familiar
15
They’re not used to explaining themselves and I always say
15
with that and that does take quite a lot of training and
16
a good award is written for the loser. It is never written
16
quite a lot of skills.
17
for the winner. It goes to the dispositive, pay me my
17
18
money. He doesn't care how he won but the loser
18
regards to training. How do you take – and I mean no
19
automatically goes, I’ve lost here, why? And it takes
19
disrespect to anybody – a senior judge who knows it all,
20
great skill to be able to say here, here, here’s your
20
and I don't say this demeaningly, knows it all and doesn't,
21
document, you've lost a lot of money but here’s some candy, 21
you know, think it necessary to be taught anything. Now
22
you go away and be at peace with it.
SPEAKER:
Sorry, just a last question as
22
what is your approach to that kind of approach? Have you
23
I asked in a conference quite recently why
23
got, in other words have you got a solution to that kind of
24
certain counsel appeal awards and they said, well, they
24
thinking?
25
don't feel justice has been done. No, no – and I was given
25
Tel: 011 440 3647 Fax: 011 440 9119
MR ABOIM:
Well, if the training is to
Email:
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International Arbitration
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help a judge to transition into International Arbitration
1
you have to listen and understand what the parties – there
2
you know – at the ICC there’s a big effort on that, they
2
are cases where a party that’s not used to document
3
have the master class and you can do internally, explain
3
production, discovery, and I've been on the receiving end
4
how the procedure works and release the judge from the
4
of like, you know, 3 000 documents and handling, very
5
Civil Code. At least in jurisdictions I'm familiar with
5
embarrassed, six to seven because the policy of my client
6
the key milestone that liberates a judge to be an
6
at the time – and he’s an African client, very respectable,
7
arbitrator and actually embrace it and make it as a service
7
there’s nothing wrong with it but the policy we produced in
8
rather than a public service, it’s just a commercial
8
the arbitration, the policy, document of retention and the
9
service, you know it’s the difference between driving a bus
9
policy was destruction within one year unless it’s filed
10
and driving Uber, right? So it’s a different animal, so if
10
11
he can understand that he can first receive the request for
11
So in this field it’s hybrid, it is hybrid and
12
arbitration, reply, sit with the parties, what do you want?
12
there’s no single case very much like the others. So in
13
The parties govern procedure. The arbitrator is there to
13
the case, just to give you one example, I have an English
14
service the parties and you know they will decide – you
14
law case sitting in a Lusophone African country, Lusophone
15
know take a step back. And the other thing that is
15
party on the other side advised by US counsel sitting in
16
relevant as well and in many jurisdictions you have the
16
London, PTC on the other side. It’s like English
17
principle that you give the facts to the judge, you give
17
arbitration, there’s no difference, there’s no difference.
18
the – he gives you back, you know, what the answer is, what 18
It’s just purely English arbitration. Now the Brazilian
19
the law is and it’s not the case in arbitration. In
19
case sitting in Sao Paolo to one state-owned entity, a
20
arbitration you need to make clear what your case on the
20
state-owned entity and a large international construction
21
law, on the facts and prove it.
21
company. It’s pretty much Brazilian, hence is that you’re
22
So it’s – and we can spend, we can have another
as, you know, classified important information.
22
now going to get a lot of document production, exercise,
23
conference here on how you go about it but essentially it’s
23
the standard what it is, so you need to understand that in
24
a different world and my experience in, you know, in cases
24
– especially if you're acting as arbitrator at very early
25
is that the best judges that became arbitrators are the
25
stages you check with counsel, check with the parties –
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1
ones who would listen and listen and listen and they come,
1
look, this is what I plan to do. Procedural number 1,
2
they take a step back. And because I mean they have so
2
they’re very clear, at a very early stage there’ll be a
3
much experience and they can only benefit, help the parties
3
document production exercise. Do we know what it means?
4
and help get you to the right decision but sometimes they
4
Otherwise you need to find a different way and that’s why
5
don't use the flexibility so it happened – and in Brazil
5
you want to say about African arbitration, I think that’s
6
most of the institutional arbitration rules for the local
6
almost like – I don't know exactly what it means. I think
7
institutions, they are sort of cutting the face of the
7
you need to be curious and flexible enough to understand
8
Civil Procedure Code and that’s a big disaster. So it
8
you're not going to run the same case in Lagos and in
9
takes a generational change on that as well, I think.
9
Luanda. They’re going to be a different animal.
10 11
SPEAKER:
[Microphone off, inaudible]
10
SPEAKER:
There’s been a great deal of
Still you can train, go back to the training, you
11
can train – I know a lot of counsel of highest calibre and
12
talk about integration across the continent and I think
12
they understand, having trained in the UK they understand
13
you've covered quite a bit of the facts of the two systems.
13
what document production is but it doesn't (inaudible) the
14
You've got people coming from an inquisitorial system and
14
client, you know, have a different documentation policy.
15
people from an accusatorial system and obviously although
15
So flexibility and curiosity I think will help with that.
16
we should be looking at arbitration separately to
16
17
litigation, they’ve still got this baggage of being trained
17
by saying – sorry, just to add on, you know Europe has got
18
in one of those two systems. To what extent is that going
18
multiplicity of languages. It doesn't prevent the
19
to be an obstacle in creating continental-wide integration
19
Europeans from going to Paris or to London to go and
20
because you're going to have people approaching matters
20
conduct their arbitration. We do know that Russians for
21
from completely, the two completely almost diametrically
21
instance like going to London to do their arbitrations.
22
opposed ways and how do you get past that?
22
30% of cases coming from Russia to the LCIA demand
23
specifically to have an English QC as an arbitrator. So
23
MR ABOIM:
Well, that’s a very, very
TORGBOR J:
I suppose I could add on just
24
interesting question. I think the status of International
24
Africa can also do it, yes.
25
Arbitration today is that you have a mixed approach. Again
25
MS UFOT:
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I just wanted to add as a rider
Email:
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1
onto what Tunde said, one of the things that in my opinion
1
[16:59] All of those factors, what is your view in terms
2
is really, really militating against the growth of
2
of – you know because you've spoken about judges not being
3
arbitration in Africa is the fact that arbitration is now
3
able to arbitrate but your terms of reference qualifies you
4
seen as litigation without the wig and gown and the moment
4
in terms of what is written in. You don't have to be an
5
an award is published, the loser rushes to court. What
5
experienced lawyer, you don't have to be an experienced
6
gives the loser the power to rush to court? It is because
6
advocate to read your terms of reference. So what is your
7
either the unanimous award or the majority award, there is
7
view according to the importance of that, especially in an
8
a mistake. Today African courts are pro-arbitration and
8
international point of view?
9
pro-enforcement. Gone are the days when they thought there
9
SPEAKER:
I think it’s – sorry.
10
was a competition but when the majority or the unanimous
10
TORGBOR J:
11
award leaves a loophole or sees black and calls it white,
11
MR ABOIM:
Go on.
12
the loser will definitely go to court and then they finish
12
underestimated pieces of equipment in the whole ICC
13
a process such as the ICC and then they hang on in court –
13
arbitration because when I'm sitting with different
14
the only award that goes straight to the Supreme Court in
14
parties, different jurisdictions or you know, even in the
15
Nigeria is an exit award. Every other award, whether you
15
same jurisdiction, different expectations, different – you
16
have set it aside or you are enforcing, starts at the High
16
know state party, private party, that’s where you under
17
Court. So the parties are spending another 15 years in a
17
article 24, you have a case management conference and you
18
journey to the Supreme Court and then the parties begin to
18
get in the terms of reference and in parallel, or the
19
wonder, why don't we go straight to litigation, why do we
19
procedure order, what are the rules of the game. And
20
go to the first stage?
20
that’s where you balance the playing field, you address
I think it’s one of the most
21
your problem with the common law, civil law and the
22
exactly what Tunde has said, you are drafting that award
22
problems are much worse than that – confidentiality,
23
for the loser so that the loser looks at it and he knows
23
privilege. In some jurisdictions you don't have common
24
that yes, I may go to court but what are my chances? If
24
privilege, litigation privilege, without prejudice
25
arbitrators have taken care to publish an enforceable award
25
correspondence, there’s nothing of that. Sometimes
1
then the jurisprudence will grow and then the perception
1
privilege is attached to lawyers, sometimes to a house as
2
will begin to say, oh, why are people going through France,
2
well, so that’s a golden moment where you can set the train
3
because you can't hardly set aside an award in France
3
in the right track.
4
unless for very good reasons. And that will, once the
4
5
jurisprudence begins to grow, very soon African parties
5
also helps when you have defective arbitration clauses to
6
will know that, oh, I'm wasting my time to go to court.
6
have an agreed variation of that clause in writing signed
7
by the parties. So also some – there’s a point where, when
8
I see that the clause is problematic, you know I just have
21
So it behoves, of course, arbitrators to do
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7
So it comes back to force arbitrators to do our
8
work well and follow the rules so that this process – and
9
lots of human resources, there’s a lot of oil and gas in
Page 200
So I think it’s – even it goes beyond that. It
9
a case now where the clause says the arbitration has to be
10
Africa, there’s really no reason why the investment would
10
completed – whatever complete means – in 270 days, like
11
take place in Africa and then the dispute that arises out
11
written numbers and then it’s 180 between brackets. So
12
of that investment is taken elsewhere. And that is where
12
that’s where the terms of reference, you know, you used to
13
we are lacking the capacity because until - it’s just like
13
get that right.
14
litigation. You can read all the books, until you stand on
14
15
your feet in court you never can say what will happen. So
15
IBA rules on evidence typically and in a number of
16
until African arbitrators begin to collaborate, begin to
16
jurisdictions I just make it express that the Civil
17
train and get involved in the process, these disputes will
17
Procedure Code doesn't apply because I know the litigators
18
definitely continue to go elsewhere.
18
in the room will want to talk about the Civil Code. It’s
19
like, you know, you having a Ferrari to run the dust path. And the last case I had, the parties were fighting to have
19
SPEAKER:
I just want to ask this
And then I do two other things, one, I insert the
20
question in terms of - what is your view to the panel in
20
21
terms of the terms of reference, importance of that terms
21
the Civil Procedure Code applied and I asked, why do you
22
of reference? Because I don't think we’ve actually
22
want the Civil Procedure Code again? They said no, because
23
discussed that at all and that’s a very important factor in
23
of evidence, and I did a search in the Civil Procedure Code
24
terms of International Arbitration, your terms of
24
and there are 49 instances where the word “evidence”
25
reference, because that gives you your locus standi.
25
appears. I said okay, there are 49 references, which one
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1
does he want me to apply, to keep? They both actually want
1
hasn't come into operation yet but on the other hand we’ve
2
the opposite, opposite way and they said, we don't want the
2
got the Arbitration Bill that’s in place. So there’s a
3
Civil Procedure Code to apply at all – which is a bit of a,
3
sort of contradiction. I don't know if you have any views
4
you know. Okay, but so you know that’s where you have the
4
about where this is going and about, you know, how soon or
5
dialogue which you won't have in the courts.
5
whether the arbitration or whether your reading of this is
6
6
that government could possibly consent to International
7
value of our terms of reference to mention, it’s very
MR HOUERBI:
And there is another added
7
Arbitration as well.
8
practical. Statistics show that many, many cases will
8
9
settle right after they establish terms of reference
9
MR WILLIAMS:
I think that my view is
that we've got to take what we can get with the
10
because the party that put their argument in writing and I
10
International Arbitration Bill because I agree there is
11
can read it and I think if I remember I got about 30%, this
11
that sort of tension or an apparent conflict because on the
12
came from 10 years ago from the case we will settle right
12
one hand we've got the state or government now supporting
13
up to the signature of the terms of reference.
13
International Arbitration but what’s really being said when
14
you look at the bigger picture is, well, we support it for
14
MR OGUNSEITAN:
[Microphone off,
15
inaudible] with the terms of reference as well, there are
15
everyone else but not for us, not for state-owned entities
16
little procedural kinks in various jurisdictions that the
16
and leave us out of it, we don't want to be in any position
17
terms of reference will not allow the parties to get into.
17
where any government organisation, state-owned entities are
18
One of them is, for example, in the UK very specifically
18
going to be on the receiving end of arbitration awards. So
19
appointing counsel from the same chambers as the chairman
19
that is a conflict – not a conflict, it’s just a
20
to jettison the chairman and that happened because there
20
contradiction to some extent as there’s support at the one
21
was – no, you’re conflicted because we have counsel on this
21
level but not at the other because it’s quite right, is
22
side and we’re beginning to see terms of reference which
22
that as we start stepping away from the investment treaty
23
says if you appoint counsel late we have a right, as an
23
regime which did provide for International Arbitration of
24
arbitral tribunal, to actually veto it. Now it’s a
24
investment disputes, it’s been replaced by something that
25
borderline one because it effectively curtails party
25
effectively is – you can agree to it but I think what we
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1
autonomy but then you understand the significance of the
1
all know is that that’s never going to happen.
2
terms of reference to protect the arbitral tribunal and to
2
TORGBOR J:
3
protect the integrity of the proceedings as a whole.
3
MS NKOSI-THOMAS SC:
We – sorry, go on. If I may? How I see
4
it, the protection – we spoke about it, what is it,
5
what, that it’s obvious for everybody, that obviously after
5
Protection of Investment Bill and then it has since been
6
the terms of reference you cannot add new claims, so that’s
6
passed now, yes, but is the date of – it’s the promulgation
7
– I thought it was going without saying but just, it
7
of it coming into effect that is still outstanding. So as
8
actually locks in the dispute.
8
I see it, I see it as an instrument that is calculated or
Well, thank you very much.
9
rather whose intent is to protect the sovereignty of South
Sorry, was there going to be a question? A quick one.
10
Africa as a host state because those BITs, the ones that
4
9 10
SPEAKER:
TORGBOR J:
The obvious point, I don't know
11
SPEAKER:
A quick last one.
11
have been terminated, had the tendency of tranching into
12
MR DAYA:
Thanks. My name is Priyesh
12
policy issues. Now, yes, it does have, I'm afraid, the
13
Daya from Webber Wentzel. Maybe this question should have 13
14
been directed to the Minister this morning but I'm going to
14
15
ask Des and Adv Lindi. Des, you will remember that
15
TORGBOR J:
16
recently there was the promulgation of the Protection of
16
MR ABOIM:
17
Investments Act. The Act advocates that any disputes or
17
don't know if you were here when I was talking about it, it
18
your investment disputes particularly should first be
18
was actually at that point – what it does is that if you
19
resolved by way of mediation, I'm talking about disputes
19
have a mining project and a concession agreement, what the
20
with government, and thereafter perhaps be exhausted
20
protection does is it says that, you know, you can only –
21
through the local courts and that arbitration, if anything
21
if you're expropriated or early terminated and you have a
22
else, will only come into operation if parties consent.
22
claim under international law against the South African
23
state, there can only be brought into a tribunal if you, if
23
Now the criticism of this by investors has been
consequence of creating a different regime from that which applies to other commercial participants. Are you done? Just to add to that because I
24
that, well, this possibly excludes International
24
the state accepts. What the new Bill does is it gives with
25
Arbitration and then as you know we now have – that Act
25
the other hand is that the state can be bound by
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arbitration clauses in the concession agreements
1
arbitration in India to a very large audience of Indian
2
presumably. So if you are early terminated or if there’s
2
arbitrators and Asian arbitrators and she was terribly
3
an issue you can bring arbitration against the state direct
3
embarrassed when she came to the question of this Act, and
4
– or the state entity that is your counterparty. That
4
so every time she mentioned the Act she said, but it’s
5
avoids the state being sued when measures are taken that
5
going to be repealed, the Model Law is going to repeal it.
6
have an impact on your right, that have been taken as a
6
And to her extreme consternation at the adjournment she was
7
policy measure. For instance I want to change the mining,
7
surrounded by various delegates all wanting to know more
8
you know, the way mining concessions are done in South
8
about this Protection of Businesses Act and she kept on
9
Africa altogether. What the BITs do is to say, well, I'm
9
saying, but we’re going to – don't worry, it’s going to be
10
going to – we have to indemnify everybody in advance,
10
– no, they said, we’re from the Ministry of Finance and we
11
etcetera. So it’s a different animal, not necessarily
11
in India are thinking of enacting just such legislation.
12
contradictory. It’s just another tool.
12
13
TORGBOR J:
Very well, thank you very
Can I invite you all please to share a drink with
13
us? You'll find, I'm told, beer and wine. Thank you for your attendance.
14
much, Luiz. And we’ve run out of question and answer time
14
15
so I thank all of you for sharing your experiences with the
15
16
panel. My last remaining duty is to invite Mr Michael
16
.
17
Kuper to express a word of thanks.
17
.
18
.
18
MR KUPER SC:
Ladies and gentlemen, we've
[CONFERENCE ENDED]
19
come to the end of today’s session and I think on all our
19
.
20
behalves can I voice a vote of thanks to all the speakers
20
.
21
and the panellists who have contributed today in making so
21
.
22
rich a contribution for our consideration. It really has
22
.
23
been a wonderful opportunity to listen to a whole range of
23
.
24
views which are informed and constructive and which will
24
.
25
assist us all in going forward.
25
.
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1
We are at a most important stage in the
2
development of international arbitration in South Africa
3
and I think in many cases we will be able to say we were
4
there when those issues were first discussed and when the
5
way of going forward was first considered. So to all the
6
speakers and all the panellists, thank you very much
7
indeed.
8
Can I end by giving way to temptation to make two
9
remarks? The one is to Tunde. I mean I've been sitting
10
brooding the entire afternoon. If he drives a Rolls Royce,
11
what is it that we’re driving? And it did occur to me that
12
whatever vehicle AFSA was to drive should cost less than a
13
Rolls and it also should be able, as it drives down the
14
dusty roads of Sub-Saharan Africa, to operate as well off-
15
road as on-road and, finally, I wanted a vehicle which was
16
less likely to be hijacked. So may I suggest that we look
17
to the AFSA vehicle in the future as the AFSA UNCITRAL
18
bakkie.
19
The other little anecdote I just want to share
20
with you arose out of the constant references, with some
21
embarrassment, starting with David Butler and repeated by
22
others as to the Protection of Business Act, the 1978
23
legislation which did so much to try and undermine South
24
Africa’s commitment to the New York Convention. A few
25
weeks ago Daleen was busy giving a paper on South African
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A AALCO 168:12,18 abdication 116:20 abilities 159:19 ability 11:12 18:3 51:2 79:2 143:22 145:18 able 13:24 29:8 33:8 41:21 44:18 66:15 95:12 106:16 107:16 107:18 143:21 164:8 165:19 177:10 180:8 180:22 188:25 190:20 191:2,3 199:3 206:3 206:13 Aboim 1:12 2:12 42:2,2 42:17 135:1 136:8 183:23 186:16 187:3 187:16 189:10,13 192:25 194:23 199:11 204:16 abrasive 52:25 abroad 6:6 110:24 absence 125:16 139:1 142:10 155:2 absent 24:21,22 absolute 33:11 absolutely 37:23 40:4 65:9 166:12 191:7 abundant 155:7 abused 122:25 academic 20:4 49:3 accede 146:1 151:5 acceded 6:8 113:15 accelerated 157:13 accept 82:20 100:24,25 112:22 118:1 141:17 acceptable 54:7,7 acceptance 53:25 57:2 accepted 37:4 accepts 204:24 access 52:9 53:11 105:7 105:7 107:4,5,6 108:12,14 116:18 138:12 140:21 148:23 153:19 accessibility 51:13 accessible 161:21 accession 113:16 149:1 accommodate 8:14 88:15,21 accommodated 89:11 accompanied 163:1 accompany 180:18 account 22:24 accounting 47:20 52:7 accuracy 156:1 accurate 175:5 accusatorial 194:15 achieve 175:16 achieved 110:13 achievement 119:12 162:20 acknowledging 101:5 acronym 185:22 acted 47:11 135:16,18
171:9 acting 170:7 195:24 action 108:20 157:13 157:18 active 50:13 56:11 58:9 111:4 172:17 actively 175:9 activist 4:7 activities 63:13,18 159:14 161:4,23 activity 136:17 acts 35:7 72:4 135:4 138:20 actual 151:13 acutely 27:24 166:8 ad 66:18,20 70:2,15 76:1 84:16 102:10 139:11 156:2 adapt 8:16 adaptations 27:4 adapted 6:24 8:14 add 61:21 67:20 92:5 117:3 175:13 188:19 192:10 196:16,17,25 202:6 204:16 added 2:6 9:20 46:24 68:24 76:1 120:13 201:6 addendum 84:24 85:5 addition 39:2,8 additional 27:12 67:20 77:21,23 78:1,4 additions 27:9 30:5 31:23 38:10 44:19 84:14 address 2:8,12 6:22 56:8 94:3 95:15 99:21 143:15 154:8 199:20 addresses 39:11 adds 42:9 85:20 adequacy 159:20 adequate 29:5 161:20 adequately 71:15 adjournment 207:6 ADJOURNS 46:15 109:23 153:25 adjudicate 158:7 adjudication 112:23 113:1 126:6 adjudicative 161:15 adjustment 5:2 administer 72:14 74:2 74:10 96:16 108:21 160:5,9 administered 47:20 53:15 65:13 95:16 administering 159:8 administration 162:21 166:21 administrative 116:6 116:14 159:2,22 161:4,15 administrator 161:14 admit 122:25 127:17 admitted 4:5 61:10 ado 110:8 138:18
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adopt 26:23 36:22 afternoon 2:8 96:20 39:17 44:10,12,22 154:1 169:3 206:10 124:14 age 144:2 adopted 21:10 26:10 agenda 85:17 27:6 36:13,17 44:4 agents 111:6 45:2 49:6 75:11 aggrieved 106:21 124:7 113:19 122:7 143:3 ago 49:12 54:20 58:9 168:24,25 84:19 98:20 105:18 adopting 9:8 26:12,16 138:7 140:1 168:16 26:21 27:9,11 31:13 174:2 180:11 201:12 49:6 172:25 206:25 adoption 113:25 agree 11:2 29:6 69:8,13 114:19 75:20,22 77:25 85:20 adopts 37:20 85:21 86:2 96:11 ADR 11:20 183:6 97:24 99:1,24 109:8 117:4 130:21 139:5 Adv 202:15 143:24 164:16 177:24 advance 37:15 67:13,13 203:10,25 68:4,5 205:10 agreed 36:10 100:5,8 advanced 52:21 68:5 115:7 156:7 200:6 advancement 155:12 advantages 11:9 32:22 agreeing 71:17 73:22 174:15,15 124:10 155:21 158:20 agreement 7:1,2,20 177:3 9:10,13,17 24:22 32:7 advice 99:15 32:8,12 35:13 36:2,18 advisability 35:12 36:20 38:7 43:3,4 advise 8:13 157:24 80:9 112:24 114:25 advised 109:16 195:15 114:25 115:8 117:17 advising 177:21 119:25 120:7,18 advisor 20:9 121:19,20,22 122:6 advisors 156:10 122:15,16,18 124:16 advisory 182:22 124:22,25 125:4,17 advocate 47:7 61:12 126:2 129:18,19,20 106:25 150:22 199:6 129:23 130:18,19 advocates 52:7 62:19 133:9,25 134:13 202:17 159:10 164:25 165:14 aegis 48:4 170:20 171:8 172:3 afar 1:6 204:19 affairs 114:3 170:11 agreements 7:19 12:6 affect 38:24 42:22 73:16 93:18 affix 67:12 94:9,21 112:15 134:2 afford 50:9 137:2 165:2,6,8,11,12 affordable 141:3 171:8 205:1 afoot 171:14 agrees 124:3 afraid 81:21 204:12 Africans 73:3 99:18,20 Ah 82:5 103:4,19 160:7 163:6 ahead 143:2 173:24 Africa’s 24:3 39:1 aim 26:6 163:16 53:10 60:20 206:24 aimed 14:6 157:14 Africa's 154:12 aims 25:17 28:19 AFSA 1:17,17,19,20,23 airport 31:1 2:8,19,22 3:8 18:21 akin 162:24 19:4 40:13 47:4,20 alarmed 24:1 48:10 50:11,12 52:4,5 Algeria 179:15,16,17 52:11,15 53:6,8,13,21 179:18 56:5 57:18 58:4 60:8 Algerian 180:3,4,6,9 60:9 91:12,12,15 Algerians 179:24 180:8 92:16,17 94:11,16 alia 114:2 130:17 95:7,10 96:15 97:2 aligned 77:24 106:17 110:9 111:7 allegations 142:2 140:25 141:7 164:14 alleged 142:4 165:3,4,7,16,21 166:2 alleges 24:7 166:6,20 167:1,8,8,17 allotted 5:14 173:20,21,21 175:6,8 allow 60:6 66:2 86:2 175:15,20 206:12,17 134:18 149:11 174:6 206:17 201:17 AFSA's 1:22 allowed 17:22 98:5
allows 9:21 49:13 63:8 64:11 69:15 72:1,5 78:10 135:24 almighty 78:3 86:21 alright 19:23,24 179:22 alter 26:5 125:16 alteration 26:23 36:14 alternative 6:24 52:9 52:20 108:11 125:4 Alternatively 26:14 altogether 132:9 168:4 205:9 ambivalent 112:14 122:9 amend 25:23 amended 10:13 114:20 amendment 11:1 21:19 amendments 8:20 9:7 11:7 22:23 25:6 39:15 America 64:4 105:6 184:9 American 136:2 180:15 185:14 amount 40:20 72:15 74:20 101:10,19,19 102:6,7 153:2 analysis 72:11 149:22 ancient 5:10 anecdote 206:19 Angola 104:13 148:3 148:25 Angolan 135:18 149:11 angry 88:6 animal 193:10 196:9 205:11 announced 13:15 93:23 announcement 110:3 annual 13:25 161:23 annulment 146:1 answer 15:20 50:18,20 58:13 64:21 67:15,18 89:24 94:24 95:1 96:4 100:15 181:16 184:8 193:18 205:14 answered 96:23 188:17 Anton 121:9 anybody 69:5 70:9 100:3 103:16 186:18 192:19 anymore 139:22 anyway 84:14 101:16 142:6 149:15 151:2,3 188:14 apart 49:16 apparent 203:11 apparently 142:4 appeal 17:25 83:23 111:9,10 118:6,21 120:3 124:9 132:10 133:9,15,18 171:18 172:2 176:17 189:8 190:24 appealed 129:1 189:6 appeals 132:7 176:14 176:15 189:9 appear 126:12
Email:
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The Dawn of a New Era in South Africa
International Arbitration Page 2
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 3
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 4
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 5
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 6
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 7
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The Dawn of a New Era in South Africa
International Arbitration Page 8
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 9
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 10
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 11
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 12
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 13
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21:16 25:13 30:10 35:17 38:9,23 39:3,16 43:1 46:19 48:14,21 49:8,24 50:4,4 61:15 114:3,4 202:14 ministerial 114:17 127:22 ministers 48:25 minister’s 18:24 ministry 48:25 139:20 139:20 207:10 minor 10:17 21:13 26:4 28:12 35:16,18 37:5 38:4,22 minute 139:23 140:10 142:7 150:15 171:1 189:25 minutes 148:24 misconduct 123:24 misconducted 123:20 misinterpreted 119:21 misnomer 154:14 missed 86:7 missing 3:17 80:18 83:18,19,20,20 92:12 181:4,24 182:2 misstate 136:23 mistake 124:1 197:8 mistakenly 125:6 mistakes 84:17 misunderstood 133:7 mixed 123:6 194:25 modern 3:17 6:24 13:21 44:14 155:10 155:20 162:14 modernisation 2:1 modernised 158:15 modernising 4:17 modifications 21:14 28:12 35:18 39:15 modify 113:2 moment 24:3 52:14 57:13 82:12 97:10 131:9 151:24 174:2 188:14 197:4 200:2 moments 154:10 money 18:2 102:5 147:4,7 148:18 153:2 153:13,19 179:24 190:18,21 monitor 75:5 monitors 156:20 month 19:8 70:19 82:2 82:18 85:10 94:14 105:18 149:1,2 months 50:10,10 71:6,9 80:12 84:23 85:4 87:10 186:4 189:19 moral 123:25 mores 131:12 morning 1:2,4 4:3,22 14:20 22:16,16,17 29:23 46:20 49:25 61:15 100:19 163:22 164:15 166:11 169:11 202:14
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 14
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Nick 104:22 192:6 Nigeria 44:10 61:12 90:20 104:17 163:25 168:12,12 169:9,13 169:20 170:9 172:10 172:11,13,16,17,19 173:3,11 174:2 197:15 Nigerian 65:7 78:20 169:15 170:5 172:14 172:15 nine 64:3 Nkosi-Thomas 173:17 173:17 204:3 nod 102:21 Noel 95:3 96:3 nominate 73:14 75:12 75:15,18,21 77:17 78:1 81:20 96:15 99:22 160:8 185:7 nominated 12:22 73:7 74:15 76:2 81:24 172:23 nominates 73:13 nominating 107:15 109:13 nomination 74:17 76:6 78:8 100:25 109:7 nominations 75:19 non-profit 47:18 52:6 non-responding 71:18 norm 124:17 North 23:16 58:15 90:24 157:7 164:16 Northern 147:19 Northwest 17:11 Norton 107:8 notable 12:22 note 3:2,15 4:20 7:17 9:6 87:18 109:14 110:16 114:1 120:24 134:19 147:12 164:11 186:11 noted 94:4 113:12 notice 82:10 noticed 111:14 notified 67:12 84:22 notify 86:11 noting 5:4 8:20 notions 118:17 notwithstanding 93:2,3 November 93:19,20 149:7 novice 189:6 nowadays 124:17 nuance 100:2 nuances 74:11 null 120:18 number 3:13 4:12 9:22 10:5 12:15 14:1 22:6 23:2 38:22 58:4 63:22 63:23 66:10 74:18,24 82:8 83:20 92:6 104:10 110:18 123:17 137:22 139:16 140:12 145:1 146:11 148:20
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190:4 201:14 oh 45:9 71:10 171:23 189:24 198:2,6 OHADA 43:21,22,22 43:25,25 44:8 90:14 186:14 oil 50:23 104:12 148:1 179:18 198:9 oiling 55:5 okay 41:25 46:12 100:21 141:10 147:10 188:6 200:25 201:4 old 22:14 41:2 43:6,7,9 118:12 133:11 143:22 144:2 163:10 168:23 184:9 Omar 48:20 49:12 52:12 60:21 omission 34:25 omittal 7:24 omitted 35:10 36:22 37:16 42:12 once 34:12 43:2 61:24 69:17,23 70:14 71:16 82:18 83:7,8 85:10 86:9 87:2 99:12 102:3 112:17 151:16 198:4 ones 98:1 121:8 194:1 204:10 one's 5:20 125:10 ongoing 2:24 75:5 157:5 onus 130:5 on-road 206:15 open 34:14 81:16 94:7 107:4 183:17 186:18 opened 93:20 156:18 opening 64:4 101:1 openly 112:4 138:4,5 openness 94:24 opens 60:11 operate 51:8 59:9 65:10 94:23 120:2 166:4 185:18 187:5 206:14 operation 161:8 202:22 203:1 opinion 85:9 86:15 122:22,24 123:4,4 197:1 opportune 6:2 opportunities 2:16 14:7 14:13 96:9 106:14 107:22 155:6 156:19 157:2,3 158:24 166:5 opportunity 10:14,15 15:9 17:10 54:11 117:22 136:10 146:24 147:6 148:12 158:6 158:22 174:23 205:23 oppose 126:13 opposed 10:11 66:20 194:22 opposite 201:2,2 opt 6:2 option 9:11 36:17,23 options 9:9 141:1
Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 15
order 6:11 8:14,16 9:15 37:10,21 57:11 62:13 63:12 70:4 74:15 82:20 92:24,25 93:9 113:22 118:11 121:20 121:21 126:10,22 127:4,20 176:2 178:11 182:14 199:19 orders 37:9,10 121:10 ordinary 112:13 organisation 56:7 64:2 159:7 168:17 203:17 organisations 2:25 14:2 144:20 166:2,6,20 167:5 169:16 organise 148:20 organised 1:16 4:25 organising 148:16 organs 30:15 159:13 oriented 156:2 original 28:4 37:1 38:4 56:10 originally 63:19 112:18 originated 63:19 originating 171:7 origins 80:23 ought 162:23 169:12,12 oust 119:24 outcome 17:25 outlined 35:16 outlook 91:8 outside 23:13 31:7 63:8 69:7,8 78:15 89:21 90:7 92:9 114:5,13 115:2 125:4 127:19 128:3,5 131:17 133:14 138:24 141:18 146:12 outstanding 204:7 overall 62:24 74:13 overlap 130:15 overnight 151:4 override 34:11 overrule 112:20 overseas 31:5 oversee 161:22 oversight 112:12 119:19 130:9 oversimplification 111:20 overtaken 156:2 P package 26:23 page 187:17 pages 34:3 67:16 84:6 85:14 paid 102:2,2,3,4,6 PAJA 116:7,8 panacea 176:9 panel 18:25 73:12 75:17 89:2,2 94:1,2 94:10 107:12 136:14 152:4 164:11 167:18 198:20 205:16 panellist 111:6 183:22
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 16
Portfolio 4:10 Portuguese 59:1 79:5 147:14,15,16 148:21 pose 50:17 position 9:23,25 23:23 23:24 50:25 51:11 69:11 88:10 91:16 93:4 94:5 99:22 128:15 137:13 203:16 positioned 92:21 positions 71:7 94:6 positive 13:1 141:21 possesses 13:3 possession 5:12 possibilities 30:12 possibility 22:7 27:5 55:14 107:4 167:6 possible 1:13 4:18 18:1 26:24 51:14 53:6 68:18 70:21 78:11 107:23 129:13 155:19 167:21 187:23 possibly 24:24 77:2 79:17 104:13 167:7 167:23 202:24 203:6 post 126:24 150:21 postpone 123:3 post-1994 108:4 potential 6:4 24:1,11 power 23:18 36:8 37:7 37:8,21 38:7,7,10,11 55:18 113:21 116:15 119:5,9 121:18 122:6 122:18,20 125:6,7,9 125:10,14,16 133:3 197:6 powerhouse 90:20 powerhouses 98:2 powers 9:19,21 11:1,3 14:22,23 23:9,12 29:5 29:8 35:25 36:12 37:25 39:23 40:5,6,7 112:25 113:7 115:18 119:13 121:1,2,4,13 123:23 124:24 125:3 130:9 133:1 practical 30:22 45:11 154:24 165:25 201:8 practically 69:13 80:20 98:23 practice 4:15 5:9,18,22 5:25 10:21 28:2 44:15 47:8 110:22 118:3 154:7,20 155:14 156:16 161:21 162:14 163:13 169:23 183:11 188:25 191:12,16,18 191:20 192:6 practiced 61:6 practices 8:3 11:16 132:15 154:12,16,18 155:2 158:1 169:24 192:2 practitioner 110:15 111:3 practitioners 40:1
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proclaimed 177:3 produce 94:22 produced 23:2 195:7 product 67:3 production 114:10 195:3,22 196:3,13 products 135:2,3,7 Prof 20:1,19 40:24 41:12 42:11,25 43:20 44:25 45:18 49:2 profession 52:7 58:18 105:8 professional 52:18 106:24 148:16 professionalised 162:17 professionally 161:5 professionals 161:20 professions 47:20 Professor 2:4 4:22 41:1 42:2,20 139:13 142:17,18 144:8 profile 158:24 profitability 158:25 programme 18:22 19:25 103:4 progress 54:10 66:15 162:24 163:11 164:7 progressing 94:18 progression 163:17 prohibited 126:25 prohibition 114:10 127:8,10 130:25 131:1 project 17:7 20:10 53:9 93:11 137:1 175:20 176:3,3 204:19 projects 30:25 148:2,2 150:7 proliferation 162:23,25 169:14,21 prominence 91:6 prominent 82:3 98:1 157:22 168:11 promote 19:20 29:13 29:15 35:3 74:16 91:16 92:17,18 103:9 103:21 146:25 promoted 106:1 promotes 10:1 promotion 41:6 155:4 prompts 159:19 promulgation 202:16 204:6 pronounce 122:13,19 pronouncements 158:6 proof 129:17 149:3 proper 50:1 80:14 191:18 properly 67:10 112:2 property 110:19,20 proposal 9:24 22:11 57:12 proposals 15:1 21:24 39:13 96:6 propose 14:24 79:16
173:23 proposed 8:3 9:7,11 10:7,12 11:8 15:13 20:17 21:3,14 26:1,14 28:14 30:5 35:19 37:3 38:3 prosecution 110:20 prospect 50:19 112:9 prosperous 157:15 protect 33:20 34:18 182:8 202:2,3 204:9 protection 4:14 6:6 21:18 24:14 25:23 30:17 39:2 41:7 97:16 113:6,25 115:13,14 120:8 127:21,21 128:8 139:17 202:16 204:4,5,20 206:22 207:8 protocol 140:10,10,11 prove 129:25 193:21 provide 6:24 9:18 29:5 51:3,25 56:6 71:13 73:23 151:21 158:14 159:21,22 165:22 178:2 203:23 provided 51:22 56:18 76:6 94:11 114:14 129:6 146:20 176:24 provider 160:4 provides 10:2 27:19 31:15 36:16 39:6 47:20 114:2 167:2 province 122:14 Provincial 4:8 provision 7:18 32:17 33:2,13,21,25 34:6,11 34:23 37:24 38:3 42:7 46:5 56:11 116:16,17 117:11 120:1 122:8 126:1 128:19 163:2 provisional 67:12 68:5 provisions 7:15,16 8:16 27:10,12,15 28:25 30:2,22 31:18,21 34:1 34:11 35:3,5,9,23 37:1,4 42:14 43:2 122:16 123:18 129:7 146:21 188:21 provocation 185:13 pro-arbitration 141:21 197:8 pro-enforcement 197:9 psalmist 22:14 PTC 195:16 public 15:21 16:5 19:12 24:19 30:15 31:6 32:13 33:17 34:8,9,15 38:14,15,16 39:10 41:4,9,10 42:9 115:24 115:25 116:2,3,15,16 116:21 117:5,6,11 126:18 127:5 130:4 130:20,23 131:14,15 144:13,16,19,19 145:1,21 149:7,8
Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 17
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real 10:10 49:16,17 123:7 166:5 191:1 realise 71:10 78:15,19 87:23 108:19 128:1 realised 70:15 126:24 realising 75:6 realistic 106:4 realities 164:22 reality 66:8 really 3:7 14:18 18:7 20:25 24:11 44:13 46:13 48:15 63:3 65:4 74:16 84:3,11 87:9 88:3,6 89:10 116:23 116:23 117:9 126:5 143:13 148:6 167:12 169:21 171:11,16 181:11 191:11 197:2 197:2 198:10 203:13 205:22 rearranged 27:11 reason 33:19 37:15 56:23 68:23 76:7 78:24 82:16 97:23 112:4 142:12 166:12 166:19 178:1 189:5,7 191:1 198:10 reasonable 10:11,14 162:19 reasonably 29:19 39:17 41:19 reasoning 120:22 158:12 reasons 3:17 13:1 29:13 34:9 70:24 82:13,22 84:13 100:18 109:9 116:13 122:3 143:11 163:5,5 163:10 180:12,14 198:4 recall 169:25 receive 189:9 193:11 received 8:13 75:14 83:17 receiving 127:1 189:8 195:3 203:18 reception 110:4,5 receptive 96:10 recognisable 158:23 recognise 41:11 42:6 113:11 126:4 127:3 128:22 129:14 150:1 165:22 recognised 33:10 111:2 129:11 131:2 169:2 recognition 6:10 7:6,9 7:13,23 12:2 13:22 57:13 113:5,18,20 114:14,17 115:13,25 127:12,14 128:8,11 128:13,23 129:3,8 130:11,16 136:5 142:9 144:11 recommendations 29:19 recommended 28:11
37:15 reconcile 131:22 reconciling 131:20 record 12:6 132:13 140:2 173:22 recorded 5:16 Records 156:21 rectifies 7:10 rectifying 112:11 redrafting 42:12 reduces 16:11 refer 30:7 111:18 122:23 123:3 159:9 reference 9:20 26:9 36:6 67:14 68:8 70:13 71:16 80:8,16,21 91:5 95:6 110:23 121:22 125:1,15 130:20 159:10 161:16 167:8 167:15 198:21,22,25 199:3,6,18 200:12 201:7,9,13,15,17,22 202:2,6 references 160:6 200:25 206:20 referred 5:13 20:1 30:18 38:23 39:16 121:21,23 123:10,11 123:12 referring 35:13 43:21 refers 22:14 32:14 124:6 refinement 37:5 38:4 114:11 refinements 38:23 reflect 7:16 12:20,25 17:2 reflects 9:11 reform 6:17 20:10,24 21:21 25:4 27:24 28:18 29:11 32:3 39:12 113:11 reforms 8:1 refreshed 46:17 refuse 42:6 113:22 127:3 128:22 129:14 144:10 refused 7:13 38:14,19 142:9 refusing 126:3 129:8 regain 112:19 regard 21:1 25:6 26:16 33:3 42:3 53:2 89:7 91:8 100:13 119:1,2 124:14 125:5 126:13 128:8 184:14 regarded 32:5,21 35:9 46:8 55:24 62:11 191:11 regarding 7:11 9:10,16 10:4,8 25:21 30:24 34:7 81:12 91:12,19 92:3 regards 82:14 192:18 regime 6:20 18:4 43:6,7 43:9 203:23 204:13
regimes 6:25 130:16 131:6 region 2:21 3:20,23,25 14:12 74:6 81:10 89:21 184:4 regional 1:25 4:19 13:4 13:5 14:10 19:10 57:21 59:23 168:13 168:14,14,19 170:2 regionally 175:9 regions 64:4 157:6 registered 31:6,9 45:23 45:24 160:7 registrar 161:14 regret 113:12 regrettable 183:2 regular 165:8 regularly 191:20 regulate 162:18 regulated 31:22 regulatory 158:15 reject 82:21 relate 121:6 related 17:20 121:10 158:16 relates 37:18 115:8 relating 14:22 18:24 88:11 161:16 relation 37:22,22 118:23 123:20 130:7 179:4 191:24 relations 151:8 relationship 54:21 111:24 148:1 167:4 175:10 relationships 54:1 93:3 155:18 relative 67:3,9 101:19 relatively 103:6 release 134:18 193:4 relevant 22:20 31:17,21 51:21 75:3 113:4 114:22 141:15 145:22 147:20,20 148:11 193:16 reliable 156:21 reliably 48:6 relief 37:7 121:9 125:4 144:9 religious 52:22 reluctant 180:14 remain 59:25 remainder 31:20 remaining 205:16 remains 8:2 35:11 93:4 remark 182:17 remarks 156:3 206:9 remedy 134:5 remember 2:22 96:14 98:6,7 152:23 153:1 201:11 202:15 remind 49:25 52:14 164:22 reminds 35:12 133:11 remitted 83:25 remote 59:13
Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 18
removal 10:8,9 removed 68:13 69:3 render 45:17 158:23 rendered 65:8 152:19 rendering 75:10 renewable 104:5 renewables 104:6,7 renowned 110:15 repeal 25:20 207:5 repealed 114:2 115:13 139:18,19 207:5 repeat 40:17 163:6 repeated 206:21 repeatedly 119:18 163:5 repelled 7:7 replace 25:20 41:2 replaced 24:13 127:13 203:24 replicated 128:25 replication 57:8 reply 193:12 report 6:17 21:22,23 22:12 25:6 86:4 150:24 reports 20:11 31:17 94:9 113:12 represent 77:7,13 157:24 representation 56:17 168:3 representative 1:18 25:8 168:1 representatives 52:8 59:20 represented 1:12 23:16 representing 1:19 157:16 representivity 90:5 republic 111:3 114:5 114:13 127:19 128:3 128:5,18 reputation 12:1 95:10 reputational 51:7 158:20 request 16:17 66:23 67:11,16 69:17,18,19 69:24 75:13 120:17 193:11 requested 25:4 110:4 requests 71:21 require 40:11 118:2 127:22 143:11 156:5 162:14,17 required 28:12 33:19 35:25 36:18,20 114:17 117:8 143:12 143:13 requirement 29:2 37:12 79:7 requirements 130:19 154:24 163:16 requires 39:3,8 144:18 186:11 188:24 requiring 9:12 139:19 requisite 135:15
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resurgence 2:13 134:23 136:15,18 resurrect 54:24 retain 120:25 121:4,12 retaining 92:9 retains 77:17 78:8 retard 30:3 retention 195:8 retentive 83:15 retired 111:8 183:4,4 186:23 retirement 111:4 112:8 return 109:18 reversion 112:4 review 4:24 12:14 85:17 116:8 124:20 133:18 141:24,24 reviewed 102:14 189:5 reviewing 163:9 reviews 72:4 revised 15:12 25:7 revision 18:10 revival 136:16 revolution 180:12,14 rewritten 26:15 re-checked 84:10 rich 205:22 richness 51:13 rid 46:18 rider 196:25 ridiculous 105:25 right 24:20,25 26:6 33:20 42:19 43:10,15 53:3 61:24,25 66:8 69:6 74:24 77:17 78:8 80:11 83:23 84:9,14 84:21 96:20 97:10 105:11 116:19 117:14 119:19 120:12 132:10 136:18 141:23 145:1 146:21 148:24 151:12 153:15 180:2 183:23 184:1 192:9 193:10 194:4 200:3,13 201:9 201:12,23 203:21 205:6 rightful 51:15 60:12 61:22,23 rightly 23:25 rights 110:19 117:11 Rio 138:18 rise 12:17 55:4 88:18 88:25 risk 99:14,14 125:20 road 54:25 55:1 173:23 206:15 roads 206:14 robbed 54:11 role 1:21 2:20 3:19,21 4:16 14:13 20:9 23:5 28:22 57:1 60:20 62:13 92:12,14 111:12 113:3 115:11 115:25 118:23 119:15 130:6,9 160:1 166:21 166:22 178:24 179:4
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 19
seats 11:24 12:2,3 157:20 163:18 second 3:7 5:21 23:6 25:20 37:18 41:14 47:2 49:2 61:2 80:25 124:2 127:15 132:11 132:23 133:20 137:18 150:21,22,25 181:24 secondees 185:25 186:8 secondly 9:14 28:24 29:14 32:12 129:24 179:3 second-guessing 112:10 secret 148:25 secretarial 103:10 166:25 secretariat 31:17 85:16 152:12,16 177:20 185:15 189:22,25 secretary 72:4 73:8 85:18,19 secrets 34:18 section 24:16,16 27:20 30:17 31:15 33:14 34:5,23 35:11 42:5 49:17 70:11 116:4,5 116:17 117:6 121:6 122:22 123:17 124:19 sector 19:14 24:19 144:16 sectors 156:17 security 38:5,8 121:7 146:22 152:2,3 159:3 see 12:11 15:3 16:4,21 22:10 27:14 28:3 44:18 46:14,19 57:11 62:18,20 65:23 70:2 72:11 73:4 74:14,22 77:1 81:16,18,25 82:3 82:5,9 83:9 89:13 95:8,18,21 107:15 111:17,19 137:12 138:15,16 142:24 143:22 144:13 147:17 147:22 148:3,8 151:4 151:22 152:18 153:14 155:5 171:21 179:13 185:22 188:11 189:23 190:7 191:13 192:7 200:8 201:22 204:3,8 204:8 seeing 63:20 165:7 190:5 191:15 seek 59:24 seeking 60:18 120:10 seeks 7:14 41:2 53:19 54:24 seen 11:21 15:14 17:12 64:23 76:14 98:16 107:24 135:20 155:3 163:22 165:24 170:3 180:10 197:4 sees 57:7 134:4 197:11 select 65:24 78:8 81:3,7 98:14
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 20
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 21
talked 51:17 talking 46:8 50:7 61:17 64:24 67:1 100:5 101:21,23,24 105:1,2 105:4,6,11 108:16 111:10,15 143:20 150:18 152:23 183:20 188:4 191:17,21 202:19 204:17 tall 60:6 Tanzania 103:14,16 task 49:3 52:4 59:15,15 59:16,17 136:4 tasked 110:9 Tate 61:8 taught 192:21 tax 143:11,12 taxable 158:16 taxpayers 145:22 tea 101:23 153:22 teacher 110:16 teaches 53:18 team 61:4 64:2,5,5,6,7 82:23,24,25 161:22 185:14,15 186:5 teams 148:21 technical 38:22 66:16 69:1 84:6 154:23 technicalities 176:23 techniques 83:1 160:14 183:10 187:14 technological 159:3 Telcordia 96:17 111:1 166:14,14 telecoms 63:20 Telkom 111:1 166:14 tell 3:10 85:12 93:16 109:15 140:3 164:3 173:13 177:22 telling 86:22 tells 27:20 37:23 115:24 template 56:18 temptation 206:8 ten 150:2 156:25 tend 111:18 122:2 tendency 187:22 204:11 tends 112:8 tenets 177:2 tension 203:11 term 10:20,22 146:24 147:2 154:13 156:8 terminated 204:11,21 205:2 terms 35:23 40:15 45:25 58:22 67:14 68:8 70:13 71:16 78:17 79:16 80:2,8,15 80:20 83:1 99:6 103:4 103:4,7,7,8,9,20,20 107:22 110:11 116:16 119:18 121:3,11 122:15,21 125:15,24 126:8 130:20 155:8 198:20,21,21,21,24 198:24 199:1,3,4,6,18
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 22
68:3,13,17 69:14,18 70:5,10,12 71:1,14,16 72:2,19 73:11,16,21 77:18 78:6,9 79:18 80:3,5,13,22 82:17 86:9,22 94:6 116:22 118:15 123:19,21 124:24 125:5,7,9,12 125:15,20,24 129:22 133:10 139:10 161:12 188:3 201:24 202:2 204:23 tribunals 12:24 70:18 79:1,2 81:12 117:9 141:11 tribunal’s 80:10 tribute 48:15 49:13 142:3 tricky 67:19 84:7,8 139:12 140:8 tried 18:23 29:11 73:5 82:7 92:17,18,19 128:6 132:25 167:17 176:10 tries 74:13 trigger 80:1 trilogy 23:16 trip 171:3 trivial 97:19 troublesome 176:15 true 105:10 110:16 136:9 178:16 truly 135:10 trump 131:16 trust 175:12 186:9 trusted 37:14 112:5 try 31:13 42:13 70:24 73:17,24 74:8 75:22 78:14 79:11 102:22 111:16 135:13 143:1 149:8 151:15 171:1 182:21 190:8 206:23 trying 15:25 50:15 67:24 74:23 99:21 100:11 108:3 109:12 139:5 183:12 Tunde 3:10 61:3,6,12 88:9,11 92:3 95:5,5 95:14,14 96:21 109:8 134:20 137:21 140:20 142:3 144:7 150:13 152:23 174:25 177:16 179:6 189:19 191:5 197:1,22 206:9 tune 102:17 177:20 Tunis 181:13 Tunisia 163:25 Tunisian 181:16 turf 94:20 turn 32:19 59:24 112:20 127:12 138:18 154:8 turned 80:19 turning 23:24 94:19 turpitude 123:25 tweak 151:25
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Email:
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 23
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13:04 109:9 13:47 109:24 14 1:1 14:07 119:17 14:27 128:21 14:47 138:10 15 72:9 141:14 197:17 15% 67:8 87:15 15:07 150:20 15:39 154:1 15:59 165:2 150 189:1 16 43:17 45:3 16:19 174:11 16:39 187:3 16:59 199:1 17 150:2 17B 37:16 17C 37:16 17J 37:20 38:4 18 10:13 49:11 150:2 152:19 18(1)(a)(2) 42:5 180 200:11 1899 184:20 1938 172:5 1965 6:12 30:20 31:10 112:6 1966 132:13 1970 4:23,23 1976 6:8 42:15 113:17 1977 6:11 7:7 22:3 1978 25:23 39:3 206:22 1979 13:5 20:5 1981 44:2 1985 27:3 36:20 114:20 1989 13:6 168:16 1990s 32:23 1998 20:12 21:21 22:5 22:12,24 25:6 28:10 28:19 29:11 35:2 37:24 39:13 2 2 9:9 21:11 28:15 30:6 31:20 41:17 109:19 132:10 20 1:20 22:25 23:21 52:4 53:12 54:10 82:19 85:11 91:9 109:19 122:22 150:3 165:4 175:7 200 84:7 2000 156:23 2001 13:7 20:13 2002 156:25 2006 22:23 25:7,18 26:2 28:17 29:20 35:18 36:25 37:20 114:20 151:5 2008 27:13 151:6 185:1 2009 171:4 172:4 2010 10:16 2012 13:8 25:3 40:11 63:7,10 171:5,6 2013 25:11 29:18 157:1
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14th October 2016
The Dawn of a New Era in South Africa
International Arbitration Page 24
2014 12:20 13:25 74:14 137:22 148:4 149:7 2015 11:12 12:21 24:14 40:13 62:24 2016 1:1 25:13,17 28:14 30:1 33:13 35:11 21 121:6 22 40:11 24 40:11 110:5 199:17 25% 37:2 250 84:5 27 168:16 270 200:10
8 8 31:15 80 101:6 801 62:24 843 66:11 9 9 9:14 90% 11:17 101:6 97 63:1
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