A Critical Exploration of the Finality Principle in South African Domestic Commercial Arbitration

Crynodeb

In South Africa, the extent of the right of the courts to interfere with the ‘final’, ‘conclusive’ and ‘binding’ nature of an arbitrator’s award citing non-statutory reasons can create ambiguity for three reasons. First is the ubiquity, vagueness, elusiveness and inconsistency in application of non-statutory grounds for arbitration vacatur. The second reason for such ambiguity is the nature of the interrelationships between these non-statutory grounds. The third reason for such ambiguity relate to constitutional provisions, specifically, section 33 and section 34 of The Constitution of the Republic of South Africa. More specifically, section 33 posits that ‘voluntary’ domestic commercial arbitration are not administrative action and therefore not subject to constitutional provisions which stipulate that administrative action must not only be lawful, but also reasonable and procedurally fair. Section 34 on the other hand focuses on the constitutional right of access to courts. With this in mind, this study seeks to undertake a critical analysis of the finality principle in South African domestic commercial arbitration in a manner that takes into considerations these ambiguities. The specific purpose of this study is to provide a critical, in-depth analysis of key aspects regarding finality of domestic commercial arbitration proceedings, as espoused by South African appellant courts. Three research questions are presented. The first (RQ1) enquires How have the appellant courts in South Africa framed (as an element of statutory interpretation), the finality principle in arbitration within the context of section 28 of the Arbitration Act 42 of 1965 and the provisions of sections 33 and 34 of The South African Constitution? The second (RQ2) asks How have the appellant courts in South Africa framed the finality principle in arbitration within the three specific elements of section 33 of the
Arbitration Act 42 of 1965 taking into consideration the five non-statutory grounds for arbitration vacatur and South Africa’s approach to its (i) the powers of the courts to develop the common law and (ii) the requirement to consider and/or interpret domestic legislation in a manner that is consistent with international law”. The third (RQ3) asks Cognisant of the finality principle within arbitration, what is the possible scope of placing the five non-statutory grounds for arbitration vacatur on a statutory footing in South Africa?. To meet the research aim and address the three research questions, South African domestic legislation and case law is both examined and critically scrutinised. Furthermore, bearing in mind constitutional provisions requiring South African courts to adhere to the norms of international jurisprudence and consider international and foreign law (set out in set out in Section 39 (1), 39 (1)(b), 39 (1)(c), 232 and 233 of the South African Constitution), similar legislation and case law on the finality principle drawn from other jurisdictions is also examined. In doing so, lessons will be learnt, providing the platform for possible enhancements to domestic commercial arbitration
legislation in South Africa. Three findings emerge from the study. They address (i) the intersection between the finality principle in arbitration within the context of section 28 of the Arbitration Act 42 of 1965 and the provisions of sections 33 and 34 of The Constitution (ii) specific elements of section 33 of the Arbitration Act 42 of 1965 which are considered within the context of non-statutory grounds for arbitration vacatur and South Africa’s approach to statutory interpretation and (iii) the possible scope of placing these non-statutory grounds for arbitration vacatur on a statutory footing in South Africa.

Dyddiad Dyfarnu	2023
Iaith wreiddiol	Saesneg
Sefydliad Dyfarnu	Prifysgol Aberystwyth
Goruchwyliwr	David Poyton (Goruchwylydd), Nathan Gibbs (Goruchwylydd) & Ryszard Piotrowicz (Goruchwylydd)