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Switching on the light: South Africa gets ready for international arbitration
to recognise and enforce foreign arbitral awards. at means that a South African entity that is successful in the arbitration, yet remains unpaid or is still seeking outstanding performance, may easily convert the arbitration award into a judgement of the People’s Court by following a simple and straightforward procedure and have it enforced accordingly.6
And then there is a second transformative event that also brings South Africa into the limelight when it comes to international arbitration. Yes, at last, the Government is putting the necessary legislation to Parliament thereby completing the work that Omar Dullah began in 1997. Let me explain: e United Nations, which has done wonderful work in encouraging international commercial arbitration, recommended that all countries should adopt substantially the same international arbitration law, thereby improving and harmonising national laws on arbitration. It follows that countries that wish to host international arbitrations signify that intent by passing the appropriate law, which is known as the Model Law, and that is what South Africa is now proposing to do. When Deputy Minister Je ery spoke at the time of the Johannesburg Consensus, he categorised the main objective of the Bill to be the incorporation of the Model Law as the cornerstone of the international arbitration regime in South Africa. e Bill, he said, once enacted into law –
will provide South Africa with an e ective modern arbitration framework which compares favourably in many respects with equivalent legislation in other jurisdictions. And it will no doubt greatly assist arbitration institutions, make South Africa an important centre for international arbitration and open up new elds of practice for legal practitioners.
Assuming then that the Bill goes through Parliament and is signed into law, the stage will be set for South Africa to become a regional powerhouse in international arbitration. It gives us the opportunity to build a new industry and thereby to supplement and strengthen South Africa’s ability to facilitate trade and investment. In a real sense, it is a switching on of the lights.
6 e New York Convention sets out this procedure which all signatories must, and do, follow.
And there is yet a third welcome development and that is the consensus within BRICS that trade and investment will be facilitated between member states by the creation of a shared arbitral mechanism.
Two conferences were held in New Delhi last month with just such a prospect in mind. One of them, hosted by the Indian Government, rea rmed the determination of the BRICS countries to establish an arbitral mechanism of its own and it ended with the decision to create a working group charged with the responsibility to select and present the various prototypes for such an arbitral mechanism. I may say that the South African delegations attending those conferences were well-received and recognised as having a genuine contribution to make in furthering this work. It is all part of giving content to the BRICS ideal to which South Africa can make a worthwhile contribution.
Again to quote Xi Jinping:
We should forge a strong bond among the BRICS countries through building this partnership, advance our cooperation in economy and trade, nance, infrastructure, personnel inter ow and other elds, and move towards the goal of integrated markets, multi-tiered nancial, network, land, air and sea links, and greater cultural exchanges.
We should jointly support Africa’s pursuit of stronger growth, accelerated integration, and industrialization, and help Africa become a new growth pole in the world economy.
So, yes, it’s good news although it has been an awful long time in coming.
Michael Kuper is a senior South African commercial advocate (barrister) and arbitrator in practice at the Johannesburg Bar (Society of Advocates Witwatersrand).
He took Silk in 1984 and thereafter served
as the Chairman of the Johannesburg Bar
Council on various occasions and was also
the Vice-Chairman of the General Council of
the Bar of South Africa. He has served as an Acting Judge on various occasions. (See page v for Michael's full bio.)
Author
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