International Arbitration 2026 Comparisons

South Africa has seen a growing use of international arbitration, particularly in complex cross-border commercial disputes. The country's legal framework was modernised with the adoption of the International Arbitration Act 15 of 2017 (IAA), bringing it into alignment with the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”). The IAA establishes a comprehensive regime governing all stages of the arbitral process, limits court intervention to narrowly defined grounds, and is complemented by South Africa’s accession to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”).

Since the adoption of the IAA, there has been a marked increase in international arbitrations seated in South Africa. This upward trend is reflected in statistics published by the Arbitration Foundation of Southern Africa (AFSA), which recorded 49 new international arbitrations between June 2021 and December 2023 alone. The data also reveals growing participation by non-African parties: AFSA’s 2022 report indicates that 71% of parties were drawn from the Southern African Development Community (SADC) region more widely, with 29% originating from outside the African continent entirely.

The availability of skilled arbitrators, modern legislation and a supportive judiciary with transparent decision-making have all contributed to South Africa’s growing appeal as a seat, particularly among parties from SADC jurisdictions. Part of this growth is attributable to the considerable strain on South Africa’s courts, arising from high case volumes and constrained judicial capacity. These pressures, combined with broader systemic challenges, have driven commercial litigants towards arbitration with increasing frequency. Arbitration also affords parties the ability to appoint arbitrators with specialist expertise and to resolve disputes confidentially and efficiently – outcomes that the court system cannot consistently guarantee.

Notwithstanding this position, court litigation remains the primary dispute resolution mechanism in a number of sectors, particularly those concerned with public procurement and regulatory compliance, where statute requires disputes to be adjudicated by the courts. Domestic and ad hoc arbitrations also remain a popular alternative to the courts.

Identifying industries with significant international arbitration activity is inherently difficult, as arbitration proceedings are not publicised in South Africa and arbitral institutions do not routinely publish details of parties’ sectors.

However, AFSA data collected between 2013 and 2023 indicates that arbitrations under AFSA rules have been concentrated in the financial sector (33% of total cases), followed by energy and resources (20%), industrial and manufacturing (12%), and commodities and trading (10%). These are all sectors in which cross-border, complex and high-value disputes are prevalent.

AFSA is South Africa’s leading arbitral institution. In 2021, the AFSA International Court was established under the revised AFSA International Arbitration Rules (the “AFSA International Rules”), expanding AFSA’s offering to encompass both domestic and international disputes across diverse sectors. It is the first institution of its kind in South Africa.

The AFSA International Court is responsible for taking decisions on behalf of AFSA, including the appointment of arbitrators and the determination of challenges to appointments and jurisdictional issues. Its membership comprises prominent South African practitioners alongside experienced practitioners from France, the UK, China, Botswana and Kenya.

The China-Africa Joint Arbitration Centre (CAJAC Johannesburg) is a subsidiary of AFSA established to provide a credible dispute resolution mechanism for China-Africa matters, driven by the growth in trade between the two regions.

South Africa does not have courts specifically designated for arbitration disputes. However, in the Gauteng Province, the Commercial Court, a specialist division of the Gauteng High Courts, is available to resolve arbitration-related matters expediently. Through the assignment of judges with appropriate expertise and the appointment of case managers where necessary, it minimises delays by providing a fast-track mechanism for arbitration-related proceedings, thereby preserving and promoting the efficiency that arbitration is intended to offer.

This position was expressly confirmed in October 2025, when the Acting Judge President of the Gauteng High Court issued a notice confirming that arbitration-related disputes are eligible to be heard in the Commercial Court. This ensures that urgent arbitration-related court proceedings, such as stay applications, can be heard and determined expeditiously by experienced and commercial judges.

International arbitrations in South Africa are governed by the IAA, which came into force in December 2017.

The IAA

The IAA explicitly incorporates the UNCITRAL Model Law into South African law, establishing it as the foundational framework for international arbitration. The IAA also governs the recognition and enforcement of foreign arbitral awards.

In Kingdom of Lesotho v Frazer Solar GmbH and Others [2026] ZASCA 75, the Supreme Court of Appeal confirmed that interpretation of the IAA should be consistent and uniform with the interpretation in other Model Law jurisdictions, ensuring alignment with global standards and providing a predictable legal environment for international arbitrations.

While the IAA closely follows the UNCITRAL Model Law, there are two primary distinctions, discussed as follows.

Public policy and state parties

Particular emphasis is placed on public policy considerations where a party is a state, and arbitration proceedings involving public bodies are conducted publicly, departing from the UNCITRAL Model Law’s traditional confidentiality provisions.

Investor-state dispute settlement (ISDS)

The IAA does not provide for automatic recourse to ISDS mechanisms, such as arbitration before the International Centre for Settlement of Investment Disputes (ICSID). This reflects South Africa’s cautious approach to ISDS, reinforced by its Protection of Investment Act 22 of 2015, under which ISDS is voluntary rather than compulsory for the South African government.

The IAA has not been subject to any significant amendments in the past year. However, the ongoing interpretation and application of the IAA by the courts continues to shape its implementation (including in respect of Kingdom of Lesotho mentioned above), ensuring that the legislation evolves in line with emerging requirements.

There is no pending legislation expected to materially alter the international arbitration landscape in South Africa.

Arbitration agreements are contractual in nature and must therefore satisfy the general requirements for a valid contract: namely that the parties are aligned on the rights and obligations to be created, intend to be bound, have the legal capacity to contract, and that the agreement is lawful.

The IAA further requires that an arbitration agreement must be in writing in order to be enforceable (Article 7 of Schedule 1 to the IAA). This requirement does not necessitate a signed agreement, provided that all parties have adopted and acted upon it. That said, it is advisable to ensure that the agreement is signed, so as to minimise the risk of future disputes regarding its existence or terms.

While commercial disputes are generally arbitrable, certain matters are not arbitrable under South African law. In this regard, arbitrability is determined by reference to:

• public policy considerations (including the public interest); and
• certain statutory provisions that reserve particular matters for judicial determination.

Non-arbitrable matters include:

• disputes concerning the status of legal persons, such as divorce, solvency and liquidation proceedings;
• criminal matters;
• administrative review proceedings, including the review of government and public procurement decisions; and
• family and marital disputes.

These exclusions are designed to ensure that matters with broader societal implications, or requiring State intervention, remain within the judicial domain and in the public forum.

The Approach to Determining the Governing Law of the Agreement

In Tee Que Trading Services (Pty) Ltd v Oracle Corporation South Africa (Pty) Ltd and Another (Case No 065/2021) [2022] ZASCA 68 (17 May 2022), the Supreme Court held that arbitration agreements are autonomous and distinct from the main contract in which they are embedded. This principle of separability means that an arbitration clause is capable of having its own governing law independent of the substantive contract.

Where the parties have not expressly chosen the law governing the arbitration agreement, South African courts will apply conflict-of-laws principles to determine the applicable law, first looking for any express or tacit choice of law. If none is evident, the courts will identify the legal system with which the arbitration agreement has the closest and most real connection, considering factors such as the seat of arbitration, the language of the proceedings and the institutional rules chosen by the parties. This approach aligns with Article 28 of the UNCITRAL Model Law, incorporated into South African law through the IAA.

The Approach to Enforcement of Arbitration Agreements

South African courts consistently uphold arbitration agreements, respecting party autonomy and the principle of separability. Where a valid arbitration agreement exists and does not contravene public policy, courts will refer matters to arbitration and enforce arbitral awards, in accordance with the statutory framework established by the IAA and applicable common law principles. The following cases illustrate this pro-arbitration stance and the courts’ reluctance to intervene in arbitral proceedings.

The Tee Que judgment

The principle of party autonomy was central to the Supreme Court’s decision, holding that, save where an arbitration agreement is void or inapplicable, court litigation must be stayed in favour of arbitration, significantly limiting the court’s own discretion to intervene in disputes governed by international arbitration clauses. The decision served both to reinforce the autonomy of arbitration agreements and to streamline their enforcement.

Industrial Development Corporation of South Africa Limited and Another v Kalagadi Manganese (Pty) Ltd (661/2024) [2025] ZASCA 70 (30 May 2025)

In Kalagadi, the Supreme Court reaffirmed South Africa’s pro-arbitration stance by holding that courts must enforce international arbitration agreements under the IAA, even where parties fail to invoke it. The Supreme Court emphasised that arbitration clauses are binding, that judicial intervention is limited, and that public entities are equally bound by arbitration agreements. The court also drew attention to the critical distinction between the discretionary language of South Africa’s Arbitration Act 42 of 1965 (which governs only domestic arbitrations in South Africa) and the mandatory provisions of the IAA, pursuant to which courts must refer disputes to arbitration under Article 8(1) unless a narrow exception applies.

Grounded in the doctrine of separability, an arbitration clause is treated as an agreement distinct and independent from the main contract in which it is contained. As a result, an arbitration clause may remain valid and enforceable even where the main contract is found to be invalid.

The case of Lukoil Marine Lubricants DMCC v Natal Energy Resources and Commodities (Pty) Ltd [2023] ZAKZPHC illustrates this principle. In Lukoil, the court held that allegations that the main agreement in question was invalid did not also call into question the parties’ arbitration agreement (which was contained within the main agreement).

Subject to overriding requirements of independence and impartiality, the IAA affords parties broad discretion in shaping the composition of the arbitral tribunal, reflecting the foundational value of party autonomy in international arbitration. Parties may determine the number of arbitrators, the method of their appointment, and any specific qualifications or expertise required, whether by way of legal background or industry-specific knowledge.

Where the parties fail to agree on the method of selecting arbitrators, or the agreed method fails, the IAA provides a default appointment mechanism.

Article 11 of Schedule 1 of the IAA stipulates the following.

• In an arbitration with a sole arbitrator, they will be appointed, on the request of a party, by the relevant court with jurisdiction.
• In an arbitration with three arbitrators:
1. each party must appoint one arbitrator, and the two appointed arbitrators will appoint the third arbitrator; and
2. if a party fails to appoint an arbitrator within 30 days of a request to do so, or if the two arbitrators fail to agree on the third within 30 days of their appointment, the appointment will be made by the relevant court with jurisdiction (determined with reference to Article 6 of Schedule 1 to the IAA).

The South African courts may only intervene in the selection of arbitrators under specific circumstances, as outlined in the IAA. This intervention can occur in the following circumstances:

• when there is a failure in the agreed procedure for appointment and the court is requested to intervene; or
• when a party challenges an arbitrator’s appointment on grounds such as bias or lack of independence, and if its challenge under the agreed procedure is not successful (although the arbitral proceedings will continue pending the court’s determination).

The court’s role is generally limited to upholding the integrity of the arbitration process and ensuring that arbitrators are impartial and independent.

Articles 12 and 13 of Schedule 1 of the IAA provide that arbitrators can be challenged and potentially removed if:

• there are justifiable doubts concerning their impartiality or independence; or
• they do not possess the qualifications agreed upon by the parties.

The IAA mandates that arbitrators:

• must be independent and impartial; and
• are required to disclose any potential conflicts of interest at the time of their appointment and throughout the arbitration process.

The AFSA International Rules reflect these standards, requiring arbitrators to disclose any circumstances that might give rise to justifiable doubts regarding their independence or impartiality.

South African law recognises and upholds (via both legislation and judicial precedent) the internationally recognised principle of Kompetenz-Kompetenz (competence-competence), allowing an arbitral tribunal to determine its own jurisdiction.

The IAA

Article 16 of the UNCITRAL Model Law is incorporated into South African law through the IAA, giving a tribunal authority to rule on its own jurisdiction, including making determinations on the validity and scope of the arbitration agreement.

Articles 20(1) and 31(3) of Schedule 1 to the IAA further empower parties to agree on the juridical seat of arbitration. If they fail to do so, the arbitral tribunal will determine the seat, taking into account the circumstances of the case. This aligns with Article 16, which reinforces the tribunal’s jurisdictional authority under the Kompetenz-Kompetenz doctrine.

Judicial Precedent

The aforementioned principle was also upheld by the Supreme Court, prior to the enactment of the IAA, in the case of Zhongji Development Construction Engineering Co Ltd v Kamato Copper Co Sarl 2015 (1) SA 345 (SCA). In that case, the court held that the arbitration agreement must be given effect to, and that it was for the arbitrator to determine the jurisdictional issues that had been raised.

The doctrine ensures that tribunals have the first opportunity to resolve jurisdictional disputes, thereby promoting the efficiency and autonomy of the arbitral process. However, a party may request that any such ruling by the arbitral tribunal be reviewed by a court, either at the enforcement stage or during the proceedings before the award is rendered. The arbitration proceedings will not be suspended pending the outcome of any such review.

Matters Excluded From Arbitration

Not all types of disputes are arbitrable. The IAA expressly notes that if a dispute is not capable of determination by arbitration under any law of the Republic it may not be determined by arbitration – for example, as follows.

• Insolvency proceedings implicate the rights of third-party creditors and engage the public interest, and as such cannot be submitted to arbitration. Such proceedings are governed by dedicated statutory frameworks and are subject to court supervision.
• Criminal offences fall beyond the reach of arbitration, as they involve public prosecution and the imposition of punishment, both of which are functions reserved exclusively to the State.
• Disputes concerning divorce, custody or maintenance are considered unsuitable for arbitration given their inherently personal nature and the necessity of judicial oversight in such matters.
• The administrative review of decisions made by public and governmental bodies is also not arbitrable.

The IAA mandates that no court may intervene in arbitral proceedings save where it expressly so provides, reflecting a restrained and arbitration-friendly approach.

In jurisdictional disputes, the IAA permits judicial intervention only in the following circumstances.

• Where the tribunal has ruled on jurisdiction as a preliminary matter, a party may seek judicial review within 30 days. This does not suspend the arbitration (Article 16 of Schedule 1 to the IAA).
• Where the tribunal has addressed jurisdiction in its final award:
1. a party may apply to set aside the award on the grounds that the arbitration agreement is invalid or that the award exceeds the scope of the dispute (Article 34 of Schedule 1 to the IAA); and
2. a court may decline enforcement on the same basis (Article 36 of Schedule 1 to the IAA).
• Where court proceedings are instituted and the court determines that the arbitration agreement is null and void, inoperative or incapable of being performed, it may retain jurisdiction (Article 8 of Schedule 1 to the IAA).

A tribunal’s jurisdiction may be contested at the outset of the arbitration, but court intervention is unavailable until the tribunal has ruled on the matter.

Under Article 16(2) of Schedule 1 to the IAA, any jurisdictional challenge must be raised no later than the filing of the statement of defence, although the tribunal retains discretion to permit a later challenge where justified. Participation in appointing the arbitrator does not preclude a party from raising a challenge.

The timeframe for court review depends on the form of the tribunal’s ruling. Where the tribunal has made a preliminary ruling on jurisdiction, court review must be commenced within 30 days, and the arbitration continues uninterrupted. Where jurisdiction has been addressed in the final award, court review must be initiated within three months of receipt.

South African courts adopt a deferential standard of judicial review when addressing questions of admissibility and jurisdiction in arbitration proceedings, mirroring the broader arbitration-friendly stance of the judiciary.

Unless there is a clear and compelling reason to intervene, such as gross irregularity or inconsistency with public policy, the South African courts will generally respect the tribunal’s findings.

Unless the arbitration agreement is found to be null and void, inoperative or incapable of being performed, the IAA prescribes that the courts must stay judicial proceedings and refer the matter to arbitration. This stance has since been reinforced in several cases, including the Tee Que, Kalagadi and Lukoil judgments.

The IAA does not expressly confer on an arbitral tribunal the power to assume jurisdiction over parties who are not signatories, being parties neither bound by the arbitration agreement nor signatories to the underlying contract. Jurisdiction may nonetheless be established where such parties subsequently consent to participate in the arbitration. Additionally, two doctrines warrant consideration in this context.

• First, the “group of companies” doctrine, applied in certain jurisdictions to extend arbitration agreements to affiliated companies within the same corporate group, is not recognised in South African law.
• Second, the doctrine of piercing the corporate veil is recognised under South African law and permits courts in exceptional circumstances to disregard a company’s separate legal personality. Its application is strictly circumscribed and requires compelling evidence of fraud, improper conduct or abuse of the corporate form. However, the South African courts have not yet applied or considered it as a basis for extending an arbitration agreement to non-signatory parties.

The IAA empowers tribunals to award preliminary or interim relief, at the request of a party. This includes measures requiring a party to:

• provide a means of preserving assets out of which a subsequent award may be satisfied;
• maintain or restore the status quo, pending determination of the dispute;
• prevent, or refrain from taking action that is likely to cause, current or imminent harm or prejudice to the arbitral process itself;
• preserve evidence that may be relevant and material to the resolution of the dispute; or
• provide security for costs (only against a claiming or counter-claiming party).

Interim measures are binding and the IAA requires that they must be enforced, upon application, by a court, unless there are specific grounds for refusing the recognition and enforcement.

The AFSA International Rules also recognise the tribunal’s power to grant interim relief, ensuring that these measures are enforceable and effective.

The Role of the Courts in Granting Interim Relief

The IAA allows the South African courts to order interim relief upon the application of a party only in the following circumstances:

• if the arbitral tribunal has not yet been appointed and the matter is urgent;
• if the arbitral tribunal is not competent to grant the order; or
• if the urgency of the matter means that obtaining the order from the arbitral tribunal would be impractical.

A court may not grant such an order if the arbitral tribunal, being competent to grant the order, has already determined the matter, nor may it grant such an order beyond the scope of the above-listed circumstances.

Interim Relief in aid of Foreign-Seated Arbitrations

The IAA allows courts to issue orders in support of arbitration, irrespective of whether the seat of arbitration is within South Africa or abroad. The interim measures that may be ordered are the following:

• an order for the preservation, interim custody or sale of any goods that are the subject matter of the dispute;
• an order securing the amount in dispute, but not an order for security for costs;
• an order appointing a liquidator;
• any other orders to ensure that any award that may be made in the arbitral proceedings is not rendered ineffectual by the dissipation of assets by the other party; and
• an interim interdict or other interim order.

Furthermore, the South African courts are required to stay any proceedings that are brought before them if the dispute is subject to an arbitration agreement, regardless of the seat of the dispute.

Anti-Suit Injunctions/Interdicts

In South Africa, the only reported case pertaining to anti-suit injunctions in the context of international arbitration is Vedanta Resources Holdings Limited v ZCCM Investment Holdings PLC 2019 JDR 1425 (GJ), which confirmed that South African courts are prepared to issue anti-suit injunctions in appropriate circumstances. The case concerned an urgent application brought by Vedanta for an anti-suit injunction to restrain winding-up proceedings that ZCCM had instituted in Zambia. The underlying dispute had arisen under a shareholders’ agreement containing an arbitration clause that envisaged a South African-seated arbitration.

The High Court in Vedanta held that the applicant must demonstrate the following.

• That the arbitration clause is mandatory.
• That the dispute falls within the ambit of the arbitration agreement and is arbitrable.
• That the South African law requirements for an interdict are satisfied, namely:
1. a clear right to the relief;
2. a well-grounded apprehension of irreparable harm;
3. that the balance of convenience favours the granting of the injunction; and
4. that no adequate alternative remedy is available.

It is therefore reasonable to expect that South African courts would be inclined to grant anti-suit injunctions to enforce arbitration agreements where all relevant requirements are met, though the current lack of sufficient case law, or precedent confirming the position from the Supreme Court of Appeal, means that this position is not yet fully confirmed throughout the country.

Emergency Arbitrators

Provisions under national legislation and arbitral rules

The IAA is silent on the use of emergency arbitrators, and this has not been expressly dealt with under South Africa’s national legislation or in any court decisions.

To the extent that the dispute has been referred to arbitration under the auspices of AFSA, the AFSA International Rules permit the use of emergency arbitrators to grant urgent interim or conservatory relief, before the arbitral tribunal has been constituted.

Status of decisions of emergency arbitrators

According to the AFSA International Rules, emergency arbitrators may make any decision or order that the arbitral tribunal could make under the arbitration agreement. These decisions are binding on the parties, although they may be subject to review, modification or revocation by the subsequently appointed tribunal.

Although the IAA makes no express provision for emergency arbitrators, it defines “arbitration” as “any arbitration whether or not administered by a permanent arbitral institution” and “arbitral tribunal” as a “sole arbitrator or a panel of arbitrators”. Emergency arbitration proceedings are likely to satisfy both definitions. South African courts have consistently sought to minimise interference in arbitral matters, and it is reasonable to expect that this judicial restraint would extend to emergency arbitration. However, the courts retain the power to enforce or set aside awards where grounds exist to do so, and it is expected that this supervisory role would apply with equal force to awards rendered in emergency arbitration proceedings.

Under the IAA, arbitral tribunals are empowered to order security for costs, though this power is confined to claimants and counterclaimants. Such a measure can prove significant in deterring frivolous or unmeritorious claims from proceeding to a full hearing.

The South African courts do not enjoy a corresponding power to order security for costs in international arbitration proceedings. Their role in this regard is narrower, being limited to making orders that secure the amount in dispute rather than the costs of the arbitration itself.

The IAA

International arbitration in South Africa is primarily governed by the IAA, which incorporates the UNCITRAL Model Law. The IAA establishes the framework for international arbitration proceedings in compliance with international standards, and provides default provisions for procedural aspects not agreed upon by the parties, including:

• the appointment of arbitrators;
• the conduct of the proceedings;
• the presentation of evidence; and
• the issuing of awards.

AFSA

The main arbitral institution in South Africa, AFSA, has also published the AFSA International Rules, which provide detailed procedural guidelines and which parties may adopt if they choose to arbitrate under the auspices of the AFSA International Rules.

Arbitral proceedings seated in South Africa are governed by the arbitration agreement, and parties may agree on the rules that regulate the proceedings or submit to the rules of an arbitral institution.

The majority of the procedural steps set out in the IAA are not mandatory and are subject to any contrary agreement reached by the parties. While the IAA provides a flexible framework, it does require that proceedings to which a public body is a party be held in public, unless there are compelling reasons for the tribunal to direct otherwise (Section 11 of the IAA).

Powers and Duties Under the IAA

The IAA confers the following powers and duties on arbitrators.

Powers

• To decide on their own jurisdiction (Article 16 of Schedule 1 to the IAA).
• To grant interim measures at the request of a party, unless otherwise agreed by the parties (Article 17 of Schedule 1 to the IAA).
• To order security for costs (only as against the claimant and counterclaimant) (Article 17(2)(e) read with Article 17(3) of Schedule 1 to the IAA).
• To modify, suspend or terminate an interim measure, upon application by any party or on the tribunal’s own initiative (Article 17D of Schedule 1 to the IAA).
• To require the party requesting an interim measure to provide appropriate security (Article 17E of Schedule 1 to the IAA).
• To award costs and damages to the party requesting an interim measure (Article 17G of Schedule 1 to the IAA).
• To conduct the arbitration as the tribunal considers appropriate, including determining the admissibility, relevance, materiality and weight of evidence, in the absence of the parties’ agreement (Article 19 of Schedule 1 to the IAA).
• To determine the applicable law and the juridical seat of the arbitration (Articles 20 and 28 of Schedule 1 to the IAA).
• To determine the language of the arbitration, in the absence of the parties’ agreement (Article 22 of Schedule 1 to the IAA).
• To decide whether oral hearings are necessary, subject to any contrary agreement by the parties (Article 24 of Schedule 1 to the IAA).

Duties

• To not exceed powers granted by the arbitration agreement or agreed between the parties.
• To disclose any circumstances likely to give rise to justifiable doubts as to impartiality or independence (Article 12 of Schedule 1 to the IAA).
• To maintain the confidentiality of the award and all documents created for the arbitration (Section 11(2) of the IAA).

South Africa maintains a long-standing division between advocates and attorneys, though the Legal Practice Act has gradually eroded that distinction. Traditionally, court advocacy fell within the exclusive domain of advocates, with attorneys unable to appear unless they had obtained High Court appearance rights. In arbitration, whether international or domestic, these professional distinctions carry less weight. Neither a right of appearance nor any additional local qualification is required.

Legal representatives in South African-seated international arbitrations are not required to hold South African qualifications, with competence and effective client representation being the sole practical requirements. This reflects the transnational character of international arbitration, enabling parties to appoint counsel based on expertise rather than jurisdictional affiliation.

General Approach to Evidence in International Arbitrations Seated in South Africa

In international arbitrations seated in South Africa, evidence collection and submission is generally governed by:

• the rules agreed upon by the parties;
• the rules of the chosen arbitral institution; or
• in the absence of such agreement, the discretion of the arbitral tribunal.

The IAA and AFSA International Rules also offer guidance in this regard, but are less prescriptive than domestic court rules.

South Africa is a common law jurisdiction and, where a South African arbitrator is appointed, disclosure and the calling of witnesses at the hearing would generally be expected.

Until recently, evidence collection in South African arbitrations often closely mirrored High Court procedure. However, there has been a marked shift away from this practice, with arbitrations increasingly conducted in accordance with internationally recognised processes and procedures.

Discovery/Disclosure of Evidence

The process of discovery (also referred to as disclosure) in arbitrations is usually less formal and more flexible compared to court litigation. Unlike court litigation, there is no automatic right to broad discovery.

Parties in international arbitrations often agree to apply the International Bar Association Rules on the Taking of Evidence in International Arbitrations (the “IBA Rules”). In such cases, parties typically exchange Redfern Schedules setting out requests for relevant documents that are material to the outcome of the proceedings, subject to the applicable exclusions under the IBA Rules, before disclosure takes place. However, the extent and scope of disclosure can vary significantly depending on the agreement between the parties or the tribunal’s orders.

Privilege

South African law recognises the concept of legal privilege, which protects certain communications from being disclosed. This takes the form of:

• legal advice privilege – communications exchanged between a legal adviser (acting in their professional capacity) and their client, for the purposes of obtaining legal advice; and
• litigation privilege – communications exchanged and documents prepared in contemplation of litigation.

These rules of privilege apply equally in international arbitration proceedings.

Witness Statements

There is no mandatory requirement for the exchange of witness statements in international arbitration, though parties commonly agree to exchange them in written form, with such statements standing as the witness’s evidence-in-chief. Depending on the nature of the dispute and the agreement between the parties, witness statements may be submitted together with the pleadings in a memorial-style format or, alternatively, exchanged following the close of pleadings and the completion of discovery.

No prescribed rules govern the content of witness statements. They typically provide a comprehensive account of the witness’s evidence. Following submission, witnesses are made available for cross-examination by the opposing party and may be re-examined by the party that called them. The tribunal also retains the ability to question witnesses directly.

Neither the IAA nor the AFSA International Rules prescribe specific rules of evidence, leaving the parties free to agree on evidentiary matters and conferring on the tribunal broad discretion over the admissibility, relevance, materiality and weight of any evidence presented. Where a South African arbitrator is appointed, there is a tendency to apply domestic rules of evidence, as noted previously.

The IBA Rules are frequently consulted as a guide, though they bind the parties only where expressly adopted. They adopt a more flexible and pragmatic approach than the formal evidentiary rules applicable in South African litigation. In domestic arbitration, proceedings may more closely mirror court practice, but international arbitration affords considerably greater latitude. Strict evidentiary rules, such as the hearsay rule, will not apply unless the parties have expressly agreed to their application.

Arbitral tribunals seated in South Africa do not possess the same powers as courts to compel the production of documents or the attendance of witnesses. However, under Article 27 of Schedule 1 to the IAA, tribunals may request the assistance of South African courts in these matters.

Parties Involved in the Arbitration

For parties involved in the arbitration, compliance with the tribunal’s orders regarding evidence and witness attendance is expected, as failure to do so may result in adverse inferences being drawn.

Non-Parties to the Arbitration

The courts may issue subpoenas or orders compelling non-parties to produce documents or appear as witnesses, if such assistance is requested. South African courts are generally supportive of arbitration and are likely to enforce such requests, provided they are reasonable and necessary for the proceedings.

The General Position

Arbitration proceedings in South Africa are generally confidential, subject to certain exceptions. Where proceedings are held in private, Section 11(2) of the IAA requires both the parties and the tribunal to maintain the confidentiality of the award and all documents not otherwise in the public domain, save where disclosure is required by law.

Confidentiality obligations are frequently reinforced by the arbitration agreement itself or the rules of the chosen institution, as is the case with the AFSA International Rules, which contain express provisions to that effect.

Confidentiality typically extends to:

• pleadings and submissions;
• documents submitted as evidence;
• the hearing process; and
• the arbitral award.

Exceptions to the Rule

While confidentiality is the default position in South Africa, it is not absolute (and reference is made to arbitrations involving public bodies below).

There are circumstances under which information from arbitral proceedings may be disclosed in subsequent proceedings. Some of these exceptions include the following:

• if there is a legal duty or right to disclose, such as in the case of court-ordered disclosure or a statutory requirement, confidentiality may be overridden;
• disclosure may also be permitted where it is necessary to protect the public interest, such as in cases involving allegations of corruption or criminal activity;
• the parties to the arbitration may agree to waive confidentiality, allowing the information to be disclosed; and
• where a party challenges an arbitral award in court, the court may require disclosure of certain aspects of the arbitration, such as the pleadings or the award, to assess the validity of the challenge.

Arbitrations Involving Public Bodies

Private commercial entities entering into arbitration agreements with public bodies should be aware that Section 11(1) of the IAA provides that arbitration proceedings to which a public body is a party shall be held in public, unless the arbitral tribunal directs otherwise for compelling reasons.

This departure from the usual confidentiality of arbitration reflects the public policy considerations that attach to proceedings involving public bodies. While the law on this point remains unsettled, it is reasonably expected that the obligation of disclosure will extend to pleadings and documents produced in the course of the proceedings, subject to any contrary direction by the tribunal.

The IAA contains specific requirements with which an arbitral award in an international arbitration seated in South Africa must comply, as follows.

• The award must be in writing (Article 31(1) of Schedule 1 to the IAA).
• The award must be signed by the arbitrator(s). If there is more than one arbitrator, the signatures of the majority are sufficient, provided the reason for any omitted signature is stated (Article 31(1) of Schedule 1 to the IAA).
• The award must state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is on agreed terms (Article 31(2) of Schedule 1 to the IAA).
• The award must state its date and the place of arbitration as determined in accordance with the agreement of the parties or, failing such agreement, the place determined by the tribunal (Article 31(3) of Schedule 1 to the IAA).

The IAA does not specify a strict time limit for the delivery of the award, unless the parties have agreed otherwise. However, the chosen arbitral institution may have its own rules regarding the timeframe for delivering awards.

Arbitral tribunals in South Africa have broad discretion when awarding remedies, but certain limitations arise from the risk that the award may be set aside or enforcement refused. The IAA identifies specific circumstances in which an award may be set aside or enforcement refused, as follows:

• a tribunal cannot make an award that conflicts with the public policy of South Africa, such as an award of punitive or exemplary damages;
• a tribunal cannot make an award where the subject matter of the dispute is not capable of settlement by arbitration, such as liquidation or criminal sanctions; and
• a tribunal cannot make an award that is outside the scope of the dispute that has been referred to it.

Tribunals can order specific performance, rectification and injunctions, provided such remedies:

• are within the scope of the arbitration agreement;
• are within the scope of the dispute referred to them;
• do not conflict with South African public policy; and
• do not fall outside the scope of an arbitrable dispute under South African law.

Recovery of Interest

Arbitral tribunals in South Africa can award interest. The rate and period of interest depends on the agreement of the parties, the applicable law or the tribunal’s discretion.

The South African default position is set out in the Prescribed Rate of Interest Act of 1975, which states that, if the rate at which the interest is to be calculated is not governed by any other law, agreement, trade custom or in any other manner, such interest shall be calculated as follows.

• At the South African “repurchase rate” plus 3.5% (currently 10.75%).
• Interest shall commence on the following dates:
1. in the case of a liquidated debt – on the date that the debt becomes due; or
2. in the case of an unliquidated debt – on the date on which the creditor sends a demand or takes steps to initiate arbitration proceedings, whichever is earlier.

Unless agreed otherwise, “simple interest” is generally utilised.

Legal Costs

Legal costs are not governed by the IAA; however, they are generally awarded in South Africa based on the principle that costs follow the event (the losing party pays the legal costs of the winning party). Nonetheless, this is dependent on the agreement of the parties, or on the rules of the chosen arbitral institution.

The general position adopted in South African court proceedings and domestic arbitrations is that costs are calculated by reference to a “tariff” published in the rules of the High Court, together with the arbitrator’s fees, experts’ fees, and institutional fees and disbursements. The “tariff” does not reflect actual legal costs incurred, and accordingly the winning party does not always recover its full legal expenditure.

However, in an international arbitration there is no reason why the parties need to agree to apply the High Court “tariff”, and they are entitled to agree that costs will be awarded in the award, at the discretion of the arbitrators. It should be noted, however, that to the extent that a South African arbitrator is appointed the arbitrator may be inclined to revert to the “tariff” approach, unless there is express agreement on costs between the parties.

Historically, South African arbitrators have awarded costs but deferred quantification to court “taxing masters”, leading to delays and additional expenses. However, there is a growing expectation that arbitrators should include both the allocation and quantification of costs in the final award, ensuring that it is complete, final and more easily enforceable in line with international standards.

Appeals of Arbitral Awards

In South Africa, unless the parties have expressly agreed that there will be a right to appeal the merits of the award, international arbitral awards are not appealable.

Judicial Reviews of Arbitral Awards

Notwithstanding that an appeal mechanism may not have been included in the arbitration agreement, parties are entitled to judicially review the award in one of two ways:

• by way of application to set aside the award – this application must be made to the High Court within three months of the date on which the party making the application received the award; or
• by opposing an application to enforce the award.

Under the IAA, an award may only be judicially reviewed on the following grounds.

• If the arbitration agreement is found to be invalid.
• If there were procedural irregularities in the arbitration, on the following grounds:
1. a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present their case; or
2. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement or the IAA.
• If the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration (lack of jurisdiction).
• If the court finds that the subject matter of the dispute is not capable of settlement by arbitration under South African law.
• If the court finds that the award is in conflict with the public policy of South Africa.

Inclusion of an Appeal Mechanism

Parties in international arbitrations seated in South Africa can agree to include an appeal mechanism in their arbitration agreement, even though this is not expressly provided for under the IAA. This is more commonly done in domestic arbitrations.

Excluding/Expanding the Judicial Review Grounds

South African law offers no precedent for attempts to contractually exclude or expand the grounds of judicial review prescribed by the IAA. Such attempts would in any event appear unlikely to succeed, as the relevant provisions are mandatory in nature, admit of no express party variation, and exist to safeguard the integrity, finality and efficiency of the arbitral process.

The standard of judicial review for arbitral awards in South Africa is deferential rather than de novo. South African courts respect the autonomy of the arbitral process and will not re-examine the merits of the case. Instead, judicial reviews are generally limited to grounds of procedural fairness and are aimed at ensuring that the arbitral proceedings were conducted fairly and in accordance with the agreed procedural rules and applicable law. The courts will intervene only on the narrow grounds set out previously (see 11.1 Grounds for Appeal), such as in the event of serious procedural irregularities, lack of jurisdiction or if the award contravenes public policy. This deferential standard is viewed as necessary in order to uphold the integrity, finality and efficiency of arbitration as a dispute resolution mechanism.

South Africa has signed and ratified the New York Convention without any reservations. The New York Convention was initially incorporated into domestic law through the Recognition and Enforcement of Foreign Arbitral Awards Act, but this was subsequently repealed following the enactment of the IAA. The IAA now incorporates the New York Convention (Chapter 3 read with Schedule 3).

Procedures and Standards for Recognising and Enforcing a Foreign Arbitral Award

The IAA states that a foreign arbitral award must be recognised and enforced in South Africa, except as expressly provided for in the IAA. The procedure for enforcing an arbitral award (whether foreign or otherwise) requires an application to be made to the High Court, producing:

• the original (if foreign, this must be authenticated) or certified copy of the award;
• the authenticated original (if foreign, this must be authenticated) or certified copy of the arbitration agreement; and
• if the agreement or award is in a foreign language, an authenticated sworn translation.

However, the IAA states that the court may accept other documentary evidence regarding the existence of a foreign arbitral award and arbitration agreement as sufficient proof where the court considers it appropriate to do so.

Grounds for Refusing to Recognise and Enforce a Foreign Arbitral Award

The court must enforce the award unless one of the grounds for refusal under the New York Convention is established, namely as follows.

• If the court finds that:
1. a reference to arbitration of the subject matter of the dispute is not permissible under the law of South Africa; or
2. the recognition or enforcement of the award is contrary to the public policy of South Africa.
• If the opposing party proves to the satisfaction of the court that:
1. a party to the arbitration agreement had no capacity to contract under the law applicable to that party;
2. the arbitration agreement is invalid under the law to which the parties have subjected it, or where the parties have not subjected it to any law, the arbitration agreement is invalid under the law of the country in which the award was made;
3. they did not receive the required notice regarding the appointment of the arbitrator or of the arbitration proceedings, or were otherwise not able to present their case;
4. the award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or contains decisions on matters beyond the scope of the reference to arbitration (partial recognition and enforcement may be awarded if certain decisions did fall within the scope);
5. the constitution of the arbitration tribunal or the arbitration procedure was not in accordance with the relevant arbitration agreement or, if the agreement does not provide for such matters, with the law of the country in which the arbitration took place; or
6. the award is not yet binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.

Foreign Awards Subject to Ongoing Set-Aside Proceedings

The IAA states that, if an application for the setting-aside or suspension of an award has been made to a competent authority at the seat, the South African court may, if it considers it appropriate:

• adjourn its decision on the enforcement of the award; and
• on the application of the party claiming enforcement of the award, order the other party to provide suitable security.

South African courts will not enforce an arbitral award that has been set aside by the courts at the seat of arbitration.

Awards Subject to Ongoing Set-Aside Proceedings at the Seat

Where set-aside proceedings are ongoing at the seat of arbitration, South African courts retain the discretion to suspend enforcement pending their resolution. Although no case law has yet addressed this point directly, such an approach would serve to prevent conflicting judgments and to preserve the authority of the courts at the seat of arbitration.

State and State Entity Immunity

Under the Foreign States Immunities Act, 1981, foreign states generally enjoy immunity from the jurisdiction of South African courts. That immunity is, however, displaced in the context of arbitration: where a foreign state has agreed in writing to submit a dispute to arbitration, Section 10 of the Foreign States Immunities Act renders it subject to the jurisdiction of South African courts in relation to arbitration.

General Approach of the South African Courts to the Recognition and Enforcement of Arbitral Awards

Foreign arbitral awards

As mentioned previously, the IAA states that a foreign arbitral award must be recognised and enforced in South Africa, except as expressly provided for in the IAA. The grounds provided for in the IAA accord with the grounds set out in the New York Convention.

Arbitral awards in South African-seated arbitrations

The IAA also states that awards in international arbitrations seated in South Africa must be recognised, except as provided for in the IAA. The grounds for refusal essentially mirror those applicable to foreign arbitral awards.

The IAA has reduced the scope for challenging awards for tactical reasons. For example, in Snowy Owl Properties 284 (Pty) Ltd v Mziki Share Block Limited [2024] ZASCA 79, the Supreme Court of Appeal found that, although enforcing an arbitral award at odds with legislation may be contrary to public policy, this must be weighed against the important goals of private arbitration. The court held that raising such a defence only after the award has been rendered “self-evidently” erodes the utility of arbitration as an expeditious, out-of-court means of finally resolving disputes.

A further example is GFE MIR Alloys and Minerals SA (Pty) Ltd v Momoco International Limited [2023] ZAGPJHC 946, in which the High Court rejected a request for leave to appeal against an order enforcing an arbitral award and directed that the award be enforced pending any future appeals the losing party may wish to lodge, in order to avoid delays. Under South African law, further appeals generally suspend the enforcement of court orders. The court emphasised that public policy considerations support the general rule that arbitration awards should be enforced by South African courts.

Refusal of Foreign Arbitral Awards on Public Policy Grounds

While the South African courts are supportive of arbitration, they will refuse enforcement on public policy grounds if the award is fundamentally offensive to the country’s notions of justice and morality. As can be seen from the Snowy Owl and Momoco judgments, this standard is applied narrowly to ensure that only awards that egregiously violate public policy are refused at the enforcement stage. Grounds for refusal include fraud, corruption, serious procedural irregularities and awards that contravene fundamental principles of South African law.

Neither class action nor group arbitration is accommodated within South Africa’s current legal framework, and the authors are not aware of any such proceedings having been instituted to date. The IAA is directed at bilateral arbitrations between identified parties who have specifically consented to resolve their disputes through arbitration.

This consent-based foundation gives rise to inherent limitations on the arbitrability of collective claims. Where multiple claimants seek to consolidate their disputes, the requirement for individualised consent becomes difficult to satisfy, as the collective character of such claims sits uneasily with the principle that arbitration derives its authority from the specific agreement of the parties.

Legal Counsel

Lawyers practising in South Africa are bound by the ethical codes and professional standards applicable to legal practitioners in the country. These standards are primarily governed by the Legal Practice Act 2014, which regulates the conduct of attorneys and advocates, and the Code of Conduct issued by the Legal Practice Council (LPC). The LPC is the statutory body responsible for regulating the professional and ethical conduct of legal practitioners and candidate legal practitioners. Its Code of Conduct outlines core duties such as integrity, independence, confidentiality, avoidance of conflicts of interest, and respect for the rule of law.

Attorneys are also typically affiliated with the Law Society of South Africa (LSSA), while advocates are often members of the General Council of the Bar (GCB). These bodies provide additional ethical guidelines.

There are no specific restrictions applicable to non-South African legal counsel appearing in an international arbitration seated in South Africa. However, such practitioners remain bound by their own domestic ethical standards. Unethical conduct during the arbitration may give rise to grounds for judicial review or higher costs against the offending party.

Arbitrators

Ethical obligations govern the conduct of arbitrators in South Africa, with compliance required under the standards set by relevant professional bodies and affiliated arbitral institutions.

AFSA and the Association of Arbitrators (Southern Africa) have each adopted Codes of Conduct, the central tenets of which are impartiality, independence and full disclosure of any potential conflicts of interest. At the international level, the IBA Guidelines on Conflicts of Interest in International Arbitration and the IBA Rules of Ethics for International Arbitrators are widely observed, serving as authoritative reference points for the fair and transparent conduct of proceedings.

Third-party funding is permitted in South Africa. There is no specific regulation or legislation governing its use.

The arbitral rules selected by the parties may, however, address the matter directly. Under the AFSA International Rules, for instance, a funded party is required to disclose both the existence of any funding agreement and the identity of the funder, either in the Request for Arbitration or as soon as practicable after the funding arrangement has been entered into.

Section 10 of the IAA permits parties to agree to the consolidation of separate arbitral proceedings, but precludes consolidation by order of the tribunal in the absence of party agreement.

The AFSA International Rules also allow for consolidation in these instances, and subject to the following.

• Prior to the constitution of any arbitral tribunal in the relevant arbitrations, a party may apply to consolidate, provided that:
1. all parties have agreed; or
2. all the claims in the arbitrations are made under the same arbitration agreement.
• After the constitution of any arbitral tribunal in the relevant arbitrations, a party may apply to consolidate, provided that:
1. all parties have agreed to the consolidation;
2. all the claims in the arbitrations are made under the same arbitration agreement; 
3. the same arbitral tribunal has been constituted in each of the arbitrations; or
4. no arbitral tribunal has been constituted in other arbitrations. 

As a general principle, arbitration agreements bind only those parties who have agreed to them. Nevertheless, third parties may become bound in certain circumstances, including through agency, assignment, succession or subrogation. Where a third-party steps into the position of an original contracting party, it will ordinarily be subject to the arbitration agreement contained in that contract. Express consent by a third party to an arbitration agreement will similarly render it binding upon them.

In group or multiparty arbitration, third parties may be bound where the arbitration agreement expressly provides for this, or where all parties consent to consolidated proceedings. Institutional rules such as the AFSA International Rules may facilitate such arrangements, subject to clear consent from all parties involved.

South African courts generally lack jurisdiction to bind foreign third parties to an arbitration agreement or award unless those parties have a direct connection to the agreement or the underlying contractual relationship. Exceptions may arise where reciprocity principles apply or where the conduct of the foreign third party brings it within the jurisdiction of the South African courts.