WHAT RULES APPLY TO AN ARBITRATION?
Many of our Members have probably never experienced an arbitration before. Arbitration is not the same as court proceedings, but depending on the amount in dispute, and the severity of the claims, an Arbitration can be conducted either as formally as High Court proceedings, or alternatively, as casually as sitting around a dining room table, where the Arbitrator hears evidence from the Contractor and the Employer; or the Contractor and his Sub-Contractor; and ultimately makes a ruling.
In a very formal Arbitration, the parties may be legally represented by Senior Counsel; Junior Advocates; Attorneys; Technical Para-legal Representatives; or Expert Witnesses; or a combination of any of the preceding. Such an Arbitration would be conducted under what are referred to as the Standard Procedure Rules as laid down by the Association of Arbitrators of Southern Africa, for the Conduct of Arbitrations.
On the other hand, where the amount in dispute is relatively low and the nature of the dispute is not particularly complex, then such an Arbitration can be conducted under what are known as the Summary Procedure Rules, or the Restricted Representation Arbitration Rules.
Under the latter form of rules, the Arbitration can be extremely informal and the parties, unless by mutual agreement between them, may not be represented by practicing attorneys or advocates. This obviously will substantially reduce the costs of conducting an Arbitration. Note however, that a party may be represented by a competent representative, provided such a person is not a practicing attorney. Amongst the Members of our MBA, we have several such competent people, who can be contacted to represent you in such an Arbitration. Please feel free to contact the office, should you require their contact details.
The Arbitration, whether of a formal or informal nature, will be governed by the Arbitration Act 42 of 1965, provided the Arbitration is in terms of either a JBCC, or MBSA form of Building Agreement. If there is no formal written agreement between the disputing parties, then the Arbitration will be conducted under the Common Law.
It is the Written Arbitration Agreement, together with the Arbitration Act, that gives the Arbitrator the power to conduct the Arbitration and to write the Final Award (the Judgment). Thereafter, if the defaulting party fails to honour the terms and obligations of the Arbitrator’s Award, then this Arbitrator’s Award, by application to the High Court, can be made an Order of the High Court, which effectively means that it carries the same weight as a Judgment from the High Court. Therefore, although an Arbitration may be conducted on a very informal basis, bear in mind that ultimately, it can carry the same weight as a High Court Judgment.
Copies of the Arbitration Act can be downloaded from the Government’s website and copies of the Standard Procedure and Summary Procedure Rules can be downloaded from the Association of Arbitrators Southern Africa website. If you are about to embark on an Arbitration, it will be preferable for you to acquaint yourself with the rules under which your Arbitration is to be conducted.
Jonathan W Mitchell
021 511 7222
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