n Stellenbosch Law Review = Stellenbosch Regstydskrif - Tracking down consent and dissent in arbitration law and practice [a discussion of 2006 6 SA 91 (C)]

Volume 20, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



It is common perception that arbitration is consensual. This is because parties normally engage in arbitration by their mutual consent and agreement. However, controversy often arises when a dispute actually occurs, and one party seeks to enforce the arbitration agreement but the other party denies, or dissents from, the arbitration agreement. Disputed issues of consent and dissent require early investigation and determination. Otherwise they may transform to other challenges, such as the appointment of the arbitrators and the arbitral jurisdiction, that may consequently put the eventual arbitral award at the risk of being set aside by the court. Two agreements emerged in the case: a settlement agreement and an arbitration agreement. The court found the former to be tainted by dissent () but not the latter, from which the disputed arbitral award emanated. The route to these findings illustrates the elusiveness of consent in arbitration practice, and the principles applied by the court in the investigation and determination of such issues towards the final disposal of the dispute on merits.

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