n Stellenbosch Law Review = Stellenbosch Regstydskrif - Judicial review of arbitration awards
|Article Title||Judicial review of arbitration awards|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Affiliations||1 University of the Free State and 2 University of Stellenbosch|
|Publication Date||Jan 2014|
|Pages||247 - 264|
This tribute provides an overview of the role of the courts in the review of awards made as a result of domestic arbitration undertaken voluntarily. Our courts have over the years performed a balancing act between non-intervention and constant intervention. Immediately prior to colonial legislation, our common law had come to rest approximately halfway between the early Roman law extreme of non-intervention and the Roman Dutch extreme of effectively permitting an appeal against an award. An overview of our subsequent jurisprudence reveals that this balance has not since been upset, even in response to the more interventionist approach adopted by the English courts in the early 1900s on the basis of identically worded legislation. Nor did it occur after the adoption of the Arbitration Act 42 of 1965 or, more recently, the South African Constitution of the Republic of South Africa, 1996. South African legislation governing the review of arbitration awards has been underpinned and applied so as to provide only narrow grounds for review and these have in turn been restrictively interpreted. In the result, while the courts have demonstrated a willingness to assist parties deprived of a fair hearing by procedural wrongs, they have limited their reviews to these alone and have refused jurisdiction in cases that requested their review of the arbitrator's legitimate exercise of discretion. The courts have therefore maintained their lack of jurisdiction to enquire into the correctness of the conclusion arrived at by arbitrators on the evidence before them. In the result, the integrity of the arbitration process is preserved save for in cases where the arbitrator himself has discredited it through mala fides, gross irregularity or the exercise of powers not conferred upon him. Our approach has in fact pre-empted many of the international developments in modern arbitration law. Nevertheless, the South African Law Reform Commission has recommended material changes to the dispensation brought about by the 1965 Arbitration Act. This paper aims to show that the grounds for review of an arbitral award outlined in the Arbitration Act 1965, and their application in our courts, do not call for legislative intervention in any material way. The fear is that such intervention would not only be unnecessary, but could create uncertainty and upset the delicate balance that has been struck and so successfully maintained over the years.
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