Judicial Hostility Towards International Arbitration Disputes in South Africa: Case Reflections
Author R Baboolal-FrankISSN: 1996-2185 Affiliations: Senior lecturer in Procedural Law, University of Pretoria. Source: South African Mercantile Law Journal, Volume 31 Issue 3, 2019, p. 365 – 377
The term judicial hostility in this context refers to the courts’ reluctance to enforce arbitration awards. Judicial hostility towards international arbitration had found its place in American courts as judges were reluctant to enforce the terms of an arbitration agreement that would subject the parties to the arbitration and subsequently bind them to an arbitration award. The judiciary pronounced on the dispute rather than making the arbitration award an order of the court. The court did not provide enforcement mechanisms or execution orders in respect of arbitration awards. However, judicial hostility decreased in America because of the amendment of the Federal Arbitration Act, which governed the enforcement of arbitral awards between parties. Judicial hostility had many facets in South Africa, from the judiciary taking away the force of arbitration awards by finding that the arbitration agreement was void to Hlophe JP not supporting arbitration forums. Despite this fact, the South African judiciary has overcome its hostility but the legislation that governs arbitration is outdated. The intention of the legislature was to ensure that the International Arbitration Bill was promulgated during 2016. This article critically discusses judicial hostility towards arbitration awards.