ISSN: 1996-2185
Affiliations: Senior lecturer in Law, University of the Witswatersrand, Johannesburg
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 99 – 112
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ISSN: 1996-2185
Affiliations: Legal researcher, University of the Western Cape; Deputy Vice-Chancellor: Academic, University of the Western Cape
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 129 – 155
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ISSN: 1996-2185
Affiliations: Professor in Mercantile and Labour Law, University of Limpopo; Senior lecturer in Mercantile and Labour Law, University of Limpopo
Source: South African Mercantile Law Journal, Volume 32 Issue 1, 2020, p. 156 – 174
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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this fact, the South African judiciary has overcome its hostility but the legislation that governs arbitration is outdated.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.
The enactment of the International Arbitration Act has changed the international arbitration landscape in South Africa drastically. This new legislation has the potential to increase substantially the desirability of South Africa as an arbitral seat for international commercial arbitration matters. The Act incorporates the UNCITRAL Model Law on International Commercial Arbitration as well as the full text of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The New York Convention recently celebrated its 60th anniversary and its efficiency has been re-examined in academic commentary. In this article I seek to analyse the main provisions of the New York Convention as incorporated into the Act. I shall discuss recommendations for updating the Convention to serve the needs of modern international business transactions. I shall also highlight the most important provisions of the Model Law although they are not the main concern of this article.