The role of national courts in the arbitration process

Abstract

The thesis entitled “The Role of National Courts in the Arbitration process” notes with concern the outdated and inadequate nature of the Arbitration law currently applied in South Africa. The fact that the Act was enacted in 1965 and has never been amended highlights the desperate need to review the prevailing arbitration law with a view to aligning it with the current needs of the business world. It raises three primary research questions in this context. First, does arbitration law in South Africa offer the benefits that were envisaged when arbitration was first developed as an alternative dispute resolution mechanism? Second, does the manner in which arbitration law is practiced in South Africa offer adequate protection to consumers who are vulnerable due to the inequality of bargaining power between themselves and large corporations? Third, is the current practice of arbitration in South Africa constitutional, particularly because of its potential limitation of the constitutional right of the parties to access the court? The thesis attempts to answer these questions and offer recommendations for the South African Law Reform Commission (SALRC) within the specific context of commercial arbitration. In addressing these research questions, the thesis incorporates a brief overview followed by a detailed discussion of the Arbitration law framework in South Africa and abroad. The discussion of arbitration abroad is done in order to identify best practices which could be adapted to suit the South African environment. The International Arbitration law receives attention and a few observations regarding how selected foreign jurisdictions treat arbitration is also included. Finally, the thesis explores the possibility of establishing an independent institution that will be fully equipped to handle arbitration proceedings from inception to completion.