| THE ASSOCIATION OF ARBITRATORS (Southern Africa) |
ARBITRATION UNDER THE RULES OF THE ASSOCIATION
The Association's Arbitration Rules
The Rules for the Conduct of Arbitrations (3rd edition, 1997) are intended to facilitate quick and cost effective arbitration. They should not be seen as prescriptive, but rather as guidelines which may, and should, be modified when such modification will expedite the process. The General Provisions apply in all instances. The Standard Procedure Rules are appropriate in most instances, particularly where the parties are represented, and apply unless the parties have agreed to adopt the Summary Procedure Rules. The latter are intended for the smaller and simpler arbitrations, particularly when the parties are not represented and have little or no experience of arbitration procedure. They require the arbitrator to play a more active and interventionist role than under the Standard Procedure Rules.
In the near future, the Rules for the Conduct of Arbitration will be amended to include provisions for the appointment and challenge of arbitrators, and will be supplemented by Ethics Rules.
The Association furthermore will appoint arbitrators or conciliators undert the UNCITRAL Arbitration Rules and Conciliation Rules.
General Provisions
These General Provisions shall apply in all instances, irrespective whether the Standard Procedure Rules or the Summary Procedure Rules are followed.
1. Definitions
In these Rules:
1.1 "Day" means any day other than a Saturday, Sunday or public holiday;
1.2 "Rules" means these Arbitration Rules;
1.3 "Claimant" means the party to the arbitration who claims relief against the other party, provided that if each party claims relief against the other, "Claimant" shall mean the party who first referred the dispute to arbitration;
1.4 "Defendant" means the party to the arbitration other than the claimant;
1.5 "Document" means, in relation to each party, any document of whatsoever nature in his possession or under his control, whether an original or a copy, relating to the dispute which has been referred to arbitration, including plans, diagrams, photographs and recordings on magnetic tape, compact disc and computer disc;
1.6 "Representative" means any person engaged by a party to assist him in the preparation of his claim or defense, as the case may be, and to present his claim or defense at the arbitration hearing on his behalf, and shall include an advocate, an attorney, a claims consultant and any other person who, by virtue of his training and experience, is able to present his case.
1.7 "Submissions" means the Statement of Issues, Statement of Claim, Statement of Defense, Defendant's Counterclaim and Defendant's Reply and any other similar documents permitted by the Arbitrator; and
1.8 Where appropriate,words importing the singular shall include the plural and words importing the masculine shall include the other genders.
The Association's Model Arbitration Clause
"Any dispute of whatsoever nature arising out of this contract/agreement, or any dispute concerning the validity, breach, cancellation or repudiation of this contract/agreement, shall be referred to the arbitration and final decision of* an arbitrator to be appointed at the request of either party by the Chairman of the Association of Arbitrators (Southern Africa). Such arbitration shall be conducted in accordance with the Arbitration Act 1965 and the Rules for the Conduct of Arbitrations as presently in force, published by the Association of Arbitrators (Southern Africa)."
* Here, the parties may choose to insert the following formula: "...(name and address of arbitrator) or in the event of this death or inability or refusal to act, of...".
The Appointment of Arbitrators
Although the parties are always free to appoint an arbitrator of their choice by mutual agreement, many arbitration agreements stipulate that the Association is in charge of the appointment of the arbitrator. This is done either by one of the parties making a selection from a list of several names proposed by the Chairman of the Association, or by leaving the appointment to the Chairman. The Association has published a Derectory of Fellow Members to assist parties in their selection of an arbitrator. Applications for the Chairman to select or appoint an arbitrator must be made on the prescribed form. The arbitrator's fees are negotiated between the arbitrator and the parties. The Association charges a fee of R... for the services it renders with regard to arbitrator appointment.
How to Initiate an Arbitration
The basis for every arbitration is an arbitration agreement, unless the arbitration is imposed by statute or court order. An arbitration agreement may be drawn up after the dispute has arisen, but usually the parties' contract or agreement will contain an arbitration clause for future disputes, such as the Association's Model Clause. The initiating party, or both parties, as the case may be, contact the Secretariat to inform it of their wish to submit a dispute to arbitration. They may do so by using the Form below. Unless the choice of an arbitrator has already been made, they may request that the Association appoint an arbitrator or provide a list from which the parties may choose. The parties may also request that the Secretariat administer the procedure.
Parties may make their own representations, although it is recommended for complicated disputes that they seek professional assistance from an attorney or other arbitration expert, such as a Fellow of the Association. For uncomplacated cases, inexperienced parties may wish to consult the publication "Arbitration for the Uninitiated", which may be ordered from the Secretariat.
Last Revised: 30 March 1998