Judicial Hostility Towards International Arbitration Disputes in South Africa: Case Reflections

• Jurisdiction: South Africa
• Citation: (2019) 31 SA Merc LJ 365
• Published date: 20 September 2020
• Pages: 365-377
• Date: 20 September 2020
• Author: Baboolal-Frank, R.

Articles

JUDICIAL HOSTILITY TOWARDS

INTERNATIONAL ARBITRATION DISPUTES

IN SOUTH AFRICA: CASE REFLECTIONS

RBABOOLAL-FRANK*

Senior lecturer in Procedural Law, University of Pretoria

Abstract

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arbitration is outdated.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.

IINTRODUCTION

Judicial hostility has been prevalent in both American and South African

case law. Judicial hostility seemed to be multi-faceted in that judges did

not recognise arbitration awards. Subsidiary legislation also did not

*LLB (UKZN) LLM (UCT) LLD (Pret).

365

(2019) 31 SA Merc LJ 365

© Juta and Company (Pty) Ltd