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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2012-11-29
In keeping with the theme of exploring the different forms of dispute resolution, available to us in South Africa, we turn our attention this week to arbitration. Arbitration is conducted along similar lines to how a normal trial is run. However in arbitration, the parties themselves choose the arbitrator and venue to be used.

If they are unable to agree on the arbitrator, often the chairman of the law society will nominate a suitable candidate. The arbitrator need not be a lawyer. If the dispute revolves around very technical issues, which requires specialized knowledge, it makes sense to appoint an arbitrator who is an expert in that field and has the requisite knowledge and experience.

The costs of the arbitrator's fees and venue are generally shared by the parties. Hence arbitration carries with it certain additional costs not normally payable in civil court proceedings. Many commercial contracts contain an arbitration clause. In that case arbitration will have to be used if a dispute later arises.

The delays that one faces in waiting for trial dates to be allocated can easily be overcome through the use of arbitration. Privacy and confidentiality are also guaranteed in arbitration. Unlike in normal court processes where the public has access to all the legal documents and pleadings, the process of arbitration will not allow the members of the public access to such information.

Off course with all this privacy and confidentiality, we do run the risk of not having sufficient case law precedents, which is an essential backbone to our judicial system. But we'll leave that debate for another time.

The Arbitration Act 42 of 1965 governs the process. The parties are represented by their respective lawyers. Once the arbitration award is made, it becomes binding on the parties. To ensure that the award can be enforced the award can be made an order of court.

However you cannot take the decision of the arbitrator on appeal to the Supreme Court of Appeal or Constitutional Court. Clearly arbitration cannot be used to resolve all disputes, but in those matters where it can be used, arbitration offers disputants a speedy, and in the long term, a cost- effective settlement to a dispute.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance.