AFSA International Arbitration Rules introduced
23 Jul 2021
The Arbitration Foundation of Southern Africa (AFSA) has introduced rules pertaining to international arbitration and has thus positioned South Africa as an international arbitration seat.
AFSA is the body responsible for the administration of disputes in accordance with the rules and is comprised of the AFSA International Board, an AFSA International Court (“the Court”) and an AFSA International Secretariat (“the Secretariat”), led by its Secretary General.
Where the parties have agreed for an arbitration to take place under AFSA rules, they shall be taken to have agreed that any arbitration between them shall be conducted in accordance with the AFSA international arbitration rules.
The Court does not decide the merits of the disputes, however, it supervises the administration of the resolution of disputes by the Arbitral Tribunals.
Any party wishing to commence an arbitration under the rules shall deliver to the Secretariat a written request for arbitration which must include, inter alia, a statement summarising the nature and circumstances of the dispute. The request may be submitted in electronic form. Copies of the request must also be delivered to the other parties to the arbitration.
Within 30 days after receipt of the request the respondent shall deliver to the Secretariat a written answer to the request, which encompasses their details and any statement summarising the nature and circumstances of a counterclaim, if any.
A sole arbitrator shall be appointed under the rules unless the parties have otherwise agreed in writing. Where the arbitrators are nominated by the parties or any third person, such appointment shall be subject to confirmation by the Secretary General.
If a sole arbitrator is to be appointed and has not been appointed within 30 days from the commencement date of the arbitration (being the date of request for arbitration or any time limit agreed between the parties effected by the Secretariat) the sole arbitrator shall be appointed by the Court.
The rules provide for an expedited procedure where:
- the amount of the claim and counterclaim does not exceed the equivalent amount of USD500 000.00; or
- the parties agree to the expedited procedure.
In terms of the expedited procedure:
- the Secretariat may abbreviate any time limits provided under the rules;
- the Court may appoint a sole arbitrator;
- the Arbitral Tribunal shall decide on the basis of documentary evidence only unless it decides that it is appropriate to hold one or more hearings;
- the final award shall be communicated within 6 months from the date when the Secretariat transmitted the case file to the Arbitral Tribunal;
- the Arbitral Tribunal may state the reasons upon which the award is based in summary form unless the parties have agreed that no reasons are to be given.
The rules provide that an emergency arbitrator may be appointed for a party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal. In such case, should the Secretary General accept the application for an emergency arbitrator, the Court shall seek the appointment of an emergency arbitrator within 48 hours of receipt by the Secretariat of such an application and payment of the administration fee and deposit.
Any party may apply to the Arbitral Tribunal for the early dismissal of a claim or a defence on the basis that a claim or defence is manifestly without legal merit or the claim or defence is manifestly outside the jurisdiction of the Arbitral Tribunal.
The parties are free to agree upon the rules of law to be applied by the Arbitral Tribunal to the merits of the dispute. In the absence of any such agreement, the Arbitral Tribunal shall apply the rules of law which it determines to be appropriate.
Hearings of the Arbitral Tribunal may take place in person or by any other means that the Tribunal deems appropriate, including video or telephone conference or a combination thereof.
The parties undertake as a general principle to keep confidential all awards and all materials created for the purpose of the arbitration. An exception to this principle is that unless a party objects in writing within 30 days after notification of the award, the arbitral award may be published by AFSA in an anonymised or pseudonymised form.
The above does not encompass all of the articles set out in the new rules, but merely to provide a summary of their scope and nature. The introduction of these rules certainly provides parties with an avenue to have international disputes resolved and grows South Africa’s position as an international arbitration seat.
See also:(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)