Court Support For Arbitration In South Africa: Knowing Where You Stand

In December 2017, South Africa brought into law its first piece of legislation dedicated to international arbitration, the aptly named International Arbitration Act of 2017 (the New Act).

The New Act

The New Act incorporates the provisions of the UNCITRAL Model Law and further aligns the country’s national law with the New York Convention. The legislation has been welcomed as a necessary step for South Africa to become the continent’s leading arbitral hub. Rather interestingly, in an effort to stimulate the growth of ADR, parties can also now choose to refer their disputes to conciliation using the UNCITRAL Conciliation Rules.

But the New Act does not stop at mere adoption of the UNCITRAL texts and modernisation of the old regime.  Ambitious refinements to the Model Law (which is incorporated as Schedule 1 to the New Act), seek to advance certain matters into what many may regard as relatively unchartered waters. One such ambitious development relates to court ordered interim measures.

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Australia is the first state in the Asia-Pacific region to sign the Mauritius Convention

On 18 July 2017, Australia became the first state in the Asia-Pacific region to sign the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration, also known as the Mauritius Convention. Globally, Australia was the 21st signatory to the Mauritius Convention, joining a number of other major signatories such as the UK, the US, France, Germany and Canada. The Convention will come into force on 18 October 2017, six months after its ratification by the first three states.

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All Australian States and Territories are now Model Law jurisdictions

By introducing the new Commercial Arbitration Act 2017 (ACT), the Australian Capital Territory is the last Australian State to adopt the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration (the Model Law). At the Federal and State level, the Model Law now applies to both international and domestic arbitrations seated in Australia.

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Australian Court provides guidance on Art 33(3) of the Model Law, the doctrine of functus officio and when a ‘Final Award’ is not ‘final’

In Blanalko Pty Ltd v Lysaght Building Solutions Pty Ltd [2017] VSC 97, Croft J of the Victorian Supreme Court confirmed that a party is not required to rely on, or comply with the time constraint in, Art 33(3) of the Model Law to obtain a further Award in circumstances where the arbitrator has made ‘a conscious decision not to deal with an issue’.  The decision also provides useful commentary on the functus officio doctrine and the circumstances in which an Award labelled ‘Final Award’ is not, relevantly, a ‘final Award.’

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New Arbitration Law in Qatar

Introduction

The Emir of Qatar, Sheikh Tamim bin Hamad al Thani, issued Law No 2 of 2017 on 16 February 2017 (the "New Arbitration Law"). The New Arbitration Law has not yet been published in the Official Gazette and implementing regulations are yet to be issued, but the New Arbitration Law will come into force 30 days after this occurs.

Overview

The New Arbitration Law replaces Articles 190 to 210 of the Qatari Civil Code, which previously governed arbitration proceedings seated in Qatar. In a positive step, it is substantially based on the UNCITRAL Model Law, which is the benchmark for arbitration legislation, and will apply to all ongoing and future disputes. Although other jurisdictions in the region (such as the UAE) have considered adopting or have adopted the UNCITRAL Model law (for example, the 2005 Arbitration Regulations are heavily based on the Model Law), Qatar will be the first in the region to implement them onshore. Nevertheless, it remains to be seen how these provisions will be applied in practice and the courts' approach when asked to exercise their supervisory jurisdiction.

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‘Bare’ arbitration clauses and the extent to which the Singapore court may assist

In K.V.C Rice Intertrade Co Ltd v Asian Mineral Resources Pte Ltd and another Suit [2017] SGHC 32 ("KVC Action") the Singapore High Court discussed the extent to which the Singapore courts and the Singapore International Arbitration Centre, in its capacity as default appointing authority under the Singapore International Arbitration Act ("IAA"), are able to support and facilitate an arbitration commenced pursuant to a bare arbitration clause which specifies neither the place of arbitration nor the manner in which arbitrators are to be appointed.

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Enactment of the Abu Dhabi Global Market Arbitration Regulations 2015: the creation of a new “pro-arbitration” seat in the Middle East?

The Abu Dhabi Global Market ("ADGM"), a financial freezone in the United Arab Emirates, has enacted new arbitration regulations based on the UNCITRAL Model Law to create a new "pro-arbitration" seat in the Middle East. The ADGM Arbitration Regulations 2015 (the "ADGM Regulations") were enacted on 17 December 2015, and allow contracting parties to choose the ADGM as the seat of arbitration – no link is required to the ADGM for it to have jurisdiction.

The ADGM was recently established by decree of the Ruler of Abu Dhabi in 2013 and began operating in 2014. Similar to the Dubai International Financial Centre (the "DIFC"), the ADGM operates its own self-contained common law legal system, however, the ADGM directly incorporates English common law and a list of English statutes into its legal system by reference. In contrast, the DIFC has created its own separate body of substantive laws, with English law only applied in the event of conflict or gaps in DIFC law.

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