- CAJAC
- SADC Alliance
- BRICS
As part of the ICC’s 3rd Annual Arbitration and ADR Days, the ICC YAAF hosted a panel discussion on The Future of Arbitration in South Africa – Challenges and Opportunities 10 February 2026, moderated by Perenami Momodu, Arbitration Consultant and Head of Africa Practice at Gateley Legal. Speakers Brittany Muller, Senior Associate at ENS, Dr Faadhil Adams, Senior Lecturer at UCT, and Colleen Parker-Bacquet, ICC Counsel, shared practical insights on the nuances of arbitral procedures and careful drafting.
The speakers agreed that many of arbitration’s most serious difficulties are rooted in defective drafting. So-called “pathological” clauses remain surprisingly common. These are not merely inelegant formulations; they are clauses that, in some cases, undermine the very viability of arbitration as a dispute resolution mechanism.
Ambiguity frequently arises where clauses employ non-mandatory language, leaving it unclear whether arbitration is intended to be binding at all. Similarly, overly restrictive formulations of the scope of disputes can inadvertently exclude claims that the parties plainly intended to arbitrate. Departing from the popular phrasing of disputes “arising out of or related to” the contract can create such issues.
Further complications arise in the context of multi-contract transactions, where inconsistent dispute resolution clauses, particularly those providing for different seats, can generate fragmentation and procedural incompatibility. In such cases, the promise of arbitration as a coherent and unified mechanism quickly dissolves.
Even seemingly minor drafting choices may carry significant consequences. Clauses that designate a specific arbitrator, without providing for substitution in the event of unavailability, risk rendering the tribunal improperly constituted. Likewise, a failure to clearly stipulate the number of arbitrators and the method of their appointment invites unnecessary jurisdictional disputes at the outset of proceedings.
The lesson is both simple and exacting: precision in drafting is not a formalistic exercise, but the foundation upon which the entire arbitral process rests.
Multi-tier dispute resolution clauses that require, for example, negotiation or mediation prior to arbitration, are often included with the laudable aim of promoting early settlement. Yet in practice, these provisions frequently give rise to threshold disputes that delay, rather than expedite, resolution.
Much turns on whether such steps are framed as mandatory preconditions or merely aspirational. Absent clear language, tribunals may be required to determine whether a failure to comply with a pre-arbitral step affects jurisdiction or merely admissibility. This distinction, while technical, can have significant procedural consequences.
Equally important is the operational clarity of these clauses. Questions such as who is authorised to conduct negotiations, how long each stage should last, and what constitutes sufficient compliance are often left unanswered. The result is a clause that gestures toward procedural sophistication but, in reality, introduces avoidable uncertainty.
Another theme that emerged was the tendency of arbitral proceedings to wholly transplant litigation procedures, stripping the arbitration process of its unique procedural advantages.
This “litigation-isation” is evident in submissions which mirror formalistic court pleadings rather than offer a persuasive narrative; expansive approaches to document production; and a continued reliance on lengthy oral hearings. While such practices may be familiar, they are not always appropriate in the arbitral context, where procedural flexibility and bespoke procedures ought to prevail.
That said, arbitration has also developed procedural techniques that reflect its distinctive character. The practice of concurrent expert evidence, or “hot-tubbing,” is a case in point. By allowing experts to be questioned together, tribunals are better equipped to interrogate points of divergence in real time, often leading to a more focused and efficient evidentiary process.
There is also a discernible shift toward greater reliance on written proceedings, particularly in cases where oral hearings add limited value. This reflects a broader recognition that efficiency in arbitration is not achieved through replication of court processes, but through procedural calibration.
Arbitration is often described as a creature of contract, and rightly so. Yet the discussion highlighted that party autonomy is not without limits.
Attempts to introduce, for example, a right of appeal to a separate arbitral tribunal illustrate this tension. While such provisions may appear to enhance procedural fairness, they sit uneasily with the principle of finality that underpins arbitration. In practice, they may create enforceability risks, particularly at the stage of recognition and enforcement of awards.
This serves as a useful reminder that arbitration operates within a broader legal framework. Not every procedural innovation will be compatible with that framework, and practitioners must remain attentive to the boundaries within which autonomy can be exercised.
Concerns about the cost and duration of arbitration are by now well-rehearsed. What was notable in the discussion, however, was the emphasis on practical mechanism – both institutional and procedural – that can be deployed to address these concerns.
Institutional rules increasingly incorporate fee structures and procedural pathways designed to incentivise efficiency. For instance, some frameworks link arbitrators’ remuneration to the value of the dispute, while also permitting fee reductions in cases of undue delay. Expedited procedures, in turn, offer streamlined timelines and simplified processes for less complex disputes.
Beyond institutional design, much depends on the tribunal itself. One procedural device that received particular emphasis was the early formulation of a statement of issues. When deployed effectively, this tool can sharpen the focus of the dispute, limit unnecessary evidentiary excursions, and provide a roadmap for the proceedings as a whole.
The interplay between arbitral proceedings and domestic courts remains a dynamic and, at times, contested space. The discussion’s reference to the Kalagadi decision serves as a reminder that national jurisprudence continues to shape the contours of arbitration in meaningful ways.
While arbitration is premised on a degree of autonomy from court intervention, that autonomy is neither absolute nor immune from judicial scrutiny. Practitioners must therefore remain attuned not only to institutional rules and transnational principles, but also to the evolving stance of domestic courts.
Perhaps the most striking takeaway from the discussion was that arbitration does not suffer from a lack of innovation. If anything, the opposite may be true. The proliferation of procedural options, drafting techniques, and institutional frameworks has introduced a level of complexity that can obscure the fundamental strengths of the process.
The challenge, then, is not to reinvent arbitration, but to exercise discipline in its use. This means drafting clauses with care, resisting the uncritical importation of litigation practices, and making deliberate, proportionate procedural choices.
For emerging practitioners, the message is clear: arbitration rewards not only technical proficiency, but also judgement. It is in the thoughtful application of first principles, rather than in procedural embellishment, that the true value of arbitration is realised.