The AFSA Court: A New Dimension in Arbitrations Administered by AFSA

The new International Rules came into force on 1 June 2021 and represent, together with the advent of the International Arbitration Act, the reaffirmation of South Africa as the leading administrative body for international arbitration in Southern Africa. The Rules align themselves with the best international standards for arbitration designed to ensure efficient, flexible, and impartial arbitrations.

For the first time in South Africa, although common internationally, the Rules introduce the AFSA Court. It is made up of twenty leading practitioners in commercial arbitration and is the final authority for the proper application of the Rules.

The Court cannot consist of more than two-thirds of the same nationality. At present its members come from England, Australia, Hong Kong, France, Holland, Kenya, Botswana, and South Africa and will have a member from China and two members from the SADC. Retired Chief Justice Sandile Ngcobo is the president of the Court and Edwin Glasgow QC the vice-president. The other members of the Court are presently Adv Michael Kuper SC, Adv Patrick Lane SC, Professor David Butler, Jonathan Ripley-Evans, Des Williams, Harry Montovou QC, Neil Kaplan QC, Bruce Collins QC, John Bishop, Tengo Rubadiri, Remi Gerbay, Judge Edward Torgbor, Lise Bosman, Professor Maxi Sherer and Dr Fuyong Chen.

The Court is governed by its constitution and the Rules which provide, generally, for its composition, its powers, and its functions. The Constitution makes provision for the appointment of a Secretary General which performs the functions of the Secretariat in terms of the Rules and who is responsible for the day-to-day administration of the referrals.

The Court does not in the conventional sense give judgements. It is the final authority for the proper application of the Rules as the appointing or confirming authority and for deciding any arbitral challenges. Article 2 of the Rules precludes the Court from itself deciding the merits of a dispute and, as distinct from the ICC Court, the Court does not vet the awards which are and remain the domain of the Tribunal. The function of the Court is to supervise the administration of the resolution of disputes assisted by the Secretariat to whom all communications to the Court must be addressed. The decisions of the Court are confidential.

An important provision is that the members of the Court, whilst not being eligible for appointment as an arbitrator by the Court may take appointments as arbitrator from the parties to an arbitration or be appointed as the President of the Tribunal by the party appointed arbitrators in AFSA administered arbitrations.

The exercise of the Court’s control over the appointment or confirmation of arbitrators permeates the Rules. Expedited and emergency arbitrations have been introduced in terms of Articles 11 and 12 in which the Court plays a key role in acceding to or refusing the requests and appointing the arbitrators. It controls the replacement of arbitrators in terms of Article 14 and may decide, in exceptional circumstances, when it considers it appropriate, that the remaining arbitrators, if any, may continue with the arbitration.

All challenges to the appointment of an arbitrator or for the removal of an arbitrator are decided by the Court in terms of Article 13. It also has the power of its own discretion to remove an arbitrator who refuses to act or to perform his or her functions in terms of the Rules or if the arbitrator becomes de jure or de facto unable to perform his or her functions or for other reasons fails to act without undue delay.

Joinder and intervention of parties to an arbitration and consolidation of arbitrations are solely regulated by the Court before the appointment of the Tribunal.

The function of the Court assures the parties referring their dispute to AFSA that there is absolute independence and neutrality in the process of establishing the Tribunal and dealing with challenges. It introduces a new and necessary dimension to the administration of international arbitration in Southern Africa.