- CAJAC
- SADC Alliance
- BRICS
Young AFSA recently hosted a webinar on research in international arbitration, moderated by Kyle Melville of the Knowledge Subcommittee. The session was led by Adv Andrew Russell of Maisels Chambers and Vincent Van Schoor of Wolters Kluwer. The discussion explored both the conceptual challenges of conducting research in arbitration and the practical tools available to practitioners. While Adv Russell focused on the realities of researching arbitration disputes, Van Schoor demonstrated how specialised legal research platforms can assist practitioners in navigating this complex field.
One of the central challenges of arbitration research lies in the confidential nature of the process. Unlike litigation, arbitral proceedings and awards are typically private. While confidentiality offers advantages to parties, it also means that arbitral decisions generally do not create publicly accessible precedent. As a result, practitioners must often navigate disputes without a clear map of prior decisions.
Adv Russell illustrated this challenge through a practical scenario: a client approaches a lawyer with a complex dispute arising from a large mining project. Such disputes often involve multiple contractors, technical disciplines, and parallel arbitrations with overlapping issues. Because arbitral awards are usually confidential, lawyers may have little visibility into how similar disputes have previously been resolved.
Although some guidance can be drawn from court decisions, these are limited in scope. Local case law dealing with arbitration typically arises when courts are asked to intervene in arbitral proceedings, for example through applications to review or set aside an award. These judgments therefore address only narrow procedural issues rather than the substantive reasoning of arbitrators. An example highlighted in the discussion was the 2023 Supreme Court of Appeal decision in Close-Up Mining (Pty) Ltd and Others v The Arbitrator, Judge Phillip Boruchowitz and Another, which considered whether an arbitrator had acted within the scope of their jurisdiction.
Because of these limitations, arbitration practitioners must rely on a range of alternative research sources.
In some jurisdictions, redacted arbitral awards are published and can provide insight into how tribunals approach certain issues. Investor–state arbitration, for example, offers a greater degree of transparency, with awards available through institutions such as ICSID. However, even these decisions may be heavily redacted or difficult to locate.
More general research tools also play a role. Search engines and artificial intelligence tools can help identify relevant materials across large bodies of information, but they often require significant time and effort to filter and verify results.
Legal research databases therefore remain an essential resource. South African arbitration practice frequently draws on English law and broader international practice, making databases such as LexisNexis, Westlaw, and Kluwer particularly valuable for accessing international case law, commentary, and arbitration-specific materials.
Adv Russell provided a further practical example involving submissions on arbitration costs. The Arbitration Act and many institutional rules grant tribunals broad discretion in allocating costs, raising the question of how that discretion should be exercised. In such circumstances, practitioners often turn to international best practice and leading texts, including works by Gary Born, Mustill and Boyd, and Redfern and Hunter.
Van Schoor concluded the webinar by demonstrating research tools available through Kluwer Arbitration. These platforms bring together a wide range of materials, including books, journals, ICCA publications, and commentary on arbitration procedure and costs. The ICCA publications include series on redacted arbitral awards released around and a selection of noteworthy court decisions applying the New York Convention. Comparative tools allow users to examine how different jurisdictions address similar arbitration issues, while practical features such as templates and quick-reference answers can assist practitioners preparing submissions or advising clients.
The webinar highlighted that researching international arbitration requires both creativity and familiarity with specialised resources. In a system where confidentiality limits access to prior decisions, practitioners must draw on international commentary, comparative materials, and specialised databases to inform their arguments. For young practitioners in particular, developing strong arbitration research skills remains an essential part of effective practice in this evolving field.