Conducting commercial arbitration proceedings

Arbitration is part of alternative dispute resolution (ADR) mechanisms. In this article, I look at what the Arbitration Act (Chapter 7:15) or “the Act” says on the conduct of arbitral proceedings.

Part V of the Act covers the following areas:

Equal treatment of parties.

Determination of rules of procedure.

Place of arbitration.

Commencement of arbitral proceedings.

Language.

Statement of claim and defence.

Hearing and written proceedings.

Default of a party.

Expert appointed by an arbitral tribunal.

Court assistance in taking evidence.

Equal treatment of parties

According to Article 18, the parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.

Determination of rules of procedure

This is covered in Article 19. Subject to the provisions of this Model Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

If parties fail to agree, subject to the provisions of the Model Law, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate.

This includes the power to determine the admissibility, relevance, materiality and weight of any evidence.

Every witness giving evidence, and every person appearing before an arbitral tribunal shall have the same privileges and immunities as witnesses and legal practitioners in proceedings before a court.

Place of arbitration

According to Article 20(1) the parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.

Commencement of arbitral proceedings

According to Article 21 unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be

referred to arbitration is received by the respondent.

Language

In terms of Article 22 (1) the parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings.

This agreement or determination, unless otherwise specified therein, shall apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal.

Statement of claim and defence

This is very important in arbitration. It is a requirement in terms of Article 23 that within the period agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars unless the parties have otherwise agreed as to the required elements of such statements.

The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. Subject to the agreement by the parties, either party may amend or supplement his claim or defence during the arbitral proceedings unless the arbitral tribunal considers it inappropriate to allow such an amendment having regard to the delay in making it.

Hearing and written proceedings

Article 24 covers this area. In terms of Article 24(1) subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted based on documents and other materials.

However, unless the parties have agreed that no hearing shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.

It is a requirement in terms of Article 24(3) that all statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party. Also any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.

A party may appear in person or be represented.

Default of a party

Article 25 deals with situations where a claimant fails to communicate his claim in terms of Article 23(1), the respondent fails to communicate his statement of defence in terms of Article 23(1) or any party fails to appear at a hearing or to produce documentary evidence.

Expert appointed by the arbitral tribunal

Article 26 empowers the arbitral tribunal to appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal.

Court assistance in taking evidence

In terms of Article 27(1) the arbitral tribunal or a party with the approval of the arbitral tribunal may request from the High Court assistance in taking evidence. The High Court may execute the request within its competence and according to its rules on taking evidence.

Conclusion

It is important for parties to arbitration to understand what the Arbitration Act says about the conduct of arbitral proceedings including in commercial arbitration.

Disclaimer

This simplified article is for general information purposes only and does not constitute the writer’s professional advice.

Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), Hons B.Compt (UNISA), CA(Z), MBA(EBS, Heriot- Watt, UK) is the Managing Partner of Hofisi & Partners Commercial Attorneys, chartered accountant, insolvency practitioner, registered tax accountant and advises on deal and transactions.

He has extensive experience from industry and commerce and is a former World Bank staffer in the Resource Management Unit. He writes in his personal capacity. He can be contacted on +263 772 246 900 or gohofisi@gmail.com