ATC171017: Report of the Portfolio Committee on Justice and Correctional Services on the International Arbitration Bill [B 10 – 2017], dated 17 October 2017

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the International Arbitration Bill [B 10 – 2017], dated 17 October 2017
 

The Portfolio Committee on Justice and Correctional Services (the Committee), having considered the International Arbitration [B 10-2017], (the Bill) referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports the Bill with amendments [B10A-2017]. The Committer furthermore wishes to report as follows:

 

1. Context

 

1. The International Arbitration Bill proposes the incorporation of the United Nations Commission on International Trade Law (UNICITRAL) Model Law, as the cornerstone of the international arbitration regime in South Africa.

 

1. The current regulatory regime relating to international arbitration in South Africa has been subject to criticism. The Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 presently regulates international arbitration in South Africa. However, this Act is not in line with international developments. In addition, there has been concern that the Arbitration Act, 1965, is inadequate for the purpose of international arbitration and is outdated, requiring revision to meet modern commercial needs.

 

1. As a result, the South African Law Reform Commission recommended in 1998 that the Model Law be adopted in South Africa. The object of the Model Law is harmonisation and uniformity of national laws relating to international arbitration procedures.

 

1. The Bill, therefore, will ensure that South Africa’s arbitration legislation remains at the forefront of international best practice. This will assist South African businesses in resolving their disputes and in making South Africa an attractive venue for parties around the world to resolve their disputes.

 

1. Process followed

 

1. The International Arbitration Bill was referred to the Committee on 21 April 2017 for consideration and report. The Committee received a briefing on the Bill’s contents on 14 June 2017. At the meeting, a decision was taken to advertise the Bill for public comment. The Committee held public hearings at Parliament on 12 September 2017.

 

1. The Committee deliberated on the Bill and agreed to the following amendments:

 

 

CLAUSE 1

 

1.         On page 4, in line 5, to omit “Article” and to substitute “article”.

 

CLAUSE 5

 

1.         On page 4, in line 46, after “any” to insert “international commercial”.

 

CLAUSE 9

 

1.         On page 5, in line 33, after “arbitrator” to insert “or persons appointed by the arbitral tribunal”.

 

CLAUSE 17

 

1.         On page 6, in line 46, to omit “and”, and to substitute “or”.

           

CLAUSE 18

 

1.         On page 7, in line 15, to omit “agreement” and to substitute “party”.

2.         On page 7, in line 23, to omit the comma.

3.         On page 7, in line 23, after “by” to insert a comma.

 

CLAUSE 22

 

1.         On page 8, from line 18, to omit “and comes into operation on a date fixed by President by proclamation in the Gazette”.

 

SCHEDULE 1

 

Article 12(1)

 

 1.        On page 14, in the second line, after “(1)”, to omit “A”, and to insert “When a”.

2.         On page 14, in the second line, after “person”, to omit “who”.     

           

Article 31(7)

 

1.         On page 20, in the sixth line, after “the”, to insert “arbitral”.          

           

SCHEDULE 2

 

Article 1(1)

 

1.         On page 23, in the eighth line, after “that” to insert “the”.

 

Article 13(2)

 

1.         On page 25, at the end of the twenty-seventh line, to insert the following as footnote 1:

 

            “[1] The parties may wish to consider including in the settlement agreement a clause that any dispute arising out of or relating to the settlement agreement shall be submitted to arbitration.”.

 

Article 14

 

1.         On page 25, to delete the thirty second line up to and including the thirty fourth line.

 

SCHEDULE 3

 

Article II Paragraph 1

 

1.         On page 28, in the twenty third line, to omit “of” and to substitute “or”.

 

Article V Paragraph 1(a)

 

1.         On page 29, at the end of the tenth line,             to insert “or”.

 

Article X Paragraph 3

 

1.         On page 30, in the twenty third line, to omit “reason” and to substitute “reasons”.

 

SCHEDULE 4

 

1.         That the following consequential amendment be added to Schedule 4:

Act No. and year	Short Title	Extent of repeal or amendment
Act No 1 of 1986	Carriage of Goods by Sea Act, 1986	The substitution for section 3 of the following section:             “3.        (1)  Notwithstanding any purported ouster of jurisdiction, exclusive jurisdiction clause or agreement to refer any dispute to arbitration, and notwithstanding the provisions of the Arbitration Act, 1965 (Act No. 42 of 1965), [and of] section 7(1)(b) of the Admiralty Jurisdiction Regulation Act, 1983 (Act No. 105 of 1983) and the International Arbitration Act, 2017, any person carrying on business in the Republic and the consignee under, or holder of, any bill of lading, waybill or like document for the carriage of goods to a destination in the Republic or to any port in the Republic, whether for final discharge or for discharge or for discharge for further carriage, may bring any action relating to the carriage of the said goods or any such bill of lading, waybill or document in a competent court in the Republic.                         (2)        The provisions of subsection (1) of this section shall not apply to arbitration proceedings to be held in the Republic which are subject to the provisions of the [Arbitration Act, 1965] arbitration laws of the Republic.”.

 

 

 

 

Report to be considered