A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Republic of South Africa.

2. Date of entry into force of the New York Convention

1 Aug. 1976.

(Source: Hansard, Debates of the House of Assembly, 18 Mar. 1977, Col. 3874, Gazette 5160 GN 1028, 18 June 1976, Government Gazette 5208 GN 1189, 9 July 1976.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

No.

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement is sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

It is presumed that an award rendered in an international arbitration, which has been held in South Africa, would not be regarded as a domestic award by the South African Courts and the New York Convention and the answers to this Questionnaire would apply. An arbitration would be regarded as an international commercial arbitration if it qualified under Art. 1(3) of the Model Law.

(Source: International Arbitration Act, 15 of 2017, Schedule 1, Art. 1(3).)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

The International Arbitration Act, 15 of 2017 (entry into force on 20 Dec. 2017), which applies the Model Law on International Commercial Arbitration (as at 7 July 2006) to the Republic, subject to certain adaptations.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

The legal position is unclear.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

Case law has suggested that unless an award was made an order of Court within a specific time, it would prescribe. There is no unanimity as to the applicable time period, which was variously said to be three or four years.

A recent decision of South Africa’s highest Court (the Constitutional Court) casts further doubt on the position. The Constitutional Court held that an arbitration award issued in terms of the South African Labour Relations Act had not prescribed, notwithstanding a lapse of seven years before an application was made to make the award an order of Court. The judgments of that Court (equally split) show disagreement as to whether the Prescription Act applied at all. It is therefore recommended, ex abundante cautela, that any application for recognition and enforcement of a foreign award be initiated within three years. The limitation period would commence to run from the date of publication of the award – i.e., from the date the arbitral tribunal delivers the final, binding award to the parties or their representatives.

(Source: Prescription Act 68 of 1969; Primavera Construction SA v Government, North-West Province, 2003(3) SA 579 TPD; Society of Lloyds v. Price; Society of Lloyds v. Lee, 2005(3) SA 549 (T); Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and Others, [2017 (4) BCLR 473 (CC).)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

Any Division of the High Court referred to in section 6(1) of the Superior Courts Act (Act 10 of 2013), or any local seat thereof having jurisdiction. [#H3#](Source: International Arbitration Act, 15 of 2017, section 14(c).)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of the respondent in the jurisdiction, etc.)?

The Court will accept jurisdiction upon application by an interested party, provided the award falls within the terms of the New York Convention. However, a Court may decline jurisdiction if its order would be a mere brutum fulmen, i.e. of no practical effect, which may well be the case if the respondent has no connection with the jurisdiction and no assets within the jurisdiction.

(Source: Balkan Energy Ltd & Ano. v Government of Ghana, 2017 (5) SALR 428 (GLD).)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

Inter partes proceedings.

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes, provided that the first decision would be final in its effect if left unchallenged.

(b) How many levels of appeal or recourse are available against this decision?

In general, two. With the leave of the High Court there may be an appeal to the Full Bench of the Provincial Division or directly to the Supreme Court of Appeal. In cases involving a constitutional issue, there is a further appeal, with leave, from the Supreme Court of Appeal to the Constitutional Court. Where leave to appeal is refused, the President of the Supreme Court of Appeal or the Chief Justice of the Constitutional Court (as the case may be) can be petitioned to allow the appeal.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets?

Once a foreign arbitral award is made an order of court, it may then be enforced in the same manner as any judgment or order of court. However, if an appeal is noted against the court order, then the operation and execution of the order is suspended pending the appeal unless the Court otherwise directs.

(Source: International Arbitration Act, 15 of 2017, section 16(3), read with Uniform Supreme Court Rule 49(ii).)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. the arbitral award, the contract containing the arbitration clause, affidavits, witness statements, etc.)?

A party seeking the recognition or enforcement of a foreign arbitral award must produce:

  1. the original award (or certified copy of that award) and the original arbitration agreement (or certified copy of that arbitration agreement) in terms of which an award was made, authenticated in a manner in which foreign documents must be authenticated to enable them to be produced in any court; or

  1. a sworn translation of the arbitration agreement or arbitral award authenticated in a manner in which foreign documents must be authenticated for production in court (if the agreement or award is in a language other than one of the official languages of the Republic), provided that the court may accept other documentary evidence regarding the existence of the foreign arbitral award and arbitration agreement as sufficient proof where the court considers it appropriate to do so.

(Source: International Arbitration Act, 15 of 2017, section 17.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. the entire contract or only the arbitration clause)?

See Q.12(a) above.

(c) Are originals or duly certified copies required?

See Q.12(a) above.

(d) How many originals or duly certified copies are required?

Two originals or duly certified copies are required, one for the court and one for service on the respondent.

(e) Does the authority or court keep the originals that are filed?

Yes; the original or certified copy submitted to the court is filed with the Registrar of the High Court. The original cannot be retrieved after the conclusion of the case unless the court so orders.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes, see Q.12(a) above.

(b) If yes, into what language?

English, or any other official language of South Africa.

(c) Is it necessary for the translations to be certified and, if yes, by whom (by an official or sworn translator or by a diplomatic or consular agent (of which country?) or by some other person)?

Yes, translations must be certified by a sworn translator.

(Source: Supreme Court Rules, r. 60.)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. the entire award or only the part setting forth the decisions; the entire contract or only the arbitration clause)?

See Q.12(a) above.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes.

(Source: International Arbitration Act, 15 of 2017, section 18(3)(a).)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

No other statutory grounds permit such a stay. There has been no judicial pronouncement on whether a stay would be granted on the basis of forum non conveniens.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No; however, the court has the discretion to order the provision of security, if appropriate.

(Source: International Arbitration Act, 15 of 2017, section 18(3)(b).)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Yes. A motion can be brought seeking an order of the court to preserve the confidentiality of documents. Such an order would constitute a departure from general practice and would require good cause to be shown.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

No. In general, hearings are open to the public. However, in an exceptional case, an application may be made for a hearing in camera. The matter lies within the discretion of the court.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business secrets or State secrets)?

Yes. However, in exceptional circumstances (such as the exposure of business secrets or State secrets), the court may limit or prohibit publication in the exercise of its discretion.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Interim measures issued by the arbitral tribunal will be recognised and enforced upon application to the High Court, save in exceptional instances. Partial awards are not separately addressed in the Act.

(Source: International Arbitration Act, 15 of 2017, Schedule 1, Arts. 17H and 17I.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. an order requiring a party to deliver up share certificates or other property)?

No limitation is imposed on the recognition and enforcement of awards granting non-monetary relief so that a party can obtain recognition and enforcement of the following types of non-monetary relief in foreign awards: (i) an order for recovery or delivery of the possession of land; (ii) an order for recovery or delivery of personal property; and (iii) an order requiring a person to do, or to abstain from doing, an act.

(Source: There is no provision which limits the power of the Court to recognize and enforce a foreign arbitral award granting non-monetary relief. The South African common law provides that a court may order specific performance in appropriate cases but where for some reason the grant of such relief would be impractical, the court has discretion to grant damages in lieu of specific performance.)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

In principle, this is possible where, for example, part of the award has already been satisfied or the applicant abandons a portion of the award.

If part of the award is irregular or invalid and another part is valid, and if the two parts are severable, there is no reason, in principle, why the court would not grant enforcement of the valid part of the award.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

The Court is given discretion to refuse to recognise, or enforce, a foreign arbitral award if that award has been set aside by the competent authority in question. To the extent that the issue of enforceability turns on a question of public policy, on which the foreign competent authority may differ from the South African Court requested to recognize and enforce the foreign award, a South African court could decide to recognize and enforce that award.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

None.

Country Rapporteur: Michael Kuper