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( Source of the document: ICC Digital Library )
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 August 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:
(b) commercial relationships?
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?
This has not been the subject of legislative or judicial pronouncement. However, awards in international arbitrations held in South Africa will presumably not be regarded as domestic awards in South Africa. There is no definition of international arbitration in any code or statute in South African law. An arbitration is likely to be regarded as international if the parties at the time of the conclusion of their agreement had their places of business or residence in different States.
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)?
(i) Recognition and Enforcement of Foreign Arbitral Awards Act, 40 of 1977; (ii) Protection of Businesses Act, 99 of 1978.
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Explanatory note: In South African law a debt (obligation) is extinguished by prescription after the lapse of the statutory period which applies to such debt (usually 3 years) and which commences to run when that debt is due. A South African court judgment in respect of an existing debt allows the creditor the right to recover by the process of execution and prescription begins to run afresh from the day on which the judgment becomes executable. A 30-year prescription period applies in such a case. It is unclear whether this same extended prescriptive period would apply to a foreign award or whether a 3-year period would apply. There are no judicial pronouncements in point. It may be noted that a domestic arbitral award has been held enforceable until the lapse of 30 years from its publication, whereas an application to enforce a foreign court judgment has been held prescribed if not brought within 3 years.
(Sources: Prescription Act 68 of 1969); Blaas v. Athanassiou, 1991(1) SA 723 (W) at 725H-I); Society of Lloyds v. Price; Society of Lloyds v. Lee, 2005(3) SA 549 (T).)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
(i) The High Courts (previously called the Supreme Court of South Africa).
(Sources: Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, s. 1; Constitution of the Republic of South Africa, Act 108 of 1996, ss. 166 (c) and 169.)
(ii) The Minister of Trade and Industry (formerly known as the Minister of Economic Affairs), in respect of the enforcement of foreign arbitral awards mentioned in s. 1 of the Protection of Businesses Act, 99 of 1978, i.e. arbitration awards arising from any act or transaction which took place at any time, whether before or after the commencement of the Act, connected with the mining, production, importation, exportation, refinement, possession, use, sale or ownership of any matter or material, of whatever nature, whether within, outside, into or from South Africa.
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.)?
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.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Inter partes proceedings.
(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?
In respect of awards not affected by s. 1 of the Protection of Businesses Act, 99 of 1978, a judgment recognizing an award may be executed against assets immediately after the court order recognizing the award is served on the debtor. However, if leave to appeal is granted, then execution is automatically stayed pending the disposition of the appeal. In cases affected by s. 1 of the Protection of Businesses Act, 99 of 1978, the permission of the Minister of Trade and Industry must also be obtained before the award can be enforced and execution obtained against assets.
E. Evidence required
(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.)?
The applicant must supply the court with (i) a sworn affidavit based on personal knowledge stating the facts on which the application is based; (ii) the original or a certified copy of the foreign arbitral award; (iii) the original or a certified copy of the arbitration agreement upon the basis of which the award was made.
(Source: Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, s. 3(a).)
Both the award and agreement (or the certified copies thereof) must be authenticated in accordance with Rule 63 of the Supreme Court Rules.
(Source: Supreme Court Rules promulgated under the Supreme Court Act, 59 of 1959, r. 63 (N.B. change in nomenclature, the Supreme Court now being the High Courts).)
Where an award is expressed in a foreign currency it must be converted into rands at the exchange rate prevailing at the date of the award.
(Source: Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, s. 2(2).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. the entire contract or only the arbitration clause)?
The entire award is required. Only the arbitration clause (i.e. the arbitration agreement) is required under s. 3(a)(i) of the Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, but the court may require sight of the entire contract.
(c) Are originals or duly certified copies required?
Either the original or a duly certified copy is required.
(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.
(a) Is it necessary to provide a translation of the documents supplied?
Yes, in the event that the document is in a language other than an official language of South Africa.
(Source: Supreme Court Rules, r. 60.)
(b) If yes, into what language?
The document must be accompanied by a translation into English or one of the other then official languages 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.
(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)?
An applicant tendering less than a full translation of a document would have to satisfy the court in the affidavit that any such limitation is justified. A court may, in its discretion, elect to receive less than a full translation, if appropriate.
F. Stay of enforcement
(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?
(Source: Recognition and Enforcement of Foreign Arbitral law Act, 40 of 1977, s. 4(2).)
(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.
(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. Again, in an exceptional case, 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, again 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 and partial foreign awards may be recognized and enforced in accordance with the Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 read with s. 31 of the Arbitration Act, 42 of 1965.
(Sources: Recognition and Enforcement of Foreign Arbitral Awards Act, 40 of 1977; Arbitration Act, 42 of 1965, s. 31.)
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)?
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?
South African legislation does not specify whether a foreign award which has been set aside by a competent authority may, nonetheless, be recognized and enforced, and there is no court judgment addressing the issue. To the extent that the issue of enforceability turns on a question of public policy, for which the competent authority may differ from the 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.)?
No foreign arbitral award is capable of recognition or enforcement in South Africa if connected with any liability arising from any bodily injury resulting directly or indirectly from the consumption or use of or exposure to any natural resource of the Republic or of any product contained or processed from any natural resource of the Republic, unless the same liability would have arisen under the law of the Republic as it existed at the time of the occurrence of the event which gave rise to the liability.
(Source: Protection of Business Act, 99 of 1978, s. 1D.)