The Origin of Arbitration Law in South Africa

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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Title The Origin of Arbitration Law in South Africa
Creator Rantsane, Ditaba Petrus
Subject arbitration
alternative dispute resolution
Roman law
Roman-Dutch law
common law
arbitration agreements
arbitration clause
English law
party autonomy
judicial intervention
Description This article seeks to trace the historical origin of arbitration as it is currently practised in South Africa. The resort to alternative dispute resolution methods has existed since time immemorial. The practice of arbitration was identified in the Bible when it was practised by King Solomon. South African traditional communities practised arbitration before the arrival of Western nations in South Africa, who brought with them their norms and practices. The community entrusted the responsibility of resolving disputes amicably to the headman, the Chief or the King. The practice of traditional alternative disputes resolution was disrupted by colonialism, which introduced Roman-Dutch law and subsequently English law influences. The aim of the parties under both Roman-Dutch law and English law was to steer their disputes away from courtrooms with their rigid rules and procedures. Hence the resort to arbitration. Through the passage of time, the parties lost respect for arbitration. Judicial intervention became a necessary tool to enforce the agreement to arbitrate or the subsequent award.
A concern was raised in some quarters regarding the South African arbitration legislation that stagnated in 1965 when it was enacted. The sophisticated legal system and the impartial and independent judiciary, provided a strong support to arbitration and its autonomy. The firm judicial support did not detract from the necessity for a complete overhaul of the arbitration prescript, which might position South Africa as the hub of commercial arbitration in Africa and globally. The enactment of the International Arbitration Act, 2017 marked a great milestone towards achieving that goal. Arbitration is embedded in the fabric of South African commercial dispute resolution.
Publisher Faculty of Law, North-West University, South Africa
Date 2020-11-03
Type info:eu-repo/semantics/article
Peer reviewed article
Format application/pdf
Source Potchefstroom Electronic Law Journal; Vol 23 (2020); 1-27
Language eng
Rights Copyright (c) 2020 Ditaba Petrus Rantsane

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