The Arbitration Foundation of Southern Africa ("AFSA")

Sandton, Johannesburg, Republic of South Africa

Not applicable.

Board of Directors, Managing Directorate and Secretariat.

The parties are not required to choose from a compulsory list of arbitrators and may agree on any arbitrator they deem fit. Where the parties have not agreed on the arbitrator, AFSA may appoint an arbitrator or panel of arbitrators in accordance with its rules. The AFSA Rules also set out provisions regarding the disqualification of arbitrators.

The place of arbitration can be freely chosen by the parties by agreement. If no place has been agreed by the parties, the place of arbitration will be determined in accordance with the rules agreed by the parties to govern the arbitration. The AFSA Rules provide that the arbitrator or arbitral tribunal may determine the place of arbitration

The first fee payable by both parties in order to commence arbitration proceedings with the Arbitral Institution is determined on a sliding scale. The lowest applicable first fee (for matters involving amounts less than ZAR100,000) is ZAR5,250 per party. The highest applicable fee (for matters involving ZAR100,000,000 or more) is ZAR150,000 per party. In addition, VAT will be payable on these fees at a rate of 15%.

It is not possible to estimate the average cost of arbitration proceedings with any degree of accuracy, as the ultimate cost will comprise not only the fees charged by AFSA to administer the arbitration but also the legal fees for both parties and the arbitrator's fees, which are highly sensitive to the nature and complexity of each matter and can vary significantly from case to case. As regards the first fee payable to AFSA for an arbitration over a dispute in the amount of $1 million, the fee chargeable is ZAR27,750 per party plus 0.125% of the amount over ZAR3,000,000 per party (up to a maximum of ZAR68,500) plus VAT at 15%.

It is not possible to estimate the average cost of arbitration proceedings with any degree of accuracy, as the ultimate cost will comprise not only the fees charged by AFSA to administer the arbitration but also the legal fees for both parties and the arbitrator's fees, which are highly sensitive to the nature and complexity of each matter and can vary significantly from case to case. As regards the first fee payable to AFSA for an arbitration over a dispute in the amount of $10 million, the fee chargeable is ZAR150,000 per party plus VAT at 15%, as AFSA's fees are capped at ZAR150,000 for all amounts in the dispute over ZAR100,000,000.

It is not possible to estimate the average cost of arbitration proceedings with any degree of accuracy, as the ultimate cost will comprise not only the fees charged by AFSA to administer the arbitration but also the legal fees for both parties and the arbitrator's fees, which are highly sensitive to the nature and complexity of each matter and can vary significantly from case to case. As regards the first fee payable to AFSA for an arbitration over a dispute in the amount of $100 million, the fee chargeable is ZAR150,000 per party plus VAT at 15%, as AFSA's fees are capped at ZAR150,000 for all amounts in the dispute over ZAR100,000,000.

Generally, both parties are liable for advances of costs in equal shares. In the event of default of one of the parties, the other party should pay all advances of costs. Usually, that party will be the claimant.

The AFSA Rules prescribe specific procedures and time periods for the submission of pleadings and other documents to be used during arbitration proceedings. However, the specific procedures applicable will depend on whether the arbitration is governed by AFSA's Commercial or Expedited Rules. For instance, in terms of the Commercial Rules, parties must submit an original of any notice or pleading to the Secretariat, along with one copy for each party and the arbitrator, and the Registrar of the Arbitral Institution will be responsible for delivering copies to all relevant parties. All notices must be given within 7 calendar days of a party becoming required to give such notice, unless the rules specifically state otherwise. The AFSA Commercial Rules also set out the formal requirements for a valid request for arbitration, to be submitted by any claimant wishing to make use of the services of the Arbitral Institution.

The AFSA Rules do not specify the languages that may be used for communicating with the institution itself. However, as the business language in South Africa is English, it is advisable for parties to communicate with AFSA in English.

The main point of contact is the Registrar of the Arbitral Institution, who may be reached at the following address: The Registrar First floor Maisels Chambers 4 Protea Place Sandton Johannesburg Tel +27 (11) 320-0600 Fax +27 (11) 320-0533 Email info@arbitration.co.za

No. In terms of the AFSA Rules, the arbitrator shall have the power to determine the language or languages in which the proceedings shall be conducted, and the award made, and which party shall have the duty to provide for the services of an interpreter if required. The parties are not restricted, however, from agreeing on the language of the arbitration and the arbitral award.

Unless the parties have agreed otherwise, the Secretariat of AFSA shall have the power to appoint a substitute arbitrator in accordance with the agreement between the parties or, failing such agreement, of its own choice. A substitute arbitrator shall have the power to act in the arbitration and make an award as if he had been appointed in accordance with the terms of the arbitration agreement.

No. In terms of the rules of the AFSA Rules, the arbitrator shall have the power to allow (but only with their express written consent) other parties to be joined in the arbitration proceedings, and to make an award on all issues submitted by all parties, including parties so joined, for decision by the arbitrator. The AFSA Commercial Rules shall apply equally to such multi-party arbitrations as to simple two-party arbitrations.

In terms of the AFSA Rules, the South African law of evidence will apply, which means that hearings must be conducted orally. The arbitrator may allow a party to present evidence in written form, either as signed statements or in affidavit form, in which event any other party may require the deponent to attend the proceedings for oral examination and cross-examination. If the deponent fails to attend and submit to be examined and cross-examined, the arbitrator may exclude such evidence in written form altogether, or may attach such weight to it as he thinks fit.

Generally, the rules applicable to the arbitration as agreed by the parties will determine the procedure for presenting evidence in the proceedings. It is common practice for arbitration hearings to be conducted orally, with an oral witness and expert testimony given under oath. Expert evidence is typically presented in a report prior to the hearing, with the expert simply confirming the contents of the report at the hearing, followed by cross-examination.

The duration of arbitration proceedings can vary from case to case and will depend on various factors, such as the rules governing the proceedings (as agreed by the parties), whether or not any interlocutory or additional issues arise to be decided in the course of the proceedings and whether or not the parties have agreed that the dispute will be adjudicated in terms of the expedited arbitration rules of AFSA. Generally, however, arbitration proceedings are more expeditious than court proceedings and on average can be finalized within a period of 12 to 18 months, although the process could take longer or shorter.

The arbitrator must make a final award as soon as possible, and in any event not later than 60 calendar days after completion of the hearing.

Yes. The arbitrator has the power to extend any time periods provided for in the AFSA Rules. The time limit for the delivery of the arbitral award may be extended by agreement between the parties, or in exceptional circumstances by the Secretariat of AFSA.

Yes. The AFSA Rules provide that the arbitrator may grant interim orders on any matter of onus, admissibility of evidence, and of procedure, and rulings or interim awards relating to liability for and payment of costs and implementation of interim or final awards. The arbitrator may also grant interim relief restraining a party from any conduct. South African courts also have the competency to impose interim measures and parties to an arbitration agreement may approach a court for an interim interdict or other interim order.

No, the AFSA Rules do not provide for the appointment of an "emergency" arbitrator. However, if the parties agree in writing that the arbitration should be held at a specific time and place as a matter of urgency, then the Secretariat of the Arbitral Institution may appoint an arbitrator to conduct the arbitration as such, subject to the upfront payment by the parties of the applicable administration and venue fees on a day-by-day basis.

Yes. AFSA has published separate rules to be used in the case of expedited proceedings, and parties to an arbitration agreement may agree that any arbitration arising from such agreement shall be conducted in terms of the expedited rules. Under these rules, the arbitrator must give his or her award within 30 days following finalisation of the proceedings, unless expressly agreed otherwise by the parties or the AFSA Secretariat approves an extension of this time.

No.

No. Unless the parties have in writing otherwise agreed, the arbitrator shall in his or her award also deal with the costs of the arbitration, and decide which parties shall bear the costs of the arbitration or in what proportions the parties shall bear such costs.

An arbitral award shall be binding in South Africa, but a party would need to approach the High Court by way of provisional sentence summons in order for the award to be recognized and enforced. There are certain grounds on which the High Court may elect not to recognize the arbitral award (i.e. annul the award), and these are the same grounds as set out in Article V of the New York Convention, to which South Africa is a signatory.