Advanced Business Law

Presented By:

SUMMER LEA THOMAS

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 Learning Outcome 3:
Demonstrate an understanding of alternative dispute resolution
Negotiation
Mediation
Arbitration (incl. introduction, sources of law of arbitration, matters
excluded from arbitration, arbitration agreement, appointment of
arbitrators, arbitration proceedings, arbitration awards)
KOPEL CHAPTER 5

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Introduction
• Not everyone understands litigious proceedings.
• The court system can be intimidating and can consist of numerous special procedures
depending on the matter at hand.
• Parties can agree to have their dispute decided by other means, for example by an
arbitrator.
• It can be helpful to have an arbitrator who has knowledge and expertise in the matter
at hand.
• The parties can agree to a process which is simpler and more timeous.
• Parties may also agree to mediate a dispute before resorting to the judicial process.

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Litigation

• “To take legal action through a judicial process.”

• Criminal versus civil litigation – what is the difference between the two?
• Civil litigation
• Arbitration – binding
• Mediation – not binding

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Criminal Proceedings

• State versus the Accused

• The accused can be sentenced if convicted of a crime
• The stages of criminal proceedings include:
• A complaint is made
• The docket is handed to the prosecutor
• The accused is summonsed to court
• Charge sheet is read to the accused in court
• The accused enters a plea of guilty or not guilty
• A trial ensues
• The judicial officer delivers their verdict
• A sentence is handed down
• The case can go on appeal or on review

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Civil Proceedings

• Provisional Sentence Proceedings

• Sue on the basis of a liquid document – “a written document, signed by the
debtor, in which he unconditionally admits owing a specific amount of money to
the plaintiff. It must be possible to calculate the amount of money owing from the
document.”
• Provisional Sentence Summons
• Defendant can file an affidavit setting out defence.
• If no defence, provisional sentence granted.
• Defendant to make payment
• Plaintiff may have to provide security

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Civil Proceedings

• Trial – Action Proceedings

• LOD
• Summons
• NOID
• Default Judgment
• Summary Judgment
• Request for further particulars / further particulars
• Plea Counterclaim
• Request for further particulars to counterclaim / further particulars
• Plea in reconvention
• Exception
• Close of pleadings

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Civil Proceedings

• Trial – Action Proceedings

• Notices
• Application for trial date
• Notice of set down
• Trial
• Judgment
• Appeal
• Review
• Costs

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Civil Proceedings

• Application Proceedings
• Notice of Motion and founding affidavit
• Answering affidavit
• Replying affidavit
• Court makes its decision solely from the papers without oral evidence

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Costs

• The judicial officer can make a decision as to which party bears the costs
of the litigation

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Arbitration

In comparison to litigation
• Faster and easier – however this may not always be the case depending
on the matter at hand
• Confidentiality – tends to be more private
• Formalities – parties can influence the degree of formalities and
procedures used
• Technical expertise
• Flexibility – parties can agree on rules and procedures
• Precedent value – no precedent is set by the arbitrator
• Costs – arbitrator fee
• Finality – judgment of arbitrator is final
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Arbitration

The Arbitration Act 42 of 1965

• Certain matters cannot be referred to arbitration
• Matrimonial matters, determination of legal status/capacity, criminal matters or
unlawful matters
• Taylor v Kurstag – decision of religious courts relating to disputes of custody,
maintenance and proprietary consequences of marriage are expressly prohibited
by the Act.
• Where an agreement is void, the arbitration clause shall also be void.

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Arbitration

Appointment of an Arbitrator
• 2 or more arbitrators can be appointed, but in the absence of agreement by parties,
only one may be appointed.
• Generally is a mutually agreed upon outsider.
• The arbitrator must hear both sides and decide on the evidence presented.
• Parties agree on the procedure to be sued and provide terms of reference which sets
out the facts and the issues.
• The arbitrator determines the time, date and place of proceedings.
• The arbitrator can advise on documentation to be distributed and can do request
inspections of goods or property.
• The arbitrator can examine or question witnesses, and allow cross-examination

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Arbitration

Appointment of an Arbitrator
• Witnesses can be required to give evidence
• An arbitrator is entitled to seek opinions from outside legal experts to assist in
determining a point of law.
• The decision on the point of law is binding – no option for appeal.
• A party can apply to court to require the arbitrator to seek a legal opinion.
• Section 15 – an arbitrator is entitled to continue with proceedings in the absence of
one of the parties.
• In order to remove an arbitrator, the consent of both parties would be required. A
court may set aside the appointment on good cause.
• Death or insolvency does not terminate the appointment of the arbitrator.
• The arbitrator makes an award which is in writing and made within four months of
the end of proceedings. This may be made an order our court and enforceable.
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Arbitration

Remitting an arbitration award

• Remittal - Parties may send award back within 6 weeks of publication for the matter
to be reconsidered and a fresh award to be made. This must be done in writing.
• If arbitrator refuses, a court may order remission if there was good cause shown to
do so.

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Arbitration

Setting aside an arbitration award

• Misconduct by the arbitrator
• Gross irregularity
• Excess of powers by arbitrator
• Award obtain improperly

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Arbitration

Enforcing a foreign arbitration award

• SA has ratified the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards.
• Any division of High Court is competent to make a foreign arbitral award an order of
court.
• Has the Protection of Business Act been complied with?
• Certain arbitration awards require consent of Minister of Economic Affairs.

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Mediation

• Voluntary process.
• “A mediator assists the parties in actual or potential litigation resolve
disputes by facilitating discussions.
• The mediator helps identify issues, clarify priorities, explore areas of
compromise and generate options.”

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Mediation

Mediation compared to arbitration

• Mediators do not decide the cases and have no power to impose a
resolution. They cannot tell parties what to do, they merely offer
guidance.
• No record is made of a mediation.
• Parties can choose a professional/specialist mediator. They can also
choose an expert dispute resolver rather than an expert.

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Mediation

How mediation works

• The parties will set the date to begin proceedings.
• At the opening session, the mediator will explain the process.
• Opening statements - Each party gives their side of the dispute and what they hope
to achieve.
• The mediator can ask questions during this time.
• The joint meeting breaks up into caucuses and the mediator talks to each side. The
discussions with one side are not conveyed to the other.
• The mediator goes between the parties trying to offer solutions.
• Where a mediation is successful, it can be reduced to writing.
• If unsuccessful, the mediator will issue a certificate confirming there was a deadlock

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Mediation

How mediation works

• Without prejudice
• Private and confidential
• Details of what was discussed and the fact that mediation occurred at all may only be
disclosed if both sides expressly agree.

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Enforcement of Foreign Judgments

• The judgment must be final.

• The foreign court must have had jurisdiction over the defendant ito SA
Law.
• Enforcement of the judgment must not be contrary to SA public policy or
the rules of natural justice.

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 THANK YOU
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