An Evening Lecture on Arbitration
A reassessment of the scope of the arbitrator’s discretion to refer a question of law to the court for an opinion under section 20 in the light of recent case law.
During the 1980s and 1990s, there was a very real danger of the arbitrator’s statutory power under section 20 of the Arbitration Act of 1965 to refer questions of law to the court for an opinion being abused as a delaying tactic by unscrupulous parties. The main cause of the problem was the restrictive interpretation given to the arbitrator’s discretion to refuse an application under section 20, through our courts’ adoption of Lord Denning’s test in the English Halfdan Grieg case of 1973.
More recently the purpose of section 20 and the scope of the arbitrator’s discretion have been reconsidered by the Supreme Court of Appeal, particularly in the Telcordia case of 2006 and the Padachie case of 2016, where the amount in dispute was less than R9 000. As a result of these cases, it will be much more difficult for questions of law, even if they are important to the dispute, to be referred to the court for an opinion under section 20.
These developments are important for arbitrators and party representatives either with a legal background or from the construction industry. Failure to understand the recent case law can result in costs and time being wasted, thus undermining the objectives of private arbitration.
Aka “Mr Arbitration Southern Africa”. Apart from teaching the subject, he presents workshops for the Association (of which he is a Life Fellow). His book and other texts on arbitration have become the standard in the field, and he has been the main advisor on the South African Law Reform Commission’s project on arbitration, aimed at the promulgation of a new Arbitration Act.
- 2017-03-02 00:00
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