PART 8 | Law applicable to substance of dispute |
32.—(1) The arbitral tribunal must decide the dispute in accordance with the law chosen by the parties as applicable to the substance of the dispute.| (2) If or to the extent that the parties have not chosen the law applicable to the substance of their dispute, the arbitral tribunal must apply the law determined by the conflict of laws rules. |
| (3) The arbitral tribunal may decide the dispute, if the parties so agree, in accordance with any other considerations that are agreed by them or determined by the tribunal. |
|
| Awards made on different issues |
33.—(1) Unless otherwise agreed by the parties, the arbitral tribunal may make more than one award at different points in time during the proceedings on different aspects of the matters to be determined.(2) The arbitral tribunal may, in particular, make an award relating to —| (a) | an issue affecting the whole claim; or | | (b) | a part only of the claim, counterclaim or cross‑claim, which is submitted to the tribunal for decision. |
|
| (3) If the arbitral tribunal makes an award under this section, it must specify in its award, the issue, or claim or part of a claim, which is the subject matter of the award. |
|
34.—(1) The parties may agree on the powers exercisable by the arbitral tribunal as regards remedies.| (2) Unless otherwise agreed by the parties, the arbitral tribunal may award any remedy or relief that could have been ordered by the Court if the dispute had been the subject of civil proceedings in that Court. |
|
35.—(1) Subject to subsection (3), unless otherwise agreed by the parties, the arbitral tribunal may, in the arbitral proceedings before it, award simple or compound interest from such date, at such rate and with such rest as the arbitral tribunal considers appropriate, for any period ending not later than the date of payment on the whole or any part of —| (a) | any sum which is awarded by the arbitral tribunal in the arbitral proceedings; | | (b) | any sum which is in issue in the arbitral proceedings but is paid before the date of the award; or | | (c) | costs awarded or ordered by the arbitral tribunal in the arbitral proceedings. [12/2012] |
| (2) Nothing in subsection (1) affects any other power of the arbitral tribunal to award interest. [12/2012] |
| (3) Where an award directs a sum to be paid, that sum, unless the award otherwise directs, carries interest as from the date of the award and at the same rate as a judgment debt. [12/2012] |
|
| Extension of time for making award |
36.—(1) Where the time for making an award is limited by the arbitration agreement, the Court may by order, unless otherwise agreed by the parties, extend that time.(2) An application for an order under this section may be made —| (a) | upon notice to the parties, by the arbitral tribunal; or | | (b) | upon notice to the arbitral tribunal and the other parties, by any party to the proceedings. |
|
| (3) An application under this section must not be made unless all available tribunal processes for application of extension of time have been exhausted. |
| (4) The Court is not to make an order under this section unless it is satisfied that substantial injustice would otherwise be done. |
| (5) The Court may extend the time for such period and on such terms as it thinks fit, and may do so whether or not the time previously fixed by or under the arbitration agreement or by a previous order has expired. |
| (6) The permission of the appellate court is required for any appeal from a decision of the Court under this section. [40/2019] [Act 25 of 2021 wef 01/04/2022] |
|
| 37.—(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal must terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. [12/2012] (2) An arbitral award on agreed terms —| (a) | must be made in accordance with section 38; | | (b) | must state that it is an award; and | | (c) | has the same status and effect as any other award on the merits of the case. |
|
| (3) An award on agreed terms may, with the permission of the Court, be enforced in the same manner as a judgment or order to the same effect, and where permission is so given, judgment may be entered in terms of the award. [Act 25 of 2021 wef 01/04/2022] |
|
| Form and contents of award |
38.—(1) The award must be made in writing and must be signed —| (a) | in the case of a single arbitrator, by the arbitrator himself or herself; or | | (b) | in the case of 2 or more arbitrators, by all the arbitrators or the majority of the arbitrators provided that the reason for any omitted signature of any arbitrator is stated. |
| (2) The award must state the reasons upon which it is based, unless the parties have agreed that no grounds are to be stated or the award is an award on agreed terms under section 37. |
| (3) The date of the award and place of arbitration must be stated in the award. |
| (4) The award is deemed to have been made at the place of arbitration. |
| (5) After the award is made, a copy of the award signed by the arbitrators in accordance with subsection (1) must be delivered to each party. |
|
| 39.—(1) Any costs directed by an award to be paid are, unless the award otherwise directs, to be assessed by the Registrar of the Supreme Court within the meaning of the Supreme Court of Judicature Act 1969. [Act 25 of 2021 wef 01/04/2022] | (2) Subject to subsection (3), any provision in an arbitration agreement to the effect that the parties or any party must in any event pay their or his, her or its own costs of the reference or award or any part thereof is void; and this Act, in the case of an arbitration agreement containing any such provision, has effect as if there were no such provision. |
| (3) Subsection (2) does not apply where a provision in an arbitration agreement to the effect that the parties or any party must in any event pay their or his, her or its own costs is part of an agreement to submit to arbitration a dispute which has arisen before the making of such agreement. |
| (4) If no provision is made by an award with respect to the costs of the reference, any party to the reference may, within 14 days of the delivery of the award or any further time that the arbitral tribunal may allow, apply to the arbitral tribunal for an order directing by and to whom such costs must be paid. |
| (5) The arbitral tribunal must, after giving the parties a reasonable opportunity to be heard, amend its award by adding to the award any directions that it thinks fit with respect to the payment of the costs of the reference. |
|
40.—(1) The parties are jointly and severally liable to pay to the arbitrators any reasonable fees and expenses that are appropriate in the circumstances.| (2) Unless the fees of the arbitral tribunal have been fixed by written agreement or such agreement has provided for determination of the fees by a person or institution agreed to by the parties, any party to the arbitration may require that the fees be assessed by the Registrar of the Supreme Court within the meaning of the Supreme Court of Judicature Act 1969. [Act 25 of 2021 wef 01/04/2022] |
|
| Power to withhold award in case of non-payment |
41.—(1) The arbitral tribunal may refuse to deliver an award to the parties if the parties have not made full payment of the fees and expenses of the arbitrators.(2) Where subsection (1) applies, a party to the arbitral proceedings may, upon notice to the other parties and the arbitral tribunal, apply to the Court, which may order that —| (a) | the arbitral tribunal must deliver the award upon payment into Court by the applicant of the fees and expenses demanded, or any lesser amount that the Court may specify; | | (b) | the amount of the fees and expenses demanded are to be assessed by the Registrar of the Supreme Court; and [Act 25 of 2021 wef 01/04/2022] | | (c) | out of the money paid into Court, the arbitral tribunal must be paid the fees and expenses that may be found to be properly payable and the balance of the money (if any) must be paid out to the applicant. [12/2012] |
|
| (3) An assessment of fees under this section is to be reviewed in the same manner as an assessment of costs. [Act 25 of 2021 wef 01/04/2022] |
| (4) The arbitrator is entitled to appear and be heard on any assessment or review of assessment under this section. [Act 25 of 2021 wef 01/04/2022] |
| (5) For the purpose of this section, the amount of fees and expenses properly payable is the amount the applicant is liable to pay under section 40 or under any agreement relating to the payment of fees and expenses of the arbitrators. |
| (6) No application to the Court may be made unless the Court is satisfied that the applicant has first exhausted any available arbitral process for appeal or review of the amount of the fees or expenses demanded by the arbitrators. |
| (7) This section applies to any arbitral or other institution or person vested with powers by the parties in relation to the delivery of the award by the tribunal and any reference to the fees and expenses of the arbitrators is to be construed as including the fees and expenses of that institution or person. |
| (8) The permission of the appellate court is required for any appeal from a decision of the Court under this section. [40/2019] [Act 25 of 2021 wef 01/04/2022] |
|
| Court may charge property with payment of solicitor’s costs in arbitration |
| 42. Section 117 of the Legal Profession Act 1966 (which empowers a Court in which a solicitor has been employed in any proceeding to charge property recovered or preserved in the proceeding with the payment of the solicitor’s costs) applies as if an arbitration were a proceeding in the Court, and the Court may make declarations and orders accordingly. |
| Correction or interpretation of award and additional award |
43.—(1) A party may, within 30 days of the receipt of the award, unless another period of time has been agreed upon by the parties —| (a) | upon notice to the other parties, request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical error, or other error of similar nature; and | | (b) | upon notice to the other parties, request the arbitral tribunal to give an interpretation of a specific point or part of the award, if the request is also agreed to by the other parties. |
| (2) If the arbitral tribunal considers the request in subsection (1) to be justified, the tribunal must make the correction or give the interpretation within 30 days of the receipt of the request and the interpretation forms part of the award. |
| (3) The arbitral tribunal may correct any error of the type mentioned in subsection (1)(a) or give an interpretation as mentioned in subsection (1)(b), on its own initiative, within 30 days of the date of the award. |
| (4) Unless otherwise agreed by the parties, a party may, within 30 days of receipt of the award and upon notice to the other party, request the arbitral tribunal to make an additional award as to claims presented during the arbitral proceedings but omitted from the award. [12/2012] |
| (5) If the arbitral tribunal considers the request in subsection (4) to be justified, the tribunal must make the additional award within 60 days of the receipt of the request. |
| (6) The arbitral tribunal may, if necessary, extend the period of time within which it is to make a correction, interpretation or an additional award under this section. |
| (7) Section 38 applies to an award in respect of which a correction or interpretation has been made under this section and to an additional award. |
|
44.—(1) An award made by the arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties and on any person claiming through or under them and may be relied upon by any of the parties by way of defence, set‑off or otherwise in any proceedings in any court of competent jurisdiction.| (2) Except as provided in section 43, upon an award being made, including an award made in accordance with section 33, the arbitral tribunal must not vary, amend, correct, review, add to or revoke the award. |
| (3) For the purposes of subsection (2), an award is made when it has been signed and delivered in accordance with section 38. |
| (4) This section does not affect the right of a person to challenge the award by any available arbitral process of appeal or review or in accordance with the provisions of this Act. |
|
|
