Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 117

NUMÉRO SPÉCIAL AFRIQUE
International Commercial Arbitration (UNCITRAL Model Law). 14
Provisions on
disclosure and challenge of arbitrators are included in both national arbitration
laws (A1) and arbitration rules (A2) attached to such laws or those of arbitration
institutions operating in each country. 15
A1. National Arbitration Laws
The national arbitration laws of the jurisdictions examined in this paper are
mostly based on the UNCITRAL Model Law on International Commercial Arbitration,
its original 1985 and revised 2006 versions. 16
The Ghana ADR Act 2010 draws
inspiration from various sources including the UNCITRAL Model Law and the English
Arbitration Act 1996. In relation to South Africa, its 1965 Arbitration Act continues to
apply to its domestic disputes. 17
These laws to a large extent reproduce the provisions of the UNCITRAL Model
Law which require a prospective arbitrator appointee to disclose,
any circumstances likely to give rise to justifiable doubts as to [his/her] impartiality or
independence. An arbitrator, from the time of [his/her] appointment and throughout
the arbitral proceedings, shall without delay disclose any such circumstances to the
parties unless they have already been informed of them by [him/her]. 18
The South African Arbitration Act No. 15 of 2017 under Article 12 provides:
(1) when a person is approached [...] he or she shall disclose any circumstances
likely to give rise to justifiable doubts as to his or her impartiality or
independence [...]
(2) an arbitrator may be challenged only if circumstances exist that give rise to
justifiable doubts as to his or her impartiality or independence, or if he or she
does not possess qualifications agreed by the parties [...]
(3) [...] " justifiable doubts " require substantial grounds for contending that a
reasonable apprehension of bias would be entertained by a reasonable person
in possession of the correct facts. 19
The 1965 domestic Arbitration Act of South Africa does not contain an equivalent
provision (to Article 12 of the UNCITRAL Model Law quoted above) for lack of
impartiality and independence but includes Section 10.1 which is a reference to
the removal from office of the arbitrator or termination of his appointment, 20
Section 33 which focuses on the challenge of the award for the misconduct or gross
and
14. The 1985 and 2006 versions of the UNCITRAL Model Law.
15. In 2020 the SOAS Arbitration Project updated the number of arbitral centres operating in
39 African countries to 91. This list is currently being updated to extract those that administer arbitrations
from those that do not administer arbitration cases. The 2020 list is available at: https://onyema-arbitration.
co.uk/wp-content/uploads/2023/01/List-of-Known-Arbitration-Institutions-in-Africa.pdf.
16. The following eleven African countries arbitration laws are based on the UNCITRAL Model
law: Egypt, Kenya, Madagascar, Mauritius, Nigeria, Rwanda, South Africa, Tunisia, Uganda, Zambia,
and Zimbabwe, as at 2 February 2023.
17. South Africa Arbitration Act 1965 with text available at: https://www.gov.za/sites/default/
files/gcis_document/201505/act-42-1965.pdf.
18. Article 12(1) UNCITRAL Model Law.
19. Section 13 of the Kenyan Arbitration Act 1995 and Section 12 of the Zimbabwe Arbitration
Act are in the same terms.
20. The grounds for these are not stated in the said section 10.1.
Les Cahiers de l'Arbitrage 2023‑2
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https://onyema-arbitration.co.uk/wp-content/uploads/2023/01/List-of-Known-Arbitration-Institutions-in-Africa.pdf https://onyema-arbitration.co.uk/wp-content/uploads/2023/01/List-of-Known-Arbitration-Institutions-in-Africa.pdf https://www.gov.za/sites/default/files/gcis_document/201505/act-42%E2%80%911965.pdf https://www.gov.za/sites/default/files/gcis_document/201505/act-42%E2%80%911965.pdf

Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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