Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 163

NUMÉRO SPÉCIAL AFRIQUE
42. The South African courts are not required to uphold any form of privacy
or confidentiality when hearing parties on the above issues or making their
rulings. Conversely, in England and Wales, the Civil Procedure Rules now contain
mechanisms to uphold the privacy and confidentiality of ensuing court litigation. 77
43. Despite being based on English law at the time, the Domestic Arbitration Act
has been criticized for providing the courts with extended powers of intervention in
arbitral proceedings. As a result, many commentators and practitioners have called
for legislative reform. 78
To this end, the South African Law Reform Commission
conducted an investigation to consider how to incorporate the best features of the
English Arbitration Act 1996 into more up to date domestic legislation. 79
44. Although the Domestic Arbitration Act is outdated and requires reform,
and the above provisions provide the courts with extended powers to intervene in
arbitral proceedings, this should not mean per se that arbitrations are not inherently
confidential, nor that the uncertainty that exists in this regard can only be resolved
with appropriate legislative amendments. Indeed:
(a) The Domestic Arbitration Act was based primarily on its English counterpart
at the time (which also provided wide powers to the courts without parallel
privacy/confidentiality provisions). The current English Arbitration Act 1996
also contains similar provisions, allowing the courts to intervene by way of
public hearings.
(b) As noted by the UK's Law Commission in its review of the Arbitration Act
of 1996 in September 2022, applications under section 45 (preliminary point
of law) and section 69 (appeal on a point of law) tend to be held in public, but
this does not detract from the implied term of confidentiality in arbitrations. 80
(c) The circumstances under which the Domestic Arbitration Act was enacted in
the 1960s (where litigation did not experience the level of media coverage that
it does today) meant that parties could more easily maintain the confidentiality
and privacy of their court proceedings.
45. That said, the assumption that parties have elected to arbitrate confidentially
and privately cannot dictate the position in respect of future litigation in connection
with the arbitration. In England, these are classified as " arbitration claims " under the
Civil Procedure Rules (Rule 62.2 in particular). Rule 62.10 should only represent a
starting point, because such proceedings are no longer consensual.
46. The possibility of pursuing such " arbitration claims " exists in the public
interest. Indeed, the English courts, when called upon to exercise the supervisory
role assigned to them under the Arbitration Act 1996, act as a branch of the state,
not as a mere extension of the consensual arbitral process. They are acting in the
public interest to facilitate the fairness and robustness of a consensual method of
77. See para. 25 above.
78. Sarkodie, 2014 GAR 1; Butler, D., 1994 CILSA 118; Gauntlett, J., " Legal System of South
Africa " , paper delivered at the SADC International Arbitration Workshop, Le Victoria, Mauritius, 11 and
12 April 2007.
79. South African Law Commission, " Arbitration: An International Arbitration Act for South Africa " ,
Project 94 (1998).
80. Law Commission of England & Wales, " Review of the Arbitration Act 1996 " , Consultation
Paper 257 (2022), paras. 2.7 et seq, available at https://s3-eu-west-2.amazonaws.com/lawcom-prodstorage-11jsxou24uy7q/uploads/2022/09/Arbitration-Consultation-Paper.pdf.
Les
Cahiers de l'Arbitrage 2023‑2
437

https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2022/09/Arbitration-Consultation-Paper.pdf https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2022/09/Arbitration-Consultation-Paper.pdf

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

Table des matières de la publication Revue - Les Cahiers de l'Arbitrage N°2 - 2023