Accepting that the arbitration agreement between two disputing parties and the arbitration rules that would apply to their arbitration, totally supports the idea, is it legally permissible that, rather than attending proceedings personally at a specified venue, that an arbitration be undertaken, from beginning to end, online, with email and possibly video conferencing for purposes of cross-examination, all notices and communications included?

Let us consider this question within a South African as well as a global context.

South African Arbitration Law:

In South Africa, arbitration is primarily governed by the Arbitration Act of 1965 (Act 42 of 1965), supplemented by the International Arbitration Act of 2017.

Arbitration Act, 42 of 1965:

This Act provides the foundational framework for arbitration in South Africa. Section 3 of the Act recognizes the autonomy of parties to determine the procedure to be followed in arbitration. It states that "subject to the provisions of this Act, the parties are free to agree on the procedure to be followed in the arbitration". This provision allows parties to agree on conducting arbitration proceedings online, as long as it is not contrary to public policy or the mandatory provisions of the Act. Thus, there is no explicit prohibition against online arbitration in the Arbitration Act.

Additionally, the Act covers essential aspects of arbitration such as the enforcement of arbitration agreements, appointment of arbitrators, conduct of arbitration proceedings, and the recognition and enforcement of arbitral awards. While these provisions do not specifically address online arbitration, they provide a flexible framework that can accommodate modern forms of dispute resolution.

International Arbitration Act, 2017:

The International Arbitration Act of 2017 supplements the Arbitration Act and aligns South African law with international standards, particularly concerning the recognition and enforcement of foreign arbitral awards. While the Act does not directly address online arbitration, its emphasis on enforcing arbitration agreements and awards, regardless of the medium through which arbitration is conducted, supports the notion that online arbitration is permissible under South African law.

Legal Precedents:

Although there may not be specific South African cases directly addressing online arbitration, the courts have consistently upheld arbitration agreements and recognized the autonomy of parties to determine the arbitration process. Notable cases such as Lumber City (Pty) Ltd v Varnado [2003] ZASCA 99 and Cunningham v Blignaut [2015] ZASCA 140 have emphasized the principle of party autonomy in arbitration. These precedents suggest that parties may agree to conduct arbitration proceedings online, provided it aligns with the fundamental principles of fairness and due process.

In conclusion, under South African arbitration law, particularly the Arbitration Act of 1965 and the International Arbitration Act of 2017, there is no explicit prohibition against conducting arbitration proceedings online. The legal framework provides flexibility, allowing parties to agree on the procedure to be followed in arbitration, including utilizing digital platforms for online arbitration.

International Legal Framework:

The UN Model Law on Commercial Arbitration serves as a guiding framework for countries in developing their arbitration laws. Article 19 of the Model Law emphasizes party autonomy, stating that the parties are free to agree on the procedure to be followed in the arbitration. This provision supports the idea that parties may choose to conduct arbitration proceedings online. While the Model Law does not explicitly mention online arbitration, its principles of party autonomy and procedural flexibility align with the concept of conducting arbitration online.

Legal Approaches in Comparable Jurisdictions:

United States:

In the USA, arbitration is governed by the Federal Arbitration Act (FAA). Courts in the USA have generally embraced online arbitration as a valid form of dispute resolution. Landmark cases such as JPay, Inc. v. Kobel, 904 F.3d 923 (11th Cir. 2018), have upheld arbitral awards resulting from online arbitration proceedings, recognizing the efficacy and convenience of digital platforms in dispute resolution. The FAA emphasizes the enforceability of arbitration agreements and awards, regardless of the medium through which arbitration is conducted.

England:

In England, arbitration is governed by the Arbitration Act 1996. English courts have recognized the validity of online arbitration and have upheld arbitral awards rendered through digital means. Cases such as A v B [2017] EWHC 3417 (Comm) demonstrate the English courts' willingness to embrace modern forms of dispute resolution and uphold arbitral awards resulting from online arbitration proceedings. The Arbitration Act 1996 provides a flexible framework that accommodates online arbitration, consistent with the principles of party autonomy and procedural flexibility.

Canada:

In Canada, arbitration is governed by both federal and provincial legislation. Canadian courts have generally supported the use of online arbitration as a valid means of dispute resolution. Influential cases such as Heller v. Uber Technologies Inc., 2020 SCC 16, have upheld arbitration agreements conducted online, recognizing the importance of party autonomy and the efficiency of digital dispute resolution platforms. The legal framework in Canada, including legislation such as the Arbitration Act, 1991 (Ontario) and the Commercial Arbitration Act (Quebec), accommodates online arbitration and upholds arbitral awards resulting from such proceedings.

Conclusion:

In summary, international legal frameworks and the legal approaches in the USA, England, and Canada support the concept of conducting arbitration proceedings online. The UN Model Law on Commercial Arbitration emphasizes party autonomy and procedural flexibility, aligning with the notion of online arbitration. Jurisdictions such as the USA, England, and Canada have embraced online arbitration as a valid form of dispute resolution, with courts upholding arbitral awards resulting from online arbitration proceedings. These jurisdictions recognize the efficacy and convenience of digital platforms in arbitration and emphasize the enforceability of arbitration agreements and awards, irrespective of the medium through which arbitration is conducted

In an arbitration agreement may parties to a referral dictate the design of the arbitral award to accommodate the voluntary execution thereof taking into account the personal and financial circumstances of the defendant, providing for instalment payments and payment methods, while ensuring fairness and reasonableness?

South African Arbitration Law:

Under South African law, the Arbitration Act of 1965 (Act 42 of 1965) governs arbitration proceedings, while the International Arbitration Act of 2017 supplements it for international arbitration matters.

Arbitration Act, 42 of 1965:

Section 3 of the Arbitration Act recognizes the autonomy of parties to determine the procedure to be followed in arbitration. While this provision primarily addresses the conduct of arbitration proceedings, it also encompasses the authority of parties to shape the arbitral award to their preferences, provided such agreements are not contrary to public policy or the mandatory provisions of the Act. The Act allows for flexible arbitration agreements that can accommodate the parties' specific needs and circumstances.

International Arbitration Act, 2017:

Similarly, the International Arbitration Act, which aligns South African law with international standards, supports party autonomy in determining the procedure to be followed in arbitration. While it primarily deals with the recognition and enforcement of foreign arbitral awards, its principles regarding party autonomy can extend to the design of the arbitral award itself.

Legal Precedents:

South African courts have recognized the autonomy of parties to shape arbitration proceedings and agreements according to their needs. While there may not be specific cases directly addressing the design of arbitral awards to accommodate parties' financial circumstances, courts have upheld arbitration agreements that reflect the parties' intentions and preferences, provided they do not violate public policy or mandatory legal provisions. Notable cases such as Lumber City (Pty) Ltd v Varnado [2003] ZASCA 99 and Cunningham v Blignaut [2015] ZASCA 140 underscore the principle of party autonomy in arbitration.

International Legal Framework:

The UN Model Law on Commercial Arbitration emphasizes party autonomy and procedural flexibility, allowing parties to agree on the procedure to be followed in arbitration. While it does not specifically address the design of arbitral awards, its principles support the idea that parties may shape the award to accommodate their personal and financial circumstances, as long as it does not contravene public policy.

Conclusion:

In conclusion, under South African arbitration law, parties to an arbitration agreement have the authority to require the arbitrator to design the arbitral award in a manner that accommodates their personal and financial circumstances, including instalment payments and payment methods, while ensuring fairness and reasonableness. This authority stems from the principle of party autonomy enshrined in the Arbitration Act of 1965 and supported by legal precedents recognizing parties' freedom to shape arbitration agreements according to their needs. Additionally, the international legal framework, including the UN Model Law on Commercial Arbitration, reinforces the principle of party autonomy, further supporting parties' ability to tailor arbitral awards to their preferences, provided such agreements do not violate public policy or mandatory legal provisions.

When an arbitration award stipulates that a debt be paid in specified instalments what would the implications be when such an award is converted into a high court judgment and how will it affect the execution of that judgment. If that award, with the consent of the parties, state that the parties may institute a debit order or that the employer of the judgment debtor can be requested to deduct those instalments from the salary of the relevant party and remitted to the claimant, how will this be executable?

When an arbitration award stipulates that a debt be paid in specified instalments and is subsequently converted into a High Court judgment, it becomes enforceable as a court order. The conversion of the award into a judgment and the subsequent execution of that judgment may involve certain implications and procedures, particularly when the award specifies salary deductions as a method of payment. Let's explore these aspects:

Conversion of Award into a High Court Judgment:

Enforceability:

Once the arbitration award is converted into a High Court judgment, it becomes enforceable through the court's execution processes, which may include methods such as attachment of assets, garnishee orders, or other enforcement mechanisms.

Specified Instalments:

The court judgment would uphold the instalment payment terms stipulated in the arbitration award. The judgment creditor (claimant) can enforce these instalment payments through legal means if the judgment debtor (relevant party) fails to comply with the payment terms.

Salary Deduction as a Method of Payment:

Consent of the Parties:

If the arbitration award, with the consent of the parties, specifies that the employer can be requested to deduct the instalment payments from the salary of the relevant party and remit them to the claimant, this creates a specific method of execution known as an emolument attachment order.

Emolument Attachment Order:

An emolument attachment order (EAO) is a court order that allows for the deduction of debt repayments directly from an individual's salary by their employer. To execute an EAO, the claimant (judgment creditor) would need to apply to the court for the issuance of the EAO against the judgment debtor's employer. The court will assess the application and, if satisfied, will issue the EAO, specifying the amount to be deducted from the judgment debtor's salary and remitted to the claimant.

Alternative Methods of Enforcement:

Garnishee Order:

A garnishee order is a court order that allows a judgment creditor to recover the debt directly from a third party who owes money to the judgment debtor, such as the employer.

The judgment creditor can apply to the High Court for a garnishee order, specifying the instalment amounts to be deducted from the judgment debtor's salary by the employer and remitted to the creditor. The High Court will assess the application and, if satisfied, will issue the garnishee order against the employer, obligating them to deduct the specified instalment amounts from the judgment debtor's salary and remit them to the claimant.

Writ of Execution:

A writ of execution is a court order instructing the sheriff to seize and sell the judgment debtor's assets to recover the debt. If the instalment payments are not made as per the court's judgment, the judgment creditor can instruct the sheriff to execute the writ of execution by seizing and selling the judgment debtor's assets to recover the unpaid amounts.

Consent Order with the Employer:

Although the employer is not a party to the proceedings, the judgment creditor may seek to enter into a consent order with the employer, with the consent of the judgment debtor, to deduct the instalment amounts from the judgment debtor's salary and remit them to the creditor. The judgment creditor can approach the employer with a proposed consent order, specifying the instalment amounts and the deduction process. If the employer agrees, the parties can approach the court for the approval and issuance of the consent order.

Direct Payment by the Judgment Debtor:

If the employer is not willing to cooperate and no other enforcement methods are available, the judgment creditor may enforce the court's judgment by directly compelling the judgment debtor to make the instalment payments. The judgment creditor can apply to the court for an order directing the judgment debtor to make the instalment payments directly to the creditor. Failure by the judgment debtor to comply with the court's order may result in further enforcement actions, such as contempt of court proceedings.

Conclusion:

In conclusion, while the specific method of enforcing instalment payments directly from a judgment debtor's salary may be limited under the Supreme Court Act, alternative enforcement methods such as garnishee orders, writs of execution, consent orders with the employer, and direct payment by the judgment debtor can be employed to enforce the court's judgment and recover the unpaid instalment amounts. It is advisable for the judgment creditor to seek legal advice to determine the most appropriate and effective enforcement method in the specific circumstances of the case.

To convert an arbitration award that includes provisions for periodic payments into a high court judgment, what would the precise legal procedure be and what would the legal costs be?

The process of converting an arbitration award that provides for periodic payments into a High Court judgment involves specific legal procedures and costs. Below is a detailed explanation of the legal procedure and the potential cost items that could make up the total taxed account:

Legal Procedure for Converting an Arbitration Award into a High Court Judgment:

Application to Court:

The judgment creditor (claimant) would need to lodge an application with the High Court to have the arbitration award converted into a court judgment. The application must be supported by an affidavit setting out the facts of the case, the arbitration award, and the relief sought. The arbitration award and the arbitration agreement between the parties must be attached.

Service of Application:

The application and supporting documents must be served on the judgment debtor, who will have an opportunity to oppose the application if they wish to do so.

Court Hearing:

If the judgment debtor does not oppose the application, or if the court dismisses any opposition, the court will grant the order converting the arbitration award into a High Court judgment. If the judgment debtor opposes the application, the court will hear arguments from both parties before making a decision.

Issuance of Judgment:

Once the court grants the order, the arbitration award is converted into a High Court judgment. The judgment creditor can then proceed with the enforcement of the judgment through various legal means, such as garnishee orders, writs of execution, or other enforcement mechanisms. The judgment creditor can also elect to transfer the high court judgment and then pursue the execution of the judgment further from that forum. It is however a very drawn out and expensive process.

Legal Costs Items for Converting an Arbitration Award into a High Court Judgment:

The legal costs for converting an arbitration award into a High Court judgment can vary depending on various factors, including the complexity of the case, the duration of the proceedings, and the legal fees charged by the attorney and counsel. Here are potential cost items that could make up the total taxed account:

Attorney's Fees:

Professional fees charged by the attorney for drafting and lodging the application, preparing supporting documents, and representing the client in court.

Counsel's Fees:

Fees charged by the counsel for providing legal advice, drafting legal documents, and representing the client in court, if applicable.

Court Fees:

No court fees are payable to the court for filing the application and obtaining the court order.

Service Fees:

Costs associated with serving the application and supporting documents on the judgment debtor.

Sheriff's Fees:

Fees payable to the sheriff for executing the court's order, such as serving garnishee orders or executing writs of execution.

Other Disbursements:

Other miscellaneous expenses incurred during the proceedings, such as travel expenses, postage, and photocopying.

Conclusion:

It is advisable for the judgment creditor to seek legal advice to obtain an accurate estimate of the potential legal costs and to determine the most appropriate and cost-effective approach to converting the arbitration award into a High Court judgment and enforcing the judgment. In an environment where there is a high turnover of similar application in one division of the high court, consideration might be given to lump such applications together and instruct one or two junior council on all of them. This might reduce the unit costs per application which will surely benefit the parties.  

The arbitration mechanism used for civil dispute resolution is thousands of years old, not only in western Europe but in Africa as well. A successful integration of the two may well be able to bridge the cultural gap between the various different cultures in South Africa.

Let me explain. When a dispute arises between two persons, there is one of two ways to resolve it. Firstly, you can go to court and use its enforced civil procedure state-powered execution weapons to enforce the resolution provided by the state’s judgment. The second is to reach an arbitration agreement with your opponent and to resolve the issue privately following the procedure agreed upon. Just as the first option, this resolution or award can be enforced and executed through the use of state power.

Same thing, different methods. The first method can only be changed by amending the law. The second can simply be amended by the use of a different arbitration agreement.

Now, in South Africa we have what we refer to a “contractual freedom”. This in short means that parties can agree to anything for as long as it is not in conflict with the public interest and the law. As arbitration is based on ‘agreement’ this implies that what we understand as ‘arbitration’ can be as far­-reaching as the Lord’s commandment. It surely leaves unrestricted room to incorporate elements of both western and African cultures to ensure that parties of opposing cultures within a commercial dispute will feel at home and safe within the adopted procedure and approach.    

It is submitted that the room created within the Arbitration Act read with the CCT Arbitration Agreement and CCT Rules creates all the opportunity for this development to take place. Finally, it would come down to the practical, culture-sensitive way in which our wise arbitrators exercise their function and authority for this model of arbitration to become a reality. It is however what CCT strives to achieve.

PS: Within a South African context what a wonderful marketing approach would it not be for business to adopt this model of dispute resolution and to make it a feature of their relationship with the customers or clients!