Challenge to Award and Appeals: formula sheet

Key formulas

Disclosure duty, s 12(1)

Approached for appointment → disclose in writing (Sixth Schedule form) → doubts on independence/impartiality + ability to finish within 12 months

Duty arises when the person is approached, before appointment.

Grounds for challenge, s 12(3)

Challenge only if (a) justifiable doubts as to independence or impartiality, or (b) lacks qualifications agreed by parties

These are the only two grounds. The word is 'justifiable' doubts.

Challenge of own appointee, s 12(4)

Own appointee: challenge only for reasons learnt after appointment

Applies to an arbitrator appointed by the party or in whose appointment it participated.

Ineligibility, s 12(5)

Seventh Schedule relationship → ineligible, notwithstanding any prior agreement

Waiver only by express written agreement made after disputes have arisen.

Role of Schedules

Fifth Schedule = guide to justifiable doubts (Explanation 1); Sixth Schedule = disclosure form (Explanation 2); Seventh Schedule = ineligibility

Do not mix up the three.

Agreed procedure

Parties free to agree on challenge procedure, subject to s.13(4)

Section 13(1). The default procedure applies only if there is no such agreement.

Default time limit

Written statement of reasons to the tribunal within 15 days

Section 13(2). Runs from awareness of the tribunal's constitution or of a circumstance under section 12(3).

Who decides

Arbitrator withdraws OR other party agrees → challenge ends; otherwise tribunal decides

Section 13(3).

Challenge fails

Tribunal continues and makes award; challenger may apply under s.34

Section 13(4) and 13(5). Applies to agreed and default procedures.

Award set aside

Court may decide if the challenged arbitrator gets fees

Section 13(6). The Court has discretion on fees.

Section 14(1): termination and substitution

Ground (a): de jure or de facto unable to perform, or fails to act without undue delay; AND step (b): withdrawal or parties' agreement to terminate

Mandate terminates and he is substituted by another arbitrator. Clause (a) is the ground; clause (b) is the step that follows.

Section 14(2): court decides controversy

Controversy on ground in 14(1)(a) → party may apply to Court, unless otherwise agreed

The application is to the Court, not to the tribunal. The parties can agree on a different mechanism.

Section 14(3): no admission

Withdrawal or agreement to termination ≠ acceptance of validity of the ground

Applies to Section 14 and Section 13(3); it also refers to the grounds in Section 12(3).

Section 15(1): additional grounds

Mandate also terminates on (a) withdrawal for any reason, or (b) agreement of the parties

These apply in addition to Sections 13 and 14.

Section 15(2): substitute

Substitute appointed according to the rules applicable to the appointment of the arbitrator being replaced

If the original was nominated by a party, the same method applies to the replacement.

Section 15(3): earlier hearings

Unless otherwise agreed, previous hearings may be repeated at the tribunal's discretion

Repetition is permitted, not mandatory.

Section 15(4): earlier orders

Unless otherwise agreed, earlier order or ruling is not invalid solely because the tribunal's composition changed

Other grounds of invalidity may still be raised.

Closed list of court orders (s. 37(1))

Appeal lies from orders under s. 8 (refusal to refer), s. 9 (grant or refusal of measure), s. 34 (setting aside or refusing to set aside award) – and no others

Remember it as 8, 9, 34. Note that an order under s. 8 is appealable only if it refuses reference.

Tribunal orders (s. 37(2))

Appeal lies from tribunal order (a) accepting plea under s. 16(2) or 16(3); (b) granting or refusing interim measure under s. 17

An order rejecting the jurisdiction plea is not listed in s. 37(2). Only acceptance of the plea is appealable.

Forum of appeal

Court authorised by law to hear appeals from original decrees of the court passing the order

For tribunal orders under s. 37(2), the appeal lies to a court.

Second appeal bar (s. 37(3))

No second appeal; right of appeal to the Supreme Court is not affected

State both halves of the rule in the answer.

Overriding words (s. 37(1))

"Notwithstanding anything contained in any other law for the time being in force"

Added by Act 33 of 2019. The Act's list prevails over appeal rights under other laws.

Section 59(1)(a)

Appeal lies from order refusing to refer parties to arbitration under section 54

Chapter II (Geneva Convention). Chapter I equivalent: section 50(1)(a) read with section 45.

Section 59(1)(b)

Appeal lies from order refusing to enforce a foreign award under section 57

Chapter I equivalent: section 50(1)(b) read with section 48.

Forum of appeal

Court authorised by law to hear appeals from such order

The section does not name the court. Use the statutory words.

Section 59(2)

No second appeal; right to appeal to the Supreme Court is not affected

Same wording in section 50(2). Section 37(3) has the same bar for Part I.

Section 50 opening words

"Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie..."

Inserted by Act 33 of 2019, w.e.f. 30-8-2019. Applies to section 50 as supplied.

Enforcement effect

Enforceable foreign award is deemed to be a decree of the Court (section 49; section 58)

Section 49 is Chapter I; section 58 is Chapter II.

Quick revision

• Section 12(1): a person approached as arbitrator must disclose in writing circumstances giving justifiable doubts, and those affecting time to finish within twelve months.
• Disclosure is made in the form of the Sixth Schedule; the Fifth Schedule guides on doubts about independence or impartiality.
• Section 12(3): challenge only for justifiable doubts on independence or impartiality, or lack of agreed qualifications.
• Section 12(4): a party can challenge its own appointee only for reasons it learns of after the appointment.
• Section 12(5): a person in the Seventh Schedule is ineligible despite any prior agreement; waiver only by express written agreement made after disputes arise.
• Section 13(2): default challenge procedure is a written statement of reasons to the tribunal within fifteen days of awareness.
• Section 13(3): unless the arbitrator withdraws or the other party agrees, the tribunal decides the challenge.
• Section 13(4) and (5): if the challenge fails, proceedings continue and the award can be attacked under Section 34.
• Section 14: mandate terminates and a substitute is appointed if the arbitrator is unable or fails to act and withdraws or the parties agree; otherwise a party may apply to the Court.
• Section 15(2): a substitute is appointed under the rules that applied to the original appointment.
• Section 37: appeal lies from the listed orders only; no second appeal, but the Supreme Court right remains.
• Sections 50 and 59: appeal lies only from orders refusing to refer parties to arbitration or refusing to enforce a foreign award.

Common mistakes

• Treating Fifth and Seventh Schedules as the same list. Fix: Fifth Schedule guides whether doubts exist. Seventh Schedule makes a person ineligible under section 12(5). Say this in the answer.
• Saying a prior agreement can allow a Seventh Schedule person to act. Fix: Section 12(5) applies notwithstanding any prior agreement. Only an express written waiver after disputes have arisen works.
• Saying the 15 days always apply. Fix: Always state first that parties may agree a procedure. The 15-day limit applies failing such agreement.
• Counting 15 days from the date the circumstance arose. Fix: Count from when the party became aware of the tribunal's constitution or of the circumstance under section 12(3).
• Saying inability to act alone ends the mandate under Section 14(1). Fix: Write both: the ground in clause (a), and withdrawal or the parties' agreement in clause (b). If the ground is disputed, go to the Court under Section 14(2).
• Saying the tribunal itself decides a dispute on termination. Fix: Section 14(2) says a party may apply to the Court, unless otherwise agreed by the parties.
• Saying an order referring parties to arbitration under section 8 is appealable. Fix: Section 37(1)(a) covers only an order refusing to refer. An order making the reference is not on the list.
• Saying an order rejecting the jurisdiction plea under section 16 is appealable under section 37(2). Fix: Section 37(2)(a) covers only acceptance of the plea under s. 16(2) or 16(3). The rejecting party raises the point when challenging the final award.
• Saying an appeal lies against an order that enforces the foreign award. Fix: Read the clauses. The appeal is against an order refusing to refer or refusing to enforce. Do not extend it beyond the text.
• Mixing section 50 and section 59. Fix: Link the Chapter to the section. Chapter I with sections 45 and 48 uses section 50. Chapter II with sections 54 and 57 uses section 59.

Exam tips

• Always name the sub-section: 12(1) disclosure, 12(3) grounds, 12(4) own appointee, 12(5) ineligibility.
• In a case question, first test the Seventh Schedule, then the Fifth. This order shows the examiner you know the difference.
• Mention the twelve-month time disclosure in 12(1)(b). Many answers miss it.
• End with the procedure in section 13 and the remedy of setting aside under section 34 if the challenge fails.
• Do not quote individual entries of the Schedules unless you are certain of them. Use the general idea, such as employee, adviser or past involvement.
• Open every answer with party autonomy under section 13(1). Examiners look for it.
• Write the number 15 and the words 'becoming aware' together.
• Link sections 12, 13 and 34 in one flow: ground, procedure, remedy.