adminThis therefore means that arbitration done in terms of — for example — the Labour Act shall be done in conformity with the Arbitration Act, provided the Labour Act does not have specific provisions that exclude the application of the Arbitration Act.
This is so because the Labour Act is superior to any enactment inconsistent with it.
Section 5 (2) of the Arbitration Act inserts a critical provision, that the provisions of an enactment providing for the determination of any matter by arbitration, (e.g Labour Act) shall prevail to the extent that they are inconsistent with the Arbitration Act.
This provision is the chief sponsor of the confusion that rocks the minds of other practitioners that arbitration proceedings in terms of the Labour Act are totally divorced from those provided for in terms of the Arbitration Act even where there is no inconsistency.
This reasoning is flawed in that it pre-supposes the existence of two separate regimes of arbitration, one that applies the Arbitration Act and another that does not.
In terms of Section 5 (2), the Arbitration Act shall be applied in all arbitration provided the other enactment providing for arbitration is not inconsistent with the Arbitration Act, in which case the provisions of that other enactment shall prevail.
Arbitration Agreement
“Arbitration Agreement” is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties, or in an exchange of letters, e-mails, telegrams or other means of telecommunication which provides a record of the agreement.
It can be an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another.
The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.
An arbitration agreement is an agreement by the parties to submit to arbitration on all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
It may be in the form of an arbitration clause in a contract as were the case of Croplink (Pvt) Ltd versus Jesse and Others.
There was a clause in the contract between the parties obliging the referral to an Arbitrator of disputes arising under the agreement as to the interpretation of the terms and conditions of the agreement or the extent to which a party may be in breach of any term, condition or undertaking.
Online Reporter