Advocate Eric Dunn SC was appointed by the Association as the editor of this e-periodical.  Eric is a member of the Rivonia Group of Advocates and a senior member of the Johannesburg Bar. He is a Fellow of the Association of Arbitrators (Southern Africa) NPC and a member of the Society of Construction Law for Africa. Eric has a predominantly commercial practice, but over the past decade he has also focused on construction and engineering matters.  

Eric has acted as a High Court judge on numerous occasions and has also appeared in many prominent reported cases in the High Court, Supreme Court of Appeal and Constitutional Court.

The publication of this March edition of Arbitrarily Speaking would have coincided with the hosting of a major event in Sandton, namely Johannesburg Arbitration Week. Although postponed, due to the global outbreak of coronavirus disease 2019 (commonly referred to as ‘Covid-19’), the mere scheduling of the event reinforces the reality of South Africa’s growing role as a major player – and a strategic regional partner – in the ever-growing industry of international business dispute resolution.  The sponsors of the postponed event (i.e. several leading South African law firms, the Arbitration Foundation of Southern Africa (AFSA) and various Bar Councils), deserve appreciation for their sterling efforts in bringing this type of event to our shores.

What a far cry from the time when Prof David Butler wrote his seminal article A New Domestic Arbitration Act for South Africa: What Happens after the Adoption of the Uncitral Model Law for International Arbitration, 9 Stellenbosch L. Rev. 3 (1998). Since Prof Butler first penned this article, the International Arbitration Act, No 15 of 2017 (the Act) was promulgated on 17 December 2017 and came into effect three days later.

All of this is yet an even further cry from the time that Marcus Tullius Cicero (Cicero) (3 January 106 BC – 7 December 43 BC) once extolled the virtues of arbitration before an ‘arbiter’, in comparison to adjudication on the basis of the *strict formulation of an action before a magistrate, called a ‘iudex’, in these terms:[1]

“A proceeding before a magistrate (iudicium) is for a certain sum; arbitration is for an uncertain one.  We come before the iudicium with the expectation that we shall either win or lose the whole amount in question; we go to arbitration on the understanding that we shall end up neither with nothing nor as much as we asked for. The very words of the formula *[i.e. the strict formulation referred to in the introduction] are proof of this. What is the formula before a iudex? Direct, hard, simple: “If it appears that 50 000 sesterces[2] are due.” Unless the claimant can prove that 50 000 sesterces are due, to the penny, he loses the case. What is it in an arbitration? Mild, moderate: “As much should be awarded as is the more fair and proper.” That man admits he is asking for more than is owed to him but says that he will be more than satisfied with whatever he gets from the arbitrator. So, one has confidence in his case; the other, not. (Cic. Rosc. Com. 4.10-11)” (Emphasis added, as well as the *insertion)

Given that these words about the merits of arbitration were uttered more than 2063 years ago, as seen from Cicero’s perspective at that time, the promulgation of the Act finally recognises that arbitration has become the preferred method of choice for the resolution of international business disputes. 

On another note, our readers will recall that the first edition of Arbitrarily Speaking contained an article captioned Toolkit for Award Writing. At that time, I also pointed out that the authors of this article placed great emphasis on the need for comprehensive reasoning in an award, and the benefits that are to be derived from that. The subsequent portion of the editorial then focused on the imperative to develop a good vocabulary gained from hours of reading good literature; the ability to use that vocabulary thoughtfully, skilfully and wisely; as well as Lord Denning’s exhortation to try and try again by crossing out sentence after sentence and rewriting them repeatedly. 

In the next four editions (to be published in May, July, September and November 2020) of this e-periodical, we aim to focus on the imperative of critical thinking, through the publication of a series of four essays addressing the methods of logical reasoning, the types of logical reasoning, and the ways in which logical reasoning serves as a foundational pillar for critical thinking

That is for the future. For now, we’re sincerely grateful to the doyen of arbitration law in South Africa, Prof David Butler, a longstanding Fellow and friend of the Association, for an article he has specially written for this edition of Arbitrarily Speaking, titled The need to control disclosure of documents in modern commercial arbitration: a South African perspective. Prof Butler has long advocated the need for expediting commercial arbitration proceedings (David Butler, Expediting Commercial Arbitration Proceedings: Recent Trends, 6 S. Afr. Mercantile L.J. 251 (1994)), and his latest article addresses the issue of discovery, and how practitioners and arbitrators alike should go about ensuring that the discovery process is taken care of efficiently and expeditiously in arbitration proceedings.

Uncle Oswald’s Q&A Forum was hugely popular in the first edition. It has been decided to include it as a regular feature. In the current edition, Uncle Oswald, our resident know-it-all retired arbitrator, provides some valuable insights on the question of hearsay evidence in arbitration proceedings to retired magistrate, Daantjie Duiwel. Gladys Gold-Digger is also provided with practical advice on how to recover her fees as an arbitrator.

Our regular column, A Case in Point: Recent Case Reports, covers an analysis of the Termico case – a judgment of the Supreme Court of Appeal: Termico (Pty) Ltd v SPX Technologies (Pty) Ltd & others; SPX Technologies (Pty) Ltd v Termico (Pty) Ltd (418/2018) [2019] ZASCA 109. 

We appeal for your contributions to this latter column, especially where you are aware of some interesting unreported case. In this regard, please submit your contribution to the Association’s general manager, Ms Rochelle Appleton, by email: rochelle@arbitrators.co.za.

We appreciate your continued support for Arbitrarily Speaking. Happy reading!

Adv Eric Dunn, SC
Editor


[1]         At p. 238 of §18.2: Methods of Conflict Resolution in Chapter 18 – ‘Roman Courts and Private Arbitration’ by Leanne Bablitz: The Oxford Handbook of Roman Law and Society, Edited by Paul J. du Plessis, Clifford Ando and Kaius Tuori (Oct 2016).

[2]        The plural noun of ‘sesterce’, an ancient Roman coin.

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