Advocate Eric Dunn, SC, is the editor of this e-periodical.  Eric is a member of the Maisels Group of Advocates and a senior member of the Johannesburg Bar.  He is a director and Fellow of the Association of Arbitrators (Southern Africa) NPC, as well as a member of the Society of Construction Law for Africa. 

Adversity has sweet offerings

The Bard refers to the ‘uses of adversity’: 

‘Sweet are the uses of adversity,Which, like the toad, ugly and venomous,Wears yet a precious jewel in his head;And this our life, exempt from public haunt,Finds tongues in trees, books in the running brooks,Sermons in stones, and good in everything.’

William Shakespeare, ‘As You Like It’ (Per Duke Senior, in Act 2: Scene 1)

At the time of publication of this edition of Arbitrarily Speaking!, the year 2021 would just have entered its second month.  Although the festivities of the new year might be long forgotten, it is still appropriate that we wish our all members and readers a healthy, prosperous and successful year in all their endeavours and activities.

The publication of this edition, also heralds the second year of the e-periodical’s existence.  At the time the first lockdown was announced in March 2020, there appears to have been some expectation that the COVID-19 pandemic was an inconvenience that might have been over by now.  Little did we know then that a second variant of the virus, reportedly more aggressive and easily transmissible, would be responsible for an ever increasing number of COVID-19 cases and deaths globally, that further stricter lockdowns would ensue and that economies around the world would tank under the strain wrought by the pandemic.  

Despite this background of relative uncertainty, many positives were discovered in the year that has passed.  As the Bard reminds us in the above quote from his pastoral comedy ‘As You Like It’, adversity has many sweet uses, and there is also good in everything.  The use of remote facilities to carry out our duties from the comfort of our regular offices and studies/home-offices, has enabled us to realise how much simpler life can be.  As professionals involved in dispute resolution, we have been fortunate enough to continue working with the aid of digital devices and computer programmes designed to circumvent many of the obstacles we would otherwise have encountered.  The virtues of remote hearings for the resolution of disputes, either by arbitration or in the civil courts, have been extolled both locally and internationally.

This edition of Arbitrarily Speaking! contains contributions by two new contributors.  Both are Fellows of the Association, namely Adv AW (Mark) Harcourt, SC, a member of the KwaZulu-Natal Bar, and Dr Tanya Hendry, a former member of the Johannesburg Bar, with extensive experience in construction law.  In his article, titled ‘Interest in a nutshell’, Mark Harcourt discusses the many types of interest (prime, repo, mora, usury, in duplum) encountered in the commercial and/or legal disciplines, and offers sage advice on the application of the principles informing claims for these different types of interest.  Tanya Hendry’s article teasingly raises interesting rhetorical questions about the ownership, or alleged ownership, of retention monies.  We are grateful to both Mark and Tanya for these interesting contributions that our members will undoubtedly enjoy.  We trust that they both will become regular contributors.

One of our regular contributors, Adv Kiki Bailey, SC, who is also a Fellow and Director of the Association, has authored an important article on the consequences befalling an adjudicator who fails to comply with the contractually prescribed time limits within which to deliver or publish his/her determination under a NEC-type contract.

Uncle Oswald’s regular Q&A Forum is also back in 2021.  Uncle Oswald has informed me that, after a delightful and relaxing holiday in a coastal hamlet located somewhere in the Western Cape, he feels totally invigorated and ready to answer any questions the readers have for him in the field of arbitration and dispute resolution.  He would be most disappointed if your questions would reduce to a mere trickle.

Our regular feature column, A case in point: Recent case reports, contains an analysis and summary that I had prepared of a judgment by the United Kingdom’s Supreme Court in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48. The judgment in this case raises vital questions about an arbitrator’s duty of independence and impartiality, as well as of his or her obligation to make disclosure of matters which may give rise to justifiable doubts as to his or her impartiality.

Under the Arbitration education station section of Arbitrarily Speaking!, the Association’s chairperson, Adv Pierre Rossouw, SC, and its vice-chairperson, Adv Tjaart van der Walt, SC – who both serve as tutors for the Association’s Module 4A course – draw attention to the exceptional percentages attained by three of the Association’s members in last year’s final Module 4A Award Writing examinations.  Our congratulations are offered to Advocate Mias Mostert, Advocate Nicky Strathern and Advocate Paul Strathern, SC .  All three of them are members of the Johannesburg Society of Advocates in Sandton.

Members are reminded that the purpose of this e-periodical is intended to serve their interests.  As such, this e-periodical necessarily will benefit from their contributions and they are therefore encouraged to share their knowledge, skill and experiences of their specific disciplines, as well as their knowledge of and involvement in alternative dispute resolution.  We hope to make an announcement in the next edition of Arbitrarily Speaking! in respect of the awarding of a prize or prizes for the best-written contribution (and possibly for letters too) received from a contributor or contributors during the course of this year.

We remain committed to serving your interests and appreciate your continued support for Arbitrarily Speaking!, and trust that you will enjoy this edition – Happy reading!

Eric Dunn, SC