UNCLE OSWALD’S Q&A FORUM – MARCH 2026
HOPING TO HEAR ABOUT
THE HIGH COURT RULES[1] IN ARBITRATION …
Best Uncle Oswald,
I am an attorney representing a respondent in an arbitration before an arbitrator appointed by the Association of Arbitrators (Southern Africa) NPC. We have a preliminary arbitration meeting scheduled for Monday and we must agree on the rules that will govern the arbitral proceedings. Because most lawyers know the High Court Rules/Uniform Rules of Court, I think that I should advise my client to propose that we run the arbitration under the High Court Rules. What do you think?
Regards
Fearless Freddie
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Dear Freddie,
My short answer is no. It would be counter-productive. I recently tried to negotiate Sani Pass in a little Volkswagen Polo rented from Avis. It took a very long time, and I had to spend a fortune on repairs to the damaged chassis. The Polo is a lovely car, but it was not designed for off-road mountain passes. The same applies to the use of the High Court Rules in an arbitration. There are various sets of arbitration rules specifically designed to expeditiously and cost-effectively resolve arbitrable disputes. They include, for example, the 2021 edition of the Standard Procedure Rules of the Association of Arbitrators (Southern Africa) NPC, which was specifically tailor-made to facilitate the expeditious and cost-effective resolution of arbitral disputes.
Some of the reasons why it is not useful to conduct an arbitration under the High Court Rules include the following (there are many more): The High Court Rules are more formal and time-consuming than your typical arbitration rules. Under the High Court Rules, an arbitrator will be bound by the strict rules of evidence that tend to complicate the task of an arbitrator and delay the procedure. Confidentiality and finality are not provided for in the High Court Rules. Discovery under the High Court Rules tends to become a costly and time-consuming exercise. Arbitration rules typically provide for a limited, focused, cost-effective and expeditious discovery process. Oral evidence and cross-examination are time-consuming and expensive hallmarks of litigation under the High Court Rules. Arbitration rules provide for limited, focused and relevant witness statements with equally limited and focused cross-examination on relevant disputed issues. The High Court Rules provide for absolution from the instance, which carries the risk that the dispute may not be resolved to finality, as dictated by the Arbitration Act 42 of 1965 and by most arbitration rules. The High Court Rules provide for an appeal procedure that is inherently foreign to the concept of arbitration. The High Court Rules prescribe the role of the presiding officer in detail. Arbitration rules provide an arbitrator with a wide discretion to ensure expeditious and cost-effective dispute resolution. So, my dear Freddie, Uncle Oswald’s advice is to leave the Polo for commuting to and from work and rather use your Land Rover Defender for the Sani Pass. It was specifically designed to get you to the top reliably, expeditiously and cost-effectively.
Uncle Oswald
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