Model Arbitration Clause

A. REFERENCE TO ARBITRATION

1. Any dispute, controversy, claim or difference arising out of, relating to, or in connection with this Agreement, including any question concerning its negotiation, conclusion, existence, validity, interpretation, performance, non-performance, breach, repudiation, termination, enforceability, rectification, rescission, the consequences of its invalidity, or any non-contractual obligation arising out of or connected with it (a Dispute), shall be referred to and finally resolved by arbitration administered by the Keystone Prime Arbitration Centre, a division of Keystone Prime (Pty) Ltd (Keystone Prime), in accordance with the Keystone Prime Arbitration Rules in force on the date on which the Notice of Arbitration is submitted, which Rules are deemed to be incorporated into this clause by reference.

2. The arbitration shall be conducted on the procedural track applicable under the Keystone Prime Rules according to the value, complexity and significance of the Dispute, or on such other track as the parties may jointly elect in accordance with those Rules. The parties accept the classification and reclassification powers of Keystone Prime under the Rules.

B. GOVERNING LAW, SEAT AND LANGUAGE

3. This Agreement, and the arbitration agreement contained in this clause, shall be governed by and construed in accordance with the law of the Republic of South Africa.

4. The arbitration shall be governed by the Arbitration Act 42 of 1965.

5. The seat (legal place) of arbitration shall be [city], South Africa.

6. The language of the arbitration shall be English.

C. THE TRIBUNAL

7. Unless otherwise agreed by the parties in writing, the tribunal shall consist of a sole arbitrator appointed in accordance with the Keystone Prime Rules.

D. AWARD, FINALITY AND ENFORCEMENT

8. The award shall be final and binding on the parties, subject only to any appeal validly provided for under the Keystone Prime Appeal Rules pursuant to an express appeal agreement in Part J. The parties undertake to carry out any award without delay.

9. Any award may, on application to a court of competent jurisdiction, be made an order of that court and enforced accordingly.

E. LIMITED RECOURSE

10. The parties waive, to the fullest extent permitted by applicable law, any right to challenge, appeal, review, set aside or otherwise seek recourse against an award, except:

• (a) on a ground under the Arbitration Act 42 of 1965 that cannot lawfully be excluded, including the setting aside of an award under section 33 of that Act;
• (b) under any other mandatory provision of applicable law that cannot validly be waived; or
• (c) pursuant to a valid appeal conducted under the Keystone Prime Appeal Rules, where the parties have expressly agreed to such appeal in Part J.

F. INTERIM, EMERGENCY AND COURT RELIEF

11. Nothing in this clause prevents a party from:

• (a) applying for emergency, expedited, interim, conservatory, protective or similar relief under the Keystone Prime Rules, including, before the constitution of the tribunal, under the Keystone Prime Interim Interdictory Awards Rules or the Keystone Prime Emergency Ad Hoc Arbitration Rules, and, after the constitution of the tribunal, from the tribunal under Article 11 of the applicable Rules;
• (b) seeking interim, conservatory, protective, injunctive or equivalent relief from a competent court where such relief is available under applicable law; or
• (c) applying to a competent court for any relief that applicable law reserves exclusively to a court.

12. A matter that applicable law reserves to the exclusive jurisdiction of a court (a court-reserved matter) shall not be the subject of emergency or interim relief under the Keystone Prime Rules and must be pursued before a competent court.

13. Any application to a court for relief under this Part shall not constitute a waiver of this arbitration agreement, a repudiation of this clause, or an election to abandon arbitration.

G. SEPARABILITY AND SURVIVAL

14. The arbitration agreement contained in this clause shall be autonomous and separable from the remainder of this Agreement. The invalidity, illegality, rescission, avoidance, repudiation, termination, expiry, unenforceability or alleged non-existence of this Agreement shall not affect the validity, existence or enforceability of this arbitration agreement.

15. This arbitration agreement shall survive the termination, cancellation, rescission, invalidity, expiry, completion or discharge of this Agreement. In accordance with section 3(1) of the Arbitration Act 42 of 1965, it may not be terminated except by the consent of all parties, unless this Agreement provides otherwise.

H. CONFIDENTIALITY

16. All aspects of the arbitration, including pleadings, evidence, submissions, hearings, orders, awards and all information disclosed during the proceedings, shall be confidential, except to the extent that disclosure is required by law or regulatory obligation, ordered by a court of competent jurisdiction, or necessary for the enforcement or challenge of an award or the protection or pursuit of a legal right.

I. DIGITAL CONDUCT, SERVICE AND DATA PROTECTION

17. Notices, communications, filings, service of documents, procedural directions and awards may be transmitted electronically in accordance with the Keystone Prime Rules and the Keystone Prime Service Protocol, and shall be deemed valid and effective when transmitted in the manner those instruments prescribe.

18. The parties consent to the processing of personal information for the purpose of conducting the arbitration in accordance with the Protection of Personal Information Act 4 of 2013 and the information-security provisions of the Keystone Prime Rules and the Service Protocol.

J. APPEAL AGREEMENT

Appeal is opt-in. Under section 28 of the Arbitration Act 42 of 1965 an award is final and not subject to appeal unless the agreement provides otherwise. If this Part is omitted, no appeal lies under the Keystone Prime Appeal Rules.

J.1. The parties expressly agree that any final award rendered under the Keystone Prime Expedited Commercial Arbitration Rules or the Keystone Prime Complex Commercial Arbitration Rules shall be subject to appeal in accordance with the Keystone Prime Appeal Rules.

J.2. Any such appeal shall be conducted exclusively under the Keystone Prime Appeal Rules and in accordance with the procedures, powers, standards of review and timelines prescribed therein. An award rendered on appeal shall constitute the final and binding award for all purposes.

K. THREE-ARBITRATOR TRIBUNAL

Adopt only if a three-member tribunal is required. This displaces the sole-arbitrator default in Part C, clause 7. The applicable Keystone Prime track timeframe continues to govern; the three-arbitrator constitution path runs within that timeframe.

K.1. Notwithstanding clause 7, the tribunal shall consist of three arbitrators appointed in accordance with the Keystone Prime Rules.

L. SECTOR OVERLAY

Adopt where a sector overlay applies. The overlay operates together with the applicable Base Rules (Expedited or Complex), which continue to govern the time periods and procedural sequence.

L.1. The arbitration shall additionally be conducted under the Keystone Prime [Construction / Banking and Recovery / Corporate and Insolvency] Arbitration Rules, which apply together with, and are moulded to, the applicable Base Rules.

M. PRE-ARBITRATION ESCALATION

Optional tiered dispute resolution. Drafted so that it does not bar urgent or interim relief and does not affect any prescription or time bar.

M.1. Before delivering a Notice of Arbitration, the parties shall first attempt in good faith to resolve the Dispute by negotiation between senior representatives within [number] business days of written notice of the Dispute, failing which by mediation administered by Keystone Prime.

M.2. This Part does not prevent a party from seeking emergency, interim or court relief under Part F at any time, and does not interrupt, extend or affect the running of any period of prescription or other time bar.