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The Law and Practice of Arbitration
QUESTION 1.1
Arbitration agreement is a written agreement between the parties to resolve the dispute
which is to occur or already occurred, and according to Arbitration Act 42 of 1965,
Further the Rules of the conduct of Arbitration 6th Edition of The Association of
Arbitrators (Southern Africa) (page 5) referring to the arbitration agreement states:
“Agreement” means the written arbitration agreement entered into between the
parties”.
“An arbitration agreement is a written contract in which two or more parties agree
to settle a dispute outside of court. The arbitration agreement is ordinarily a
clause in a larger contract. ….”.
The definition given by arbitration act 42 of 1965 provides a broad vision of the
arbitration agreement because it clarifies clearly that in depth unseems most rele
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The Law and Practice of Arbitration
Question 1.2)
Answer 1.2)
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The Law and Practice of Arbitration
Here too, we can see that there is indication of a written agreement but it does
not specifically states that the need of that agreement to be signed.
As per clause 1.2 Definition of Rules for the Conduct of Arbitration (6th Edition) of
The Association of Arbitrators (South Africa) an Arbitration Agreement shall be in
writing. However under summary procedure rules it is clearly written that the
agreement should be written and signed.
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The Law and Practice of Arbitration
Butler and Finsen has also supported this statement by stating that:
“Arbitration Act Applied only to a written arbitration agreement. The act does not
require the written arbitration agreement to be signed by the parties, it is
sufficient if they have adopted and acted on the agreement. An oral arbitration
agreement is not invalid but an oral reference to arbitration in terms of an oral
arbitration agreement is regulated by the common law”.
Hence based on above mentioned references, we can see that that arbitration
agreement could be in writing or could be oral. However the arbitration act only
applies to written arbitration agreement the oral arbitration agreement is also a
valid agreement but is regulated by the common law, not by the arbitration act.
Here it is also be noted that Butler and Finsen (page 175) has stated that “even
where the arbitration agreement is in writing, so that the provision of the
Arbitration Act will apply to the ensuring arbitration, the common law is not
excluded. Hence common law is applicable both for written and oral arbitration
agreement.
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The Law and Practice of Arbitration
rules to settle the dispute, in that case the parties must, by written and signed
agreement, commit themselves thereto
arbitration act 42 of 1965, Rules of the conduct of Arbitration 6th Edition of The
Association of Arbitrators (Southern Africa) and ruling under the case “Fassler,
Kamstra & Holmes v Stallion Group of Companies (Pty) Ltd 1992 (3) SA 825
(W)” it is clear that there is no need of arbitration agreement to be signed, it is
enough if the provision of arbitration agreement have been adopted and acted by
the parties. However it is also important to note that though there is no specific
requirement of the arbitration agreement to be signed, the arbitration agreement
must be in writing.
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