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The role of AFSA in arbitrations
AFSA is the administrative body which manages the arbitration in
all its aspects, but has no input in the arbitral award, which is de-
cided by the arbitrator.
AFSA will:
Receive the request for arbitration.
Liaise between the parties.
Appoint an arbitrator acceptable to both parties.
Receive deposits and payments for the arbitrator’s services.
Arrange for a venue and transcription services, if so requested.
Issue the arbitral award after receipt from the arbitrator.
The role of the arbitrator
The arbitrator is an independent, objective person with experience
in the grain trade, who will take evidence from both parties, decide
on any interim issues between the parties and eventually issue
an award.
An arbitrator can be nominated by the claimant, or appointed by
AFSA. Even if nominated by the claimant, the arbitrator acts as an
independent party and does not represent the party nominating him.
In order to maintain his independence, the arbitrator will not discuss
any of the issues raised with either of the parties, unless both
parties are present for the discussion. The arbitrator is not permitted
to offer any advice to either of the parties.
The arbitrator effectively has a similar power to that of a court and
can make findings and rulings as the arbitral process progresses.
The arbitrator will manage the process and progress of the
arbitration. He will set deadlines for presentation of the claimant’s
claim, for the defendant’s response, and then for the claimant’s
reply on the defendant’s defence. His aim will be to give both parties
a chance to fully express their claim and defence and to keep the
process fair without any unnecessary delays.
Legal representation
SAGOS 1 Ver. 9 specifies that there will be no legal representation
in the arbitration. This restriction is found in many overseas grain
arbitration contracts as well. The aim of this restriction is to try and
keep the dispute focused on the fundamentals of the dispute and
not to have legal barriers to the progress of the arbitration. It is in
the interest of both parties to have a quick and fair decision from
the arbitrators.
This clause can be changed if both parties agree to have legal re-
presentation in the arbitration.
Arbitrator as advisor
Arbitrators in their personal capacity are permitted to act as advisors
to one or other of the disputing parties, but then that person will
not be acceptable as an independent arbitrator for that dispute.
Thus it is important to decide beforehand whether you will be
approaching an arbitrator to ask for advice or to propose that you
would like him/her to act as arbitrator in your dispute.
Time limits
The SAGOS 9 contract has many specific time limits for claiming
and it is very important to adhere to these. It is within the powers of
the arbitrator to reject any claim or response which is “out of time”.
Thus if you do have a claim to submit, read the contract and make
sure that you strictly adhere to the time limits in the contract as
well as any time limits imposed by the arbitrator.
SA Grain/
Sasol Chemicals (Fertiliser) photo competition
With the increasing cost and complexity of litigation and the long delays in bringing disputes to court, and thereafter judgments, appeals and further
appeals, mediation and arbitration have become more popular over the past decades and are generally known as alternative dispute resolution.