2008 Commissioners Indaba

19 21st November 2008 Sun City, North West Province

HOW to CONDUCT ARBITRATION PROCEEDINGS

RANDALL van VOORE

How to conduct an arbitration hearing deciding on form

Arbitrators discretion in terms of section 138(1) Why important - To determine dispute fairly and

quickly
And to dispense with substantial merits with minimum

of legal formalities
Rights of parties in terms of section 138(2) must be

observed
2008 COMMISSIONERS INDABA
19 - 21 November 2008 Sun City

Deciding on Form (factors to consider)

Complexity of factual and legal matters Attitude of parties

Whether parties are represented

Whether legal representation has been granted Experience of parties

2008 COMMISSIONERS INDABA

19 - 21 November 2008 Sun City

How to conduct an arbitration hearing deciding on form

Only once parties have narrowed issues,

should form be decided upon

Form should be clearly communicated to

parties
Arbitrator should advise as to extent he/she

will obtain evidence

2008 COMMISSIONERS INDABA

19 - 21 November 2008 Sun City

Deciding on Form 2 types

INQUISITORIAL (investigative) arbitrator

adopts role of finding facts and arbitrator requires parties to produce evidence and arbitrator questions witnesses
ADVERSARIAL- parties are primarily

responsible for presenting their cases, producing evidence and cross-examination of witnesses
2008 COMMISSIONERS INDABA
19 - 21 November 2008 Sun City

How to conduct an arbitration hearing qualities of an arbitrator

IMPARTIALITY- not to engage in conduct

which creates a reasonable perception of bias

RIGHT to CALL OWN WITNESSES

however parties entitled to ask questions

RIGHT to ASK OWN QUESTIONS- however

parties entitled to ask additional questions

2008 COMMISSIONERS INDABA
19 - 21 November 2008 Sun City

How to conduct an arbitration hearing model form (six stages)

PREPRATION and INTRODUCTION
PRELIMINARY ISSUES

NARROWING OF ISSUES
HEARING OF EVIDENCE CONCLUDING ARGUMENTS AWARD
2008 COMMISSIONERS INDABA
19 - 21 November 2008 Sun City

First Stage- Preparation and Introduction

Prepare- by reading referral and other documents submitted
At the start introduce yourself and advise of your

appointment
Advise parties of any interest in the matter

Advise parties of any contact you may have had with

parties prior arbitration

2008 COMMISSIONERS INDABA
19 - 21 November 2008 Sun City

First stage - Preparation and Introduction (Continued)

Advise of the language to be used and ensure presence of interpreter Advise as to Rules of Proceedings Advise as to Role of Arbitrator and Powers in terms of section 138(1) Observe rights of parties in terms of section 138(2) Advise of right to revert to conciliation Inform of housekeeping arrangements

2008 COMMISSIONERS INDABA

19 - 21 November 2008 Sun City

Second Stage - Preliminary Issues

Enquire whether parties intend raising preliminary issues Raise own preliminary concerns Explain preliminary issues to other party Give parties an opportunity to lead evidence on preliminary issues if necessary Invite each party to argue preliminary issue DECIDE preliminary issue before dealing with merits

2008 COMMISSIONERS INDABA

19 - 21 November 2008 Sun City

Third Stage - Narrowing Issues

Enquire whether both substantive and procedural

fairness, or only one in dispute Identify grounds for challenge Enquire into relief Enquire from employer extent of liability Allow parties to ask questions in clarification Ask parties to indicate documents relied upon and witnesses they intend calling Enquire from parties legal principles applicable if represented
2008 COMMISSIONERS INDABA
19 - 21 November 2008 Sun City

Fourth Stage - Hearing of Evidence

Record evidence and give each party opportunity to

question witnesses Exclude other witnesses whilst one is testifying Swear witnesses in or affirm INQUISITORIAL- arbitrator poses questions, then party who called witness may ask questions, then other side cross-examines and finally re-examination ADVERSARIAL- party who called witness asks questions, then other side cross-examines and finally re-examination

2008 COMMISSIONERS INDABA

19 - 21 November 2008 Sun City

Fifth Stage - Argument

To address arbitrator on why one version is to be

preferred (more probable) Facts relied upon Why those facts should be believed Which facts relied upon by other side are not accepted Why those facts should not be believed or not be accepted Relief sought Legal principles applicable New evidence during closing?
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Or 19 - 21 November 2008 Sun City

Sixth Stage - Award

Facts concerning the referral

Ruling on prelim issues and reasons therefore

Nature of dispute Background facts

Summary of evidence
Analysis of evidence Analysis and determination of remedy ORDER

2008 COMMISSIONERS INDABA

Or 19 - 21 November 2008 Sun City