There are many benefits for parties in resolving disputes through Alternative Dispute Resolution (ADR) methods rather than through traditional court structures. At the forefront of these benefits are considerations of cost, flexibility, confidentiality, expediency and expertise.
ADR is increasingly used to resolve complex disputes, outside or in addition to formal court proceedings. Arbitration and mediation are the most common forms of ADR. ADR methods are used outside, or in addition to, formal court proceedings.
Our dispute resolution specialists have an established track record of representing parties in using arbitration and mediation proceedings, as well as using hybrid forms combining these processes to resolve disputes.
We have extensive experience in advising on domestic and international commercial arbitration matters and investment law disputes. We have acted for claimants and defendants (public and private sector parties) in many complex, high-value commercial and investment treaty arbitrations under a variety of both bespoke and institutional arbitral rules, and in ad hoc tribunals in South Africa and in Africa, including under International Chamber of Commerce (ICC), the Arbitration Foundation of Southern Africa (AFSA), the London Court of International Arbitration (LCIA), and the International Centre for Settlement of Investment Disputes (ICSID). We have also represented clients in several adjudications and expert determination procedures in the region.
We are founding members of the AFSA and have representation on its Board of Directors and Management Committee. Similarly, we have on the board of Africa ADR, a newly registered arbitral institution established for the resolution of cross-border disputes. In 2015, Webber Wentzel also became one of 25 signatories to the Johannesburg Consensus, marking the establishment of the China-Africa Joint Arbitration Centre (CAJAC). The establishment of CAJAC constitutes a key advance in the establishment of South Africa as a major African arbitral centre, and we are proud to be part of this initiative.
We advise clients through every phase of the arbitration process – from negotiating the arbitration clause, the governing law for the agreement, choosing the appropriate seat and/or location for the arbitration hearing, selecting the most appropriate procedural rules to govern the arbitration, and choosing the appropriate arbitrator, right through to ultimate enforcement of the award.
One of our distinguishing features is our ability to advise on any arbitration matters, whatever the governing law of the dispute, the applicable arbitration rules or the subject matter of the dispute.
Our offering includes:
- advice relating to choice of governing law;
- advice relating to appropriateness of institutional or ad hoc arbitration;
- advice relating to the rules published by various arbitration institutions;
- advice on the choice of arbitrator and challenges to the appointment of arbitrators;
- advice relating to procedural aspects of arbitrations;
- advice relating to challenging arbitral awards and enforcement of arbitral awards;
- drafting of arbitration clauses and agreements;
- advice relating to international investment arbitrations and investment law aspects of treaty-based arbitrations; and
- risk advisory services relating to bilateral and multilateral investment treaties.
Many of our team members have acted as mediators in commercial disputes and understand the mediation process from all perspectives.
As a first step, we consider whether mediation is an appropriate option. In our experience, successful mediation requires real motivation from the parties to want to settle. Without this level of commitment, mediation processes can protract resolving the dispute though other means.
Once it is clear that mediation is a viable option, we assist clients in preparing for mediation by providing advice and counsel during the mediation process. If a solution is agreed between the parties, we draft the necessary settlement agreement to record the resolution. Should mediation fail, we can guide clients on the next steps.