NEGOTIATION, MEDIATION THEN ARBITRATION
Except in those instances where provision is made for a dispute to be referred to a specific adjudicator in terms of this agreement, should any dispute arise between the Parties in respect of or pursuant to this agreement, including, without limiting the generality of the foregoing, any dispute relating to the interpretation or performance of any of the terms; any of the Parties’ rights and obligations; any procedure to be followed; the termination of this agreement; or the rectification of this agreement, then the Parties shall endeavour to resolve the dispute by negotiation.
This entails one of the Parties (who shall each be represented by their most senior official, representative or employee, with the necessary authority, as the case may be) inviting the other or others in writing to meet and to attempt to resolve the dispute within 14 days from date of the written invitation.
If the dispute has not been resolved by such negotiation within 14 days of the commencement thereof by agreement between the Parties, then:
- Either Party shall submit the dispute to mediation to be administered by the Arbitration Foundation of Southern Africa (“AFSA”), upon such terms as agreed between the Parties and the Secretariat of AFSA.
- Failing agreement as aforesaid, within 14 days of the dispute being submitted to mediation, the Parties shall refer the dispute to arbitration as provided in this clause.
The settlement agreement as recorded by the mediator shall become final and binding within 14 days of delivery thereof to the Parties, unless one or other of the Parties disputes the mediator’s decision by written notice to the other Party within the aforesaid 14-day period, in which event the dispute shall be referred to arbitration.
Failing agreement as referred to in clause 3.1 or in the event of any of the Parties furnishing its notice of dispute within 14 days of the mediator’s settlement agreement as envisaged in terms of clause 3.3. above, the dispute shall be submitted to arbitration for final resolution in accordance with the rules of AFSA by an arbitrator or arbitrators appointed by the Foundation, or a referee appointed by AFSA if the parties agree to the AFSA referee process.
The Parties acknowledge that, in terms of the rules of AFSA, an arbitration award shall be final and not subject to appeal.
This clause shall not preclude any Party from obtaining any interim relief on an urgent basis from a court of competent jurisdiction in the Republic of South Africa.
Unless otherwise agreed in writing by all the Parties, any such mediation or arbitration shall be held in the English language in Johannesburg.
The provisions of this clause:
- constitute an irrevocable consent by the Parties to any proceedings on the terms set out herein and no Party shall be entitled to withdraw therefrom or to claim at any such proceeding that it is not bound by such provisions;
- are severable from the rest of this agreement and shall remain in effect despite the termination or invalidity for any reason of this agreement.
Any party to the mediation or arbitration shall be entitled to apply to the Court with jurisdiction to make the order of the mediator or arbitrator an order of the court.