International Commercial Arbitration at Eswatini
Certainly! Here's an overview of International Commercial Arbitration in Eswatini (formerly Swaziland):
International Commercial Arbitration in Eswatini
1. Legal Framework
Eswatini’s arbitration law is primarily governed by the Arbitration Act, 1964 (Swaziland).
The Act is largely based on the older UNCITRAL Model Law (1985) principles but is somewhat outdated compared to modern arbitration statutes.
Eswatini is not currently a signatory to the New York Convention, which limits the automatic international enforcement of foreign arbitral awards in Eswatini and vice versa.
However, the Arbitration Act provides for the enforcement of arbitral awards domestically and gives recognition to arbitration agreements.
2. Scope and Application
The Arbitration Act applies to both domestic and international arbitration matters.
Parties can agree to submit their commercial disputes to arbitration either through ad hoc arbitration or institutional arbitration.
There is no specific modern statute tailored solely to international commercial arbitration.
3. Arbitration Proceedings
The Arbitration Act provides basic rules on:
Validity of arbitration agreements.
Appointment and challenge of arbitrators.
Conduct of arbitration proceedings.
Setting aside of arbitral awards.
The courts in Eswatini support arbitration and will generally uphold arbitration agreements and awards, except where procedural fairness or public policy is breached.
4. Enforcement of Awards
Domestic arbitral awards are enforceable through the courts under the Arbitration Act.
Due to Eswatini not being a party to the New York Convention, enforcement of foreign arbitral awards relies on common law principles of reciprocity and local court discretion.
This may create practical challenges in enforcing foreign arbitral awards in Eswatini or Eswatini awards abroad.
5. Arbitral Institutions
Eswatini does not have a prominent local arbitration institution.
Parties typically resort to international arbitral institutions such as:
ICC (International Chamber of Commerce)
LCIA (London Court of International Arbitration)
SIAC (Singapore International Arbitration Centre)
Alternatively, ad hoc arbitration is common.
6. Advantages and Challenges
Advantages:
Arbitration allows parties to resolve disputes confidentially and efficiently.
Eswatini courts show support for arbitration.
Parties have autonomy in selecting the procedures, seat, and arbitrators.
Challenges:
Lack of a modern arbitration statute limits procedural sophistication.
Non-membership in the New York Convention creates hurdles in enforcing foreign awards.
Limited local arbitration institutions and resources.
7. Practical Tips
When drafting arbitration clauses involving Eswatini:
Specify the seat of arbitration carefully, preferably a jurisdiction with modern arbitration laws and New York Convention membership (e.g., London, Singapore).
Clearly define the governing procedural rules and institution administering the arbitration.
Choose arbitrators with experience in international arbitration.
Sample Arbitration Clause Involving Eswatini Parties
“Any dispute arising out of or in connection with this contract shall be finally resolved by arbitration administered by the International Chamber of Commerce (ICC) under its Arbitration Rules. The seat of arbitration shall be London, England. The language of arbitration shall be English. The award shall be final and binding on the parties.”
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