International arbitration is a pillar to the sustainability of trillions of rands in cross-border investment. Mining disputes, energy projects, infrastructure contracts and multinational transactions all depend on the assumption that arbitration proceedings will remain stable, independent and enforceable. But what happens when an arbitrator simply walks away midstream?
In international arbitrations, an arbitrator confronted with aggressive legal challenges, reputational attacks, political pressure or even intimidation is notionally permitted to resign mid-proceedings without necessarily conceding that the challenge against them has merit. The consequences can be serious. Hearings will be delayed. Tribunals will need to be reconstituted. Massive additional costs will be incurred. In high-value investor-state or infrastructure disputes, tactical resignations can derail proceedings involving billions of Rand. As South Africa positions itself as a regional arbitration hub, this unresolved weakness in the international arbitration system deserves far greater scrutiny.
International arbitrations in South Africa are governed by the International Arbitration Act, which incorporates the United Nations Commission on International Trade Law (UNCITRAL) Model Law into South African law. A plain reading of this international legislation appears to suggest that where an arbitrator is challenged, the arbitrator may simply withdraw without conceding the validity of the challenge or requiring any determination on the merits.
That position creates obvious risks. Arbitrators accept contractual appointments, charge substantial fees and often spend years immersed in complex disputes. Yet under the present framework, there remains uncertainty as to whether an arbitrator can simply step away once proceedings become sufficiently hostile or difficult. The international position is not settled, with writings on the topic reflecting conflicting views on whether this should be permissible or not.
This uncertainty matters because recusal applications are increasingly becoming part of the litigation strategy itself. In high-stakes international disputes, parties may seek to pressure arbitrators through repeated bias allegations, reputational attacks or procedural warfare designed to poison the atmosphere of the arbitration.
Modern arbitration increasingly operates in politically charged and commercially explosive environments. The pressure placed on arbitrators can be immense, particularly in disputes involving states, energy security, mining rights, infrastructure concessions or sovereign interests.
An unchecked ability for arbitrators to resign midstream creates significant commercial risks. Parties can face years of delay, duplicated legal costs, disrupted enforcement strategies and uncertainty in disputes involving major investments. In some cases, proceedings may need to restart almost entirely because a replacement arbitrator must familiarise themselves with years of evidence and procedural history.
This is precisely why international arbitration frameworks have attempted to discourage tactical resignations. The Iran-US Claims Tribunal, after facing repeated tactical resignations, reportedly developed a practice of effectively “policing” resignations by requiring them to be formally accepted before becoming effective. The International Centre for Settlement of Investment Disputes (ICSID) Convention similarly introduced mechanisms designed specifically to prevent parties from frustrating proceedings by engineering arbitrator withdrawals.
The concern becomes even more acute in arbitrations that are not administered by a major institutional secretariat, such as for instance the International Commercial Court (ICC) or more locally, the Arbitration Foundation of South Africa (AFSA). In those cases, disputes surrounding an arbitrator’s resignation may ultimately require intervention by national courts, undermining one of arbitration’s core attractions, the ability to avoid court proceedings.
International arbitration only works if parties believe tribunals will remain independent, stable and capable of delivering final outcomes, without court intervention, even when disputes become politically or commercially explosive.
If arbitrators can be pressured into abandoning proceedings through tactical challenges, reputational warfare or coercion, confidence in arbitration itself begins to erode.
South African domestic law has long recognised a principle known as the “duty to sit”. Our courts have repeatedly confirmed that judges should not lightly recuse themselves merely because proceedings become uncomfortable, contentious or politically sensitive. Unless there are objectively sustainable grounds for recusal, judges are expected to hear the matters assigned to them. This principle applies to domestic arbitrations in South Africa.
Once an arbitrator has accepted appointment, there is a strong argument that he or she assumes both a legal and ethical obligation to see the process through to completion. South African domestic arbitration law has recognised that an arbitrator who abandons his or her mandate without consent may even face a damages claim for breach of contract.
Importantly, and despite the wording of the UNCITRAL Model law apparently otherwise permitting an arbitrator to depart without explanation in certain circumstances, in adopting the Model Law, South African legislators included some additional wording under Article 12 which deals with “Grounds for Challenge” as follows:
“(3) For purposes of paragraph (2), ‘justifiable doubts’ require substantial grounds for contending that a reasonable apprehension of bias would be entertained by a reasonable person in possession of the correct facts
As such, the same principle (“the duty to sit”) arguably applies to international arbitrators in the South African context. Whilst the position has not been definitively settled in our jurisdiction, there is an argument in the South African context that the arbitrator might be under a greater duty to properly consider and pronounce on the merits of any challenge than in any other international jurisdiction where the UNCITRAL model law is adopted without amendment.
For South Africa, which is actively trying to establish itself as Africa’s premier arbitration seat, the fact that an arbitrator’s position might be slightly less at risk in the light of Article 12(3) than in other international jurisdictions, this may serve to enhance procedural certainty and investment credibility.
