A Constitutional Perspective of the Finality Principle in Arbitration | Journal of Legal Affairs and Dispute Resolution in Engineering and Construction | Vol 15, No 1

AbstractWithin the construction sector, arbitration remains widely used as an alternative form of dispute resolution, its attraction being that it enables disputing parties to reach a final, conclusive, and binding settlement of their dispute. However, reaching finality depends on both internal factors (such as the conduct of arbitration proceedings), and external factors such as legislative constitutional frameworks and the attitudes of judges toward these frameworks. Drawing upon relevant South African domestic and international comparative case law, we examine the nature of the interrelationship between the finality principle within construction arbitration and two constitutional provisions: (1) the powers of the courts to develop the common law, and (2) the requirement to consider and/or interpret domestic legislation in a manner that is consistent with international law. We find that while South African courts have adopted a more nuanced and cautious attitude toward their mandate to develop the common law, they have more readily embraced their international consideration law mandate. However, embracing their mandate to consider international law does not appear to have gone as far as developing the common law in a manner that allows for nonstatutory grounds, which features in international arbitration jurisprudence to impeach the finality principle.

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