Am I prejudiced by an arbitration clause in my building contract?
Contracts for the building of a house or providing for substantial alterations to a house commonly contain an arbitration clause. This article looks at the advantages of resolving disputes relating to building contracts by arbitration rather than by litigation in the courts.
I had a written contract with a builder to make substantial alterations to my house. I was very unhappy about how the work was done and I then went to consult my attorney with a view to taking the builder to court. My attorney informed me that the contract contained an arbitration clause which required all disputes relating to the contract to be referred to arbitration. When I signed the contract with the builder, my attention was not drawn to the arbitration clause and I had no idea what the consequences were.
As a general point of departure, before entering into a contract with another party it is important to understand all the contractual terms, including the arbitration clause. An arbitration clause requires the parties to refer their dispute for resolution outside the courts to a private arbitrator appointed by or on behalf of the parties. The arbitrator, who is required to be impartial and independent, must decide the dispute by fairly considering the parties’ evidence and arguments. The decision of the arbitrator, referred to as an award, is final and binding on the parties and can only be reviewed by a court for serious procedural irregularities. There is therefore no right of appeal to the court if a party disagrees with the arbitrator’s decision on the merits. The client could approach the High Court to have the arbitration agreement set aside, but this will be expensive and time-consuming. The client will have to show “compelling reasons” why the arbitration agreement should be set aside. The client must also be aware that arbitration offers certain advantages.
What are the advantages of arbitration instead of litigating in court?
In this context, arguably the most important benefit is the opportunity to appoint an arbitrator with specialised knowledge of building disputes. The right arbitrator will have experience in resolving such disputes. If the parties cannot agree on an arbitrator when the dispute arises, the arbitration clause will typically confer the power on a specified institution to appoint the arbitrator. It is preferable that the appointing body should be a specialist arbitral institution, which will ensure that the appointee has experience in building disputes and has the necessary training as an arbitrator. Non-specialist appointing bodies tend to appoint a person from their own profession, irrespective of that person’s training and experience as an arbitrator.
Another important advantage of arbitration compared to litigation is its flexibility. Because arbitration is based on an agreement, the parties under the direction of the arbitrator can design a process tailor-made for their dispute, instead of being bound by rigid court rules. This should result in the arbitration being considerably quicker and also less expensive than litigation. The relative informality of the process compared to a court means that arbitration is less traumatic for the parties and is less damaging for their relationship. The confidentiality of the process and the award can be another advantage.
The Arbitration Act of 1965 requires an arbitration agreement to be in writing, but it does not need to be signed by the parties. The purpose of this written agreement is to provide a record of its contents rather than to prove consent. At the time the contract is entered into, the home owner must ensure that the building contractor is registered as a home builder under the Housing Consumers Protection Measures Act of 1998. If the builder is not registered, this can affect the validity of the building contract and deprive the homeowner of statutory protections.
The arbitrator will typically convene a preliminary meeting with the parties and their legal representatives as soon as practicable after the arbitrator’s appointment. By that stage, from the client’s request for arbitration and the builder’s response, the arbitrator will have a fair idea regarding what the dispute is about. It is at this stage that the arbitrator can design an appropriate procedure to resolve the dispute, which will differ significantly from that used in court. The arbitrator may even suggest that the parties consider allowing the arbitrator to mediate their dispute.
- Arbitration Act 42 of 1965 s 1 “arbitration agreement”; s 3(2) regarding the court’s power to set aside the arbitration agreement.
- The Housing Consumers Protection Measures Act 95 of 1998, s 10(b).
- Regarding the purpose of the agreement being in writing, see the International Arbitration Act 15 of 2017 schedule 1, article 7(3).
- Regarding how a court should exercise its discretion under s 3(2) of the Arbitration Act, see De Lange v Methodist Church 2016 2 SA 1(CC);  ZACC 35, paras 34-37.
- Regarding the need for the contractor to be registered as a home builder, see Cool Ideas 1186 CC v Hubbard 2014 4 SA 474 (CC).
Author: Meridian Realty