The Non-Arbitration Agreement is utilized when parties specifically wish to exclude arbitration from their dispute resolution options under South African law. This document becomes particularly relevant in situations where parties prefer the transparency of court proceedings, want to establish legal precedents, or seek to benefit from the formal procedures and appeals process available in the court system. It typically includes detailed provisions about court jurisdiction, dispute resolution procedures, and cost allocation. The agreement ensures compliance with South African legislation, including the Constitution, the Arbitration Act 42 of 1965, and relevant common law principles. It's commonly used in commercial relationships where parties want certainty about their dispute resolution forum and prefer the established framework of the South African judicial system over private arbitration proceedings.
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1. Parties: Identifies and defines all parties to the agreement, including their full legal names, registration numbers (if applicable), and physical addresses
2. Background: Provides context for the agreement, including any existing relationships between the parties and the reason for excluding arbitration
3. Definitions: Defines key terms used throughout the agreement to ensure clarity and prevent misinterpretation
4. Scope of Agreement: Clearly defines which matters and relationships between the parties are covered by the non-arbitration agreement
5. Exclusion of Arbitration: Explicit statement that the parties agree to exclude arbitration as a dispute resolution mechanism
6. Court Jurisdiction: Specifies which courts will have jurisdiction over disputes between the parties
7. Dispute Resolution Process: Details the agreed-upon process for resolving disputes, including any preliminary steps before court proceedings
8. Governing Law: Confirms South African law as the governing law of the agreement
9. Costs: Addresses how legal costs and court fees will be handled in the event of disputes
10. Duration: Specifies how long the agreement will remain in effect
11. General Provisions: Standard contractual provisions including entire agreement, variation, and severability clauses
1. Existing Agreements: Required when there are existing agreements between the parties that contain arbitration clauses that need to be addressed
2. Mediation Provisions: Optional section when parties wish to include mediation as a preliminary step before court proceedings
3. Specific Excluded Matters: Used when certain matters need to be specifically excluded from the scope of the non-arbitration agreement
4. Emergency Relief: Include when parties want to preserve their right to seek urgent court relief
5. International Aspects: Required when the agreement involves international parties or cross-border elements
1. Schedule A - Dispute Resolution Procedures: Detailed step-by-step procedures for resolving disputes, including timeframes and requirements
2. Schedule B - Excluded Agreements: List of any existing agreements between the parties that are specifically excluded from this non-arbitration agreement
3. Schedule C - Court Jurisdictions: Detailed information about specific courts that will have jurisdiction, particularly relevant for multi-jurisdictional matters
4. Appendix 1 - Contact Details: Contact information for key personnel involved in the dispute resolution process
5. Appendix 2 - Notice Requirements: Specific requirements and formats for serving legal notices under the agreement
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