Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the establishment of the China-Africa International Arbitration Centre
Ladies and gentlemen, friends.
The South African Institute of International Affairs recently commented that the partnership between South Africa and China is significant in continental and global affairs.
South Africa, a leading economy on the African continent, and China, the largest developing country in the world, have forged a unique partnership. Operating at bilateral, continental and multilateral levels, the governments of our two countries are actively striving to realise the comprehensive strategic partnership envisaged in 2010.
Enhancing these developments is South Africa’s status as home to the continent’s largest and oldest Chinese community.
The pace of trade and investment is increasing with two way trade accelerating significantly thus making China our largest trade partner. In addition, we have closer international cooperation with Beijing through the G-20 and BRICS grouping.
When President Xi Jinping and President Jacob Zuma met in the Russian city of Ufa in July, both countries acknowledged the enhanced bilateral friendship and cooperation between our two countries.
Our Deputy President Cyril Ramaphosa visited China in July and said the visit has created positive partnership prospects for the future. China will continue to work with South Africa in implementing the five to 10 year strategic programme of cooperation signed during President Jacob Zuma's state visit to China in December 2014.
In view of increasing trade and investment a joint dispute resolution mechanism will be advantageous.
As you know, my Department is currently preparing an International Arbitration Bill. The main objective of the International Arbitration Bill, 2015(the Bill) is to adopt the United Nations Commission on International Trade Law (UNCITRAL), Model Law as the cornerstone of the international arbitration regime in South Africa.
It has been almost 17 years since the SALRC consulted and finalised its investigation on international arbitration. Since then there have been a number of developments in the field of arbitration.
Because of this, the Bill has been adapted but still needs to be looked at by experts in this field and other stakeholders in order to ensure that it has taken into account all aspects in this regard.
The adapted Bill is to be considered by the Minister with the view to subjecting it to the consultation process I have mentioned. This, I envisage, will be in the next two weeks.
Your Association may very well to be requested shortly to have a look at the Bill in its current form and to assist with fine-tuning the Bill further, where necessary.
This will place us in a better position to start taking the required steps for introducing the Bill into Parliament. What are these steps? In broad terms they are the following:
- Cabinet must approve every Bill before it is introduced into Parliament.
- The Bill must also be considered and approved by the relevant Cluster of Directors-General.
- Once it is approved by Cabinet it must, also in terms of Cabinet prescripts, be returned to the
- Office of the Chief State Law Adviser for final certification.
- This certification process involves a thorough vetting of the Bill to ensure that it is in accordance with the Constitution, the laws of the country and the norms and standards pertaining to the drafting of Bills.
After these processes have been completed, the Bill is introduced into Parliament. We are aiming to introduce the Bill into Parliament during the 2015 session of Parliament.
I have to add, however, that Parliament will, realistically speaking and due to a full legislative programme, more than likely not be able to finalise the Bill this year. Allow me to shed some light on the parliamentary processes once the Bill has been introduced into Parliament.
After introduction, the Bill is referred by the Office of the Speaker of Parliament to the relevant Portfolio Committee, in this case probably the Portfolio Committee on Justice and Correctional Services.
Because the Bill also has a bearing on the line function of the Department of Trade and Industry, the Portfolio Committee on Trade and Industry might also be engaged. The Justice Portfolio Committee, as a matter of course, publishes the Bill and invites stakeholders to submit comments.
Stakeholders are usually invited to present their comments are public hearings. The Department is then required to respond to the issues raised during the course of the public hearings.
Thereafter the Portfolio Committee begins its deliberations in earnest, taking into account the views of the stakeholders, the responses of the Department and the views of the members themselves.
After the Portfolio Committee is satisfied with the contents of the Bill after its desired amendments have been incorporated in the Bill, it votes on the Bill, whereafter it is considered and voted on by the National Assembly in what is known as a “Second Reading” debate. The approval of the Bill by the National Assembly marks the end of the first phase of the Parliamentary process.
The introduction of the Bill into Parliament was approved by Cabinet on a previous occasions.
Its promotion in Parliament was, however, held in abeyance for the following reasons:
- Firstly, there had been mistaken belief that South Africa's ratification of the Washington
- Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which was regarded a crucial aspect for the successful implementation of the Bill was, pursuant to Article 67 of that Convention, dependent on South Africa being invited to sign the Convention, a process that needed to be driven by National Treasury.
- After attempting to initiate this process it was discovered that this was not necessary as South Africa was a member of the World Bank; and
- Secondly, while some other countries have applied the Model Law to both domestic and international arbitrations, this approach is not recommended for South Africa.
A revision of the law dealing with domestic commercial arbitration has also been undertaken by the South African Law Reform Commission and its legislative recommendations in this regard will be dealt with in a separate Bill.
It is envisaged that the Bill, once enacted into law, will provide South Africa with an effective, modern arbitration framework which compares favourably in many respects with equivalent legislation in other jurisdictions.
It will, no doubt, greatly assist arbitration institutions, make South Africa an important centre for international arbitration and open up new fields of practice for legal practitioners.
Ladies and gentlemen, in conclusion,
The establishment of the China-Africa International Arbitration Centre is an important step in furthering the partnership between our two countries – a partnership that is becoming ever-stronger.
As South Africa will be hosting the 6th Forum for China-Africa Cooperation (FOCAC) meeting in December this year, we know that this auspicious event will achieve positive results through close cooperation between our countries.
Our Department of Basic Education signed an implementation plan with China's Ministry of Education in March last year.
I am also pleased to inform you that South African learners will have an option to study Chinese from January 2016. The roll-out of Chinese subjects will be implemented in schools with Grades 4 - 10 in January 2016, followed by Grade 11 in 2017 and Grade 12 in 2018.
I wish you all the best in your endeavours. I believe there is a Chinese proverb that says -
If we want one year of prosperity, grow grain. If we want 10 years of prosperity, then grow trees. But if we want 100 years of prosperity, then grow people.
Let us do our utmost to grow the people of both our great countries.
Thank you. Xièxiè!
