Arbitration strength amid volatility - mandatory attachment changes the game

In a world of geopolitical friction and economic volatility, South Africa stands out as an unlikely beacon for global creditors enforcing foreign arbitral awards.

- Roger Wakefield | Director | Litigation and Dispute Resolution | Werksmans Attorneys | [e-mail] |

Despite persistent load-shedding, fiscal pressures, and strained U.S. ties over foreign policy divergences, the nation's arbitration regime offers a potent procedural weapon - mandatory attachment of a foreign debtor's local assets to unlock jurisdiction and secure recovery.

Rooted in Roman-Dutch law and overlaid on modern international standards, this mechanism flips the enforcement script - providing upfront leverage that many rivals lack, even as broader macro challenges loom large over the continent's largest economy.

Convention framework and recognition rules

South Africa adheres to the New York Convention and its International Arbitration Act (2017), which incorporates the UNCITRAL Model Law.

This ensures swift recognition of foreign awards, barring narrow exceptions like incapacity, invalidity, procedural flaws or set-asides at the seat. No merits review - disputes funnel to limited Convention grounds.

The mandatory attachment mechanism

But the real differentiator is the attachment rule - to enforce against a foreign debtor with South African assets, creditors must first seize a commercial asset - regardless of value - to establish High Court jurisdiction. This ex parte order immobilises the property, serving dual roles as jurisdictional hook and practical security, pending full enforcement.

Unlike jurisdictions where recognition precedes discretionary freezes (often requiring dissipation risk proofs and damage undertakings), South Africa reverses the sequence.

Attachment is mandatory and non-discretionary once thresholds are met - prove the debtor is a peregrinus (foreigner), show a prima facie enforcement case under the Act, and confirm asset ownership on balance of probabilities.