The finality principle in arbitration : a theoretical exploration

Ojiako, Udechukwu (2023) The finality principle in arbitration : a theoretical exploration. Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 15 (1). 04522038. ISSN 1943-4162 (https://doi.org/10.1061/(ASCE)LA.1943-4170.0000573)

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Abstract

Arbitration remains a popular means of resolving construction industry disputes. Among its purported advantages is an emphasis on the notion of finality; in other words, that awards made following arbitration proceedings are final and should bring the dispute to a conclusive and binding settlement. However, in most jurisdictions, such as in South Africa, the finality principle can be impeached by the courts, who are able to vacate awards on the basis of statutory (legislative) or common law provisions (or both). While the finality principle and vacatur are both generally well espoused in arbitration literature, our appreciation of broader theoretical discourse in arbitration is arguably, more limited. With this in mind, framed within the law and society school of thought, we set out in this paper to elucidate upon existing theories that are regularly relied upon to explain how finality may be generated, dispersed, endorsed, and modified through vacatur. In doing so, we clarify and demonstrate (set within the context of South African domestic commercial arbitration) how the finality principle in general and vacatur in particular are regulated by the state through legislation. An analysis of some specific construction arbitration case examples is also undertaken.

  • Item type:Article
    ID code:88136
    Dates:
    Date
    Event
    1 February 2023
    Published
    20 October 2022
    Published Online
    25 July 2022
    Accepted
    8 April 2022
    Submitted
    Notes:Copyright © 2022 American Society of Civil Engineers. This material may be downloaded for personal use only. Any other use requires prior permission of the American Society of Civil Engineers. This material may be found at https://doi.org/10.1061/(ASCE)LA.1943-4170.0000573.
    Subjects:Technology > Building construction
    Law
    Department:Faculty of Engineering > Design, Manufacture and Engineering Management
    Depositing user: Pure Administrator
    Date deposited:08 Feb 2024 15:28
    Last modified:29 Apr 2024 01:01
    URI:https://strathprints.strath.ac.uk/id/eprint/88136
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