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no games, JUST LAWTM
Success is the only OptionTM
your attorneys.
ON YOUR SIDE
TM
PRIVATE ARBITRATION PRIVATE MATTERS?
private arbitration

PRIVATE ARBITRATION FOR PRIVATE MATTERS?

An interesting question in South African law is whether private arbitration should be the forum for private matters.

This would typically be a question in regard to sexual harassment cases, breaches of confidentiality agreements, breaches of non-disclosure agreements, disciplinary proceedings and matters pertaining to the misconduct or otherwise of executives and senior employees of companies.

In the USA, former President Donald Trump’s attorneys filed a motion to put this question before a federal judge in order to seek an order for private arbitration to proceed in a case brought by a porn actress, Stormy Daniels, who claimed she had an affair with him.

Trump, who denied having the affair, filed papers in federal court in Los Angeles asking a judge to rule that Stormy Daniels’ case involving a non-disclosure agreement should be heard by an arbitrator instead of a jury. Daniels, whose real name is Stephanie Clifford, was seeking to invalidate the non-disclosure agreement she signed days before the 2016 presidential election. She has offered to return the $US130,000 she was paid as she tries to “set the record straight”. Daniels’ attorney said she would oppose the motion to have the case heard in private arbitration, “hidden from the American public”. He tweeted that “This is a democracy and this matter should be decided in an open court of law owned by the people”.

In the South African context, it is possible for parties to agree that private or sensitive matters be heard in private arbitration, as opposed to in open court or tribunals like the CCMA, and this can be done in terms of litigation processes.

However, it is preferable to do so in terms of contractual terms which are incorporated into employment agreements, companies’ agreements and rules in regard to the behaviour of shareholders, executives and/or senior managerial employees, in employer conduct manuals and in regard to disciplinary procedures.

It is also preferable to include private arbitration terms in non-disclosure agreements and confidentiality agreements this is simply because private arbitration is for private matters, and privacy matters in law.

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