The finality principle in arbitration: a theoretical exploration

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.