The finality principle in construction arbitration: an evolutionary perspective

Arbitration is one of the most popular and widely applied dispute resolution mechanisms used in the construction sector. There are purported advantages in using arbitration relative to litigation. Among these advantages are the final, conclusive, and binding nature of arbitration proceedings and the awards that flow from the proceedings. Yet the finality of arbitration is dependent on a number of interrelated factors, including historical legal traditions, judicial attitudes toward the finality principle, and the operation of national legislative frameworks and constitutional provisions. Drawing upon its historical evolution and utilizing relevant domestic case law and legislation in South Africa, this study explored the finality principle within arbitration jurisprudence through an analysis of two seminal construction dispute cases. The study found that the courts engaged in major and delicate balancing of constitutional considerations when considering the finality of arbitration and that, ultimately, these constitutional considerations trumped the finality of arbitration.