LJU4804 PORTFILIO (COMPLETE ANSWERS) Semester 2 2025 - DUE 17 October 2025; 100% TRUSTED Complete, trusted solutions and explanations. Ensure your success with us

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LJU4804 PORTFILIO
(COMPLETE ANSWERS)
Semester 2 2025 - DUE
17 October 2025
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,Exam (elaborations)
LJU4804 PORTFILIO (COMPLETE ANSWERS)
Semester 2 2025 - DUE 17 October 2025
Course

 Private International Law (LJU4804)
 Institution
 University Of South Africa (Unisa)
 Book
 Private International Law

LJU4804 PORTFILIO (COMPLETE ANSWERS) Semester 2 2025 - DUE 17
October 2025; 100% TRUSTED Complete, trusted solutions and explanations.
Ensure your success with us

Oct / Nov 2025 PRIVATE INTERNATIONAL LAW PORTFOLIO LJU4804
EXAMINERS: FIRST: PROF MM WETHMAR-LEMMER SECOND: DR NS SIPHUMA
EXTERNAL: PROF E SCHOEMAN (University of Pretoria / University of
Canterbury) This paper consists of 6 pages. The paper counts 80 marks. The
portfolio runs from 10 – 17 October 2025. PLEASE READ THE FOLLOWING
INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE EXAMINATION
QUESTIONS. How would the arbitral tribunal determine the law applicable to
the merits of the dispute? Note: refer to the relevant provisions of the
International Arbitration Act 15 of 2017. This portfolio must be submitted
before 08:00 on 17 October 2025 (CAT). Students have to submit this
portfolio via myUnisa, therefore no e-mailed portfolios may be accepted. No
extensions will be granted. It is the responsibility of the student to ensure
that the file submitted is not corrupted and can be opened for marking. No
scanned portfolios may be submitted. 2. You must therefore submit this
portfolio as Assessment 3 via myUnisa. When you receive the portfolio,
check whether your submission portal is open/available and let your
lecturers know immediately if your submission portal is not open. 3. The
Declaration of Academic Honesty button must be clicked when submitting
the portfolio examination.

The arbitral tribunal determines the law applicable to the merits of the dispute primarily by
following the choice of law rules stipulated in the arbitration agreement between the parties, or,
if the parties haven't made such a choice, by applying conflict of laws principles.

The relevant provisions governing this determination in South Africa's International
Arbitration Act 15 of 2017 (IAA), which largely adopts the UNCITRAL Model Law on
International Commercial Arbitration, are found in Section 28 (corresponding to Article 28
of the Model Law).

,1. Parties' Choice of Law
The primary method for determining the applicable law is the parties' agreement.

 Section 28(1) of the IAA states:

"The arbitral tribunal must decide the dispute in accordance with such rules of
law as are chosen by the parties as applicable to the merits of the dispute."

 This provision grants the parties autonomy to select the substantive law that will govern
their contractual rights and obligations.
 Section 28(1) further clarifies that:

"Any designation of the law or legal system of a given State must be construed,
unless otherwise expressed, as directly referring to the substantive law of that
State and not to its conflict of laws rules."

o This means that if the parties choose, for example, "the law of State X," the
tribunal will apply the substantive law of State X directly, and not the conflict of
laws rules of State X. This prevents the "renvoi" issue, which complicates the
determination.




2. Absence of Parties' Choice
If the parties have not designated the applicable law, the arbitral tribunal must make the
determination based on its own conflict of laws analysis.

 Section 28(2) of the IAA states:

"Failing any designation by the parties, the arbitral tribunal must apply the rules
of law determined by the conflict of laws rules which it considers applicable."

 The key feature here is that the tribunal is not bound by the conflict of laws rules of the
place of arbitration (the lex loci arbitri). Instead, the tribunal has the autonomy to select
the conflict of laws rules it deems most appropriate to the case.
 The tribunal typically determines the applicable law by assessing the closest and most
real connection of the dispute to a particular legal system, considering factors like:
o The place of contracting.
o The place of performance of the contract.
o The location of the subject matter of the dispute.
o The place of residence or business of the parties.

, 3. Decision Ex Aequo et Bono or as Amiable Compositeur
In exceptional cases, the parties may authorise the tribunal to decide the dispute based on
fairness rather than strict legal rules.

 Section 28(3) of the IAA states:

"The arbitral tribunal must decide ex aequo et bono or as amiable compositeur
only if the parties have expressly authorised it to do so."

 A decision ex aequo et bono (according to what is right and good) or as
amiable compositeur (friendly composer) means the tribunal decides based on equitable
principles, customs, or fairness, without being strictly bound by national laws. This
requires the explicit, clear consent of the parties.




4. Consideration of Contract Terms and Usage
Regardless of the chosen or determined law, the tribunal must also consider the contract itself
and relevant trade practices.

 Section 28(4) of the IAA states:

"In all cases, the arbitral tribunal must decide in accordance with the terms of the
contract and must take into account the usages of the trade applicable to the
transaction."

 This ensures that even when applying a designated or determined law, the tribunal
respects the contractual intentions of the parties and the established commercial
practices relevant to the industry.




How would the arbitral tribunal determine the law applicable to the merits of the
dispute?”
(Refer to the relevant provisions of the International Arbitration Act 15 of 2017.)