BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
Jeremiah Tladi & Co Plot 50363, Unit 3 & 4 Gaborone Business Park Fairgrounds
P O Box 70269 Gaborone (UB) Botswana
Tel: +267 393 2043 Fax: +267 393 2044 Email: attorneys@jtco.co.bw Web: www.jtco.co.bw
1. General 1.1 Prevalence of Arbitration Domestic Use
Cross-border Dimension Genuinely international arbitrations connected to Botswana are still relatively few, and disputes with a significant international element are often seated out - side the jurisdiction (for example, in Johannesburg or under regional rules) even where a Botswana party or Botswana assets are involved. This is changing gradually following Botswana’s 2024 accession to the Southern African Development Community (SADC)- Arbitration Foundation of Southern Africa (AFSA) Alli - ance Charter, which is intended to route more regional disputes into locally accessible arbitration. 1.2 Key Industries Mining and Natural Resources Botswana’s economy is built substantially on diamond mining (through the Debswana joint venture and other operators) and broader minerals extraction, and con - tracts in this sector, together with related joint ven - tures, offtake and supply agreements, are a significant generator of arbitration activity. Disputes in this space tend to be technically complex and commercially sen - sitive, both of which favour a confidential, expert-led arbitral process over public litigation. Construction and Infrastructure Construction and infrastructure projects, including roads, airports and public buildings, are another major source of arbitration referrals, reflected in the standing of construction-claims practitioners within the Bot - swana Institute of Arbitrators. These disputes typi - cally involve valuation, delay and defects claims that benefit from an arbitrator with engineering or quanti -
Litigation before the High Court and Magistrates’ Courts remains the default route for most domestic disputes in Botswana, and many local parties still have limited familiarity with arbitration procedure. Arbitration is nonetheless well entrenched as the pre - ferred mechanism in commercial, construction and shareholder disputes, where confidentiality, the ability to select a technically qualified decision-maker, and the wish to avoid the court backlog make it attractive. Basis of Use Domestic parties resort to arbitration principally because it is written into their contracts as the agreed method of dispute resolution, particularly in construc - tion agreements using Fédération Internationale des Ingénieurs - Conseils (International Federation of Con - sulting Engineers, FIDIC), New Engineering Contract (NEC) or Joint Building Contracts Committee (JBCC) forms, and in corporate and commercial agreements. Cross-border users typically encounter Botswana- seated arbitration through contracts with government- linked or state entities, mining and natural resource agreements, and investment contracts, where a writ - ten arbitration clause is the norm and enforcement of the resulting award, rather than litigation of a fresh claim, is the ultimate objective.
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