BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
ty-surveying expertise, which the Botswana Institute of Arbitrators (BIArb) Rules expressly accommodate by permitting technically qualified non-lawyer repre - sentatives in simplified proceedings under Rule 1.6. Emerging Areas Increased foreign investment in manufacturing, ener - gy, tourism and financial services, combined with a cautious approach to new bilateral investment trea - ties, is gradually widening the range of contracts that specify arbitration, though mining and construction remain the clearest concentrations of activity. 1.3 Arbitration Institutions Domestic Institution The Botswana Institute of Arbitrators (BIArb), estab - lished in 1987 and registered as a society under the Botswana Societies Act, is the principal domestic body administering arbitrations and promoting arbi - tration and ADR generally. It publishes its own Rules for the Conduct of Arbitrations (last revised in Febru - ary 2011), based on the rules of the Association of Arbitrators (Southern Africa) as adapted to Botswana, and it appoints arbitrators, hears arbitrator-challenge applications and, where agreed, constitutes appeal tribunals. Regional Development In April 2024, Botswana became a signatory to the SADC-AFSA Alliance Charter, under which the Arbi - tration Foundation of Southern Africa’s rules are to be applied across signatory states and a dedicated SADC division of AFSA has been created; there are stated plans to establish an AFSA-governed arbitra - tion centre within Botswana itself. This is the most significant institutional development of recent years, signalling a shift toward regionally administered, inter - nationally recognised rules sitting alongside the long- standing BIArb framework, although it had not, as of the past year, displaced BIArb as the day-to-day domestic administering body. 1.4 National Courts No Specialised Arbitration Court Botswana has no separate international commercial court or High Court division dedicated to arbitra - tion matters. The Arbitration Act (Cap 06:01) defines “Court” simply as the High Court, and it is the High
Court’s general civil jurisdiction, rather than any spe - cialist bench, that hears applications to stay proceed - ings, appoint or remove arbitrators, grant interlocu - tory relief in support of arbitration, and give leave to
enforce awards. Practical Effect
Arbitration-related applications are accordingly filed and heard through the ordinary High Court process, before whichever judge is assigned the matter in the normal course, with no dedicated arbitration list or expedited track distinct from other High Court civil applications.
2. Governing Legislation 2.1 Governing Law Source of Law
International and domestic arbitration in Botswana is governed by the Arbitration Act (Cap 06:01), which came into force on 27 November 1959. The Act is not based on the UNCITRAL Model Law on International Commercial Arbitration; it follows instead the structure of the mid-twentieth-century English Arbitration Act model, built around the concepts of a “submission”, “arbitrator” and “umpire”, court-ordered stays of liti - gation, and enforcement of awards “by leave of the Because it predates the UNCITRAL Model Law by over a quarter of a century, the Arbitration Act diverg - es from it in several material respects: it contains no express competence-competence provision, no stat - utory separability doctrine, no default mechanism for interim measures or emergency arbitrators, and no modern statutory arbitrator-disclosure regime. These gaps have, in practice, been filled at the institutional level by the Botswana Institute of Arbitrators’ Rules for the Conduct of Arbitrations, which do provide for the arbitrator to rule on his own jurisdiction, treat the arbitration clause as separable from the underlying contract, and impose a continuing independence and impartiality disclosure obligation on arbitrators, but only where the parties have agreed to adopt those rules. Court” as if they were a judgment. Divergence From the Model Law
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