BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
Interaction Between Statute and Rules As per Rule 2, where the BIArb Rules are adopted, the Arbitration Act continues to apply save to the extent the rules validly vary it, or except in so far as the Act’s provisions are mandatory, meaning the statute remains the ultimate legal backbone even for institu - tionally administered references. 2.2 Changes to National Law The Arbitration Act itself has not been amended in the past year and remains in its 1959 form.
vides that, without the special leave of the court, none of the following may be submitted to arbitration either: matters relating to status, matrimonial causes, and matters in which minors or other persons under legal disability may be interested. General Test Beyond these express statutory carve-outs, Botswana applies the general common-law approach of asking whether the subject matter is one the parties could lawfully settle or compromise between themselves by private agreement; if it is, and it does not fall within one of the Section 7 categories, it is arbitrable. 3.3 National Courts’ Approach Law Governing the Arbitration Agreement The Arbitration Act does not itself set out a choice-of- law rule for the arbitration agreement as distinct from the substantive contract. The BIArb Rules address the closely related question of seat under Rule 20. Unless the parties agree otherwise, the seat of the arbitration is Botswana, and even where hearings, meetings or the award take place outside the country, the arbitra - tion is deemed to be conducted in, and the award made in, Botswana if the parties have not otherwise agreed the proper law of the arbitration; this creates a strong default towards Botswana law absorbing both the seat and, in practice, the arbitration agreement absent contrary agreement. Enforcement of Arbitration Agreements Botswana’s courts have generally been characterised in recent regional commentary as supportive of arbi - tration, and the Section 6 stay mechanism gives a party a real, if discretionary, remedy where litigation is commenced in breach of an arbitration agreement. That said, the right to a stay depends on the applicant acting promptly (before pleading or taking other steps) and on the court being satisfied that the applicant remains ready and willing to arbitrate, so an arbitration agreement will not automatically defeat litigation if the applicant has delayed or engaged with the merits of the court process. 3.4 Validity Separability Under the Rules The BIArb Rules expressly adopt the doctrine of sepa - rability under Rule 11.4, an arbitration clause forming
3. The Arbitration Agreement 3.1 Enforceability Formal Requirement
Under Section 2 of the Arbitration Act, a “submis - sion” is defined as a written agreement, however made, to submit present or future disputes to arbitra - tion, whether or not an arbitrator is named in it; an oral agreement to arbitrate therefore falls outside the Act’s protection. The BIArb Rules mirror this, defin - ing “agreement” as the written arbitration agreement Section 3 of the Arbitration Act provides that the authority of an arbitrator or umpire appointed under a submission is irrevocable unless the submission expresses a contrary intention and may only be revoked with the leave of the court. Where a party commences court proceedings in breach of a writ - ten arbitration agreement, Section 6 allows the other party to apply, after appearance but before delivering pleadings or taking any other step, for a stay of those proceedings, which the court will grant if satisfied there is no sufficient reason not to refer the matter to arbitration and that the applicant remains ready and willing to arbitrate. The stay is therefore discretionary rather than automatic, and the right to seek it can be lost by delay. 3.2 Arbitrability Excluded Subject Matters Section 7 of the Arbitration Act expressly removes criminal matters from arbitration altogether (so far as prosecution or punishment is concerned) and pro - entered into between the parties. Irrevocability and Enforcement
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