BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
part of a contract is treated as an agreement inde - pendent of the contract’s other terms, and a ruling by the arbitrator that the underlying contract is null and void does not, of itself, invalidate the arbitration clause. Position Under the Act The Arbitration Act itself does not contain an express separability provision, reflecting its 1959 vintage, so where the BIArb Rules have not been adopted the position rests on general common-law principles rather than a specific statutory rule; in practice, Bot - swana’s courts and arbitral tribunals are understood to apply the separability doctrine consistent with the approach in comparable common-law jurisdictions in the region. The Arbitration Act permits parties broad freedom to choose their own arbitrator or arbitrators, and the Act’s Schedule (implied terms) only supplies default mechanisms (a sole arbitrator or majority decision among multiple arbitrators) where the submission is silent, rather than restricting the parties’ choice. 4.2 Default Procedures Default Under the Act If the parties’ submission is silent on the method of appointment, the Schedule to the Arbitration Act pro - vides that the reference is to a single arbitrator by default. Where two arbitrators are appointed and one refuses to act, is incapable, or dies, Section 8 allows the appointing party to name a replacement or, if the other party defaults on its own appointment after sev - en clear days’ notice, to have its own arbitrator act as sole arbitrator, subject to the Court’s power to set aside that appointment. Court-Supervised Fallback Section 11 gives the court a broader fallback power to appoint an arbitrator, umpire or third arbitrator in a defined set of default scenarios (failure to concur in a sole arbitrator, an arbitrator’s refusal, incapac - ity or death where the vacancy is not filled, or fail - 4. The Arbitral Tribunal 4.1 Limits on Selection General Party Autonomy
ure to appoint an umpire or third arbitrator), triggered by a seven-day written notice procedure before any court application. Under the BIArb Rules, if the par - ties’ agreement calls for the rules to apply but does not identify the arbitrator or the appointment method, the Chairman (or Vice-Chairman) of the Institute will appoint the arbitrator on application by either party. Multiparty Arbitrations Neither the Arbitration Act nor the BIArb Rules con - tain a bespoke default procedure for multiparty arbi - trations; this is a gap consistent with the Act’s age, and multiparty appointment issues would in practice fall back on the general court-appointment powers in Section 11 or on ad hoc agreement between the parties. The court can intervene in the selection or continua - tion of an arbitrator in several defined circumstances under the Arbitration Act, appointing an arbitrator, umpire or third arbitrator where the parties fail to do so themselves under Section 11; setting aside an appointment made under the default mechanism in Section 8; and removing an arbitrator or umpire, at any time on motion, where a just ground of recusa - tion exists or the arbitrator has misconducted the proceedings under Section 13, including removal for failing to proceed with reasonable dispatch under Section 17 (3). Limits on That Power 4.3 Court Intervention Grounds for Intervention These powers are all reactive and ground-specific rather than a general discretion to interfere: the court acts only on application, only in the listed default or misconduct scenarios, and, for the Section 11 fallback appointment, only after a party has first given seven clear days’ notice affording the other side or the arbi - trators an opportunity to act. There is no free-standing power for the court to substitute its own choice of arbitrator simply because it disagrees with the par - ties’ selection. 4.4 Challenge and Removal of Arbitrators Statutory Ground Section 13 of the Arbitration Act allows the court, on motion, to remove an arbitrator or umpire against
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