BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
whom a just ground of recusation exists, or who has misconducted the arbitral proceedings, and separate - ly to set aside an award and award costs personally against the arbitrator or umpire where the proceedings were misconducted or the award improperly procured. Institutional Procedure Where the BIArb Rules apply, they provide, under Rule 8 a detailed, self-contained challenge process. The grounds include serious illness or incapacity, lack of independence, or any other reason the arbitrator ought not to continue (for example, a lack of impartial - ity). A challenging party must apply in writing to the Chairman of the Institute within ten days of becom - ing aware of the relevant circumstances, setting out full reasons, failing which the right to challenge is for - feited; the other party may respond within ten days, the challenged arbitrator may reply within ten days, and a committee of at least three institute members decides the challenge (unless the arbitrator simply withdraws by consent), with power to direct the costs of the challenge and, if it succeeds, the fees payable to the outgoing arbitrator. Where a new arbitrator is appointed, the proceedings continue as though that arbitrator had been in place from the outset, unless The Arbitration Act’s requirement is a general one, under Section 12, arbitrators and umpires must be, and remain, disinterested with reference to the matters referred and the parties, and any party may require a sworn declaration to that effect before the arbitrator begins or continues to act, though this right of objec - The BIArb Rules go further and impose a positive, continuing disclosure obligation under Rule 7.2. Before appointment, a prospective arbitrator must sign a statement confirming there are no grounds known to them likely to give rise to justifiable doubts about their independence and impartiality and must disclose in writing any facts or circumstances that could call these into question, with that statement due to the parties no later than the first preliminary meet - ing. Neither the Arbitration Act nor the BIArb Rules tion may be expressly waived. Institutional Disclosure Regime the arbitrator decides otherwise. 4.5 Arbitrator Requirements Statutory Standard
impose formal qualification requirements (such as a legal degree) on arbitrators generally, reflecting the practice, particularly in construction and technical dis - putes, of appointing engineers, quantity surveyors or other subject-matter experts as arbitrators.
5. Jurisdiction 5.1 Challenges to Jurisdiction Competence-Competence
The Arbitration Act does not itself expressly codify the competence-competence principle, but the BIArb Rules do, under Rule 11.1 the arbitrator may decide any dispute regarding the existence, validity or inter - pretation of the arbitration agreement and, unless the agreement provides otherwise, may rule on his own jurisdiction to act. The Rules reinforce this by treating the arbitration clause as an agreement independent of the rest of the contract, so that a ruling that the contract is null and void does not itself invalidate the clause conferring jurisdiction. Waiver of Objection Under Rule 11.2 of the BIArb Rules, a party who wishes to challenge the arbitrator’s jurisdiction, or who believes the arbitrator is exceeding it, must raise the point at the first available opportunity in the arbitra - tion itself; failing that, the party is deemed to have consented to the arbitrator’s jurisdiction. 5.2 Circumstances for Court Intervention Deferred Review Under BIArb Rule 11.3, where the arbitrator makes a jurisdictional ruling otherwise than in a final award, a party wishing to contest that ruling in court may gen - erally only do so after the award has been rendered, absent exceptional circumstances. This reflects a generally non-interventionist judicial posture during the currency of the reference, consistent with the wider characterisation of Botswana’s courts as sup - portive of arbitration. Negative Rulings Neither the Arbitration Act nor the BIArb Rules con - tain a distinct fast-track mechanism for reviewing a negative jurisdictional ruling (where the arbitrator declines jurisdiction); such a ruling would, in princi -
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