BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
ple, only be capable of challenge through the ordinary avenues available once an award (or a decision having the character of one) has been made, or through the court’s general Section 13 power to intervene for mis - conduct or improper procurement, which is a narrow supervisory jurisdiction rather than a merits review of jurisdiction. 5.3 Timing of Challenge Sequence Required BIArb Rules 11.2 and 11.3 require a jurisdictional objection to be raised within the arbitration at the first available opportunity, not reserved until later in the proceedings. Recourse to the courts is, in turn, generally deferred until after the arbitrator has made the award, save in exceptional circumstances; par - ties therefore do not have an unqualified right to go to court to challenge jurisdiction as soon as a case is filed, nor immediately after the tribunal is constituted, but only once a final award has been rendered (or, exceptionally, in extreme cases before that point). 5.4 Standard of Judicial Review for Jurisdiction/Admissibility Deferential in Substance Neither the Arbitration Act nor the BIArb Rules articu - late an explicit standard of review (such as “deferen - tial” or “de novo”) for jurisdiction or admissibility ques - tions. However, the structure of the Act, in particular the narrow Section 13 grounds for court intervention (misconduct of the proceedings or an award improp - erly procured) and the Rules’ policy of deferring juris - dictional challenges until after the award, point to an effectively deferential standard in practice, with the court declining to substitute its own view of jurisdic - tion for the arbitrator’s except in the narrow circum - stances the legislation and BIArb Rules allow. 5.5 Breach of Arbitration Agreement Statutory Stay Mechanism Section 6 of the Arbitration Act allows a party to apply to stay court proceedings commenced in breach of a written arbitration agreement, provided the applica - tion is made after appearance but before delivering any pleadings or taking any other step in the pro - ceedings. The court will grant a stay if satisfied there is no sufficient reason why the matter should not be referred to arbitration, and that the applicant was, and
remains, ready and willing to do what is necessary for the arbitration to proceed properly. Judicial Attitude This is a discretionary rather than automatic remedy, but Botswana’s courts have generally been described as willing to support arbitration agreements and grant stays where the statutory conditions are met. The practical constraint on parties is procedural rather than attitudinal because the stay application must be made promptly, a party who engages with the merits of the litigation, or delays too long before applying, risks losing the right to enforce the arbitration agree - ment for that dispute. 5.6 Jurisdiction Over Third Parties No General Basis Neither the Arbitration Act nor the BIArb Rules provide a mechanism for an arbitral tribunal to assume juris - diction over individuals or entities that are not party to, or signatories of, the relevant arbitration agree - ment. The Act’s “submission” is, by definition, a writ - ten agreement between the parties to it, and the BIArb Rules are built on the same claimant/defendant privity model, so joinder of non-signatories generally requires The one qualification is a rule giving the arbitrator jurisdiction to determine a defence of set-off even where the relationship from which the set-off arises falls outside the scope of the arbitration clause, or is subject to a different arbitration agreement. This operates between the existing parties to the reference, however, rather than as a basis for binding an outside third party, and there is no separate rule distinguishing foreign from domestic non-signatories. their own separate consent. Narrow Set-off Exception
6. Preliminary and Interim Relief 6.1 Types of Relief Interim Awards
Section 18 of the Arbitration Act provides that, unless a contrary intention is expressed in the submission, the arbitrator or umpire may, if he thinks fit, make an interim award, and any reference in the Act to an award includes an interim award, such an award is
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