BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
Tribunal Power The BIArb Rule 21, gives the arbitrator an equivalent power directly, unless the parties agree otherwise. On the application of the defending party (in convention or reconvention), the arbitrator may order the claiming party to provide appropriate security for costs, includ - ing additional security, and may stay the arbitration pending compliance. If the party ordered to provide security fails to do so without sufficient cause within the time allowed, the arbitrator must terminate the arbitration in relation to that party’s claim, while per - mitting the arbitration to proceed on the other party’s claim if appropriate. Procedure is governed at the base level by the Arbitra - tion Act (Cap 06:01), which applies to a submission save to the extent the parties validly vary it, or in so far as its provisions are mandatory. Institutional Layer Where the parties agree, the Botswana Institute of Arbitrators’ Rules for the Conduct of Arbitrations sup - ply the detailed procedural framework, offered in three tiers: • the Standard Procedure Rules, the default, designed for represented parties in most disputes; • the Summary Procedure Rules, for smaller, simpler disputes, typically involving unrepresented parties and a more interventionist arbitrator; and • the Small Claims Arbitration Tribunal (SCAT) Rules, for claims below a prescribed monetary threshold, which exclude legal representation and apply a fixed arbitrator’s fee. 7. Procedure 7.1 Governing Rules Statutory Layer None of these institutional rules apply automatical - ly; the parties must have agreed, in their arbitration agreement or otherwise in writing, to adopt them. 7.2 Procedural Steps Under the Arbitration Act Itself The Arbitration Act imposes very few mandatory pro - cedural steps of its own beyond the implied schedule
enforceable in the same way as a final award, by leave of the Court under Section 20. Institutional Examples BIArb Rule 33.3.1, illustrate this power in practice, for example allowing a party to apply for an award, or an interim award, ordering payment where an accepted settlement tender is not honoured within the stipulat - ed period. Beyond payment-type interim awards, nei - ther the Arbitration Act nor the BIArb Rules expressly enumerate a broader range of interim measures (such as anti-suit or preservation orders) available directly from the arbitrator; broader interim protective relief of that kind is instead channelled through the court’s own powers described below. 6.2 Role of Courts Court-Ordered Interlocutory Relief Section 16 (2) of the Arbitration Act gives any party to a submission the right to apply to the court for a range of interlocutory orders in aid of the arbitration, including the examination of witnesses before a spe - cial examiner, discovery of documents and interroga - tories, evidence by affidavit, security for costs, the inspection, interim preservation or sale of goods or property that are the subject matter of the arbitration, an interim injunction or similar relief, directions for interpleader and substituted service. Gaps in the Framework Neither the Arbitration Act nor the BIArb Rules expressly address the grant of interim relief by Bot - swana’s courts in aid of arbitrations seated outside the jurisdiction, and there is no statutory recogni - tion of emergency arbitrators. A party seeking urgent protective measures for a foreign-seated arbitration would need to rely on the court’s general civil interdict powers rather than any arbitration-specific provision, and the concept of an emergency arbitrator (or subse - quent court intervention once one is appointed) simply does not feature in either instrument. 6.3 Security for Costs Court Power Section 16 (2)(d) of the Arbitration Act entitles a par - ty to a submission to obtain a court order requiring another party to give security for costs in the same way as a litigant in ordinary proceedings.
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