BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
7.4 Legal Representatives Standard Procedure
terms (for example, that witnesses may be examined on oath if the arbitrator thinks fit, and that documents relevant to the dispute must be produced), leaving most procedural content to be supplied by the parties’ agreement or institutional rules rather than the statute. Under the Standard Procedure Rules Where adopted, the BIArb Standard Procedure Rules prescribe a defined sequence: a preliminary meeting to confirm the arbitrator’s jurisdiction and the appli - cable procedural track; exchange of a joint state - ment of issues or, failing agreement, a statement of claim, statement of defence, any counterclaim and a claimant’s reply within specified time limits; and, on receipt of those submissions, a second preliminary meeting to deal with discovery, witness statements, time-tabling and any agreement to allow an appeal. An award must, unless the parties agree otherwise, be delivered as soon as practicable and in any event within 90 days of the conclusion of the hearing (or of the last document submitted, if there is no hearing). 7.3 Powers and Duties of Arbitrators Statutory Powers Section 15 of the Arbitration Act gives an arbitrator or umpire the power to administer oaths or take affirma - tions, to correct clerical mistakes or accidental slips in an award, and, on a party’s application, to appoint a commissioner to take the evidence of a person resid - ing outside Botswana. Sections 17 and 19 impose corresponding duties to proceed with reasonable dispatch (on pain of removal), and, where a case is remitted by the court, to make a fresh award, ordi - narily within three months, unless the court directs otherwise. Institutional Expansion The BIArb Rules considerably expand this toolkit for arbitrators who adopt them, including the power to give procedural directions, rule on the arbitrator’s own jurisdiction, strike out a claim or debar evidence for serious non-compliance, order discovery, appoint expert assessors, conduct site inspections, settle or direct the taxation of costs, and correct, clarify or sup - plement an award after delivery. All such power are exercised subject to the overriding duty to treat the parties equally and afford each a right to be heard.
Under the BIArb Standard Procedure Rules, there is no restriction on who may represent a party; a “repre - sentative” is defined broadly to include an advocate, an attorney, a claims consultant, or any other person who, by training and experience, is able to present the case, with no requirement of local qualification. Summary Procedure and SCAT The position is markedly different under the Summary Procedure Rules and the SCAT Rules, both designed for unrepresented, smaller disputes: representation is confined to the party itself (or a partner, director, close corporation member or trustee, as applicable), a bona fide full-time employee or officer of the party, or, under the Summary Procedure Rules only, a tech - nically qualified person other than a practising lawyer where the arbitrator considers this reasonably neces - sary (for example, an engineer, architect or quantity surveyor in a construction dispute). Practising law - yers and advocates are therefore expressly excluded from acting as representatives in these two simplified tracks, though they remain free to represent parties under the Standard Procedure Rules, including where they hold foreign rather than Botswana qualifications. 8. Evidence 8.1 Collection and Submission of Evidence Documents Under the BIArb Standard Procedure Rules, docu - ments relied upon must generally be attached to the parties’ statements of claim, defence, counterclaim or reply, and such documents are admitted in evidence without formal proof, though either party may still lead evidence on their origin, accuracy, meaning or rele - vance. Additional documents not already exchanged require 15 days’ notice before the hearing, and the arbitrator may also order discovery of documents and other material (including electronic recordings) on application or of his own motion. Witness Evidence and Cross-Examination Before the hearing, parties must disclose the identity of witnesses they wish to call and the subject mat - ter of their testimony, and the arbitrator may direct
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