BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
Reach and Consequences Section 29 of the Arbitration Act additionally allows the court to order its process to issue compelling the attendance of a witness before an arbitrator any - where within the court’s jurisdiction (including, in an extreme case, arranging for a prisoner to be brought up for examination), and Section 32 makes wilfully or corruptly giving false evidence before an arbitrator a criminal offence, prosecuted and punished as per - jury. These compulsion mechanisms are framed gen - erally around “witnesses” and are not expressed to differentiate between party and non-party witnesses, both are reached through the same court-mediated subpoena process rather than any distinct regime for non-parties. 9. Confidentiality 9.1 Extent of Confidentiality Default Confidentiality by Rule, Not Statute The Arbitration Act itself contains no confidentiality provision, confidentiality in Botswana arbitration is a creature of institutional rules and party agreement. Under the BIArb Rules, unless the parties agree other - wise, the proceedings and any award are confidential, save to the extent disclosure is required to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings. The SCAT Rules contain a closely equivalent default, extending to information about the arbitration or the award generally, again subject to what is necessary for the arbitration itself, related court proceedings, or another legal obligation. Practical Limits Because this protection stems from the BIArb Rules (or the parties’ own agreement) rather than the statute, arbitrations that do not adopt the Rules and do not otherwise address confidentiality fall back on general common-law principles, which do not guarantee the same blanket protection. In particular, information from the arbitration can become public where a party refers to it in a subsequent court application, whether to enforce, challenge or otherwise engage with the award.
the exchange of full witness statements or summa - ries; however, a written statement or summary only becomes evidence in the arbitration if the witness is actually called to testify, preserving space for oral examination and cross-examination at the hearing. Neither privilege nor a formal discovery regime is leg - islated in the Arbitration Act itself, the Act’s main con - tribution is the availability of court-ordered discovery, interrogatories and evidence by affidavit as an aid to the arbitration under Section 16. 8.2 Rules of Evidence Flexible, Non-Technical Standard The Arbitration Act does not impose the formal rules of evidence that apply in Botswana’s civil courts on arbitral proceedings. Where the BIArb Rules apply, this flexibility is made explicit: the arbitrator may rely on his own expert knowledge (provided he discloses it to the parties) and may attribute such weight to any evidence as he considers appropriate, whether or not it is given under oath and whether or not it would be admissible in civil court proceedings. Simplified Tracks Under the Summary Procedure and SCAT Rules, this flexibility is stated even more directly, expressly empowering the arbitrator or tribunal to depart from statutory or common-law rules of evidence, subject only to the requirements of natural justice. Arbitral evidence in Botswana is therefore materially less for - mal than the rules of evidence applicable to domestic litigation before the ordinary courts. An arbitrator in Botswana has no independent coer - cive power to compel evidence, compulsion runs through the High Court. Section 16 (1) of the Arbitra - tion Act allows a party to a submission to take out court process for the attendance of witnesses (though no one can be compelled to produce a document that would not be compellable at trial). Section 28 of the Act allows a subpoena or summons compelling attendance and production of documents before an arbitrator to be procured in the same way, and on the same conditions, as if the matter were a pending court action; this right is available to any party to the submission, or to the arbitrator or umpire directly. 8.3 Powers of Compulsion Compulsion is Court Mediated
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