BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
10. The Award 10.1 Legal Requirements Form and Finality
10.3 Recovering Interest and Legal Costs Costs Discretion Under the BIArb Rules, unless the arbitration agree - ment or the parties provide otherwise, the award of costs is at the arbitrator’s discretion. The arbitrator may direct that costs be taxed or may settle them himself, engaging a professional taxing consultant if he wishes, and is not obliged to apply the High Court’s own costs tariff unless the parties agree that he should. Disbursements incurred by a successful party are recoverable on a scale agreed between the parties or, failing agreement, as determined by the arbitrator, who may direct taxation by reference to the relevant costs’ provisions of the Arbitration Act. Costs Follow the Event, Tempered by Settlement Conduct The BIArb Rules embed a broadly “costs follow the event” starting point, but this is expressly moder - ated by the settlement mechanisms in the Rules: an unaccepted settlement tender is withheld from the arbitrator until after the merits award, then taken into account specifically in the award of costs, which can result in a costs penalty against a party that unreason - ably rejected a tender. Neither the Arbitration Act nor the BIArb Rules create a standalone statutory entitle - ment to interest. This entitlement is left to the parties’ contract and the substantive law, consistent with ordi - nary civil procedure in Botswana. There is no general right under the Arbitration Act to appeal an award on its merits, Section 13 confines the Court’s power to set an award aside to cases where the arbitrator or umpire has misconducted the proceedings, or the arbitration or award has been improperly procured, which is a narrow supervisory jurisdiction rather than a review of the correctness of the decision. Opt-in Appeal Under the BIArb Rules The BIArb Rules, under Rule 39, create an appeal mechanism, but only where the parties have agreed, by written and signed agreement, that the award is 11. Review of an Award 11.1 Grounds for Appeal No Automatic Merits Appeal
Under the schedule to the Arbitration Act, an award must be in writing and, if made in terms of the sub - mission, is final and binding on the parties and those claiming under them. Section 20 allows the award to be enforced, by leave of the court, in the same manner as a judgment. Under the BIArb Rules, the award must similarly be in writing and is published by delivering a copy to each party, with reasons to be given at the same time unless the parties agree otherwise or the award is a consent award recording a settlement. Time Limits The Arbitration Act itself imposes no fixed statutory deadline for delivery of an award. Section 17 gives the arbitrator power to award at any time, and Section 17 (2) allows the court to enlarge any time limit that does apply. The 90-day default (running from the conclusion of the hearing, or from the last document submitted if there is no hearing) is instead an institutional crea - tion under the BIArb Rules, extendable by the parties’ written agreement. Neither the Arbitration Act nor the BIArb Rules impose express substantive limits on the remedies an arbitral tribunal may award, both instruments are concerned primarily with procedure and enforcement rather than with prescribing or restricting the content of an award. The tribunal’s remedial powers are, in practice, coex - tensive with what the parties’ arbitration agreement empowers it to decide and with what the substantive law governing the underlying contract permits. Practical Constraints 10.2 Types of Remedies No Express Statutory Limits Any real limitation therefore derives from the appli - cable substantive law rather than arbitration-specific legislation. For example, Botswana’s contract law, in common with other common-law systems in the region, does not generally recognise punitive dam - ages as an available remedy for breach of contract, and an arbitrator applying that law would be bound by the same constraint as a court would be.
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