BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
12. Enforcement of an Award 12.1 New York Convention
to be subject to appeal. Where adopted, a party has 15 days from publication of the award to give notice of appeal specifying the findings and grounds chal - lenged, the Chairman of the Institute then appoints an Appeal Tribunal of at least three members. The appel - lant must lodge security for the costs of the appeal, and the tribunal may dismiss the appeal, vary the award, substitute its own award, or refer the matter back to the original arbitrator, with its decision being final, binding, and itself constituting an award under the Arbitration Act. 11.2 Excluding/Expanding the Scope of Appeal Expanding Scope Because no merits appeal exists by default, par - ties can only expand the available scope of review by expressly agreeing, in writing, to adopt the BIArb appeal mechanism described in 11.1 Grounds for Appeal . Absent such agreement, no appeal on the merits is available at all. Excluding the Narrow Statutory Ground The position on excluding the court’s own narrow Section 13 supervisory jurisdiction (misconduct or improper procurement) is less clear, as that is framed as a power of the court rather than a right the par - ties confer, and neither the Act nor the BIArb Rules expressly address whether it can be contracted out of; in the absence of an agreed appeal mechanism, Sec - tion 13 remains the only route to challenge an award. 11.3 Standard of Judicial Review Deferential on the Merits The Arbitration Act’s Section 13 jurisdiction is inher - ently deferential; the court may only intervene for mis - conduct of the proceedings or improper procurement of the award, and does not re-examine the substantive correctness of the arbitrator’s factual findings or legal conclusions. Where a case is stated under Section 30 on a specific question of law referred by the arbitrator (or on the court’s direction), the court’s consideration of that isolated legal question is necessarily closer to a fresh, de novo determination, but this is a narrow, directed procedure rather than a general standard of review applicable to the merits of an award as a whole.
Botswana is a party to the 1958 New York Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards, having deposited its instrument of accession on 20 December 1971, with the Convention entering into force for Botswana on 19 March 1972. Botswana made both reservations permitted under Article I(3) of the Convention: it applies the Convention only to differences arising out of legal relationships considered “commercial” under Botswana law, and it applies the Convention only to the recognition and enforcement of awards made in the territory of another contracting state. 12.2 Enforcement Procedure Domestic Mechanism Enforcement under the Arbitration Act proceeds by way of leave; Section 20 allows an award to be enforced, by leave of the court or a judge, in the same manner as a judgment or order to the same effect, with judgment then entered in terms of the award once leave is granted. Neither the Act nor the BIArb Rules contain a separate, dedicated chapter for foreign (New York Convention) awards of the kind found in model law jurisdictions; convention awards are given effect through Botswana’s accession to the Conven - tion (subject to its commercial and reciprocity reserva - tions) applied alongside this general leave-to-enforce mechanism. Unaddressed Scenarios The documents disclose no specific rule addressing an award that has been set aside at the seat, nor any prescribed approach to enforcement proceedings running in parallel with ongoing set-aside proceedings at the seat; these questions would fall to be worked out under general common-law and comity principles on a case-by-case basis. Similarly, neither instrument addresses a defence of sovereign immunity at the enforcement stage, which would be determined under Botswana’s general law on state immunity rather than under the Arbitration Act itself.
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