BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
12.3 Approach of the Courts Generally Supportive, Narrowly Framed
tion additionally governs admission to its two classes of membership (fellow and associate), operating as a professional standards gateway for those who act as
The Arbitration Act’s narrow Section 13 grounds for interference (misconduct or improper procurement), together with its leave-based enforcement mecha - nism under section 20, point to a policy of limited judicial interference with awards, consistent with the description of Botswana’s courts in recent regional commentary as friendly towards arbitration. No Codified Public Policy Ground Unlike the Model Law or the New York Convention’s own Article V framework, the Arbitration Act does not itself articulate a public-policy ground for refusing enforcement of a domestic award. The court’s leave- stage discretion under Section 20 is comparatively open-textured and undefined by the statute. Where the New York Convention applies to a foreign award (subject to Botswana’s commercial and reciprocity reservations), the Convention’s own Article V grounds, including public policy, would govern that award’s rec - ognition and enforcement, operating alongside rather than as part of the domestic Act. 13. Miscellaneous 13.1 Class Action or Group Arbitration No Provision for Class or Group Arbitration Neither the Arbitration Act nor the BIArb Rules make any provision for class or representative arbitration. The Act’s “submission” concept and the Rules’ claim - ant/defendant structure are both built around a bilat - eral (or, at most, a jointly agreed multi-party) model, and there is no institutional or statutory mechanism in Botswana permitting representative claims to be arbitrated on behalf of an undefined or unascertained class. 13.2 Ethical Codes Institutional Code Embedded in the Rules The BIArb Rules themselves function as a practical ethical code for arbitrators acting under them. They impose pre-appointment and continuing independ - ence and impartiality disclosure obligations, a good- faith obligation on the parties, and a disciplinary-style challenge and removal procedure administered by an institute-appointed Committee. BIArb’s own constitu -
arbitrators under its auspices. Legal Practitioners Generally
Counsel appearing in arbitrations who are admitted legal practitioners remain separately bound by the ordinary professional conduct rules applicable to the legal profession in Botswana. There is no distinct arbitration-specific statutory code of ethics under the Arbitration Act itself. The applicable standards are a combination of the institutional rules (where BIArb Rules are adopted) and the practitioner’s ordinary professional obligations. 13.3 Third-Party Funding No Dedicated Regulation Neither the Arbitration Act nor the BIArb Rules address third-party funding of arbitration in any way; there is accordingly no domestic statutory or institutional disclosure obligation, licensing regime, or restric - tion specific to funded arbitrations in Botswana. Any constraints on such arrangements would need to be assessed against Botswana’s general common-law doctrines historically applicable to third-party fund - ing of litigation, which fall outside the scope of the arbitration-specific instruments reviewed here. 13.4 Consolidation Consolidation by Agreement Only Neither the Arbitration Act nor the BIArb Rules give a tribunal or a court a unilateral power to consoli - date separate arbitral proceedings. The BIArb Rules address consolidation only as a topic the parties may voluntarily agree at a pre-hearing conference, where it is listed among the matters (alongside admissions of fact, discovery, and quantum) that the parties may resolve to curtail the length of the hearing; consolida - tion in Botswana arbitration is therefore achievable in practice only by the parties’ own agreement and recorded in the pre-hearing minute, rather than by tri - bunal or court order. 13.5 Binding of Third Parties Privity-Based Framework Because the Arbitration Act defines a “submission” as a written agreement between the parties to it, and the
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