BOTSWANA Law and Practice Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
BIArb Rules are similarly structured around claimant/ defendant privity, neither instrument provides a gen - eral basis for binding a non-signatory third party to an arbitration agreement or the resulting award. Narrow Exception, No Distinction for Foreign Parties The one qualification is the arbitrator’s jurisdiction, under the BIArb Rules, to determine a defence of set- off even where it arises from a relationship outside the scope of the arbitration clause or under a differ - ent arbitration agreement; this operates as between the existing parties to the reference rather than as a mechanism for joining or binding an outsider. Neither the Arbitration Act nor the BIArb Rules draw any dis - tinction between domestic and foreign third parties in this respect, since the underlying limitation is one of privity and consent rather than nationality or domicile.
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