BOTSWANA Trends and Developments Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
Jeremiah Tladi & Co Plot 50363, Unit 3 & 4 Gaborone Business Park, Fairgrounds
P O Box 70269, Gaborone (UB) Botswana
Tel: +267 393 2043 Fax: +267 393 2044 Email: attorneys@jtco.co.bw Web: www.jtco.co.bw
Botswana’s Institutional Turn: Why Arbitration Users Should Be Watching For much of its history, arbitration in Botswana has been a quiet, largely domestic affair, conducted on an ad hoc basis and rarely tested against the more developed regimes of its regional neighbours. That picture is changing. A combination of institutional development, regional alliance-building and a notable shift in the country’s political and economic landscape means that parties contracting with Botswana coun - terparties, or considering Botswana as a seat, now have considerably more to think about than they did even three or four years ago. This article considers what has changed, why it matters, and what it means in practice for contract drafters and dispute resolution counsel. From ad hoc practice to institutional infrastructure Historically, one of the principal criticisms of arbitra - tion in Botswana was the shortage of local institu - tional infrastructure. Parties seeking a neutral, well- resourced administering institution often looked outside the jurisdiction, usually to South Africa. The establishment of the Botswana Institute of Arbitrators (BIArb) was intended to address this gap, offering a domestic option for institutional administration with rules designed to align with international best prac - tice. Uptake of institutional arbitration in Botswana remains at an early stage compared with more established regional hubs, and parties should not assume that BIArb’s case volumes or track record yet match those of longer-established centres. What has changed,
however, is the direction of travel. Government, the judiciary and the private Bar have each signalled sup - port for growing the domestic institutional offering, and law firms advising on Botswana-related contracts are increasingly building BIArb, or reference to BIArb’s rules, into their standard dispute resolution clauses as an option alongside more established regional and international institutions. The SADC-AFSA Charter: a regional anchor Perhaps the more significant recent development, from a cross-border perspective, is Botswana’s par - ticipation in the regional alliance between the law societies of a number of Southern African Develop - ment Community (SADC) member states and the Arbi - tration Foundation of Southern Africa (AFSA). Under the resulting charter, signatory states, including Bot - swana, have agreed to apply AFSA’s rules across the alliance, with a dedicated division of AFSA established to administer SADC-related arbitrations. For parties contracting across the region, this alliance is a meaningful development for three reasons. First, it gives contracting parties a genuinely regional institutional option, administered under a single set of rules, rather than requiring a choice between a purely domestic institution and an international one based outside Africa. Second, it signals a degree of regulatory and profes - sional alignment between the participating jurisdic - tions, which should, over time, make it easier to pre - dict how courts across the region will treat arbitration
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