BOTSWANA Trends and Developments Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
agreements, interim measures and the enforcement of awards. Third, it reflects a broader trend across Southern Africa of pooling arbitration infrastructure rather than each jurisdiction attempting to build a fully independ - ent offering. This is a pragmatic response to the real - ity that no single SADC member state, Botswana included, currently has the case volume to sustain a large standalone arbitral institution on its own. Parties should, however, treat the charter as a framework for co-operation rather than a wholesale replacement for local law. Botswana’s own arbitration legislation, and the approach of its national courts to matters such as the setting aside of awards, the grant of interim relief and the enforcement of foreign awards under the New York Convention, remains the primary reference point for anyone contracting with a Botswana-based counterparty or seating an arbitration in the jurisdic - tion. Reference to AFSA’s rules under the charter does not, by itself, change the governing procedural law of a Botswana-seated arbitration. A parallel shift: institutionalising labour dispute resolution While the commercial arbitration landscape has been developing along institutional lines, a parallel and arguably more immediately consequential develop - ment has taken place in the employment sphere. The new Employment and Labour Relations Act has estab - lished an independent Mediation and Arbitration Com - mission for the resolution of labour disputes, replac - ing the more fragmented approach that previously left many employees waiting for extended periods for severance and other benefit disputes to be resolved. This is not, strictly speaking, a commercial arbitration development, and the distinct statutory and institu - tional framework that applies to employment dis - putes should not be conflated with the position for commercial or investment arbitration. It is, however, a useful illustration of a broader theme: Botswana’s policymakers appear increasingly comfortable using dedicated, specialist arbitration and mediation insti - tutions as a tool of public policy, rather than routing all forms of dispute resolution through the ordinary courts. Employers and investors with a workforce in Botswana should in particular note the change, since
disputes that might previously have taken years to resolve through the courts may now move through a dedicated commission on a considerably faster time - table. Enforcement and the New York Convention: continuity amid change One of the more reassuring constants through this period of institutional and political change has been the enforcement environment. Botswana has long been a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and its courts have generally shown a willingness to recog - nise and enforce foreign awards without descending into a merits review, in line with the Convention’s nar - row grounds for refusal. This continuity matters more than any single institutional development, since ulti - mately the value of an arbitration agreement or award lies in the ability to enforce it against assets. That said, investors should not treat enforcement as a foregone conclusion. As with any Convention state, the public policy exception remains available to resist enforcement in exceptional cases. Parties enforcing awards against state or state-linked entities should expect the state to raise, and courts to consider carefully, any argument based on sovereign immunity from execution. It remains good practice to structure transactions so that enforceable assets exist outside Botswana, or are otherwise clearly identifiable and not subject to immunity, regardless of how supportive the domestic courts prove to be. Interim relief and the role of the courts A further area to watch is the interaction between arbitral tribunals and the national courts on interim measures. As in most Model Law-influenced juris - dictions, Botswana’s courts retain a role in granting interim relief in support of arbitration, including, in some circumstances, for arbitrations seated outside the country. For time-sensitive disputes, particularly those involving preservation of assets or evidence, parties and counsel should factor in realistic timelines for approaching the local courts rather than assuming that a tribunal, once constituted, will always be able to act quickly enough on its own.
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