BOTSWANA Trends and Developments Contributed by: Thembani Jeremiah, Tebogo Edison Tladi, Kaone Marumoloa and Magadi Lesego Mphothwe, Jeremiah Tladi & Co
The growing regional cooperation under the SADC- AFSA charter may, over time, make it easier to secure interim relief across borders within the alliance, since courts in signatory states are likely to become more familiar with each other’s arbitration-related orders and procedures. For now, though, this remains an area where local advice at the outset of a dispute, rather than after the fact, makes a material difference to the practical availability of relief. Emerging issues: third-party funding and resource- sector disputes Two further trends are worth flagging for parties active in Botswana. The first is the gradual increase in inter - est in third-party funding of disputes, mirroring a pat - tern seen elsewhere in the region as claimants look to manage the cost of pursuing meritorious claims. Botswana does not yet have a bespoke statutory or regulatory regime dealing specifically with third-party funders, which means that funding arrangements are, for the time being, governed largely by ordinary con - tract law principles and by any applicable professional conduct rules affecting the representatives involved. Parties considering funded claims should build in clear disclosure and cost-allocation provisions at the outset, given the absence of a settled local regulatory framework to fall back on. The second trend concerns disputes connected to the natural resources and infrastructure sectors, which remain central to the Botswana economy and to the government’s diversification agenda. As the state pursues new investment in mining, energy and infrastructure to offset softer diamond revenues, dis - putes touching on environmental and community obli - gations, local content requirements and contractual stabilisation clauses are increasingly likely to feature in the arbitration caseload. Counsel drafting resource- sector contracts with a Botswana nexus should pay close attention to how such obligations interact with the arbitration clause, particularly where a contract also contemplates parallel regulatory or administrative proceedings. What this means in practice for contracting parties Taken together, these developments point to a juris - diction that is investing in its dispute resolution infra - structure at a moment of political and economic
transition, rather than retreating from it. For parties negotiating contracts with a Botswana nexus, several practical points follow. First, the choice of seat and institution deserves fresh consideration rather than the automatic selection of a well-known offshore institution by default. Depending on the nature and value of the dispute, BIArb, or an AFSA-administered SADC arbitration, may now offer a genuinely competitive option in terms of cost, familiar - ity with the region and enforceability of the resulting award, alongside the more established alternatives. Second, contracting parties dealing with state enti - ties or state-owned enterprises should pay particular attention to the drafting of any waiver of sovereign immunity and to the identification of assets against which an award might ultimately be enforced, given the broader fiscal pressures facing the government. Third, where a contract involves both a commercial dispute resolution mechanism and an employment relationship in Botswana, counsel should keep the two regimes clearly separated in the drafting, since the new labour dispute commission operates under its own statutory framework and is not simply a variant of commercial arbitration. Fourth, parties should continue to build in clear, unam - biguous arbitration agreements that specify the seat, the applicable rules and the language of the proceed - ings, rather than relying on the regional alliance or institutional developments to fill gaps left by imprecise drafting. Institutional development reduces uncertain - ty at the margins, it does not substitute for careful contract drafting. Fifth, counsel advising on long-term contracts, particu - larly those in the resource and infrastructure sectors, should revisit existing dispute resolution clauses in older agreements rather than assuming they remain fit for purpose. A clause drafted a decade ago, or before BIArb existed and before the SADC-AFSA charter was signed, may reference institutions or procedures that no longer reflect the most efficient or cost-effective route to resolution, and a periodic review of standard clauses is a low-cost way of capturing the benefit of these developments.
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