ICLG The International Comparative Legal Guide to: International Arbitration 2014 11th Edition A practical cross-border insight into international arbitration work Published by Global Legal Group, in association with CDR, with contributions from: Abreu Advogados – Sociedade de Advogados, RL. Advokatfirman Vinge Aivar Pilv Law Office Akerman LLP Akinci Law Office Ali Budiardjo, Nugroho, Reksodiputro Anderson Mori & Tomotsune Ashurst Baker & McKenzie.Habib Al Mulla Batliner Gasser Bizlink Lawyers & Consultants Boss & Young, Attorneys-At-Law Brödermann Jahn RA GmbH Camilleri Preziosi Cárdenas & Cárdenas Abogados Ltda. Ferreira Rocha Advogados in Partnership with Abreu Advogados Matheson Figueroa, Illanes, Huidobro y Salamanca Mortimer Blake LLC Geni & Kebe Gleiss Lutz Hajji & Associés Haley & Co Homburger K&L Gates LLP Kachwaha and Partners KKG Kubas Kos Gaertner Kobre & Kim Law Office “Sysouev, Bondar, Khrapoutski SBH” Lazareff Le Bars Lendvai Partners Clifford Chance CIS Limited Linklaters LLP Costa, Waisberg e Tavares Paes Sociedade de Advogados Loyens & Loeff Luxembourg S.à r.l. Luke & Associates DLA Piper UK LLP Macesic & Partners Law Offices Dr. Colin Ong Legal Services MARTIAL AKAKPO & Partners LLP Medina & Rizek Abogados Motieka & Audzevičius Nunziante Magrone Studio Legale Associato Olleros Abogados, S.L.P. Paul, Weiss, Rifkind, Wharton & Garrison LLP PUNUKA Attorneys & Solicitors Sedgwick Chudleigh Ltd. Sefrioui Law Firm Shuke Law Sidley Austin LLP Van Doorne N.V. Vasil Kisil & Partners Weber & Co. Werksmans Attorneys Wilmer Cutler Pickering Hale and Dorr LLP The International Comparative Legal Guide to: International Arbitration 2014 Preface: Preface by Gary Born, Chair, International Arbitration and Litigation Groups, Wilmer Cutler Pickering Hale and Dorr LLP General Chapters: Contributing Editors Steven Finizio, Wendy Miles and Charlie Caher, Wilmer Cutler Pickering Hale and Dorr LLP Account Managers Edmond Atta, Antony Dine, Dror Levy, Maria Lopez, Florjan Osmani, Paul Regan, Gordon Sambrooks, Oliver Smith, Rory Smith 1 Recent Developments in the Regulation of Counsel and Professional Conduct in International Arbitration – Charlie Caher & Jonathan Lim, Wilmer Cutler Pickering Hale and Dorr LLP 1 2 Corruption as a Defence in International Arbitration: Are There Limits? – Tanya Landon & Diana Kuitkowski, Sidley Austin LLP 9 3 The Toolbox of International Arbitration Institutions: How to Make the Best of It? – Prof. Dr. Eckart Brödermann & Tina Denso, Brödermann Jahn RA GmbH 15 Asia Pacific: Sales Support Manager Toni Wyatt 4 Overview Dr. Colin Ong Legal Services: Dr. Colin Ong 20 5 Australia Ashurst Australia: Georgia Quick & Peter Ward 32 Sub Editors Nicholas Catlin Sam Friend Amy Hirst 6 Brunei Dr. Colin Ong Legal Services: Dr. Colin Ong 43 7 China Boss & Young, Attorneys-At-Law: Dr. Xu Guojian 51 8 Hong Kong Haley & Co: Glenn Haley & Patrick Daley 62 Editors Beatriz Arroyo Gemma Bridge 9 India Kachwaha and Partners: Sumeet Kachwaha & Dharmendra Rautray 74 10 Indonesia Ali Budiardjo, Nugroho, Reksodiputro: Sahat A.M. Siahaan & Ulyarta Naibaho 84 Senior Editor Suzie Levy 11 Japan Anderson Mori & Tomotsune: Yoshimasa Furuta & Aoi Inoue 12 Singapore Ashurst LLP: Ben Giaretta & Rob Palmer 102 Group Consulting Editor Alan Falach 13 Vietnam Bizlink Lawyers & Consultants: Do Trong Hai & Tran Duc Son 110 Group Publisher Richard Firth Central and Eastern Europe and CIS: 94 Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: [email protected] URL: www.glgroup.co.uk 14 Overview Wilmer Cutler Pickering Hale and Dorr LLP: Kenneth Beale & Franz Schwarz 119 15 Albania Shuke Law: Enyal Shuke & Kleta Paloka 128 16 Austria Weber & Co.: Stefan Weber & Katharina Kitzberger 135 17 Belarus Law Office “Sysouev, Bondar, Khrapoutski SBH”: Timour Sysouev & Alexandre Khrapoutski 143 18 Croatia Macesic & Partners Law Offices: Ivana Manovelo & Miroljub Macesic 155 GLG Cover Design F&F Studio Design 19 Estonia Aivar Pilv Law Office: Pirkka-Marja Põldvere & Ilmar-Erik Aavakivi 162 20 Hungary Lendvai Partners: András Lendvai & Gergely Horváth 170 21 Kyrgyzstan Mortimer Blake LLC: Stephan Wagner & Leyla Gulieva 178 22 Lithuania Motieka & Audzevičius: Ramūnas Audzevičius 186 23 Poland KKG Kubas Kos Gaertner: Rafał Kos & Maciej Durbas 194 24 Russia Clifford Chance CIS Limited: Timur Aitkulov & Julia Popelysheva 202 25 Turkey Akinci Law Office: Ziya Akinci 214 26 Ukraine Vasil Kisil & Partners: Oleksiy Filatov & Pavlo Byelousov 222 27 Overview Gleiss Lutz: Dr. Stefan Rützel & Dr. Stephan Wilske 232 28 Belgium Linklaters LLP: Joost Verlinden & Olivier van der Haegen 237 29 England & Wales Wilmer Cutler Pickering Hale and Dorr LLP: Wendy Miles & Charlie Caher 246 30 France Lazareff Le Bars: Benoit Le Bars & Raphaël Kaminsky 264 31 Germany DLA Piper UK LLP: Dr. Frank Roth & Dr. Daniel H. Sharma 273 32 Ireland Matheson: Nicola Dunleavy & Gearóid Carey 282 33 Italy Nunziante Magrone Studio Legale Associato: Prof. Dr. Gabriele Crespi Reghizzi 291 GLG Cover Image Source iStockphoto Printed by Ashford Colour Press Ltd July 2014 Copyright © 2014 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-910083-09-3 ISSN 1741-4970 Strategic Partners Western Europe: Continued Overleaf Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. www.ICLG.co.uk The International Comparative Legal Guide to: International Arbitration 2014 Western Europe, cont.: 34 Liechtenstein Batliner Gasser: Dr. Johannes Gasser & MMag. Benedikt König 301 35 Luxembourg Loyens & Loeff Luxembourg S.à r.l.: Véronique Hoffeld & Antoine Laniez 309 36 Malta Camilleri Preziosi: Dr Marisa Azzopardi & Dr Kristina Rapa Manché 317 37 Netherlands Van Doorne N.V.: Jasper Leedekerken & Bas van Zelst 325 38 Portugal Abreu Advogados – Sociedade de Advogados, RL.: José Maria Corrêa de Sampaio & Nuno Pimentel Gomes 333 39 Spain Olleros Abogados, S.L.P.: Iñigo Rodríguez-Sastre & Elena Sevila Sánchez 40 Sweden Advokatfirman Vinge: Krister Azelius & Lina Bergqvist 353 41 Switzerland Homburger: Felix Dasser & Balz Gross 361 42 Overview Akerman LLP: Luis M. O’Naghten & Manuel F. Reyna 371 43 Brazil Costa, Waisberg e Tavares Paes Sociedade de Advogados: Ivo Waisberg & Vamilson José Costa 381 44 Chile Figueroa, Illanes, Huidobro y Salamanca: Juan Eduardo Figueroa Valdes & Sergio Huidobro Corbett 388 Cárdenas & Cárdenas Abogados Ltda.: Alberto Zuleta-Londoño & Silvia Patiño-Rodríguez 396 345 Latin America: 45 Colombia 46 Dominican Republic Medina & Rizek Abogados: Fabiola Medina Garnes & Jose Alfredo Rizek 403 Middle East / Africa: 47 Overview – MENA Baker & McKenzie.Habib Al Mulla: Gordon Blanke & Soraya Corm-Bakhos 411 48 Overview – Sub-Saharan Africa Werksmans Attorneys: Des Williams 415 49 OHADA Geni & Kebe: Mouhamed Kebe & Hassane Kone 418 50 Botswana Luke & Associates: Edward W. F. Luke II & Galaletsang P. Ramokate 425 51 Libya Sefrioui Law Firm: Kamal Sefrioui 434 52 Morocco Hajji & Associés: Amin Hajji 442 53 Mozambique Ferreira Rocha Advogados in Partnership with Abreu Advogados: Rodrigo Ferreira Rocha 449 54 Nigeria PUNUKA Attorneys & Solicitors: Anthony Idigbe & Omone Tiku 457 55 South Africa Werksmans Attorneys: Des Williams 473 56 Togo MARTIAL AKAKPO & Partners LLP: Martial Koffi Akakpo & Dr. Jean Yaovi Dégli 484 57 UAE Baker & McKenzie.Habib Al Mulla: Gordon Blanke & Soraya Corm-Bakhos 491 Paul, Weiss, Rifkind, Wharton & Garrison LLP: H. Christopher Boehning & Melissa C. Monteleone 501 North America: 58 Overview 59 Bermuda Sedgwick Chudleigh Ltd.: Mark Chudleigh & Alex Potts 507 60 BVI Kobre & Kim: Tim Prudhoe & Arielle Goodley 517 61 Cayman Islands Kobre & Kim: James Corbett QC & Alison Maxwell 527 62 USA K&L Gates LLP: Peter J. Kalis & Roberta D. Anderson 538 Chapter 50 Botswana Edward W. F. Luke II Luke & Associates 1 Arbitration Agreements 1.1 What, if any, are the legal requirements of an arbitration agreement under the laws of Botswana? Galaletsang P. Ramokate and willing to do all things necessary for the proper conduct of the arbitration, may make an order staying the proceedings subject to terms and conditions as may be just. 2 Governing Legislation Section 2 of the Arbitration Act of Botswana states: Arbitration means any proceedings held pursuant to a submission; and submission means a written agreement, wherever made, to submit present or future differences to arbitration, whether an arbitrator is named therein or not. 1.2 What other elements ought to be incorporated in an arbitration agreement? Generally, an arbitration clause is inserted into an agreement contract between the parties which specifies the dispute will be resolved by arbitration and not by the courts of Botswana. Some clauses may specify any law other than domestic law to govern their agreement or contract. 2.1 What legislation governs the enforcement of arbitration proceedings in Botswana? The Arbitration Act governs the enforcement of arbitration proceedings in Botswana. However, the parties are mainly guided by the arbitration agreement or submissions into which they have entered. According to Section 20 of the Act, titled Enforcement of Award: An award on a submission may, by leave of the Court or a judge thereof, be enforced in the same manner as a judgment or order to the same effect, and where leave is so given, judgment may be entered in terms of the award. 2.2 Does the same arbitration law govern both domestic and international arbitration proceedings? If not, how do they differ? Arbitration clauses are generally reviewed by an attorney. If an arbitration clause does not exist, it is still possible for both parties to agree to have their dispute resolved by arbitration. No distinction is currently drawn. 1.3 2.3 What has been the approach of the national courts to the enforcement of arbitration agreements? Is the law governing international arbitration based on the UNCITRAL Model Law? Are there significant differences between the two? If the parties fail to reach agreement, the courts will intervene. In the case of Bm Packaging(Pty) Ltd v PPC Botswana (Pty) Ltd 1998 BLR 309 (HC) it was held that if either party required that a dispute should be referred to arbitration, the other party must accede to it, in that the parties had agreed to do so in advance in terms of the contract. A party to the agreement could not unilaterally elect to proceed to court for the purpose of resolving any dispute and thus deprive the other party of its contractual right to arbitration. Yes it is. No distinction has been drawn as of yet. 2.4 To what extent are there mandatory rules governing international arbitration proceedings sited in Botswana? There are no mandatory rules governing international arbitrations as far as we are aware. A court has discretion as to whether or not to stay proceedings, but it would generally do so once it was satisfied that a dispute fell within an ambit of arbitration, and a very strong case would have to be made before a court would exercise its discretion to preclude the operation of an arbitration agreement. 3.1 According to Section 6(1) any party to a submission... may apply to that court to stay the proceedings, and that court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time the proceedings were commenced, and still remains, ready Section 7 of the Act provides matters which cannot be submitted to arbitration. 3 Jurisdiction Are there any subject matters that may not be referred to arbitration under the governing law of Botswana? What is the general approach used in determining whether or not a dispute is “arbitrable”? ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London WWW.ICLG.CO.UK 425 Luke & Associates Botswana Criminal cases, so far as the prosecution or punishment thereof is concerned, shall not be submitted to arbitration, nor, without special leave of the Court, shall any of the following matters be submitted to arbitration: a) matters relating to status; b) matrimonial causes; or c) matters in which minors or other persons under legal disability may be involved. 3.2 Is an arbitrator permitted to rule on the question of his or her own jurisdiction? Yes he/she can. 3.3 What is the approach of the national courts in Botswana towards a party who commences court proceedings in apparent breach of an arbitration agreement? Having agreed to submit future disputes to arbitration, both parties to a contract must cooperate if a dispute is submitted to arbitration. A party to the agreement cannot unilaterally elect to proceed to court for the purpose of resolving any dispute and thus deprive the other party of its contractual right to arbitration. Botswana arbitral tribunal to assume jurisdiction over individuals or entities which are not themselves party to an arbitration agreement; the individuals should either be: party to a submission; or any person claiming through or under him. 3.6 Under Section 17, titled Time for making an award: 1. Subject to the provisions of Section 19(2), and anything to the contrary in the submission, an arbitrator or umpire shall have the power to make an award at any time. 2. The time limit, if any, for making an award, whether under this Act or otherwise, may from time-to-time be extended by order of the Court or a judge thereof, whether that time has expired or not. 3.7 According to Section 6(1) of the Act: If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect of any matter B agreed to be referred to arbitration, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings subject to such terms and conditions as may be just. 3.4 Under what circumstances can a court address the issue of the jurisdiction and competence of the national arbitral tribunal? What is the standard of review in respect of a tribunal’s decision as to its own jurisdiction? According to Section 13 of the Act titled The Court’s powers to remove an arbitrator or umpire, to set award aside and to award costs: The Court may at any time, upon motion, remove any arbitrator or umpire against whom a just ground of recusation is found to exist, or who has misconducted the proceedings in connection with the arbitration. Where an arbitrator or umpire has misconducted the proceedings, or an arbitration or award has been improperly procured, the Court may set the award aside, and may award costs against any such arbitrator or umpire personally. 3.5 Under what, if any, circumstances does the national law of Botswana allow an arbitral tribunal to assume jurisdiction over individuals or entities which are not themselves party to an agreement to arbitrate? There are no circumstances under which Botswana law allows an 426 WWW.ICLG.CO.UK What laws or rules prescribe limitation periods for the commencement of arbitrations in Botswana and what is the typical length of such periods? Do the national courts of Botswana consider such rules procedural or substantive, i.e., what choice of law rules govern the application of limitation periods? What is the effect in Botswana of pending insolvency proceedings affecting one or more of the parties to ongoing arbitration proceedings? With regard to a submission in terms of the Act, Section 6 of the Act provides that: If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect to any matter agreed to be referred to arbitration, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings subject to such terms and conditions as may be just. The provisions of subsection (1) shall, in the case of the death or insolvency of any party to which it might apply, apply mutatis mutandis to the executor or trustee in the insolvency of such party. The death or insolvency of a party to a submission shall not be deemed to revoke such submission. 4 Choice of Law Rules 4.1 How is the law applicable to the substance of a dispute determined? Usually the law applicable to the substance of the dispute is agreed by the parties in the arbitration agreement. In the absence of agreement, the law applicable to the substance of the dispute will generally be either the law of the place of the arbitration or the law of the place where the contract is to be performed. 4.2 In what circumstances will mandatory laws (of the seat or of another jurisdiction) prevail over the law chosen by the parties? There are no circumstances. ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London 4.3 Botswana appoint or, as the case may be, concur in appointing an arbitrator, umpire or third arbitrator, and if the appointment is not made within seven clear days after the service of the notice, the Court or a judge thereof may, on application by the party who gave the notice, appoint an arbitrator, umpire or third arbitrator who shall have similar powers to act in the case and make an award as if he had been appointed by consent of all parties. What choice of law rules governs the formation, validity, and legality of arbitration agreements? The rules governing the formation, validity and legality of arbitration agreements will generally be determined by the law of the place where the arbitration is held. 5 Selection of Arbitral Tribunal 5.4 5.1 Are there any limits to the parties’ autonomy to select arbitrators? Yes, there are. Section 10(1) provides that: Where a submission provides that the reference shall be to three arbitrators, one to be appointed by each party and the third to be appointed by the two appointed by the parties, the submission shall have effect as if it provided for the appointment of an umpire, and not for the appointment of a third arbitrator, by the two arbitrators appointed by the parties. Section 11 provides the Court with the power to appoint an arbitrator or umpire in any of the following cases: Any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint or, as the case may be, concur in appointing an arbitrator, umpire or third arbitrator, and if the appointment is not made within seven clear days after the service of the notice, the Court or a judge thereof may, on application by the party who gave the notice, appoint an arbitrator, umpire or third arbitrator who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties. Section 12 of the Act states that arbitrators should be disinterested parties. 5.2 If the parties’ chosen method for selecting arbitrators fails, is there a default procedure? Yes. The court can appoint an arbitrator for them. 5.3 Can a court intervene in the selection of arbitrators? If so, how? What are the requirements (if any) as to arbitrator independence, neutrality and/or impartiality and for disclosure of potential conflicts of interest for arbitrators imposed by law or issued by arbitration institutions within Botswana? Botswana Luke & Associates Section 12 of the Act provides that an arbitrator must be and continue throughout the proceedings to be disinterested with reference to the matters referred and the parties to the case. He should have no interest (direct or indirect) in the matter referred or the parties to the reference, and he should know of nothing disqualifying him from being impartial and disinterested in the discharge of such duties. 6 Procedural Rules 6.1 Are there laws or rules governing the procedure of arbitration in Botswana? If so, do those laws or rules apply to all arbitral proceedings sited in Botswana? Yes. The Arbitration Act provides the procedure to be followed. However, the parties are mainly guided by the arbitration agreement or submissions into which they have entered. 6.2 In arbitration proceedings conducted in Botswana, are there any particular procedural steps that are required by law? Yes, there are. According to Section 10 of the Act, where a submission provides that the reference shall be to three arbitrators, one to be appointed by each party and the third to be appointed by the parties, the submission shall have effect as if it provided for the appointment of an umpire, and not for the appointment of a third arbitrator, by the two arbitrators appointed by the parties. Yes it can. Section 11 of the Act provides the Court with the power to appoint an arbitrator or umpire in any of the following cases: a) where a submission provides that the reference shall be to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator; b) if an appointed arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied and the parties do not supply the vacancy; c) d) where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him, or where two arbitrators are required to appoint an umpire and do not appoint him; where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy, any party may serve the other parties or the arbitrators, as the case may be, with a written notice to 6.3 Are there any particular rules that govern the conduct of counsel from Botswana in arbitral proceedings sited in Botswana? If so: (i) do those same rules also govern the conduct of counsel from Botswana in arbitral proceedings sited elsewhere; and (ii) do those same rules also govern the conduct of counsel from countries other than Botswana in arbitral proceedings sited in Botswana? Yes. This is not expressly stated in the act but it is implied. Arbitrators should: be able to perform their duties; be disinterested parties; not misconduct themselves and proceedings in any way; be fair; and be fit and proper. It is not clear if the same rules also govern the conduct of counsel from Botswana and counsel from countries in other arbitral proceedings sited elsewhere, as the Act is silent on this. ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London WWW.ICLG.CO.UK 427 Luke & Associates 6.4 What powers and duties does the national law of Botswana impose upon arbitrators? Botswana the same effect, and where leave is so given, judgment may be entered in terms of the award. 3. The following powers and duties are imposed upon arbitrators: Botswana 1. 2. 3. The authority of an arbitrator or umpire appointed by or by virtue of a submission shall, unless a contrary intention is expressed in the submission, be irrevocable except by leave of the Court or a judge thereof. Interlocutory powers Any party to a submission may apply for process of the Court in order to compel a witness to attend. Any party to a submission is entitled, subject to the law relating to procedure of the Court, to obtain from the Court an order: for the examination of a witness or witnesses before a special examiner either in Botswana or elsewhere; Unless a contrary intention is expressed therein, every submission shall, where such a provision is applicable to the reference, be deemed to contain a provision that the arbitrator or umpire may, if he thinks fit, make an interim award, and any reference in this Part of this Act to an award includes a reference to an interim award. for the discovery of documents and interrogatories; for evidence to be given by affidavit in the same circumstances as in litigation; for another party to give security for costs in the same way as a litigant; The report or award of any arbitrator on any such reference shall, unless set aside by the Court, be equivalent to a finding of fact by the Court. 4. The power to administer oaths or to take the affirmations of the parties and witnesses appearing. 5. The power to correct in any award any clerical mistake or error arising from an accidental slip or omission. 6. The duty, on the application of either party, to appoint a commissioner to take the evidence of a person residing outside of Botswana and forward the same to arbitrators in the same way as if he were a commissioner appointed by the Court. for the inspection, or the interim preservation, or the sale of goods or property; for an interim injunction or similar relief; for directing an issue by way of interpleader between two parties to a submission for the relief of a third party desiring so to interplead; and for substituted service of notices required by this Act, including service upon an agent in Botswana of a party resident elsewhere. 4. 6.5 Are there rules restricting the appearance of lawyers from other jurisdictions in legal matters in Botswana and, if so, is it clear that such restrictions do not apply to arbitration proceedings sited in Botswana? Yes, there are. Whether or not such rules apply to arbitration proceedings is not clear as the Act is silent on this. 6.6 Time for making award The time limit, if any, for making an award, whether under this Act or otherwise, may from time-to-time be extended by order of the Court or a judge thereof, whether such time limit has expired or not. 7 Preliminary Relief and Interim Measures 7.1 To what extent are there laws or rules in Botswana providing for arbitrator immunity? Is an arbitrator in Botswana permitted to award preliminary or interim relief? If so, what types of relief? Must an arbitrator seek the assistance of a court to do so? Yes he/she is. The Act is silent on this. Yes they do. Unless a contrary intention is expressed therein, every submission shall, where such a provision is applicable to the reference, be deemed to contain a provision that the arbitrator or umpire may, if he thinks fit, make an interim award, and any reference in this Part of this Act to an award includes a reference to an interim award. 1. The arbitrator need not seek assistance from the court. 6.7 Do the national courts have jurisdiction to deal with procedural issues arising during an arbitration? Appointment or removal of an arbitrator The Court or a judge may, on application by the party to the arbitration, appoint an arbitrator, umpire or third arbitrator who shall have similar powers to act in the proceedings and make an award as if he had been appointed with consent of all parties. 7.2 The Court or a judge may order the process of the Court to issue to compel the attendance before a special or official referee, or officer of the Court, or before an arbitrator or umpire, of a witness, wherever he may be, within the jurisdiction of the Court or judge, or may order any prisoner to be brought up for examination before such officer, referee, arbitrator or umpire. Yes a court is entitled to grant preliminary or interim relief in proceedings subject to arbitration. The Court may, on the application of any party to proceedings, remove an arbitrator or umpire who fails to use all reasonable means proceed with the case and make an award, and an arbitrator or umpire who is removed by the Court under this subsection shall not be entitled to receive any remuneration in respect of his services. 2. Enforcement of award An award on a submission may, by leave of the Court or a judge thereof, be enforced in the same manner as a judgment or order to 428 According to Section 18 of the Act: WWW.ICLG.CO.UK Is a court entitled to grant preliminary or interim relief in proceedings subject to arbitration? In what circumstances? Can a party’s request to a court for relief have any effect on the jurisdiction of the arbitration tribunal? Section 6 of the Act provides any party to a submission or any person claiming through or under such party, apply to that court to stay the proceedings, and that court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings commenced, and still remains, ready and willing to do all things necessary for the proper conduct of the arbitration, may make an order staying the proceedings subject to such terms and conditions as may be just. ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London Luke & Associates 7.3 Botswana h) In practice, what is the approach of the national courts to requests for interim relief by parties to arbitration agreements? for substituted service of notices required by this Act, including service upon an agent in Botswana of a party resident elsewhere. According to Section 20: An award on a submission may, by leave of the Court or a judge thereof, be enforced in the same manner as a judgment or order to the same effect, and where leave is so given, judgment may be entered in terms of the award. 7.4 Under what circumstances will a national court of Botswana issue an anti-suit injunction in aid of an arbitration? The issue of a subpoena or summons on a witness to compel his attendance and the production of evidence or documents before an arbitrator, umpire, officer of the Court or official referee, as the case may be, may be procured in the same way and subject to the same conditions as if the matter were an action pending in Court: (a) by any party to a submission, or any arbitrator, or umpire thereunder; (b) by the parties to the proceedings under any order of the Court; or (c) by any officer of the Court, official or special referee hearing any reference under order of Court, provided that: i. no person shall be compelled on such subpoena to produce any document or thing the production of which would not be compellable on trial of an action; and ii. the clerk of the court of any magistrate may issue such subpoena in the name and on behalf of the Registrar of the Court upon payment of the same fees as are chargeable for the issue of a subpoena in the magistrates’ court. Once again the Act is silent on this. 7.5 Does the national law allow for the national court and/or arbitral tribunal to order security for costs? Yes it does. According to Section 31 of the Act: Any order made under this Act may be made on such terms as to costs or otherwise as the authority making the order thinks just. 8.2 8 Evidentiary Matters Botswana Section 28 – Subpoena or Summons As discussed in question 7.2, it depends on the circumstances of each case. Are there limits on the scope of an arbitrator’s authority to order the disclosure of documents and other disclosure (including third party disclosure)? Yes there are. 8.1 What rules of evidence (if any) apply to arbitral proceedings in Botswana? The rules of evidence as observed in a court of law are followed as far as possible. Below are some examples as provided by the Arbitration Act. Section 32 – False Evidence Any person who wilfully or corruptly gives false evidence before any such officer, referee, arbitrator or umpire shall be guilty of perjury in the same way as if the evidence had been given in open Court, and may be dealt with, prosecuted and punished accordingly. Section 16 (1) (2) Any party to a submission may take out process of the Court for the attendance of witnesses, but no person shall be compelled under any such process to produce any document which he could not be compelled to produce during the trial of any action. Any party to a submission is entitled, subject to the law relating to procedure of the Court, to obtain from the Court an order: Any party to a submission may take out process of the Court for the attendance of witnesses, but no person shall be compelled under any such process to produce any document which he could not be compelled to produce on the trial of any action. (Section 16 of the Act.) 8.3 Under what circumstances, if any, is a court able to intervene in matters of disclosure/discovery? The court is able to intervene when a person is compelled to produce a document which he could not be compelled to produce during the trial of an action in court. 8.4 What, if any, laws, regulations or professional rules apply to the production of written and/or oral witness testimony? For example, must witnesses be sworn in before the tribunal or is cross-examination allowed? According to the Arbitration Act: a) for the examination of a witness or witnesses before a special examiner either in Botswana or elsewhere; b) for the discovery of documents and interrogatories; c) for evidence to be given by affidavit in the same circumstances as in litigation; a) to administer oaths or to take the affirmations of the parties and witnesses appearing; and d) for another party to give security for costs in the same way as a litigant; b) e) for the inspection, or the interim preservation, or the sale of goods or property related the subject matter of the arbitration; on the application of either party to appoint a commissioner, to take the evidence of a person residing outside Botswana and forward the same to arbitrators in the same way as if he were a commissioner appointed by the court. f) for an interim injunction or similar relief; g) for directing an issue by way of an interpleader between two parties to a submission for the relief of a third party desiring to interplead; and The arbitrator or umpire acting under a submission shall, unless the submission expresses a contrary intention, have power: Any person who wilfully or corruptly gives false evidence before any such officer, referee, arbitrator or umpire shall be guilty of perjury in the same way as if the evidence had been given in open Court, and may be dealt with, prosecuted and punished accordingly. ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London WWW.ICLG.CO.UK 429 Luke & Associates Botswana 8.5 What is the scope of the privilege rules under the law of Botswana? For example, do all communications with outside counsel and/or in-house counsel attract privilege? In what circumstances is privilege deemed to have been waived? The issues of privilege that arise in arbitration proceedings are similar to those that arise in litigation. 9 Making an Award 9.1 What, if any, are the legal requirements of an arbitral award? For example, is there any requirement under the law of Botswana that the Award contain reasons or that the arbitrators sign every page? According to the Arbitration Act: a) An arbitrator or umpire shall have power to make an award at any time. b) The time limit, if any, for making an award, whether under this Act or otherwise, may from time-to-time be extended by order of the Court or a judge thereof, whether that time has expired or not (Section 17). c) An award on a submission may, by leave of the Court or a judge thereof, be enforced in the same manner as a judgment or order to the same effect, and where leave is so given, judgment may be entered in terms of the award (Section 20). d) The award to be made by the arbitrator, arbitrators or umpire shall be in writing, and shall, if made in terms of the submission, be final and binding on the parties and the persons claiming under them respectively (Regulation 13). e) There is no requirement, under the Act, that the award contain reasons or that the arbitrators sign every page. 10 Challenge of an Award 10.1 On what bases, if any, are parties entitled to challenge an arbitral award made in Botswana? Parties are entitled to challenge an arbitral award given by an arbitrator who has misconducted the proceedings in connection with the arbitration. According to Section 13(2): Where an arbitrator or umpire has misconducted the proceedings, or an arbitration or award has been improperly procured, the Court may set the award aside, and may award costs against any such arbitrator or umpire personally. 10.2 Can parties agree to exclude any basis of challenge against an arbitral award that would otherwise apply as a matter of law? Botswana could, by agreement, expand the scope of the appeal. However, arbitration agreements that provide for an appeal generally do not expand the scope of appeal beyond the grounds applicable in appeals from the High Court to the Supreme Court of Appeal. 10.4 What is the procedure for appealing an arbitral award in Botswana? Parties are only entitled to appeal if the arbitration agreement provides for an appeal. Where the arbitration agreement provides for an appeal, the procedure will be determined by the agreement or by the rules of the arbitration organisation administering the arbitration. 11 11.1 Has Botswana signed and/or ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? Has it entered any reservations? What is the relevant national legislation? Yes, it has, on 20 December 1971. Botswana entered a reservation that the convention would apply only to the recognition of awards made in the territory of another contracting state. 11.2 Has Botswana signed and/or ratified any regional Conventions concerning the recognition and enforcement of arbitral awards? Yes it has, the SADC protocol. The Protocol was signed by the heads of State or Government on 18 August 2006. 11.3 What is the approach of the national courts in Botswana towards the recognition and enforcement of arbitration awards in practice? What steps are parties required to take? For a foreign arbitration award to be enforced, a party to the arbitration would have to bring an action on the award as one would do with a foreign judgment. In addition, statutes allow a person in whose favour an award has been made to enforce an award on an arbitration agreement in the same manner as a judgment with leave of the court. Even though (under the Convention) an arbitration award issued in any other state can generally be freely enforced in any other contracting state, it is only subject to certain, limited defences. These defences are: 1. a party to the arbitration agreement was, according to the law applicable to him, under some incapacity; 2. the arbitration agreement was not valid under its governing law; 3. a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present its case; 4. the award deals with an issue not contemplated by or not falling within the terms of the submission to arbitration, or contains matters beyond the scope of the arbitration (subject to the proviso that an award which contains decisions on such matters may be enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those matters not so submitted); 5. the composition of the arbitral tribunal was not in accordance with the agreement of the parties or, failing such agreement, with the law of the place where the hearing took place (the “lex loci arbitri”); If the arbitration agreement says so then yes. According to Section 3: The authority of an arbitrator or umpire appointed by or by virtue of a submission shall, unless a contrary intention is expressed in the submission, be irrevocable except by leave of the Court or a judge thereof. 10.3 Can parties agree to expand the scope of appeal of an arbitral award beyond the grounds available in relevant national laws? If the arbitration agreement provides for an appeal, the parties 430 WWW.ICLG.CO.UK Enforcement of an Award ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London Luke & Associates the award has not yet become binding upon the parties, or has been set aside or suspended by a competent authority, either in the country where the arbitration took place, or pursuant to the law of the arbitration agreement; 7. the subject matter of the award was not capable of resolution by arbitration; or 8. enforcement would be contrary to “public policy”. 11.4 What is the effect of an arbitration award in terms of res judicata in Botswana? Does the fact that certain issues have been finally determined by an arbitral tribunal preclude those issues from being re-heard in a national court and, if so, in what circumstances? The fact that certain issues have been finally determined by an arbitral tribunal precludes those issues from being reheard, between the same parties, in a national court. subsection (2) as at the time when such interest begins to run, unless a court, on the ground of special circumstances relating to that debt, orders otherwise. 2. The Minister may, by order published in the Gazette, prescribe a rate of interest for the purposes of subsection (1). 13.3 Are parties entitled to recover fees and/or costs and, if so, on what basis? What is the general practice with regard to shifting fees and costs between the parties? The Act is silent on this though the usual procedure is that costs follow the event and the winner will be entitled to its costs. Botswana 6. Botswana 13.4 Is an award subject to tax? If so, in what circumstances and on what basis? Yes it is subject to tax. According to Section 14: 11.5 What is the standard for refusing enforcement of an arbitral award on the grounds of public policy? This rarely happens. 12 Confidentiality 12.1 Are arbitral proceedings sited in Botswana confidential? In what circumstances, if any, are proceedings not protected by confidentiality? What, if any, law governs confidentiality? The Act does not provide for the confidentiality of arbitration proceedings. However, even if the arbitration agreement does not expressly provide that the arbitration proceedings are confidential, such a term will be implied. 12.2 Can information disclosed in arbitral proceedings be referred to and/or relied on in subsequent proceedings? A party may not disclose information about the arbitration to an outsider without the consent of the other party to the arbitration. 13 Remedies / Interests / Costs 13.1 Are there limits on the types of remedies (including damages) that are available in arbitration (e.g., punitive damages)? The fees made payable to any arbitrator or umpire by an award, notwithstanding that such fees may have already been paid by the parties, shall be subject to taxation at the expense of the parties desiring taxation by the taxing officer of the Court, with the right of appeal to the Court, provided that: (i) no taxation or reduction of such fees shall be allowed if they are in accordance with any agreement between the arbitrator or umpire concerned and the party applying for taxation; and (ii) the party applying for taxation and the arbitrator or umpire, taxation of whose fees is thus applied for, shall be entitled to appear before and be heard by the Court in the matter of such taxation. 13.5 Are there any restrictions on third parties, including lawyers, funding claims under the law of Botswana? Are contingency fees legal under the law of Botswana? Are there any “professional” funders active in the market, either for litigation or arbitration? The Act is silent on this but at present contingency fees are not permissible. 14 Investor State Arbitrations 14.1 Has Botswana signed and ratified the Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (1965) (otherwise known as “ICSID”)? Yes, it has. The Act is silent on this, however, Section 31 reads as follows: Any order made under this Act may be made on such terms as to costs or otherwise as the authority making the order thinks just. 13.2 What, if any, interest is available, and how is the rate of interest determined? The Act is silent on this, however interest for a judgment is normally in accordance with the Prescribed Rate of Interest Act. Section 3 of the Prescribed Rate of Interest Act reads as follows: 1. If a debt bears interest and the rate at which the interest is to be calculated is not governed by any other written law or by an agreement or a trade custom or in any other manner, such interest shall be calculated at the rate prescribed under 14.2 How many Bilateral Investment Treaties (BITs) or other multi-party investment treaties (such as the Energy Charter Treaty) is Botswana party to? Botswana has signed 8 bilateral treaties, the first on 31st July 1997 and last on the 21st March 2011. 14.3 Does Botswana have any noteworthy language that it uses in its investment treaties (for example in relation to “most favoured nation” or exhaustion of local remedies provisions)? If so, what is the intended significance of that language? Not that we are aware of. The Act is silent on this. ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London WWW.ICLG.CO.UK 431 Luke & Associates Botswana Botswana 14.4 What is the approach of the national courts in Botswana towards the defence of state immunity regarding jurisdiction and execution? The distinction between jus imperii and jure gestiones is important because it determines the nature of conduct, acts or transactions for which a state is entitled to claim jurisdictional immunity. A foreign state enjoys immunity from jurisdiction whenever a dispute relates to its sovereign activities (jus imperii), whilst it cannot claim such immunity from private acts (jure gestiones). It is an established principle of the Roman Dutch common law that principles of public international law which are not inconsistent with legislation or common law form part of the law of Botswana and the courts are bound to give effect to them. In Botswana, this preposition was recently accepted by Kirby J (as he then was) in the case of the Republic of Angola v Springbok Investments (Pty) Ltd [2005] 2 B.L.R. 159 at p 163E, where he said: Similarly, I have no doubt that the rules of international law form part of the law of Botswana, as a member of the wider family of nations, save in so far as they conflict with Botswana legislation or common law, and it is the duty of the court to apply them. 432 WWW.ICLG.CO.UK 15 General 15.1 Are there noteworthy trends in or current issues affecting the use of arbitration in Botswana (such as pending or proposed legislation)? Are there any trends regarding the type of disputes commonly being referred to arbitration? Disputes commonly referred to arbitration are labour disputes. Part II of the Trade Dispute Act deals specifically with the establishment of procedure for the settlement of trade disputes generally ss 314. 15.2 What, if any, recent steps have institutions in Botswana taken to address current issues in arbitration (such as time and costs)? For industrial court matters: 1. The arbitrator shall attempt to resolve the matter referred to him/her within 30 days. 2. A party aggrieved by the decision of the arbitrator may appeal against such decision to the Industrial Court within 14 days of the arbitrators’ decision and such appeal shall lie only in respect of a decision: (a) to join a party to the arbitration proceedings; or (b) concerning the jurisdiction of the arbitrator to make an award. ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London Botswana Edward W. F. Luke II Galaletsang P. Ramokate Luke & Associates PO Box 301097 Tlokweng Botswana Luke & Associates PO Box 301097 Tlokweng Botswana Tel: +267 391 9345 Fax: +267 391 9343 Email: [email protected]/ [email protected] Tel: +267 391 9345 Fax: +267 391 9343 Email: [email protected] EDWARD W. FASHOLE-LUKE II, Botswana Citizen, born Freetown, Sierra Leone, March 28, 1960, admitted, 1986, England and Wales (Barrister-at-Law); 1989, Botswana (Attorney); 1993, Sierra Leone (Barrister and Solicitor). He is the Managing Partner of the firm and one of the leading lawyers in Botswana with a wealth of local and International experience, and is listed in Who’s Who of Southern Africa, and the International Who’s Who of professionals in Washington, D.C. Education: Fourah Bay College, University of Sierra Leone (B.A., 1982); University of London (LL.B., hons., 1985); Honourable Society of the Middle Temple (B.L., 1986). Author: “The Lawyer Who Defended Himself in Jail”, Holborn School of Law Review, 1985. Academic Tutor, Holborn School of Law, 1986-1987. Chambers of Sir Simon Tuckey Q.C., London , 1987. Barrister-atLaw, Brobeck, Phleger & Harrison, California, 1987-1989. Attorney at Law , Botswana, 1989-present. Clubs: Rand Club of Johannesburg; Rotary Club of Gaborone. Member: International Bar Association (Committee Rappoteur for Botswana, 1991-1992); Commonwealth Lawyers Association; Corporate Lawyers Association of South Africa; Society of Conservative Lawyers of England; Inns of Court of California; Honorary Member Commercial Bar Association of England and Wales, Vice Chair to the Foreign Legal Consultant Committee of the American Bar Association Section of International Law; Vice Chairman ABA International Criminal Law Committee; Member of the Steering Group for the International Litigation Committee of ABA International. Chapter chair for Botswana of the New York State Bar Association International Law Section. Languages: English. Citizen of Botswana. An undergraduate law student at the University of Botswana set to graduate in October 2014. She is currently doing her mini pupillage at Luke & Associates, one of the leading firms in Botswana. Botswana Luke & Associates Established in 1996, the firm has a broad-based general practice with a reputation for offering a full range of quality legal services. The firm frequently works with numerous firms of international repute in several jurisdictions around the world. It provides a diverse range of corporate and commercial legal services required by companies, financial institutions and government bodies. The firm is recognised in Botswana as one of the leading firms in the fields of banking and finance, corporate and financial services, insurance, real estate, and litigation. We were recently voted as the third best law firm in Botswana in the Business and Financial Times magazine, a considerable achievement in light of the fact the firm is only 18 years old. ICLG TO: INTERNATIONAL ARBITRATION 2014 © Published and reproduced with kind permission by Global Legal Group Ltd, London WWW.ICLG.CO.UK 433 Current titles in the ICLG series include: Alternative Investment Funds Aviation Law Business Crime Cartels & Leniency Class & Group Actions Competition Litigation Construction & Engineering Law Copyright Corporate Governance Corporate Immigration Corporate Recovery & Insolvency Corporate Tax Data Protection Employment & Labour Law Environment & Climate Change Law Franchise Gambling Insurance & Reinsurance International Arbitration Lending & Secured Finance Litigation & Dispute Resolution Merger Control Mergers & Acquisitions Mining Law Oil & Gas Regulation Patents Pharmaceutical Advertising Private Client Product Liability Project Finance Public Procurement Real Estate Securitisation Shipping Law Telecoms, Media & Internet Trade Marks 59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 20 7367 0720 / Fax: +44 20 7407 5255 Email: [email protected] www.iclg.co.uk
© Copyright 2024 ExpyDoc
