The doctrine of competence-competence and the Botswana Arbitration Act of 1959: the need for reform

Abstract

The summative intent of this article is to offer an assessment of the conformity or otherwise of the Botswana Arbitration Act of 1959 to the requirements of modern international commercial arbitration. The article indicates that the Botswana Arbitration Act (the Act) is archaic and unsuited for arbitration to the extent that it presents numerous opportunities for the court to interfere in arbitral proceedings and does not confer the arbitral tribunal with sufficient powers to effectively conduct its proceedings. Whereas the article encapsulates some of the major shortfalls of the Act in relation to the balance of power between the national courts and the arbitral tribunal, the article shall focus on the failure of the Act to provide for the doctrine of competence-competence and the principle of separability of the arbitration clause. Consequently, the article shall assess the doctrine of competence-competence as encompassed by the UNCITRAL Model Law on International Commercial Arbitration 1985 and the 1996 English Arbitration Act with a view of making a recommendation of the position that ought to be adopted by Botswana to bring its laws to international standards and make itself an attractive and conducive venue for arbitration. Moreover, the article also draws from South African jurisprudence since they have an Arbitration Act akin to Botswana’s and their case law is frequently relied upon by Botswana courts as persuasive authority.