The Recognition And Enforcement Of Foreign Arbitration Agreements And Awards Under The New York Convention In Botswana: A Reappraisal

Abstract

Alternative Dispute Resolution (ADR) methods play a significant role in the settlement of commercial and investment disputes. Arbitration, in particular, has been the most effective and efficient method for resolving disputes in international commercial and investment transactions. The ease and simplicity in the enforcement of arbitral awards across borders is notable in this respect. The New York Convention has significantly been lubricating the wheels of the system for cross-border mobility of arbitral awards in international business transactions. The New York Convention sets out uniform standards for the recognition and enforcement of international commercial and investment arbitral awards. Botswana is a party to the New York Convention as of 1977. In acceding to the Convention, Botswana has entered three reservations, namely, reciprocity, commercial and non-retroactivity. The non-retroactivity reservation may no longer have an adverse effect. The reciprocity and commercial reservation, however, have given rise to multiple enforcement regimes. Apart from the reservations, some of the provisions of the New York Convention have also been omitted and others inadequately captured in the implementing Act. In this respect, the impact of the afore-cited reservations in the application of the New York Convention in Botswana has been examined. In addition to the reciprocity requirement, section 3(3) of the implementing Act requires that an arbitral award from a convention state can be recognized and enforced in Botswana only if that state recognizes and enforces arbitral awards made in Botswana. It is submitted that this additional requirement may complicate the enforcement of arbitral awards in Botswana. The far-reaching ramifications thereof are dealt with in terms of the existing arbitral jurisprudence and practice. The new developments and its trajectories apropos Article VII of the New York Convention, which is not made applicable in Botswana, have been brought to the spotlight. Article VII has, in what seems a watershed departure, made possible the recognition and enforcement of foreign arbitral awards which are set aside (vacated) in their country of origin.