THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRATION AGREEMENTS AND AWARDS UNDER THE NEW YORK CONVENTION IN BOTSWANA: A REAPPRAISAL

Abstract

The use of international commercial arbitration as the preferred method of dispute settlement in international commercial and investment transactions continues to gain traction. The ease of enforceability of international commercial and investment awards in domestic courts has, inter alia, significantly contributed to this. In this respect, the role that the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards has been playing is tremendous. In Botswana, apart from the New York Convention, parties can also, under certain circumstances, invoke the provisions of the Judgments (International Enforcement) Act for the purpose of recognition and enforcement of foreign arbitral awards. Investment arbitral awards are also conveniently classified into ICSID and Non-ICSID awards; the former class of awards do not call the application of the New York Convention for their enforcement. Furthermore, the increasing propensity (by arbitration-friendly states) to grant recognition and enforcement of foreign arbitral awards, which are annulled or set aside in their country of origin is worth noting. Such practice, should the need arises in Botswana, could have been catered for under Article VII of the New York Convention, which provision, however, was omitted in the Implementation Act.