3.       Authority of arbitrators and umpires to be irrevocable

            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.

4.       Submission to include provisions in Schedule

            A submission, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the Schedule, so far as they are applicable to the reference under the submission.

5.       Reference to an official referee

            Where a submission provides that the reference shall be to an official referee, any official referee to whom application is made shall, subject to any order of Court (or a judge), hear and determine the matters agreed to be referred.

6.       Staying of legal proceedings

            (1) 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, 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.

            (2) 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.

            (3) The death or insolvency of a party to a submission shall not be deemed to revoke such submission.

7.       Matters not to be submitted to arbitration

            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;

     (c)     matters in which minors or other persons under legal disability may be interested.

8.       Power of parties in certain cases to supply vacancy

            Where a submission provides that the reference shall be to two arbitrators, one to be appointed by each party, then, unless a contrary intention is expressed therein-

     (a)     if either of the appointed arbitrators refuses to act, or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place;

     (b)     if, on such reference, one party fails to appoint an arbitrator, either originally, or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference and his award shall be binding on both parties as if he had been appointed by consent:

            Provided that the Court or a judge thereof may set aside any appointment made in pursuance of this section.

9.       Umpires

            (1) Unless a contrary intention is expressed therein, every submission shall, where the reference is to two arbitrators, be deemed to include a provision that the two arbitrators shall appoint an umpire immediately after they are themselves appointed.

            (2) Unless a contrary intention is expressed therein, every submission shall, where such a provision is applicable to the reference, be deemed to include a provision that if the arbitrators have delivered to any party to the submission, or to the umpire, a notice in writing stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators.

            (3) At any time after the appointment of an umpire, however appointed, the Court may, on the application of any party to the reference and notwithstanding anything to the contrary in the submission, order that the umpire shall enter upon the reference in lieu of the arbitrators and as if he were a sole arbitrator.

10.     Reference to three arbitrators

            (1) 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.

            (2) Where a submission provides that the reference shall be to three arbitrators to be appointed otherwise than as mentioned in subsection (1), the award of any two of the arbitrators shall be binding.

11.     Power of Court in certain cases 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)     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; 

     (d)     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 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.

12.     Arbitrators and umpires to be distinterested parties

            Every arbitrator and umpire must be and continue throughout the reference to be disinterested with reference to the matters referred and the parties to the reference, and any party to a reference may require any arbitrator or umpire to make a sworn declaration before beginning or continuing his duties as such arbitrator or umpire, that he has no interest (direct or indirect) in the matter referred or the parties to the reference, and knows of nothing disqualifying him from being impartial and disinterested in the discharge of such duties:

            Provided that any party may expressly waive any right to object to any arbitrator or umpire on the ground of interest or the like.

13.     Court's powers to remove arbitrator or umpire, to set award aside and to award costs

            (1) 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.

            (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.

14.     Taxation of fees

            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.

15.     Powers of arbitrator or umpire

            The arbitrator or umpire acting under a submission shall, unless the submission expresses a contrary intention, have power-

     (a)     to administer oaths or to take the affirmations of the parties and witnesses appearing;

     (b)     to correct in any award any clerical mistake or error arising from any accidental slip or omission; and

     (c)     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.

16.     Interlocutory powers of Court

            (1) 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.

            (2) Any party to a submission is entitled, subject to the law relating to procedure of the Court, to obtain from the Court an order-

     (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;

     (d)     for another party to give security for costs in the same way as a litigant;

     (e)     for the inspection, or the interim preservation, or the sale of goods or property, the subject matter of the arbitration;

     (f)      for an interim injunction or similar relief;

     (g)     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;

     (h)     for substituted service of notices required by this Act, including service upon an agent in Botswana of a party resident elsewhere.

17.     Time for making award

            (1) Subject to the provisions of section 19(2), and anything to the contrary in the submission, an arbitrator or umpire shall have power to make an award at any time.

            (2) The time, if any, limited for making an award, whether under this Act or otherwise, may from time to time be enlarged by order of the Court or a judge thereof, whether that time has expired or not.

            (3) The Court may, on the application of any party to a reference, remove an arbitrator or umpire who fails to use all reasonable dispatch in entering on and proceeding with the reference and making 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.

            (4) For the purposes of subsection (3), the expression "proceeding with the reference" includes, in a case where two arbitrators are unable to agree, giving notice of that fact to the parties and to the umpire.

18.     Interim awards

            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.

19.     Remission of case by Court

            (1) In all cases of reference to arbitration the Court may from time to time remit the matters referred, or any of them, for the reconsideration of the arbitrators or umpire.

            (2) When an award is remitted, the arbitrators or umpire shall, unless the Court otherwise directs, make their award within three months after the date of the order.

20.     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.

21.     Procedure when place of arbitration not provided for in submission

            Where the submission does not provide in what place the arbitration shall be held, the arbitrators or umpire may from time to time decide upon such place as may be reasonably accessible to the parties and convenient for the purposes of the reference.