COPYRIGHT AND NEIGHBOURING RIGHTS: SUBSIDIARY LEGISLATION

INDEX TO SUBSIDIARY LEGISLATION

(section 37)

(16th March, 2007)

ARRANGEMENT OF REGULATIONS

REGULATION

1. Citation

2. Application by Copyright Society

3. Identification of investigating officer

4. Investigation procedure

5. Prescription of hologram

6. Accreditation of producers

7. Accreditation of importers

8. Levy on technical devices

9. Keeping of books and returns

10. Fees

First Schedule

Second Schedule

Third Schedule

Fourth Schedule

S.I. 11, 2007,
S.I. 33, 2008,
S.I. 58, 2008,
S.I. 41, 2022.

1. Citation

These Regulations may be cited as the Copyright and Neighbouring Rights Regulations.

2. Application by Copyright Society

(1) The application for a licence to be issued to a Copyright Society under section 22B(i) of the Act as amended by the Copyright and Neighbouring Rights (Amendment) Act 2005, shall be in Form 1A as set out in the First Schedule.

(2) The licence to be issued to a Copyright Society under section 22B(i) of the Act shall be in Form 1B as set out in the First Schedule.

3. Identification of investigating officer

The identification card to be presented by an investigating officer under section 29(6)(a) of the Act shall be in Form 2A as set out in Second Schedule.

4. Investigation procedure

(1) The consent to enter premises, conduct a search or seize any item found within any premises for the purposes of section 29(2)(a) of the Act shall be in Form 2B as set out in the Second Schedule.

(2) The owner of the premises or the person in charge of the premises shall, if any property is seized from the premises, be issued with a certificate of seizure in Form 2C as set out in the Second Schedule.

5. Prescription of hologram

The security device to be affixed to every sound and audio-visual recording in accordance with section 35A and 35B of the Act shall be in the form of a hologram stamp.

6. Accreditation of producers

(1) Any person who engages in the reproduction of sound and audio-visual recordings in accordance with the provisions of section 35D(1) of the Act shall, for the purpose of being accredited as a producer, apply to the Copyright Office, in Form 3A set out in the Third Schedule.

(2) Upon the accreditation of a person who applied for accreditation in terms of subregulation (1), the Copyright Office shall issue to that person a certificate of accreditation in Form 3B as set out in the Third Schedule.

7. Accreditation of importers

(1) Any person who imports into Botswana any sound and audio-visual recordings in accordance with section 35E (1) of the Act shall, for the purpose of being accredited as an importer, apply to the Copyright Office, in Form 3C as set out in Third Schedule.

(2) Upon the accreditation of a person who applies for accreditation in terms of subregulation (1), the Copyright Office shall issue to that person a certificate of accreditation in Form 3D as set out in the Third Schedule.

8. Levy on technical devices

The levy imposed on all imported and locally manufactured blank sound and audio visual carriers and equipment in accordance with section 35G of the Act shall be as set out in the Fourth Schedule.

9. Keeping of books and returns

(1) Every accredited person shall—

(a) keep an inventory of stock of security devices purchased from the Copyright Office for inspection by the Copyright Office; and

(b) submit quarterly returns of security devices to the Copyright Office.

(2) In complying with subsection (1), if the inventory and returns of security devices do not give a true and fair view of the matters to which they relate, the directors shall add such information and explanations as will give a true and fair view of those matters.

10. Fees

The fees to be paid in relation to any application form under these Regulations shall be P40.

FIRST SCHEDULE

Form 1A
Application for a licence to operate a copyright society

(reg. 2(1))

Form 1B
Licence issued for the operation of a copyright society

(reg. 2(2))

SECOND SCHEDULE

Form 2A
Investigating officer’s identity card

(reg. 3)

Form 2B
Entry, search and seizure consent form

(reg. 4(1))

Form 2C
Certificate of seizure

(reg. 4(2))

THIRD SCHEDULE

Form 3A
Application for accreditation as a producer

(reg. 6(1))

Form 3B
Certificate of accreditation as a producer

(reg. 6(2))

Form 3C
Application for accreditation as an importer

(reg. 7(1))

Form 3D
Certificate of accreditation as an importer

(reg. 7(2))

FOURTH SCHEDULE

LEVIES

(reg. 8)

Goods	% of the levy on cost price
Audio Cassette	2%
Video Cassette	2%
Compact Disc (CD) (Unrecorded)	1%
Digital Versatile Disc (DVD) (Unrecorded)	1%
smartphones	2%
other cell phones	1%
Computer (Desktop)	1%
CD Writer	1%
Multi-function machine (printer/copier/fax/scanner)	2%
Facsimile	2%
Photocopier	2%
Printer	2%
Scanner	2%
Modulator	1%
IPod	1%
iPad	2%
MP3 Player	1%
MP4 Player	1%
Flash Disc	1%
Camcorder	2%
Digital camera	2%
Photographic camera	2%
Television camera	2%
Television	2%
Cinematographic camera	2%
Cinematographic projector	2%
Laptop	2%
Tablet	2%
Video recording or reproducing apparatus, whether or not incorporating a video tuner	2%
Sound recording or reproducing apparatus	2%
Memory card or Smart card	2%
External hard drive	2%
Television decoder or Set top box	2%
Drone	2%
CCTV camera	2%

(section 37)

(14th July, 2023)

ARRANGEMENT OF RULES

RULE

1. Citation

2. Interpretation

3. Application

4. Rules forming part of arbitration agreement

5. Documents written or printed

6. Service of documents

7. No service on weekends or holidays

8. Address

9. Time limit

10. Extension of time

11. Request for arbitration

12. Request for urgent arbitration

13. Respondent to be informed of receipt of request for arbitration

14. Representation

15. Consent to arbitration and notification

16. Statement of defence

17. Commencement of arbitration

18. Further written statements

19. Amendment of claim or defence

20. Interim measures

21. Preparatory conference

22. Evidence

23. Site visits

24. Confidential information

25. Hearings

26. Witnesses

27. Experts

28. Filing of statement of claim

29. Default

30. Closure of pleadings

31. Waiver

32. Awards and other decisions

33. Length of proceedings

34. Final arbitral award

35. Effect and enforcement of award

36. Certified copy of arbitral award

37. Currency

38. Settlement

39. Correction of award

40. Deposits

41. Liability

42. Impartiality and independence

43. Disclosure of interest

44. Confidentiality

45. Acceptance of appointment as arbitrator

46. Challenges of arbitrator’s participation

47. Notice of challenges

48. Right to respond to challenges

49. Suspension of arbitral proceedings

50. Recusal or removal of arbitrator

51. Proceedings after replacement of arbitrator

52. Appeals

SCHEDULE 1

SCHEDULE 2

S.I. 84, 2023.

1. Citation

These Rules may be cited as the Copyright Arbitration Panel Rules.

2. Interpretation

In these Rules, unless the context otherwise requires—

“arbitration agreement” means an agreement by the parties in a contract or other agreement to submit all or some disputes that may arise between them for arbitration;

“claimant” means a party who initiates an arbitration proceeding;

“copyright dispute” means any dispute relating to the infringement of copyright and related rights or a breach of a contract or other agreement in relation to—

(a) protected works, including the distribution and collection of royalties;

(b) the determination of equitable remuneration for the use of sound recordings;

(c) the granting of licences for the adaptation of works, performances, sound recordings or any other purpose that may require licencing;

(d) the accreditation of importers and producers and the fixing of prices for the affixation of security devices; and

“costs”, in relation to arbitration, means expenses incurred by the respective parties in connection with the arbitration proceedings; and

“Panel” means the Copyright Arbitration Panel appointed under section 33A of the Act.

3. Application

(1) These Rules shall apply to all disputes which may arise under the Act.

(2) Subject to subrule (1), these Rules shall be applicable in so far as they are not in conflict with the provisions of the Arbitration Act.

4. Rules forming part of arbitration agreement

(1) These Rules shall be deemed to form part of the arbitration agreement, whore the agreement specifically provides for arbitration in terms of the Act.

(2) For purposes of this rule, an arbitration clause that forms part of a contract shall—

(a) be treated as an arbitration agreement independent of the other terms of the contract; and

(b) not be made invalid by the decision of the Panel that the contract is null and void.

5. Documents written or printed

Any notice or document required under these Rules shall be written, printed, partly written or partly printed on A4 paper of good quality.

6. Service of documents

(1) The serving of any document required upon any person shall be made by a person of full legal capacity who is able to understand and explain the nature and contents of the documents.

(2) Service of any document required under these Rules shall be effected in any of the following ways—

(a) expedited postal or courier service;

(b) facsimile;

(e) email;

(d) registered mall; or

(e) delivery of a copy thereof to the said person personally:

Provided that—

(i) where such person Is a minor or person under legal disability, service shall be effected upon the guardian, tutor, curator, or

(ii) where such person refuses to accept delivery, service shall be effected by leaving the copy in full view of such person;

(f) leaving the copy thereof at the place of residence or business of the said person, guardian, curator, tutor or the like with the person apparently in charge of the premises at the time of delivery, being a person not less than 16 years of age; or

(g) in the case of a corporation or a company, by delivery of a copy to an authorised employee at corporation or a company registered office or at the principal place of business, or, if there is no such authorised employee willing to accept service, by affixing a copy thereof to the main door of such office or place of business, or in any manner prescribed by law and such service shall be deemed to have the same force and effect as if the copy thereof served upon such person, or left as aforesaid, as the case may be.

7. No service on weekends or holidays

Any process, notice or document shall not be served on a public holiday or during a weekend.

8. Address

A party’s last known residence or place of business shall constitute a valid address for purposes of any notice or document required to be served.

9. Time limit

For purposes of determining the date of commencement of a time limit, a notice or document shall be deemed to be received on the day it is delivered or, in the case of telecommunications on the day it was sent.

10. Extension of time

The Panel may, in its own discretion or at the request of one or both parties, grant a request for extension of lime limit.

11. Request for arbitration

(1) A claimant shall, upon payment of a fee set out in Schedule 2, transmit to the Copyright Office and to the respondent a request for arbitration in Form A set out in Schedule 1.

(2) A claimant shall make a request for arbitration where—

(a) there is an arbitration agreement between the parties; and

(b) there is no agreement for arbitration between the parties but the aggrieved party submits an application for arbitration:

Provided that a request for arbitration made under subrule (2)(b) shall not contain a copy of the arbitration agreement.

(3) A request for arbitration or urgent arbitration shall contain—

(a) a demand that the copyright dispute be referred for arbitration under these Rules;

(b) the names, addresses, telephone, facsimile, email or other communication reference of the parties and of the representative of the claimant if any;

(e) a copy of the arbitration agreement and, If applicable, any separate choice of law clause;

(d) proof of payment of applicable fees;

(e) in the case of a request for urgent arbitration, grounds for urgency; and

(f) a brief description of the nature of the circumstances of the dispute,

including an indication of the rights and properly involved and where applicable the nature of the technology involved.

(4) The Copyright Office shall within five days of receipt of a request for arbitration do a preliminary assessment of the request for arbitration and advise claimant on whether or not the request for Arbitration qualify.

(5) Where the request for arbitration does not qualify, the claimant shall be entitled to a refund of 50 per cent of the fee payable under subrule (1).

(6) A statement of claim in Form B set out in Schedule I shall contain—

(a) a comprehensive statement of facts and legal arguments supporting the claim;

(b) legal remedies sought; and

12. Request for urgent arbitration

(1) A party may, upon payment of a fee set out in Schedule 2, make a request to the Panel for urgent arbitration in Form A set out in Schedule 1.

(2) The applicant shall outline the circumstances which renders the matter urgent by giving valid reasons why he or she could not be afforded substantial redress at a normal hearing.

(3) The Panel shall within five days of receipt of a request for urgent arbitration do a preliminary assessment of the request for urgent arbitration and advise claimant on whether or not the request for urgent arbitration is granted or denied.

(4) Where the request for urgent arbitration made under subrule (1) is granted by the Panel shall conclude the arbitration proceedings within 60 days after the delivery of the statement of defence under rule 16(1).

13. Respondent to be informed of receipt of request for arbitration

The Copyright Office shall notify all the parties to the proceeding of the receipt of the request for arbitration.

14. Representation

(1) The parties may—

(a) appear in person; or

(b) be represented by any person of his or her choice, irrespective of professional qualification.

(2) A party to the arbitration shall notify the Panel and the other party of the details of the representatives under subrule (1) including—

(a) names;

(b) addresses;

(d) facsimile; or

(e) email.

(3) A party to the arbitration shall ensure that his or her representative has sufficient time available to enable the arbitration to proceed expeditiously.

(4) A party to the arbitration who changes representation shall—

(a) give notice to the Panel and all other affected parties of such change; and

(b) include particulars referred to in subrule (2).

15. Consent to arbitration and notification

Notwithstanding rule 11(2)(b), where there is no agreement between the parties, the respondent shall within five working days from the date of receipt of the request for arbitration and statement of claim from claimant, transmit a consent to arbitrate to the Copyright Office in Form C set out in Schedule 1.

16. Statement of defence

(1) The respondent shall within 30 days from the date of filing of consent to arbitration, transmit to the Copyright Office and to the claimant the statement of defence in Form D set out in Schedule 1 which shall be a response to the statement of claim.

(2) A statement of defence shall be a response to the particulars of the statement of claim and shall be accompanied by documentary evidence upon which the respondent seeks to rely on.

(3) The Panel shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

(4) The respondent shall make a counter-claim or set-off in the statement of defence, or in exceptional circumstances, at a later stage in the arbitral proceedings if so determined by the Panel.

(5) The claimant shall file a reply to the particulars of claims in Form E set out in Schedule 1, within 20 days from the date on which the claimant receives such counter-claim or set-off, in the event that a counter-claim or set-off is made.

(6) The provisions of this rule shall apply with necessary changes to such a reply.

17. Commencement of arbitration

The Copyright Office shall advise the parties of the date of commencement of the arbitration which date shall be after—

(a) the respondent files a statement of defence;

(b) the parties file all the necessary supporting documents; and

18. Further written statements

The Panel may, in its discretion, allow or require further written statements.

19. Amendment of claim or defence

A party may, with consent of the other party, Amend or supplement its claim, counter-claim, defence or set-off during the course of the arbitral proceedings, unless the Panel considers it inappropriate to allow such amendment having regard to its nature or the delay it may cause and the provisions relating to fair hearing.

20. Interim measures

(1) The Panel may, at the request of a party, issue a provisional order or other interim measures It deems appropriate.

(2) Interim measures may include—

(a) an injunction;

(b) a preservation order for goods which are subject of the dispute; or

(3) An order or interim measures under this rule may take the form of an interim award.

21. Preparatory conference

(1) The Panel may, following submission of the statement of defence, conduct a preparatory conference with the parties to organise and schedule subsequent proceedings.

(2) A preparatory conference may be conducted through a meeting—

(a) in person;

(b) by video conference;

(a) through any other digital electronic media acceptable to the parties concerned.

(3) The Panel shall, in the absence of an agreement between the parties to the arbitration proceedings, determine the means by which the conference shall be conducted.

22. Evidence

(1) The Panel shall determine the admissibility, relevance, materiality and weight of evidence.

(2) The Panel may, at any stage of the arbitration, at the request of a party or on its own motion, order a party to produce such documents or other evidence as it considers necessary or appropriate and may order a party to make available to the Panel or to an expert appointed by it or to the other party any property in its possession or control for inspection or testing.

23. Site visits

(1) The Panel may, at the request of a party or on its own motion, inspect or require the inspection of any site, property, machinery, facility, production line, model, film, material product, or process as it deems appropriate.

(2) A request for an inspection shall be made within a reasonable time prior to any hearing.

(3) Where the Panel grants such a request, it shall determine the timing and arrangements for the inspection.

(4) All the costs associated with the site visits shall be borne by the responsible party, unless otherwise directed by the Panel.

24. Confidential information

(1) For the purposes of this rule, confidential information means any information, regardless of the medium in which it is expressed, which is—

(a) in the possession of the party;

(b) not accessible to the public;

(d) treated as confidential by the party possessing it.

(2) A party who invokes confidentiality of any information he or she wishes or is required to submit in the arbitration, including to an expert appointed by the Panel, shall make an application to have the information classified as confidential by notice to the Panel, with a copy to the other party.

(3) The application under subrule (2), shall be in Form F set out in Schedule 1.

(4) The Panel shall determine whether the information is to be classified as confidential and of such a nature that the absence of special measures of protection during the proceedings may cause serious harm to the party invoking its confidentiality.

(5) Where the Panel so determines, it shall decide under which conditions and to whom the confidential information may in part or in whole be disclosed and shall require any person to whom the confidential information is to be disclosed to sign non-disclosure of information in Form G set out in Schedule 1.

25. Hearings

(1) The Panel may, at the request of a party, hold a hearing for the presentation of evidence by witnesses, including expert witnesses, or for oral argument or both.

(2) In the absence of a request by the parties, the Panel may use its discretion to decide whether to hold such a hearing.

(3) A hearing shall be convened within 30 days of receipt by the claimant of the answer to the request and the statement of defence under rule 16.

(4) Where no hearing is held the proceedings of the Panel shall be conducted on the basis of documents or other materials alone or in circumstances where the parties have agreed in writing for a document only arbitration to be conducted.

(5) A hearing before the Panel shall be open to the public unless the panel, on the request of either party, directs otherwise.

(6) Where there is a need to protect confidential Information or the integrity of the arbitral process, the Panel may make arrangements to hold in private that part of the hearing requiring such protection.

26. Witnesses

(1) The Panel may require either party to disclose to the other party the—

(a) identity of his or her witnesses;

(b) subject-matter of their testimony; and

(2) The Panel may, on its own discretion, limit or reject any witness.

(3) A witness who gives oral evidence may be cross-examined by any of the parties or the Panel.

(4) Where a witness is unable to appear before the Panel in person, his or her testimony may be submitted in the form of a sworn statement.

27. Experts

(1) The Panel may, after consultation with the parties, appoint one or more independent experts to advise it on a specific issue.

(2) The Panel shall avail a copy of the report of the expert to all parties upon receiving it.

(3) A party shall be given an opportunity to express his or her opinion about the report.

(4) A party may, subject to the approval of the Panel, question the expert during the proceedings.

(5) The opinion of any expert on an issue before the Panel shall be subject to the Panel’s assessment in the context of the proceedings, unless the parties have agreed that the expert’s determination shall be conclusive in respect of any specific issue.

28. Filling of statement of claim

(1) Where a claimant fails, without good cause, to submit his or her statement of claim as per rule 11(6), his or her claim shall become invalid.

(2) Notwithstanding the provisions of subrule (1), the Panel may extend the filing period by 14 days—

(a) where the claimant shows good cause as to why the statement was not filed in accordance with subrule (1); and

(b) upon payment by the claimant of the extension of application fee provided under Schedule 2.

29. Default

(1) Where a respondent fail, without good cause, to submit his or her statement of defence as per rule 16, the Panel may proceed with arbitration and render a final award.

(2) The Panel may proceed with arbitration and render an award if a party, without good cause, fails to avail himself or herself to present his or her case within the time determined by the Panel.

(3) Where a party fails, without good cause, to comply with any requirement of these Rules or direction given by the Panel, the Panel may—

(a) make an order for specific performance;

(b) make an order for costs;

(d) dismiss the case; or

(e) make such directions as may be necessary to give effect to orders made by the panel.

30. Closure of pleadings

(1) The Panel shall declare the pleadings closed when it is satisfied that the parties have had adequate opportunity to present submissions and evidence.

(2) The Panel may, if considers it necessary owing to exceptional circumstances, decide on its own motion or on application of a party, to re-open the pleadings It declared to be closed at any time before the award is made.

31. Waiver

A party who knowingly proceeds with arbitration and falls to raise an objection after becoming aware that a provision or requirement of the Rules, or direction of the Panel has not been complied with shall be deemed to have waived his or her right to object.

32. Awards and other decisions

(1) The Panel may make a preliminary, interim, interlocutory, partial or final award.

(2) The Panel shall provide full reasons for its findings.

(3) The Panel shall in making an award fix the costs of arbitration which may consist of—

(a) the arbitrators’ administrative fees;

(b) expenses incurred by the arbitrator including—

(i) travel expenses, and

(ii) communication expenses,

(d) such other assistance required by the Panel; and

(e) such other expenses as are necessary for the conduct of the arbitration proceedings including—

(i) cost of meeting,

(ii) heaving facilities, and

(iii) any other expense not listed.

(4) The Panel may, subject to an agreement by the parties, order a party to pay the whole or part of a reasonable expenses incurred by the other party in presenting Ills or her ease and for legal representation.

(5) The Panel shall be free to determine the interest at such rates as It considers appropriate, without being bound by legal rules or interest and shall be free to determine the period for which the interest shall be paid.

(6) The costs of arbitration proceedings shall, as far as possible, be debited from the deposits required under rule 40.

(7) The Panel shall, subject to any agreement of the parties, apportion the costs of arbitration proceedings between the parties in consideration of the circumstances and outcome of the arbitration.

33. Length of proceedings

Arbitration proceedings shall be conducted and concluded within 90 days after delivery of the statement of defence under rule 16(1).

34. Final arbitral award

(1) The final arbitral award shall be handed down within 30 days of conclusion of arbitration proceedings.

(2) Where the Panel falls to hand down the final arbitral award within 30 days of conclusion of arbitration proceedings, the Panel shall submit a written explanation for the delay lo the parties,

(3) The Panel shall submit further written explanations as to why the final arbitral award is not handed down every 30 days until the final arbitral award is handed down.

35. Effect and enforcement of award

(1) A party to an arbitration proceeding may, within 30 days after the receipt of the award, with notice to the other parties in an arbitration proceeding, request the Panel to make an additional award as to claims which were presented in the arbitral proceedings but not decided on by the Panel.

(2) A party to arbitration proceedings, undertakes to comply with the award without delay unless such award is overruled or set aside by a court of law within the jurisdiction of Botswana.

(3) Arbitration awards made by the Panel shall be final and binding on the parties.

(4) Where it party to arbitration proceedings fails to comply with an arbitral award—

(a) the aggrieved party may by leave of Court apply for an Order confirming the arbitral award; and

(b) the Court may give Judgement in terms of the arbitral award.

36. Certified copy of arbitral award

(1) The Copyright Office may, at the request of either party, avail at a fee, set out in Schedule 2, a copy of an arbitral award certified by the Copyright Office.

(2) A certified copy of the arbitral award shall be deemed to comply with the requirements of Article IV(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958 as supplemented by the Recognition and Enforcement of Foreign Arbitral Awards Act.

37. Currency

The monetary awards by the Panel shall be expressed in Botswana Pula or any other tradeable currencies as agreed by the parties and deemed appropriate by the Panel.

38. Settlement

(1) The Panel shall encourage patties to settle disputes through—

(a) negotiation; or

(b) mediation.

(2) Where the parties agree on a settlement of the dispute before the handing down of an award by the Panel, the Panel shall terminate arbitration proceedings and record the parties’ terms of settlement in the form of a consent award.

(3) Subject to rule 38(2), the Panel shall not give reasons for an award made.

(4) Consent award shall be signed by the panel and transmitted to the Copyright Office and each party.

39. Correction of award

(1) A party may, within 30 days of receipt of the final award, by notice to tire Panel, request the Panel to correct any clerical, typographical or computational errors,

(2) Where the Panel considers the request justified, it shall within 30 days of receipt of the request make the corrections, and such corrections shall be in a separate memorandum signed by the Panel and shall be attached to the award.

40. Deposits

(1) A claimant shall deposit money as an advance for the costs of arbitration under rule 32(3).

(2) The Copyright Office may, during the course of arbitration proceedings request further deposit from the claimant.

(3) A claimant deposits shall be paid within 30 days after receipt of notification from the Copyright Office.

(4) Where the amount of the counter-claim—

(a) greatly exceeds the amount of the claim; or

(b) involves examination of significantly different issues, the Copyright Office shall establish two separate deposits for the claim and counter-claim, and the claimant shall pay the deposit for the claim and the respondent shall pay the deposit for the counter-claim.

(5) The Copyright Office shall issue two reminders for payment of deposits and where a party fails to comply will the second reminder within 15 days of issue, the party shall be deemed to have withdrawn their claim or counter-claim as the case may be.

(6) The Copyright Office shall, after the award is handed down—

(a) render a report to the parties of the deposits received and return any unspent money to the parties; or

(b) demand payment of any amount owing from the parties.

41. Liability

The arbitrator shall not be liable to a party for any act or omission committed during the exercise of his or her arbitral functions.

42. Impartiality and Independence

(1) An arbitrator shall be impartial and Independent.

(2) The consideration of impartiality and Independence shall include, but not limited, to whether there exists any past or present relationship, direct or indirect, whether financial, professional or of any other kind, between the arbitrator and any of the parties, their attorneys or other representatives, or related entities or any individual.

(3) An arbitrator shall, before accepting appointment, declare in writing and in a declaration by arbitrator on Independence and impartiality in Form H set out in Schedule 1 of any circumstance that may give rise to justifiable doubt as to the arbitrator’s impartiality or Independence, or confirm in writing that no such circumstance exists.

(4) If, at any stage during the arbitration, new circumstances arise that might give rise to justifiable doubt as to the arbitrator’s impartiality or independence, the arbitrator shall promptly disclose such circumstances to the parties and the Panel.

43. Disclosure of interest

(1) Where a member of the Panel is participating in an arbitration proceeding at which is being discussed a mailer in which the member or immediate family member of the member has direct or indirect interest in a private capacity, the member shall, as soon as practicable upon commencement of the arbitration, disclose such Interest in Form I set out in Schedule 1 and shall not, unless the Panel otherwise directs, take part in any consideration or discussion of, or vote on, any question relating to such matter.

(2) For purpose of this rule “immediate family member” means a spouse, son, daughter, sibling or parent of the member.

(3) Where a member fails to disclose his or her interest in accordance with subrule (1) and a decision by the Panel is made benefiting such member or his or her immediate member of the family, such decision shall be null and void to the extent that it benefits such member or his or her immediate family member.

(4) A member who fails to comply with the provisions of subrule (1) commits an offence and is liable to a fine not exceeding P20 000 or to imprisonment for a term not exceeding two years, or to both.

44. Confidentiality

(1) A member of the panel who participates in an arbitration proceeding, shall regard and deal with as confidential all documents and information relating to the copyright dispute.

(2) A person to whom confidential information is revealed through working with the Panel shall not disclose that information to any other person unless he or she is required to do so in terms of any written law or for purposes of any judicial proceeding.

(3) A member who fails to comply with the provisions of subrule (1) commits an offence and is liable to a fine not exceeding P20 000 or to imprisonment for a term not exceeding two years, or to both.

45. Acceptance of appointment as arbitrator

(1) An arbitrator shall accept appointment in writing and shall communicate such acceptance to the Minister.

(2) An arbitrator shall by accepting appointment, be deemed to have undertaken to make available sufficient time to enable the business of the Panel lo be conducted efficiently and expeditiously.

(3) The quorum at any meeting of the Panel shall be a simple majority of the members.

46. Challenge of arbitrator’s participation

(1) An arbitrator may be challenged by a party, if circumstances exist that give rise to justifiable doubt as to the arbitrator’s impartiality or independence.

(2) A party may challenge an arbitrator’s participation during the arbitration proceedings, if he or she becomes aware of circumstances which arise at any point after commencement of the arbitration proceedings.

47. Notice of challenges

A party challenging the participation of an arbitrator shall notify the Copyright Office, the Panel and the other party, stating reasons for the challenge, within 14 days after becoming aware of the circumstances that give rise to justifiable doubt as to the arbitrator’s impartiality and independence.

48. Right to respond to challenges

Where participation of an arbitrator is challenged, the other party and the arbitrator shall have the right to respond to the challenge and shall send within 14 days after receipt of the notice referred to in rule 47, a copy of its response to—

(a) the Copyright Office;

(b) the party making the challenge; and

49. Suspension of arbitral proceedings

The Panel shall suspend the arbitration proceedings where a challenge is instigated under rule 46 until a decision is taken on the challenge.

50. Recusal or removal of arbitrator

(1) An arbitrator shall recuse himself or herself where the other party agrees to the challenge or where the arbitrator voluntarily agrees to the challenge.

(2) Where the other party does not agree to the challenge and the arbitrator does not recuse himself or herself, the decision of the challenge shall be made by the Panel.

(3) The Panel may, where the arbitrator has become de Jure or de facto unable to fulfil or fails to fulfil the duties of an arbitrator, release the arbitrator from position of arbitrator acting upon the request of—

(a) the arbitrator;

(b) a party to the arbitration; or

(4) The Panel shall go ahead with the arbitration proceedings following a removal of an arbitrator provided the remaining arbitrators form a quorum.

(5) Where the Panel does not form a quorum, the Minister shall co-opt a member to replace the arbitrator who has recused himself or herself from the proceedings or who has been removed under subrule (3).

51. Proceedings after replacement of arbitrator

Whenever a co-opted arbitrator is appointed following a successful challenge or need for replacement, the Panel shall, having regard to any observations of the parties, determine whether all or part of any prior proceedings are to be repented.

52. Appeals

A party who is aggrieved by any decision of the Panel may appeal against that decision to the High Court within 30 days of notification of the decision.

SCHEDULE 1

SCHEDULE 2