Arbitration and Dispute Resolution in Kenya
This article is written by Shaibu Mwangolo
This paper delves into the basis and role of arbitration in Kenya and also considers the jurisdictional basis and requirements for arbitrators in Kenya. It also gives a detailed description of the challenges incurred by arbitrators in the arbitration process. The article also addresses the critical reforms in the conduct of arbitrators, the importance of considering intelligently wanting parties to an arbitral tribunal and how efficient arbitration can be for such parties lacking the required intelligence to appear before the arbitral tribunal.
This paper prioritizes the connection between the Bangalore Principles on judicial conduct and the framework for the regulation of the conduct of arbitrators. Especially on adhering to the rules of natural justice and the Constitutional requirement for equal treatment before the law, equal protection and benefit by the law as provided for under Article 19 of the Constitution of Kenya 2010. This paper concludes by stating precisely the cases in which arbitration was successful.
Arbitration is referring a dispute to an impartial intermediary chosen by the parties who agree to abide by the arbitrator’s award issued after a hearing at which all parties have the opportunity to be heard. Arbitration obtains its basis from the Constitution of Kenya 2010, which calls upon courts and tribunals to be guided by the principle of promoting alternative dispute resolution (ADR), including arbitration.
According to the Constitution, arbitration is to be promoted in so long as it is not inconsistent with the Constitution of Kenya 2010 or any other written law. Furthermore, it must not contradict the bill of rights; if it is not in itself, its result is repugnant to justice and morality. At the international level, the critical requirement is the consent of the parties to submit to the international arbitral tribunals. The main goal for having arbitration in modern jurisprudence is to manage and quickly resolve disagreements at a lower cost than formal civil litigation and with as little adverse impact as possible on business and personal relationships.
Arbitration can be private if it results from an agreement drafted by parties who anticipated the dispute and want to keep it out of court. There is also judicial arbitration, whose decisions are always not binding and parties dissatisfied can go to trial. This results from what is called court-annexed arbitration. The parties can determine the number of arbitrators to the disputes. However, if the parties do not specify, the number will be one unless the agreement contains a specific number of arbitrators. Arbitration can be conducted by an institution or by independent arbitrators.
Regulatory Framework for Arbitration and Dispute Resolution in Kenya
The regulatory framework for in in Kenya begins with the Constitution of Kenya 2010, which includes arbitration as among the mechanisms of alternative dispute resolution, as stated earlier. The Constitution further calls for national legislation to provide procedures for settling inter-governmental by alternative dispute resolution mechanisms. Here again, the Constitution recognizes arbitration as among the mechanisms for resolving inter-governmental disputes alongside mediation and negotiation.
The Civil Procedure Act also has explicit provisions on arbitration, especially where a suit has been filed and then referred to arbitration by the court. First, the Act requires that any case referred by the court to mediation, then all subsequent proceedings will have to be determined based on the prescribed rules.
The rules are the Civil Procedure Rules on arbitration under court order, and it begins by allowing the parties to a dispute who can agree to refer the matter in dispute to arbitration or to apply at any stage of the proceedings before judgment is delivered for the court to refer the matter to arbitration.
The Arbitration Act of 1995 is the principal instrument for arbitration in Kenya, and it has explicit provisions concerning the theme and process of arbitration. For example, the Act makes it a requirement to include arbitration clauses in contracts and that an arbitration agreement is in writing.
The Act further allows parties with a valid arbitration agreement to apply for court proceedings to be stayed for the parties to be referred to arbitration. Furthermore, the Act leaves room for the parties to a dispute to choose the number of arbitrators they wish to solve their conflict. The parties are to be allowed, without discriminating, to agree on the procedure they will use to appoint the arbitrators and to challenge the appointment of an arbitrator. Such a choice should not be interfered with.
Basis of Jurisdiction and Powers of Arbitrators
The jurisdiction precedes the powers of the arbitrator or any action an arbitrator can take. Among the requirements of the arbitrator’s jurisdiction is the presence of a binding agreement to arbitrate as required by the Arbitration Act of 1995, and the arbitrator is to only act within the authority vested to him by the parties.
The parties must have duly appointed the arbitrators per the Arbitration Act of 1995, that is, an appointment based on the mutually agreed procedure. A number of the arbitrators and parties were given a chance to relook at the appointed arbitrator. Lastly, there must be an arbitrable dispute, and parties have agreed to arbitrate.
The jurisdiction of an arbitrator emanates from sources such as the arbitration agreement, statutes like the Arbitration Act of 1995, which allow an arbitral tribunal to decide on its jurisdiction, and other laws like the Insurance law. Jurisdiction can also be inferred from the common law and customs of trade in notable transactions such as insurance and marine.
The arbitrator has the powers to decide on his jurisdiction, issue interim protection measures, and conduct the arbitration process in a manner he deems fit to avoid unnecessary expenses and delays. When parties disagree on the procedure to be followed, it provides power to determine the admissibility, relevance, materiality and weight of evidence and to determine fairness on submission. Further, it authorizes to terminate arbitral proceedings, powers to appoint expert witnesses and acts on the arbitral award.
The jurisdiction can be limited if role if one cannot perform duties assigned or by the high court on application by a party. If the arbitral mandate is successfully terminated, then the arbitrator is to be substituted by a newly appointed arbitrator.
Application of the Bangalore Principles of Judicial Conduct in Regulating the Ethical Conduct of Arbitrators in the Resolution of Disputes
Arbitrators have an extinguishable role in ensuring that both parties are on the same footing. The Constitution of Kenya 2010 describes every person as equal before the law and entitled to equal protection and benefits from the law. This is also underscored by the International Covenant on Civil and Political Rights, which lies a general rule according to a fair hearing for every person before a competent, independent and impartial tribunal established by law.
Independence and Impartiality
Independence, as per the Bangalore Principles, denotes the resolution of disputes honestly based on law and evidence on record, this principle accords with the rules of natural justice, such as judicial bias, and therefore, requires that the arbitrator make a decision in exclusion of external influence or pressure as per Chief Justice Dickson.
Impartiality on the other hand also considers the rules of natural justice with a keen consideration on the Constitutional requirement for a fair administrative action, which entitles every person to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. This denotes that arbitrators should strictly adhere to the procedure set out in the Arbitration Act of 1995 and base their decisions on the evidence presented before them.
It deals with the personal conduct of the arbitrator, it should reaffirm the confidence of the public, and this is the arbitrator should act in a manner fitting the office by avoiding vices such as fraud and deceit and embracing virtue such as dignity, respect for the people and confidentiality.
Competence and Diligence
This calls for arbitrators, just like judges to contain the knowledge and to understand how the law can be applied in settling disputes. Lady Justice Monica K. Mugenyi cited the Sidney papers in her work to state that “nothing is more likely to bring about an erosion of public confidence in the administration of justice than the continued adherence by courts to rules and doctrines which are unsound and lead to unjust outcomes.” Also, the International Bar Association (IBA) Rules of Ethics for International Arbitration and the IBA Guidelines on Conflict of Interest in International Arbitration, which according to Lady Justice Monica K. Mugenyi, do provide a framework for arbitral ethics include diligence and competence to be among the rules.
Challenges Facing Arbitrators in Dispute Resolution
Lack of cooperation among the parties, especially if the subject matter is family-connected like child support, because most of the people involved fail to control their emotions and stress sometimes, thus spouses may not be willing to cooperate
It is also difficult for arbitrators to compel a party to do something because they need coercive powers. Arbitrators cannot force a third party, like a trustee, to disclose because the arbitration agreement is only binding on the parties unless a third party signs the contract.
There is a need for a comprehensive standard of ethics among arbitrators. Creating an effective system for intelligently wanting parties in arbitration is also necessary. Finally, there is a need for a well-defined framework that upholds integrity among arbitrators, secures the parties’ dignity and can win public confidence in arbitrators.
Arbitration has played an integral role in solving commercial disputes, family disputes, state-to-state disputes and in solving cases on oil and gas through international arbitration in Africa, with the Bangalore Principles acting as the framework guide. Example of leading cases is; the Cortec Mining Kenya Ltd and the Nigeria Niger Delta Oil Spill Cases.
However, the leading saying among those who have been parties to arbitration processes is that arbitration is widely accepted, and it can receive maximum acceptance only if the arbitration is not between the lion and the lamb. Because the lamb is in the lion’s house every morning and this makes it difficult to obtain justice. This saying again takes us back to the need to adhere to the rules of natural justice; that is, one should not arbitrate his cause if justice is to be obtained.