News & Analysis
The Concept of Energy Justice and Why it is Important Today
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2 years agoon
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By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*
Energy is increasingly being recognized as an essential human need. The importance of energy cannot be overemphasized. It is vital for economic development and poverty eradication in any given country as the driving force of human development. There is a growing evidence linking access to energy with the attainment of socioeconomic rights such as the right to education, right to food and the right to health. Reliable supply of electricity and adequate lighting can aid learners in their academic activities; further electricity can be utilized for farming activities such as irrigation. Indeed, it has been asserted that energy is “not just another commodity, but the precondition of all commodities, a basic factor equal with air and water.
Access to clean energy has been equated to a ‘golden thread’ which has the ability to stimulate development by connecting the Sustainable Development Goals (SDGs) and unlocking sustainable economic growth. It has been pointed out that no country in the recent past has been able to substantially reduce poverty levels without an increase in energy services. The importance of energy has been given recognition at the global stage with Sustainable Development Goal number 7 being geared towards ensuring access to affordable, reliable, sustainable and modern energy. Energy is described as being central to every major opportunity and challenge that the world faces today as it connects with the other Sustainable Development Goals.
However, despite its importance, access to clean and affordable energy remains a challenge especially in Sub-Saharan Africa. Studies have shown that in these countries, nearly 83% of the population depends on traditional fuels while 74% lack access to electricity thus contributing to energy poverty. Energy poverty in such countries is caused by a number of factors including low levels of electrification due to economic constraints and insufficient institutions. In Kenya, despite attempts by the government to enhance electricity connectivity through measures such as subsidizing the costs, many households especially in rural areas cannot afford the initial connection charges thus have low access. Further, the high costs of modern sources of energy such as Liquefied Petroleum Gas (LPG) also contribute to energy poverty
This is despite the fact that massive investments have been channeled in the energy sector across the globe and particularly in Kenya. It is confounding that despite the efforts made in the energy sector, injustices are still prevalent in areas such as access to energy, energy costs and energy governance. The concept of energy justice is aimed at addressing such injustices. The inequalities witnessed in the energy sector has led to emergence of the concept of energy justice. Energy justice has been defined as a global energy system that fairly disseminates both the benefits and costs of energy services, and one that has representative and impartial energy decision-making.
Energy justice seeks to apply basic principles of justice and fairness to the inequalities witnessed in the availability, affordability, sustainability and due process in the energy sector. Energy justice seeks to influence decision making in the energy sector by incorporating justice and ethical considerations in such decisions; for example, disconnecting electricity for citizens who fail to pay their bills on time could affect their day to day lives yet failing to do so could overburden other paying citizens. In essence, energy justice addresses the justice and ethical dilemma of allocating the benefits of scarce energy resources among citizens and between the present and future generations.
As such, energy justice forms a crucial component of the sustainable development agenda and the principles of intra and inter- generational equity. These principles as enunciated in the Rio Declaration on Environment and Development are aimed at achieving development that equitably meets developmental and environmental needs of both the present and future generations. Through energy justice, affordability, sustainability and availability in the energy sector can be achieved thus promoting human and economic development.
There are three core tenets of energy justice; distributional justice, recognition justice and procedural justice. Distributional justice is aimed at establishing existing injustices in the energy sector and means of resolving them. It assesses issues such as uneven distribution, production and consumption of energy. The location of energy production facilities such as wind power stations, dams and gas power stations could create inequalities in access to energy thus raising justice concerns. Recognition justice is aimed at determining the section of the population ignored or misrepresented in energy access in order to cure such ills. Procedural justice is aimed at streamlining the decision making processes in the energy sector by engaging all stakeholder to ensure inclusivity non-discrimination. This is achieved through measures such as public participation and Environmental Impact Assessment (EIA) in relation to energy projects. It has the ability to foster acceptance and ownership of such projects whilst promoting environmental conservation and sustainable development.
The aim of energy justice is to apply these three tenets in the energy policy and systems so as to enhance availability, affordability, sustainability and due process in the energy sector. The concept of energy justice is paramount in defining its energy future. This is especially critical for countries grappling with the challenge of how to enable a ‘just transition’ to lower carbon economy that simultaneously delivers energy poverty reduction and climate change resilience. While the importance of energy as a human need necessary for fostering human development is not in doubt, the inequalities are still witnessed in the energy sector globally in aspects such as energy access, energy costs and energy decision making, hence the need for energy justice.
Energy Justice has emerged as a global concept aimed at dealing with such inequalities witnessed in the energy sector. It is aimed at promoting distributional, recognition and procedural justice in the energy sector by ensuring equality, fairness, transparency, accountability, participation and energy security. For countries in the developing world to attain its development agenda, energy justice is of utmost importance due to the clear link between energy and development. There is no question that energy justice as an ideal is attainable. However, there is need for concerted effort by all stakeholders to move forward together towards energy justice in the quest for sustainable development.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., Towards Energy Justice in Kenya, Available at: http://kmco.co.ke/wp-content/uploads/2020/02/Towards-Energy-Justice-in-Kenya-00000005.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.
References
Bildirici. M & Ozaksoy.F., ‘Woody Biomass Energy Consumption and Economic Growth in Sub-Saharan Africa’ Procedia Economics and Finance 38 (2016) 287 – 293.
Guruswamy. L, ‘Energy Justice and Sustainable Development’ Colorado Journal of International Environmental Law & Policy, Volume 21, No. 2.
Goldthau. A & Sovacool. B., ‘The Uniqueness of the Energy Security, Justice and Governance Problem’ Energy Policy, 41 (2012) 232-240.
Heffron. J.R., & McCauley. D., ‘The Concept of Energy Justice across the Disciplines’ Energy Policy 105 (2017) 658-667, available at: http://hdl.handle.net/10023/12969 (Accessed on 22/11/2021).
Jenkins. K, et al, ‘Energy Justice: A Conceptual Review’ Energy Research & Social Science 11 (2016) 174- 182.
Muigua. K., ‘Access to Energy as a Constitutional Right in Kenya’, available at http://kmco.co.ke/wpcontent/uploads/2018/08/Access-to-Energy-as-a-Constitutional-Right-in-Kenya-NOVEMBER-2013.pdf (Accessed on 22/11/2021).
Newell. P. & Philips. J., ‘Neoliberal Energy Transitions in the South: Kenyan Experience’ Geoforum, 74 (2016) 39-48.
Njiru. C.W & Letema. S.C., ‘Energy Poverty and its Implication on Standard of Living in Kirinyaga, Kenya’ Journal of Energy, 2018, Available at: https://www.hindawi.com/journals/jen/2018/3196567/ (accessed on 22/11/2021).
Sovacool,B.K. & Dworkin, Global Energy Justice: Problems, Principles and Practices (Cambridge Univ. Press, 2014).
Sovacool. B.K., ‘Energy Decisions Reframed as Justice and Ethical Concerns’ Energy Justice 1, available at https://core.ac.uk/download/pdf/42579074.pdf (Accessed on 22/11/2021).
United Nations Development Programme, ‘Sustainable Development Goals’ available at https://www.undp.org/content/undp/en/home/sustainable-development-goals.html (Accessed on 23/01/2020).
United Nations Sustainable Development Goals, ‘Goal No. 7: Ensure Access to Affordable, Reliable, Sustainable and Modern Energy’ available at https://www.un.org/sustainabledevelopment/energy/ (accessed on 22/11/2021).
United Nations Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ 1992, Principles 3 and 4.
World Bank, ‘Sustainable Development Goal on Energy (SDG7) and the World Bank Group, available at https://www.worldbank.org/en/topic/energy/brief/sustainable-development-goal-on-energy-sdg7-and-the-world-bank-group (Accessed on 22/11/2021).
Yoshida. T., & Zusman. E., ‘Achieving the Multiple Benefits of a Sustainable Development Goal for Energy’ Available at https://www.iges.or.jp/en/publication_documents/pub/bookchapter/en/4934/08_Ch8_ Achieving_ the_SDGs_.pdf (Accessed on 22/11/2021).
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News & Analysis
Legal and Policy Framework for Energy Transition in Kenya
Published
2 hours agoon
September 28, 2023By
Admin
By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023).
Energy plays an important role in Kenya and is one of the key drivers of socio-economic development. This has been recognized under the Vision 2030 development blueprint which identifies energy as one the key factors in spearheading economic, social and political development in the country. Kenya considers access to competitively-priced, reliable, quality, safe and sustainable energy as an essential ingredient for the country’s social –economic development. It has been argued that access to energy is a Constitutional right in Kenya. Although the Constitution does not expressly provide for the right to access to energy, it recognizes energy as part of the natural resources in Kenya. To this extent, the Constitution provides that natural resources mean the physical non-human factors and components, whether renewable or non-renewable, including inter alia rocks, minerals, fossil fuels and other sources of energy.
The Constitution also enshrines the principle of Sustainable Development. Enhancing universal access to affordable, reliable and modern energy services including renewable sources of energy is an essential part of the Sustainable Development agenda. The Energy Act, 2019 was enacted to consolidate the laws relating to energy, to provide for National and County Government functions in relation to energy, to provide for the establishment, powers and functions of the energy sector entities; promotion of renewable energy; exploration, recovery and commercial utilization of geothermal energy; regulation of midstream and downstream petroleum and coal activities; regulation, production, supply and use of electricity and other energy forms; and for connected purposes. The Act mandates the government to facilitate the provision of affordable energy services to all persons in Kenya. It also establishes national energy entities including the Energy and Petroleum Regulatory Authority, the Rural Electrification and Renewable Energy Corporation and the Nuclear Power and Energy Agency which are vital in enhancing energy access in Kenya.
The Energy and Petroleum Regulatory Authority is mainly tasked with regulatory activities related to inter alia the generation, importation, exportation, distribution and supply of electric energy, petroleum and petroleum products, renewable energy and other forms of energy. The Rural Electrification and Renewable Energy Corporation is tasked with overseeing the implementation of the rural electrification programme and promoting the use of renewable energy and technologies among other functions. The Nuclear Power and Energy Agency is tasked with inter alia implementation of the nuclear energy programme and promoting the development of nuclear electricity generation in Kenya. The Energy Act also mandates the government to promote the development and use of renewable energy technologies in Kenya including but not limited to biomass, biodiesel, bioethanol, charcoal, fuelwood, solar, wind, tidal waves, hydropower, biogas and municipal waste. This is a vital step in accelerating energy transition in Kenya.
Sessional Paper No. 4 on Energy seeks to promote equitable access to quality energy services at least cost while protecting the environment. It acknowledges that the development objectives of the country are only feasible if quality energy services are made available in a sustainable, cost effective and affordable manner to all sectors of the economy ranging from manufacturing, services, mining, and agriculture to households. The Sessional paper identifies several measures that are critical in accelerating energy transition in Kenya including the development and adoption of renewable sources of energy, enhancing rural electrification, research and development, regional trade and cooperation and fostering energy conservation and efficiency. Further, the National Energy Policy recognizes energy as a critical component for the socio-economic development of Kenya.
The policy seeks to achieve several objectives in the energy sector including improving access to affordable, competitive and reliable energy services, promoting energy efficiency and conservation and promoting diversification of energy supply sources in Kenya to ensure security of supply. It contains several proposals towards the use, development and conservation of energy sources in the country such as coal resources, renewable energy and electricity. The Policy also contains energy efficiency and conservation measures aimed at reducing energy consumption without sacrificing productivity or increasing costs. Actualizing this Policy is therefore vital in accelerating energy transition in Kenya. Kenya joined the Sustainable Energy for All (SE4ALL) Initiative in 2014 and developed its national SE4ALL Action Agenda and Investment Prospectus. The national SE4ALL Action Agenda specifies the country’s targets for achieving universal access to modern energy access services, doubling the global rate of energy efficiency improvements, and doubling the share of renewable energy in the global energy mix by 2030. Kenya’s SE4All seeks to achieve 100% universal access to modern energy services, increase the rate of energy efficiency and increase to 80% the share of renewable energy in Kenya’s energy mix, by 2030.
Energy transition in Kenya is also a pertinent concern under the Climate Change Act. The Act seeks to combat climate change in Kenya by enhancing national responses to climate change and promoting low carbon climate development. The Act encourages the government to put in place measures for the elimination of climate change including reduction of greenhouse emissions and use of renewable energy. The Act recognizes the role of energy in combating climate change and urges the state to enhance energy conservation, efficiency and use of renewable energy in industrial, commercial, transport, domestic and other uses. Accelerating energy transition is therefore vital in confronting climate change in Kenya.
*This article is an extract from published article “Accelerating Energy Transition in Kenya,” by Dr. Kariuki Muigua, PhD, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya.
References
Muigua, K. “Accelerating Energy Transition in Kenya,” Kariuki Muigua & Co. Advocates Publications, September 2023, Available at: http://kmco.co.ke/wp-content/uploads/2023/09/Accelerating-Energy-Transition-in-Kenya.pdf (accessed on 28th September 2023).
News & Analysis
Disruption of Arbitration by Online Dispute Resolution (ODR)
Published
9 hours agoon
September 28, 2023By
Admin
By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
The Coronavirus disease (COVID-19) pandemic unsettled not only the global economy but also many professions and they are all seeking to stay afloat during the pandemic. Due to the preventive measures recommended by the World Health Organization which included social distancing among others, it became almost impossible for professionals to operate from their traditional physical offices. The legal profession was not spared either. The legal practice in many parts of the world including the African continent had been by way of physical attendance in courtrooms where the judges and magistrates, advocates and witnesses physically present their cases. The physical presence of employees in law firms also become difficult.
Court hearings shifted to being conducted virtually via online platforms. Arguably, this has disrupted dispute resolution systems in a way not experienced before. Apart from the effects of pandemic, the changes in the dispute resolution sector have also been largely attributed to the ascendancy of information technology, the globalization of economic activity, the blurring of differences between professions and sectors, and the increasing integration of knowledge. Technology has greatly impacted the way dispute resolution is done in many ways.
The shift to online hearings has not only affected litigation but also ADR practice and specifically arbitration, which had ordinarily operated like litigation though physical hearings. Notably, the world has experienced new business trends through electronic transactions, e-banking, e-commerce, crypto currency, artificial intelligence, financial technology and arguably, dispute resolution has also grown beyond physical meetings to Online Dispute Resolution (ODR), a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties through online-mediation, online-arbitration and online-negotiation, among others. In a variety of methods, the parties can use the internet and web-based technology. ODR can be completed wholly online, via email, videoconferencing, or both.
Covid-19 led to unprecedented advancement in the use of technology as a tool for enhancing accessing to justice for all. Many countries around the world were forced to rethink their approach to administration of justice both quickly and efficiently in order to ensure that, where possible, hearings can proceed. This led them to adopt virtual hearings – conducting hearings remotely in order to minimise the risk of transmission of COVID-19 and ensure the health of all parties in attendance is maintained. While the danger of the pandemic has passed, stakeholders of access to justice are rethinking physical hearings and increasingly thinking about investing in virtual hearings. For instance, in Kenya, it is commendable that the Judiciary recently embarked on enhancing the use of technology in judicial proceedings in all courts, especially during the COVID19 pandemic period, including the use of: (a) e-filing; (b) e-service of documents; (c) digital display devices; (d) real time transcript devices; (e) video and audio conferencing; (f) digital import devices; and (g) computers in the court.
With increased globalisation, ADR Practitioners are tapping technology from the comfort of their homes or offices regardless of the geographical location or distance to engage in dispute resolution. The result is that ADR practitioner are using technology to tap into the ever growing international alternative modes of Dispute Resolution such as international arbitration, mediation and Online Disputes Resolution (ODR) especially in the face of rapidly growing networking and borderless legal practice, with the introduction of diverse social media platforms that allow interconnectivity beyond the national boundaries and enabling cross-border relationships between clients and their lawyers and law firms amongst themselves.
Going into the future, technology will lead to tremendous growth of international trade, interstate deals, bilateral and multilateral treaties. In turn, dispute resolution will increasingly continue becoming global and smart ADR practitioners must therefore up their game with international best practices as with the advent of internet, telecommunication systems. As a matter of fact, ADR is no longer limited to one jurisdiction or regions as e-commerce increase the amount and size of cross-border transactions. Thus, as it has rightly been pointed out, ‘the COVID-19 pandemic may prove a catalyst for justice system players including ADR practitioners to fully embrace technology and reduce their reliance on in person hearings and hard copy documents, particularly for dispute management purposes, even after the pandemic. However, even this brings in its wake numerous privacy challenges and especially due to possibilities of leakage of documents due to cyber insecurities. But all the same, the ADR fraternity had better get ready for a future where Online Dispute resolution is the main thing.
*This article is an extract from the Book: Settling Disputes Through Arbitration in Kenya, 4th Edition (Chapter Thirteen), Glenwood Publishers, Nairobi, 2022 by Dr. Kariuki Muigua, PhD, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya.
References
Muigua, K., Settling Disputes Through Arbitration in Kenya, 4th Edition, Glenwood Publishers, Nairobi, 2022, p. 335 to 340.
News & Analysis
Difference between Traditional ADR Versus Digital Disputes Resolution
Published
16 hours agoon
September 28, 2023By
Admin
By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023).
A perusal through many of the African countries’ legal, policy and institutional frameworks on Alternative Dispute Resolution (ADR) practice reveal that most of them are still focused on the traditional arbitral processes that are mainly physical in nature. However, with technological evolution, there has been emergence of new areas of commerce which naturally also come with related disputes. One such area is the digital commerce platforms. Consumer behavior and business models have changed dramatically as a result of digitalisation and technological disruption, which was expedited by the effect of the COVID-19 pandemic. Apart from pandemic impacts, the rise of information technology, globalization of economic activity, blurring of distinctions between professions and sectors, and increased integration of knowledge have all contributed to developments in the legal sector. Technology has greatly impacted the way law and legal experts are operating in this era as far as enhancing efficiency is concerned.
Further, the rise of platforms and apps with multiple integrated services ranging from transportation to finance and telemedicine has altered how services are consumed, with businesses increasingly relying on electronic transactions and digital solutions for everything from sourcing to invoicing and payments. Secure and smooth cross-border data transfers are critical for the digital economy’s growth and the protection of consumers’ interests. The traditional legal and institutional frameworks on arbitration cannot, arguably, respond to the related disputes as they currently are. There is thus need for African countries to respond to the digital and technological evolution by putting in place corresponding infrastructure to address the disputes that are bound to arise from the same.
ADR procedures have been linked to a number of benefits over litigation, including being quicker, cheaper, and less restrictive on procedural norms. In the twenty-first century, alternative dispute resolution (ADR) aims to develop a faster, more cost-effective, and more efficient approach than litigation, which is time-consuming and expensive. Foreign investors prefer mediation or arbitration over the national court system because they are concerned about the effectiveness of national courts in cross-border conflicts. In the context of cross-border commerce, dispute resolution through arbitration/ADR is not just a domestic but also an increasingly rising worldwide phenomena.
Contemporary ADR methods and procedures are thought to be more efficient and constructive than traditional schemes for managing conflicts and settling disputes because they help parties collaborate by reducing animosity and diminishing competitive incentives during the process, and in part, allows for a more satisfactory process through the conflict management expertise of professional negotiators and state-of-the-art in the field. The features of flexibility, cheap cost, absence of complex processes, collaborative issue solving, salvaging relationships, and familiarity with the general public are the core selling points of ADR methods.
Digital disruption has been felt across all modes: digital versions of products or services compete with physically embodied versions, and digital distribution/facilitation business models compete with conventional distribution business models. Technology has also crept into the realm of alternative dispute resolution thanks to advancements in the field. There is now online mediation, online arbitration, and even block chain arbitration, which employs the same block chain technology as cryptocurrencies. Alternative conflict resolution, sometimes known as “online dispute resolution,” is becoming more popular.
The United Kingdom’s Digital Dispute Resolution Rules provide for an automatic dispute resolution process which means a process associated with a digital asset that is intended to resolve a dispute between interested parties by the automatic selection of a person or panel or artificial intelligence agent whose vote or decision is implemented directly within the digital asset system (including by operating, modifying, cancelling, creating or transferring digital assets). It is, however, worth pointing out that these Rules have also created room for the traditional ADR mechanisms by providing that ‘any dispute between interested parties arising out of the relevant contract or digital asset that was not subject to an automatic dispute resolution process shall be submitted to arbitration in accordance with the current version of these rules at the time of submission; however, any expert issue shall be decided by an appointed expert acting as such rather than as an arbitrator’.
The emergence of Online Dispute Resolution (ODR) as a supplement to Alternative Dispute Resolution (ADR) might result in a meaningful paradigm shift in how conflicts are resolved outside of conventional court systems. It has been argued that the traditional court system is incapable of administering justice ‘on a large scale,’ and that ADR and ODR are more appropriate because they provide the architecture and tools to handle online disputes and can more proportionally handle functions that judicial authorities can no longer handle. International commercial disputes may quickly grow into huge trade disputes with significant political and economic ramifications, necessitating the greater use of extrajudicial dispute settlement rather than litigation in national courts. As a result of globalization, effective and dependable systems for resolving commercial and other general issues involving parties from several jurisdictions have become not only desirable but also essential.
*This article is an extract from the Article “The Evolving Alternative Dispute Resolution Practice: Investing in Digital Dispute Resolution in Kenya” by Dr. Kariuki Muigua, PhD, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya.
References
Muigua, K., “The Evolving Alternative Dispute Resolution Practice: Investing in Digital Dispute Resolution in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2022/04/The-Evolving-Alternative-Dispute-Resolution-Practice-Investing-in-Digital-Dispute-Resolution-in-Kenya-Kariuki-Muigua.pdf (accessed 28th September 2023).

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