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Alternative Dispute Resolution (ADR) of Tax Disputes in South Africa

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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 Publication of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

The South Africa Revenue Service (SARS) has established an Internal Administrative Appeal (IAA) mechanism which allows anyone does not agree with the decision of tax officer and has approached the officer’s immediate supervisor to clarify the decision in question and resolve any uncertainties but the mater remains unresolved to institute a formal internal administrative appeal. In such cases, the client(s) not satisfied with any decision taken by officers in terms of the relevant tax law, have a right to appeal that decision to the relevant appeal committee. Once the appeal is lodged in the prescribed form to the office that communicated the decision. The Appeal has to be made within thirty (30) days from the date the client became aware of the decision or received reasons for the decision. An extension of twenty (20) days may be granted, if such extension is applied before the expiry of the 30-days period but if that is exceeded, the IAA process cannot be followed and the applicant’s only recourse will then lie in litigation.

In the event of successful appeal, the Appeal Committee has to provide a decision and reasons for the decision in writing within forty-five (45) days from the date of acknowledgement of receipt of the Appeal.   If the taxpayer is unhappy with the decision of any appeal committee, their recourse is to lodge an application for Alternative Dispute Resolution (ADR) with that relevant appeal committee which made the decision. In that case, the committee will add its comments thereto and forward the application to the ADR Unit for attention.  The ADR process is used as recourse against the final decision made under the IAA process and may be initiated by either the aggrieved person or SARS but the final decision on whether a matter is suitable for ADR vests with SARS.

To apply for ADR, a properly completed prescribed form together with the relevant supporting documents, must be submitted to the chairperson of the appeal committee who informed the client of the decision within 30 days of the date of the letter. The Commissioner may agree to extend the period for submission of the application for ADR. The Commissioner is required within 20 days to decide and inform the applicant whether the matter is appropriate for ADR or not and that it may be resolved by way of the procedures contemplated in the rules. The SAR Alternative Dispute Resolution (ADR) External Policy provides the standard approach to be followed by stakeholders when a dispute is referred to Alternative Dispute Resolution (ADR), as provided for in Section 77I of the Customs and Excise Act (Act No. 91 of 1964).

ADR can also be used as an alternative to judicial tax proceedings in South Africa. In that regard, the Commissioner must within ten days after receipt of a notice in terms of Section 96(1) of the Act inform the person delivering such notice that he is of the opinion that the matter is appropriate for ADR. Within ten days after the date of the above notice by the Commissioner such person must deliver a duly completed prescribed form for Application for ADR to the Commissioner should he or she agree to the ADR process. If the party does not complete the application for ADR within ten days after the date of the notice by the Commissioner, the matter may not be dealt with through ADR.

The ADR must be concluded within 90 days, or such further period as SARS may agree to. The period within which the ADR proceedings are conducted commences either 20 days after date of notice by the Commissioner of suitability of the matter for resolution by ADR or on receipt of an application for ADR by the Commissioner after communication a matter suitable for ADR as alternative to judicial proceedings. The period ends on the date of termination of proceedings in the manner provided for in the terms governing the ADR procedures. SARS is entitled to appoint a facilitator, who may be an appropriately qualified officer of SARS within 15 days and the Commissioner must inform the aggrieved person of the appointment of the facilitator. The role of the facilitator is to seek a fair, equitable and legal resolution of the dispute between an aggrieved person and SARS.

The procedure to be adopted, the time place and date and requirements as to the furnishing of submissions and documentation, are determined by the facilitator after consultation with the aggrieved person and the officer(s) or appeal committee of SARS. The aggrieved person must be personally present during the ADR proceedings but may however be accompanied by any representative of their choice. But the facilitator may, in exceptional circumstances, allow the aggrieved person to be represented in their absence by a duly authorized representative of their choice. With agreement of the facilitator, the parties may to lead or bring witnesses in the ADR process. The facilitator may also require either party to produce a witness to give evidence. At the conclusion of the meeting, either at the instance of the facilitator or by mutual agreement, the facilitator must record all issues which were resolved and issues upon which no agreement or settlement could be reached and the facilitator must deliver a report to the parties within ten days of the conclusion of the ADR process.

The ADR proceedings are envisaged to be without prejudice and not one of record, and any representation made or document tendered in the course of the proceedings may not be tendered in any subsequent proceedings as evidence by any other party, unless: it is used with the knowledge and consent of the party who made the representation or tendered the document during the proceedings or the representation/document is already known to, or in possession of, that party or where it was obtained by that party otherwise than in terms of the ADR proceedings. Further, no person may subpoena any person involved in the ADR process (including the facilitator), in whatever capacity, to compel disclosure of any representation made or document tendered in the course of the proceedings.

A dispute may either be resolved by agreement whereby either SARS or the aggrieved person accepts, either in whole or in part, the other party’s interpretation of the facts or the law applicable to those facts or both. However, such agreement must be reduced to writing and signed by both parties. If the parties fail to resolve the dispute, the parties may attempt to settle the matter as set out in the Act. In any case, once a dispute is resolved either by agreement or settlement SARS must give effect to that agreement or settlement within a period of 60 days after conclusion. If the dispute is not resolved by either agreement or settlement or the proceedings are terminated, SARS must inform the aggrieved person within 10 days inform the aggrieved party of their right to institute judicial proceedings. Any agreement or settlement reached through the ADR process has no binding effect in respect of any other matters relating to that aggrieved person not actually covered by the agreement or settlement or any other person.

The Tax Law gives SARS the power to settle a dispute which is to the benefit of the State. A dispute may be settled at any time as the settlement provisions are not limited for use only during the ADR process. However, the ADR is noted as a process to resolve disputes one ideal situation where the settlement provisions may be applied in an attempt to settle the matter. The settlement provisions in the South African law may only be applied if the circumstances of the matter comply with these regulations. The settlement procedures provide guidelines as to the circumstances when it would be appropriate and when it would be inappropriate to settle.

Circumstances where it is inappropriate to settle include where, if in the opinion of SARS: the action of the aggrieved person constitute intentional tax evasion or fraud or where the settlement would be contrary to the law or a clearly established practice of the Commissioner on the matter, and no exceptional circumstances exist to justify a departure from the law or practice. Further, it is not appropriate to settle where it is in the public interest to have judicial clarification of the issue or pursuit of the matter through the courts will significantly promote compliance of the tax laws or the person concerned has not complied with the provisions of any Act administered by SARS and SARS is of the opinion that the non-compliance is of a serious nature.

On the other hand, where it is to the best advantage of the State, SARS may settle a dispute, in whole or in part, on a basis that is fair and equitable to both the person concerned and SARS. SARS is enjoined when contemplating the settling of a matter, to have regard to a number of factors including: whether that settlement would be in the interest of good management of the tax system, overall fairness and the best use of SARS’ resources; the cost of litigation in comparison to the possible benefits, whether there are any complex factual or quantum issues in contention or evidentiary difficulties which are sufficient to make the case problematic in outcome or unsuitable for resolution through the ADR process or the courts. Settlement is also to be embraced where the settlement of the dispute will promote compliance of the tax laws by the person concerned or a group of taxpayers or a section of the public in a cost-effective way.

The tax law provides for reporting requirements in terms of which SARS must report on an annual basis to the Minister of Finance and the Commissioner on settlements reached. This report must be in such format as does not disclose the identity of the person concerned and contain details of the number of disputes settled or part settled, the amounts of revenue foregone and estimated amount of savings in costs of litigation, which must be reflected in respect of main classes of taxpayers. In the end, ADR as contemplated in South African law is “a form of dispute resolution other than litigation, or adjudication through the courts.” It is less formal, less cumbersome and less adversarial and a more cost-effective and speedier process of resolving a dispute with SARS.

*This article is part of an ongoing series on Specialized Alternative Dispute  Resolution in Kenya by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). 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 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 2022. 

References

South Africa Revenue Service (SARS), “What is Internal Administrative Appeal and How does it Work?,” Available at: https://www.sars.gov.za/customs-and-excise/offences-penalties-and-disputes/appeals/ (accessed on 25/01/2022).

SARS, “Dispute Resolution,” Available at: https://www.sars.gov.za/customs-and-excise/offences-penalties-and-disputes/dispute-resolution/#elementor-toc__heading-anchor-1 (accessed on 25/01/2022).

SARS, Alternative Dispute Resolution (ADR) External Policy, Available at: https://www.sars.gov.za/wp-content/uploads/Ops/Policies/SC-CC-26-Alternative-Dispute-Resolution-External-Policy.pdf (accessed on 25/01/2022).

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1

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The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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Dr. Kariuki Muigua: The Making of Top Arbitrator in Africa

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African Arbitrator of the Year 2022 Dr. Kariuki Muigua's Journey to the Top of ADR in Africa is a Case Study of Excellence

The journey of Dr. Kariuki Muigua to becoming the African Arbitrator of the Year 2022 has seen him painstakingly and consistently research, teach, write, edit, publish, train, mentor and practice arbitration, alternative dispute resolution (ADR), conflict management and dispute resolution for the last 30 years with excellence as a leading lawyer, authoritative scholar and ADR expert. Today, Dr. Kariuki Muigua, Phd, C.Arb is a Chartered Arbitrator and the African Trustee of the Chartered Institute of Arbitrators and the African Arbitrator of the Year 2022. He is an advocate of 33 years standing and the Managing Partner of Kariuki Muigua & Co. Advocates. He is also the author of the Leading Textbooks on ADR, Mediation and Arbitration including the seminal Settling Disputes Through Arbitration in Kenya, now in 4th Edition. Dr. Kariuki Muigua is ranked at Band 1 by Chambers & Partners among the leading Arbitrators in Kenya noting that “He has been involved in several ground-breaking arbitrations,” “has an astute understanding of arbitration” and “is respected for litigation.”

Dr. Kariuki Muigua is also both the founder, publisher and editor of Africa’s leading Conflict Management Journal as well as one of the PhD Academics who majored in resolution of Natural Resources and Environmental Conflicts using mediation. Dr. Kariuki Muigua is also a leading author in the area of conflict management and has published several books on the topic including Resolving Conflicts through Mediation and Natural Resources and Environmental Justice in Kenya. It is these exploits that have left many of his admirers convinced that his next stop would be Professorship and admission to the Rank of Senior Counsel.

As an ADR Practitioner, Dr. Muigua was declared the first ever winner of the Chartered Institute of Arbitrators (Kenya Branch) ADR Lifetime Achievement Award, the highest honour given by the Institute to one member every year for his immense contribution to the growth of practice, research and scholarship of ADR in Kenya and across Africa. The award came barely a week after Dr. Muigua had won the coveted Law Society of Kenya ADR Practitioner of the Year Award at the 4th Edition of the Nairobi Legal Awards. LSK recognized Dr. Muigua for his outstanding practice in ADR and especially arbitration and his role as mentor to many lawyers venturing into the area. Dr. Kariuki Muigua was also awarded the ADR Publisher of the Year for his scholarship, authorship and editorship of leading research and publications on ADR in Africa including the Journal of Conflict Management and Sustainable Development and Alternative Dispute Resolution, the Official Journal of the CIArb (Kenya).

The tripartite awards have been hailed by many of Dr. Kariuki Muigua’s peers in the ADR and Arbitration fraternity as a fitting tributes to his made immense contribution to mainstreaming of alternative dispute resolution (ADR) and especially arbitration as way of resolving disputes in Kenya, East Africa and across Africa in the last two (2) decades. Indeed, starting in 2002 when Dr. Muigua took the Special Member Course leading to membership to the Chartered Institute of Arbitrators (MCIArb), Dr. Muigua one of the staunchest advocates of ADR in Africa in addition to becoming the foremost intellectual voice shaping ADR practitioners and scholars of the future. The contribution of Dr. Kariuki Muigua to the alternative dispute resolution (ADR) sector has taken many shapes and forms including as a practitioner, leader, policy maker, scholar, author, trainer, mentor and trailblazer among others.

Dr. Muigua is a leading Alternative Dispute Resolution (ADR) practitioner in Kenya, Africa and the world at large who has been recognized nationally and globally by peers. The world leading peer-reviewed lawyers’ directory, Chambers and Partners, rates Dr. Kariuki Muigua as one of the best alternative dispute resolution experts in the country. It describes as ‘a highly respected arbitrator and mediator with a sterling background in commercial and constitutional cases, as well as matters relating to the environment and natural resources.’ The most recent ranking adds: “Kariuki Muigua of Kariuki Muigua & Co is held in high regard by market commentators for his role in the Kenyan arbitration sphere. He possesses stellar experience in commercial and constitutional disputes, as well as environmental matters and those relating to the extractive industries. In addition to being “a big noise in the arbitration association,” he is widely recognized for his academic work.”

Dr. Muigua has served in many panels as an arbitrator appointed by the Chartered Institute of Arbitrators (CIArb)-Kenya, the Law Society of Kenya (LSK), the Nairobi Centre for International Arbitration (NCIA), the London Court Of International Arbitration (LCIA) and the International Court of Arbitration under the auspices of the International Chamber of Commerce (ICC) on several occasions as a sole arbitrator and a member of arbitral tribunals in arbitrations involving commercial disputes. He has vast experience and expertise in adjudication and has sat as both as a panel member and a chairperson in various adjudication Boards both locally and internationally. He is also an accomplished mediator and has successfully presided over numerous matters both as a private mediator and a court appointed mediator under the Court-Annexed Mediation program in Kenya.

Dr Muigua was elected (unopposed) to the Chartered Institute of Arbitrators (CIArb) Board of Trustees as the Regional Trustee for Africa, for the term beginning 1 January 2019. Previously, he served as the Branch Chairman of CIArb-Kenya from 2012 to 2015. He also served CIArb as Member and past Chairperson of the Sub-committee on Information Technology (IT), CIArb and as Member of the Legal Committee Chartered Institute of Arbitrators (CIArb) – Kenya chapter. He is a Fellow of Chartered Institute of Arbitrators (CIArb)-Kenya chapter. He is also a member of the London Court of International Arbitration (LCIA), Chartered Institute of Arbitrators (UK) and Kenya Branch. He is also a Member of Kigali International Arbitration Centre (KIAC) and Nairobi Centre for International Arbitration (NCIA). For his contributions, he was awarded Chartered Institute of Arbitrators Chairman’s Medal with a citation for exemplary service in December, 2015.

In policy-making, Dr. Kariuki Muigua is currently a member of the National Steering Committee for Formulation of the Alternative Dispute Resolution Policy representing the Academia since 2020. The team is providing guidance and overseeing the process for formulation of a national policy and institutional framework on Alternative Dispute Resolution (ADR) in Kenya. He has also served as Member of the Meditation Accreditation Committee Panel of Mediators Accredited for Commercial Mediation under the Judiciary of Kenya. Recently, he led negotiations that achieved partnership with Chartered Institute of Arbitrators UK on GPR 625 (International Commercial Arbitration) for University of Nairobi LLM students to achieve membership status without further tests, 2020 to 2023.

On ADR Scholarship, Dr. Muigua is the author of the leading textbook on Arbitration in Kenya, namely, Settling Disputes through Arbitration in Kenya, now in its 4th Edition (2022) and available for free download, Alternative Dispute Resolution and Access to Justice in Kenya (2015) and Resolving Conflicts through Mediation in Kenya (2013). He has been cited hundreds of times as an ADR Scholar, contributed at least 3 chapters of published books, authored dozens of peer-reviewed articles in the areas of arbitration and alternative dispute resolution and presented over two dozen papers on ADR in diverse fora. Dr. Muigua has also facilitated numerous trainings, workshops and conferences on ADR. He has supervised and supervised at least two (2) completed PhD thesis on ADR, Dozens of Masters Thesis and is supervising three (3) PhDs in the area as a lecturer and mentor in ADR practice and scholarship. Dr. Muigua is a lecturer in International Commercial Arbitration at the University of Nairobi and tutor, trainer and assessor at the Chartered Institute of Arbitrators (Kenya Branch).

Dr. Kariuki Muigua is a Chartered Arbitrator (since January 2015) and Fellow of the Chartered Institute of Arbitrators (since October 2010) and Member of the Chartered Institute of Arbitrators (since 2002). He holds a Diploma in Arbitration (2012) and became Accredited as a Mediator by the Mediation Training Institute in 2015. He is also a renowned consultant on ADR Law and Practice and has authored reports whose recommendations had far reaching impact on the sector. As a professional who strives to attain excellence in the legal and ADR arenas, Dr. Muigua has gone out of his way to put ADR in the frontline as one of the leading modes of dispute resolution in Kenya, Africa and at global stage. Dr. Muigua is a holder of a Ph. D in law from the University of Nairobi and has widespread training and experience in both international and national commercial arbitration and mediation. Previously, he served as the chairperson, Department of Private Law of the University of Nairobi School of Law 2020-2021.

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Overcoming Hindrances to International Commercial Arbitration in Kenya

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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*

In the face of globalisation, it is important that international trade and investment take place with minimal interference by territorial barriers such as unnecessary domestic courts’ intervention. It has been asserted that the settlement of disputes between parties to an international transaction, arbitration has clear advantages over litigation in national courts. The foreign court can be an alien environment for a businessman because of his unfamiliarity with the procedure which may be followed, the laws to be applied, and even the mentality of the foreign judges.

In contrast, with international commercial arbitration parties coming from different legal systems can provide for a procedure which is mutually acceptable. They can anticipate which law shall be applied: a particular law or even a lex mercatoria of a trade. They can also appoint a person of their choice having expert knowledge in the field. Thus, it is argued that these and other advantages are only potential until the necessary legal framework can be internationally secured, at least providing that the commitment to arbitrate is enforceable and that the arbitral decision can be executed in many countries, precluding the possibility that a national court review the merits of the decision.

There is a need to employ mechanisms that will help nurture and demonstrate Kenya to the outside world as a place with international commercial arbitrators with sufficient knowledge and expertise to be appointed to arbitrate international arbitrators. There is also the need to put in place adequate legal regimes and infrastructure for the efficient and effective organization and conduct of international commercial arbitration in Africa. This ranges from legislating comprehensive law on international commercial arbitration as well as setting up world class arbitration centres in Kenya to complement the Nairobi Centre for International Arbitration (NCIA).

There is also the Centre for Alternative Dispute Resolution (CADR) which is an initiative by the Chartered Institute of Arbitrators, Kenya and was incorporated in May, 2013. Its objective is to establish and maintain a regional Dispute Resolution Centre in the country. The CADR is a positive step towards nurturing international commercial arbitration in Kenya. This will afford the local international commercial arbitrators the fora to showcase their skills and expertise in international commercial arbitration and will also attract international clients from outside Africa. It has been noted that there should be basic minimum standards for international commercial arbitration centres or institutions. These include: modern arbitration rules; modern and efficient administrative and technological facilities; Security and safety of documents; Expertise within its staff; and some serious degree of permanence. There is a need to set up more regional centres for training of international commercial arbitrators in Africa and Kenya.

The Kenyan Chapter of Chartered Institute of Arbitrators trains arbitrators across Africa and has trained arbitrators in countries like Nigeria, Zambia, Uganda and even Malawi. Kenya can indeed play a pivotal role in nurturing international commercial arbitration, not only in Kenya but also across the African continent. There is also need for the existing institutions to seek collaboration with more international commercial arbitration institutions since this will work as an effective marketing tool for the exiting institutions. For instance, the Kenyan Chartered Institute of Arbitrators Branch maintains a close relationship with the International Law Institute (ILI) Kampala and the Centre for Africa Peace and Conflict Resolution (CAPCR) of California State University to conduct Courses in Mediation and other forms of ADR both locally and internationally.

There is need for all African centres and institutions to do the same to promote international commercial arbitration in Africa. The Kenyan law on arbitration appreciates the need to limit court intervention in arbitration to a basic minimum. It has been argued that the relationship between the courts and the arbitral process can be made much closer, both practically and psychologically. The psychological link can be strengthened by encouraging all or at least a good number of the commercial judges and advocates to take up training in arbitration and consequently ensuring that they benefit from having prior experience of arbitration either as representative advocates or actual arbitrators. This will subsequently boost the confidence of foreigners in the African Arbitration institutions as well as the role of courts. Effective and reliable application of international commercial arbitration in Kenya has the capacity to encourage investors to carry on business with confidence knowing their disputes will be settled expeditiously.

In essence, there is need to develop a clear framework in Kenya within which international commercial arbitration can be further nurtured. There are arbitral institutions already in place in Kenya as highlighted in this paper. The presence of such institutions in the country points to an acceptance of alternative dispute resolution modes as well as the need to nurture the practice of international commercial arbitration other than exporting commercial disputes to foreign countries for settlement. With the right frameworks in place, Kenya indeed has the capacity to conduct successful international commercial arbitration. Nurturing international commercial arbitration in Kenya is a necessity whose time has come.

*This article is an extract from published article Nurturing International Commercial Arbitration in Kenya,” by Dr. Kariuki Muigua, PhD, the African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), CIArb (Kenya) ADR Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021. Dr. Kariuki Muigua is a Foremost Dispute Resolution Expert in Africa ranked among Top 6 Arbitrators in Kenya by Chambers and Partners, Leading 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 2022 and is ranked among the Top 5 Arbitrators in Kenya in 2022 by The Lawyer Africa. 

References

Muigua, K., “Nurturing International Commercial Arbitration in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2021/10/Nurturing-International-Commercial-Arbitration-in-Kenya.pdf (accessed 15 July 2022).

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