News & Analysis
The Place of Indigenous Knowledge in Biodiversity Conservation
Published
1 year agoon
By
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 rights of Indigenous Peoples are considered to be of special relevance to conservation for two main reasons: The first is that priority sites for biodiversity conservation frequently overlap with the territories of Indigenous Peoples. This is often because of Indigenous Peoples’ custodianship of those lands which has meant that they have retained their value for biodiversity; and secondly, Indigenous Peoples very often have a close relationship to the land and to nature and, therefore, conservation has the potential to affect that relationship – both positively and negatively.
It has rightly been observed that the livelihoods of indigenous peoples, custodians of the world’s forests since time immemorial, were eroded as colonial powers claimed de jure control over their ancestral lands, where the continuation of European land regimes in Africa and Asia meant that the withdrawal of colonial powers did not bring about a return to customary land tenure. This is despite the acknowledgement that the rights of indigenous peoples’ are often particularly relevant for conservation and sustainable use of natural resources, due to the frequent overlap of high biodiversity areas and indigenous lands, and the vulnerability of natural resource-dependent customary livelihoods to changes in access or use.
In addition, indigenous peoples’ traditional ecological knowledge, traditional systems of control, use and management of lands and resources, and traditional institutions for self-governance also contribute substantially to conservation. While across sub-Saharan Africa, natural resources remain central to rural people’s livelihoods with local norms and customs shaping people’s everyday forms of resource use, the commercial uses of natural resources often remain highly centralized, conditioned by government policies of the colonial and post-colonial eras. Notably, the term “indigenous knowledge” is generally used refer to how members of a community perceive and understand their environment and resources, particularly the way they convert those resources through labour.
Indigenous groups should be included in reforestation and forest management plans as they can potentially offer alternative knowledge and perspectives based on their own locally developed practices of resource use. Indigenous knowledge is the local knowledge that is unique to a culture or society, seen as the social capital of the poor since it is their main asset to invest in the struggle for survival, to produce food, to provide for shelter and to achieve control of their own lives. The SDGs recognises the importance of this body of knowledge as it has several goals that seek to incorporate the knowledge vested in indigenous people in order to achieve its main agenda. Indigenous knowledge has been hailed as capable of solving local problems, as it offers a resource to help grow more and better food, adds to maintain healthy lifestyles, and it provides opportunities to share wealth and prevent conflicts.
For instance, some commentators have observed that: with regard to agro-ecology, indigenous people practised mixed farming where organic manure in the form of plant remains, cow dung and urine, and chicken droppings was applied to gardens to improve soil fertility as they are good sources of organic fertilizer which tended to promote organic farming; the use of nitrogen fixing pulses in mixed cropping, growing of plants of different patterns, maturity and duration assisted significantly in stabilizing soil fertility and prevention of soil erosion; in addition, the practice was an effective way, biologically, of managing pests and diseases; it also conserved biodiversity of animal and biannual crops and plants while reducing labour costs; in addition, trees were planted in gardens to provide shade for the plants, to act as wind breaks, and also to demarcate people’s farmlands and homes; and as such, reviving organic agriculture would help conserve water, mitigate climate change and ensure sustained biodiversity.
Some of the main ways through which indigenous knowledge may be used in promoting biodiversity conservation include but not limited to: trees which were traditionally regarded as housing spirits or sacred were not be felled without performing rituals, thus achieving a protective effect on trees such as mugumo tree (Ficus natalensis/Ficus thonningii) among the Gikuyu community of Kenya; animals in a particular habitat may be regarded as sacred and are therefore protected from hunting; sacred groves or forests are pieces of land set aside for spiritual purposes, as shrines; traditional farming practices are champions in sustainable land and water management as they involve land rotation and shifting cultivation allowing the land for more than 10 years to restore its natural fertility; all over sub-Saharan Africa indigenous plants are used in preventing and curing diseases in plants, animals and humans thus guaranteeing their protection and conservation.
Arguably, while there is a need for deeper research to demonstrate to what extent indigenous knowledge rules are able to realize targets of sustainable use and the questions on effectiveness and efficiency of community based approaches to biodiversity conservation and management arise, in theory, when biodiversity can be maintained and monitored through customary laws, this is preferable over maintenance through codified law. Notwithstanding this, the provisions in the Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016 offer a rare opportunity for the state to realize the vision of the 2030 SDGs by incorporating Kenyan communities’ indigenous knowledge in the roadmap to the achievement of the sustainable development agenda. By including these communities and their knowledge, any development policies aimed to benefit these communities will be more likely to not only respond to their cultural needs and preferences but will also enable them meaningfully participate.
Some commentators rightly argue that, despite any gaps in knowledge in the place of indigenous knowledge in biodiversity conservation for realisation of SDGs, the following indigenous and other traditional communities’ rights should be respected, in relation to the lands, territories, waters, coastal seas and other resources which they traditionally own or otherwise occupy or use, and which fall within protected areas, subject to agreements with the agencies in charge of national protected area systems, and in the context of agreed management regulations and plans: rights with regard to sustainable, traditional use of their lands and resources; rights to participate in management; rights to participate in decision-making; rights to participate in determining priorities and strategies for the development or use of their lands; rights to use their own traditional institutions and authorities to co-manage their lands and resources; rights to require that States obtain the free and informed consent of the respective communities, prior to the approval of any project affecting their lands and resources; rights to improve the quality of their lives, and to benefit directly and equitably from the conservation and ecologically sustainable use of natural resources; collective rights to maintain and enjoy their cultural and intellectual heritage, and the knowledge related to biodiversity and natural resource management; and rights not to be removed from the zones they have traditionally occupied within protected areas.
Some, however, argue that protected areas and community agriculture can indeed co-exist. As the number of crop species and varieties declines, local nitrogen-fixing bacteria, mycorrhizae, predators, pollinators, seed dispersers and other species that co-evolved over centuries with traditional agricultural systems die out. In addition, the use of fertilizers, pesticides and high-yielding varieties to maximize production and profits over the short term exacerbates this loss of biodiversity. Arguably, diversity of crop species and the diversity of varieties within a species have traditionally strengthened the resilience of agriculture, and Protected areas can contribute to this effort through maintaining wild relatives of crops. As such, the agricultural community should be seen as part of a larger and more comprehensive ecosystem which provides both goods and services from nature through a wellmanaged protected system. Fostering this positive relationship between agriculture and protected areas may however require broader adoption of the new approaches.
*This article is an extract from the Article “Fostering a Human Rights Approach to Biodiversity Conservation 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 among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., “Fostering a Human Rights Approach to Biodiversity Conservation in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2021/11/Fostering-a-Human-Rights-Approach-to-Biodiversity-Conservation-in-Kenya-Kariuki-Muigua-November-2021.pdf (accessed 10 May 2022).
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News & Analysis
Legal and Policy Framework for Energy Transition in Kenya
Published
37 mins 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
8 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
15 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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