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, CIArb (Kenya) Lifetime Achievement Award 2021 and Nominee for African Arbitrator of the Year 2022. He is invited as a Guest Speaker at East African International Arbitration Conference 2022 to speak on the theme: Resettling for the New Age of Arbitration in Africa: Climate Change, Global Partnerships & Sustainable Development.*
Professional conduct, ethics, integrity and etiquette in ADR principles can be discerned from various sources. Various sources are discussed here.
Constitution of Kenya 2010
The Constitution of Kenya sets out national values and principles of governance that are to bind and guide all persons. These values and principles include integrity, transparency and accountability8. ADR practitioners in Kenya are thus bound by these principles and should ensure that their conduct is done in a transparent and accountable manner. Further, the Constitution also recognizes the role of ADR mechanisms as tools of access to justice. To this extent, the Constitution sets out certain principles to guide persons exercising judicial authority including ADR practitioners. Among these principles is fairness, the need for expeditious management of disputes and respect of the Constitution. ADR practitioners should be guided these principles in discharge of their mandate. The Constitution of Kenya 2010 thus represents a good source of authority for professional conduct, ethics, integrity and etiquette in ADR.
Civil Procedure Act, Cap. 21
The Act provides for the management of disputes through ADR mechanisms such as arbitration and mediation. The Act establishes the Mediation Accreditation Committee whose mandate is certification of mediators and maintaining a register of qualified mediators. The Committee is also mandated to enforce such code of ethics for mediators as may be prescribed and set up appropriate training programmes for mediators. The Mediation Accreditation Committee established under the Civil Procedure Act is thus an important body in promoting professional conduct and ethics for mediators.
The International Bar Association Guidelines on Conflicts of Interest in International Arbitration
One of the fundamental ethical concerns in International Commercial Arbitration is conflict of interest. The IBA Guidelines on Conflicts of Interest in International Arbitration seek to address this concern by stipulating a code of conduct on conflict of interest in international arbitration. Among the salient provisions of the guidelines is the aspect of impartiality. The guidelines provide that every arbitrator shall remain impartial and independent of the parties at the time of appointment and shall remain so until the final award is rendered. The guidelines further provide that an arbitrator shall decline to accept an appointment or refuse to continue to act where there is likelihood of conflict of interest. There is also a requirement for arbitrators to disclose facts that may give rise to doubts as to the arbitrator’s impartiality or independence.
The IBA guidelines represent an attempt to formulate a code of conduct, ethics, integrity and etiquette in ADR at the international level. The guidelines have gained wide acceptance within the international arbitration community.
The Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members, 2009
The Code sets out professional and moral principles to govern the conduct of members of the Chartered Institute of Arbitrators while discharging their mandate. The Code requires members to maintain integrity and fairness of the dispute resolution process and withdraw if this is no longer possible. The Code further requires members to disclose all interests, relationships and matters likely to affect their independence and impartiality before and throughout the dispute resolution process.
It further requires members to be competent and only accept appointments to manage disputes only when they are appropriately qualified or experienced. The Code also requires members to ensure that parties are adequately informed of all the procedural aspects of the process. It further requires members to maintain trust and confidence of the dispute resolution process. The Code is therefore an important source of professional conduct, ethics, integrity and etiquette for members of the Chartered Institute of Arbitrators.
The Chartered Institute of Arbitrators (Kenya) Arbitration Rules, 2020
The rules stipulate the expected code of conduct for arbitrators in respect of arbitration proceedings conducted under the auspices of the Chartered Institute of Arbitrators (Kenya). The rules provide for the independence and impartiality of an arbitral tribunal. The rules require an arbitrator to disclose circumstances likely to give justifiable doubts as to the impartiality or independence of an arbitrator. The rules further require arbitration proceedings to be private and confidential. Arbitrators should thus not disclose proceedings unless by consent of the parties. The rules also require arbitrators to avoid conflict of interest.
Nairobi Centre for International Arbitration (NCIA), Code of Conduct for Mediators, 2021
The Code stipulates fundamental ethical guidelines for persons appointed to mediate disputes under the NCIA mediation rules. Among its fundamental ethical rules is independence and impartiality. Before accepting an appointment to act, a mediator is required to disclose anything within his/her knowledge that may materially affect his/her impartiality.
The Code of conduct further requires a mediator to avoid conflict of interest or the appearance of a conflict of interest during and after mediation. Conflict of interest in mediation can potentially arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and either of the participants in the mediation process. The Code further requires a mediator to possess the necessary competence required to mediate effectively. Competence in mediation can be acquired through training, experience and cultural understandings. In addition, the Code requires mediators to promote confidentiality, quality and fairness of the mediation process.
The Alternative Dispute Resolution Bill
The purpose of the Bill is to provide for an Act of parliament that will govern the settlement of civil disputes through ADR mechanisms and in particular conciliation, mediation and traditional dispute resolution mechanisms. The Bill sets out certain guiding principles and ethical considerations to govern management of disputes through the stipulated ADR mechanisms. The Bill requires ADR practitioners to promote confidentiality in the process except in the case of traditional dispute resolution.
Further, the Bill requires ADR practitioners to facilitate expeditious determination of disputes taking into account the nature of the dispute. ADR practitioners are also required to be impartial and disclose any conflict of interest that may arise during the process. Finally, the Bill requires ADR practitioners to be competent in their respective fields before facilitating the management of disputes37. If enacted into law, the ADR Act will enhance professional conduct, ethics, integrity and etiquette in the practice of ADR in Kenya.
*This article is an extract from the Article “Promoting Professional Conduct, Ethics, Integrity & Etiquette in ADR” 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., “Promoting Professional Conduct, Ethics, Integrity & Etiquette in ADR,” Available at: http://kmco.co.ke/wp-content/uploads/2022/05/Promoting-ProfessionalConduct-Ethics-Integrity-Etiquette-in-ADR.pdf (accessed 16th June 2022).