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Promise and Pitfalls in Unlocking Climate Finance

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Climate Finance is key to realizing Climate Action SDGs

By Hon. Dr. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb (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) and and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023) and Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023)*

The landscape of climate finance presents numerous opportunities. The United Nations Framework Convention on Climate Change (UNFCCC) has established the Green Climate Fund which is mandated to support countries particularly those that are vulnerable to the impacts of climate change, including least developed countries, small island developing states, and African nations. The Green Climate Fund is the world’s largest climate fund and plays a fundamental role in helping developing countries raise and realize their Nationally Determined Contributions (NDC) ambitions towards low-emissions and climate resilient pathways as envisaged under the Paris Agreement.

Since 2015, the Green Climate Fund has approved over $12 billion for projects across more than 125 developing countries to accelerate clean energy transitions, build resilience in the most vulnerable countries, and catalyze private investment. These projects are expected to reduce 2.5 billion tons of emissions and increase the resilience of over 900 million people. The Green Climate Fund therefore plays a key role in unlocking climate finance. Furthermore, at the 2022 United Nations Climate Change Conference/Conference of the Parties of the UNFCC (COP27), a breakthrough agreement was reached to provide loss and damage funding for vulnerable countries hit hard by floods, droughts and other climate disasters. This decision has been lauded as historic since it recognizes the need for finance to respond to loss and damage associated with the severe consequences of climate change.

The decision recognizes the urgent and immediate need for new, additional, predictable and adequate financial resources to assist developing countries that are particularly vulnerable to the adverse effects of climate change in responding to economic and non-economic loss and damage associated with the adverse effects of climate change. The decision supports the UNFCCC commitment to jointly mobilise $100 billion in climate finance per year to support developing countries.

Actualizing the decision of COP 27 and meeting UNFCCC’s commitment on climate funding is vital in unlocking climate finance for development. In addition, developed countries have embraced climate finance by promising to provide financial assistance to developing countries to support their climate change mitigation and adaptation activities as envisaged under the Paris Agreement. The United States of America (USA) pledged to enhance climate support for developing countries to more than $11 billion a year by 2024.

In addition, the USA recently provided $1 billion to the Green Climate Fund (GCF) to support climate change mitigation and adaptation measures in developing countries. Further, the United Kingdom has committed to spend £11.6 billion on International Climate Finance from financial years 2021/2022 to 2025/2026. The UK notes that this funding is crucial in climate action through investments in priority areas including clean energy, adaptation and resilience and sustainable cities, infrastructure and transport. Developing countries therefore play an important role in unlocking climate finance for development.

International and regional financial institutions have also been key catalysts in unlocking climate finance. The World Bank acknowledges that financing transformative climate action is vital for development and to support the poorest people who are most affected by climate change. The World Bank delivered a record USD 31.7 Billion in fiscal year 2022 to help countries address climate change representing a 19% increase from the USD 26.6 Billion reached in the fiscal year 2021. The World Bank continues to be the largest multilateral financier of climate action in developing countries.

In Africa, the African Development Bank is committed to action on climate change and green growth, and to ensuring that development across the continent drives growth that is not only economically empowering but also decarbonized, climate friendly, environmentally sustainable, and socially inclusive.56 In its Climate Action Plan, the African Development Bank recognizes the importance of leveraging climate finance and mobilizing resources for climate action and green growth. The Bank’s climate finance investments increased from $2.1 billion in 2020 to $2.4 billion in 2021 and $3.6 billion in 2022. International and regional financial institutions therefore play a critical role in promoting access to climate finance.

Countries have also furthered their own efforts to unlock climate finance. The Government of Kenya estimates that USD 62 Billion is required to implement the country’s National Determined Contributions (NDCs) between 2020-2030. Kenya has made progress in realizing climate finance through public climate finance, bilateral and multilateral external funding and private climate finance involving both foreign investors and Kenyan investors. The country has also established budget programmes for biodiversity protection as part of its mitigation and adaption measures. Kenya has also adopted a green bond programme to promote financial sector innovation by developing a domestic green bond market. The programme is vital in enhancing the climate resilience of the country by fostering green investments.

In addition, Kenya has pioneered climate finance for pastoralist and vulnerable communities to reduce their vulnerability to climate change. This has enabled pastoralist communities to build community resilience and carry out climate-resilient development in a manner that fosters participation and community inclusion. It has further been observed that county governments in the drylands of Kenya have established local-level climate adaptation funds with technical support from government and non-government organisations. These funds are essential in supporting community-prioritized investments to build climate resilience. The landscape of climate finance in Kenya looks promising due to the availability of public finance, private climate and nature finance and innovative options for climate and nature finance such as green bonds.

From the above discussion, it emerges that there are huge promises for climate finance at the global, regional and national levels. However, several problems hinder effective realization of the ideal of climate finance for development. It has been observed that despite developed economies committing to provide climate financing to developing countries, some of them have not followed through on their commitments. Developed countries have failed to deliver on an agreed climate finance target of USD 100 billion annually by 2020.70 This results inadequacy, imbalance and unpredictability of climate finance flows to developing countries. This has affected implementation of mitigation and adaptation measures in developing countries.

Africa also faces several problems in unlocking climate finance. African governments pledged $ 264 Billion in domestic public resources to combat climate change a figure that falls short of the estimated USD 2.8 trillion required to implement Africa’s Nationally Determined Contributions (NDCs) between 2020 and 2030. It has also been observed that the debt crisis in Africa hinders the Continent’s ability to unlock climate finance. This has affected investor confidence and the ability of African countries to access international markets. Further, it is argued that governance problems limit the potential of Africa to unlock climate concerns due to concerns about transparency, accountability, and efficient allocation of funds aimed towards climate action.

It has also been asserted that limited capacity, expertise and human resources can hinder the potential of developing countries to unlock climate finance due to concerns over ability to implement projects aimed at climate change mitigation and adaptation. It is imperative to address these concerns in order to unlock climate finance in Africa and other developing countries. Further, whereas the decision of COP 27 to establish and operationalize a loss and damage fund, particularly for nations most vulnerable to the climate crisis is commendable, there are still concerns about who should pay into the fund, where this money will come from and which countries will benefit. There is need to address these concerns in order to unlock climate finance.

*This is an extract from the Book: Achieving Climate Justice for Development (Glenwood Publishers, Nairobi, October 2023) by Hon. Dr. Kariuki Muigua, OGW, PhDSenior 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 National Environment Tribunal (NET) Emeritus (2017 to 2022) and Member of Permanent Court of Arbitration nominated by Republic of 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Dr. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and 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 and the Top Arbitrator in Kenya in 2023. 

References

African Development Bank Group., ‘Climate Change.’ Available at https://www.afdb.org/en/topics-and-sectors/sectors/climate-change (Accessed on 10 August 2023).

African Development Bank., ‘African Development Bank Climate Change and Green Growth Strategic Framework: Action Plan 2021-2025.’ Available at https://www.afdb.org/en/documents/climate-change-and-green-growth-strategic-frameworkoperationalising-africas-voice-action-plan-2021-2025 (Accessed on 10 August 2023).

African Union, African Leaders Nairobi Declaration on Climate Change and Call to Action, A declaration made on 6th September 2023 by African leaders attending the Africa Climate Summit 2023 < https://au.int/en/decisions/african-leaders-nairobideclaration-climate-change-and-call-action-preamble> (Accessed on 10 August 2023).

Agyir. K., ‘African Countries Must Act Strategically to Unlock Climate Finance in the Face of a Debt Crisis.’ Available at https://blogs.lse.ac.uk/africaatlse/2023/06/15/african-countries-must-act-strategically-tounlock-climate-finance-in-the-face-of-a-debt-crisis/ (Accessed on 10 August 2023).

Global Center on Adaptation., ‘Kenya Pioneers Climate Finance for Pastoralist and Vulnerable Communities.’ Available at https://gca.org/kenya-pioneers-climate-finance-forpastoralist-and-vulnerable-communities/ (Accessed on 10 August 2023).

Government of the United Kingdom., ‘UK International Climate Finance Strategy.’ Available at https://www.gov.uk/government/publications/uk-international-climate-financestrategy (Accessed on 10 August 2023).

Green Climate Fund., ‘About GCF.’ Available at https://www.greenclimate.fund/about (Accessed on 10 August 2023).

Green Finance Platform., ‘The Kenya Green Bond Programme.’ Available at https://www.greenfinanceplatform.org/policies-and-regulations/kenya-green-bondprogramme (Accessed on 10 August 2023).

International Institute for Environment and Development., ‘Local Climate Finance Mechanism Helping to Fund Community-Prioritised Adaptation.’ Available at https://www.iied.org/local-climate-finance-mechanism-helping-fund-communityprioritised-adaptation (Accessed on 10 August 2023).

Kone. T., ‘For Africa to meet its Climate Goals, Finance is Essential.’ Available at https://climatepromise.undp.org/news-and-stories/africa-meet-its-climate-goalsfinance-essential (Accessed on 10 August 2023).

Magoma. C., ‘A Huge Financing Gap for Climate Action with Public Debt Sustainability Risks Looms in East Africa beyond COP27.’ Available at https://www.acepis.org/a-huge-financing-gap-for-climate-action-with-public-debtsustainability-risks-looms-in-east-africa-beyond-cop27/ (Accessed on 10 August 2023).

Nicholson. K., ‘Kenya Climate and Nature Financing Options Analysis Final Report.’ Available at https://acrobat.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3A5f6c09bfc917-3b18-9c63-4c2c03af8151 (Accessed on 10 August 2023).

Republic of Kenya., ‘Kenya’s Submission on the Objective of the New Collective Quantified Goal On Climate Finance with Respect Article two of the Paris Agreement.’ Available at https://acrobat.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3Aa62dd186- 0d91-3d24-b799-ebe0b32b939a (Accessed on 10 August 2023).

The White House., ‘FACT SHEET: President Biden to Catalyze Global Climate action through the Major Economies Forum on Energy and Climate.’ Available at https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/20/fact-sheetpresident-biden-to-catalyze-global-climate-action-through-the-major-economies-forum-onenergy-and-climate/ (Accessed on 10 August 2023).

The World Bank., ‘10 Things You Should Know About the World Bank Group’s Climate Finance.’ Available at https://www.worldbank.org/en/news/factsheet/2022/09/30/10-things-you-should-knowabout-the-world-bank-group-s-climate-finance (Accessed on 10 August 2023).

UNFCC., ‘Decision -/CP.27 -/CMA.4: Funding Arrangements for Responding to Loss and Damage Associated with the Adverse Effects of Climate Change, Including a Focus on Addressing Loss and Damage.’ Available at https://unfccc.int/sites/default/files/resource/cma4_auv_8f.pdf (Accessed on 10 August 2023).

UNFCC., ‘Five Key Takeaways from COP27.’ Available at https://unfccc.int/processand-meetings/conferences/sharm-el-sheikh-climate-change-conference-november-2022/fivekey-takeaways-from-cop27?gclid=EAIaIQobChMI5_C16jRgAMVDzAGAB1Ikw6NEAAYASAAEgL_QfD_BwE (Accessed on 10 August 2023).

United Nations Environment Programme., ‘COP27 Ends with Announcement of Historic Loss and Damage Fund.’ Available at https://www.unep.org/news-andstories/story/cop27-ends-announcement-historic-loss-and-damage-fund (Accessed on 10 August 2023).

United Nations Framework Convention on Climate Change., ‘Introduction to Climate Finance.’ Available at https://unfccc.int/topics/introduction-to-climatefinance?gclid=EAIaIQobChMI18L91LDRgAMVaIpoCR2_kQzJEAAYAiAAEgI4cfD_BwE (Accessed on 10 August 202310 August 2023.

United Nations Framework Convention on Climate Change., ‘Report of the Conference of the Parties on its Sixteenth Session, held in Cancun from 29 November to 10 December 2010.’ FCCC/CP/2010/7/Add.1.

United Nations., ‘Accessing Climate Finance: Challenges and opportunities for Small Island Developing States.’ Available at https://www.un.org/ohrlls/sites/www.un.org.ohrlls/files/accessing_climate_finance_challenge s_sids_report.pdf (Accessed on 10 August 2023).

News & Analysis

Review: Alternative Dispute Resolution (ADR) Journal, Volume 12(3), 2024

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The Alternative Dispute Resolution (ADR) Journal, Volume. 12, No.3, 2024 covers pertinent and emerging issues across all ADR mechanisms. This volume exposes our readers to a variety of salient topics and concerns in ADR including Building Peace in Africa, Public Policy as a Ground of Setting-Aside an Arbitral Award, Ethics, Integrity and Best Practice in Mediation, Accessing Justice in Kenya, Sports Arbitration, ESG Arbitration, Arbitration of Investor-State Dispute in Kenya, Article 159(2) of the Constitution of Kenya 2010 and issuance of interim measures by Arbitral Tribunals. The ADR Journal is a publication of the Chartered Institute of Arbitrators, Kenya Branch. It provides a platform for scholarly debate and in-depth investigations into both theoretical and practical questions in Alternative Dispute Resolution.

The journal is edited by Professor of Law at the University of Nairobi, Faculty of Law Hon Prof. Kariuki Muigua, a distinguished law scholar, an accomplished mediator and arbitrator with a Ph.D. in law from the University of Nairobi and widespread training and experience in both international and national commercial arbitration and mediation. Prof. Muigua is a Fellow of Chartered Institute of Arbitrators (CIArb)- Kenya chapter and also a Chartered Arbitrator. He is a member of the Permanent Court of Arbitration, The Hague. He also serves as a member of the National Environment Tribunal. He has served as the Chartered Institute of Arbitrator’s (CIArb- UK) Regional Trustee for Africa from 2019 -2022.

In the paper “Building Peace in Africa through Alternative Dispute Resolution”  Hon. Prof. Kariuki Muigua critically discusses the role of Alternative Dispute Resolution (ADR) mechanisms in peace building in Africa. The paper argues that ADR mechanisms can play a fundamental role in building peace in Africa. The paper further posits that ADR mechanisms are able to enhance sustainable peace in Africa due to their focus on reconciliation and restorative justice. It proposes solutions towards building peace in Africa through ADR.

In “the Emergence of the International Commercial Court: A Threat to Arbitration of Investor-State Dispute in Kenya” Marion Injendi Wasike and Dr. Kenneth W. Mutuma argue that the proliferation of international commercial courts, including their introduction in Kenya, necessitates a thorough analysis of their implications on arbitration’s role in investor-state disputes. By juxtaposing these emerging judicial entities against traditional arbitration paradigms, the discussion aims to unravel the complexities and potential shifts in dispute resolution preferences, highlighting the balance between innovation in legal adjudication and the sustenance of arbitration’s revered position in the international legal order.

Kamau Karori SC, MBS in “Striking a Balance: A Delicate Dance Between Sanctity and Scrutiny” notes that the continuing debate —between upholding the inviolability of arbitral awards and judicial intervention in cases of egregious injustice points to the need for delicate balancing between non-interference and the need to correct unmistakably unjust awards. The urgency of this discourse is informed by the need to prevent consumers or potential consumers of arbitration services opting to exclude arbitration clauses due to perceived deficiencies. The article seeks to navigate the genesis of the debate, delicately dissect the different perspectives, and draw comparisons with global practices.

The article “Reforming Kenya’s Law on Probation and Aftercare Services to Promote Alternative Dispute Resolution” by Michael Sang engages in a comprehensive exploration of Kenya’s Probation of Offenders Act within the context of the growing role of Alternative Dispute Resolution (ADR) principles in the nation’s criminal justice system. Drawing inspiration from international legal instruments such as “The Beijing Rules,” “Bangkok Rules,” and “Tokyo Rules,” the study evaluates the Act’s provisions, strengths, and limitations. It concludes with a call for thoughtful reforms that align Kenya’s criminal justice system with international standards, emphasizing a balanced and compassionate approach to justice.

The “Upholding Ethics, Integrity and Best Practice in Mediation” by Hon. Prof. Kariuki Muigua, OGW critically discusses the need for standardization of mediation practice in Kenya by adopting best practices. It examines some of the challenges facing mediation practice in Kenya. It is also explores measures adopted towards fostering best practices in mediation at both the global and national level. The paper further suggests recommendations aimed at upholding ethics, integrity and best practice in mediation. In “Exploring the Role of Mediation in Promoting Small and Medium Enterprises (SMEs) and Fostering Economic Growth in Kenya” Atundo Wambare offers an in-depth analysis of the use of mediation in promoting the growth of small and medium enterprises (SME’s). He makes recommendations on how best mediation can be harnessed as a tool for economic growth in Kenya.

James Njuguna and Nyamboga George Nyanaro in “Compulsory Resolution or Autonomy Erosion? The Debate on Mandatory Sports Arbitration delve into the contentious issue of mandatory sports arbitration, questioning its role as a potential future pathway for dispute resolution. Their research examines the implications of compulsory arbitration on athletes’ autonomy, juxtaposing it with the benefits of expedited dispute resolution.

Paul Ngotho in “Constitution of Kenya 2010 Article 159.2.(c): Ancestry, Anatomy, Efficacy & Legacy” traces the rather odd origin and everlasting effect of the often-cited Article 159.2.(c) of the Constitution of Kenya 2010. It acknowledges the central role played by two members of the Chartered Institute of Arbitrators Kenya Branch, quietly and privately, away from the mainstream constitution making process. One of them chairman of the Branch, the other the Minister of Justice, National Cohesion and Constitutional Affairs.

David Onsare in “Navigating The ESG Maze: Emerging Trends in Arbitration and Corporate Accountability” embarks on a timely exploration of the dynamic interplay between Environmental, Social and Governance (ESG) factors and arbitration, a field gaining critical importance in the realm of corporate accountability. By offering a comprehensive view of the complexities and practical implications of ESG in arbitration, the article serves as a crucial guide for legal professionals navigating the evolving landscape of corporate responsibility and arbitration. In “Public Policy as a Ground of Setting-Aside an Arbitral Award: Musings on the Centurion Engineers Civil Appeal Judgment”

Ibrahim Kitoo argues a case for upholding of public policy as a ground for the nonrecognition, non-enforcement and setting aside of an arbitral award in cases where to recognise and enforce such awards proves to be a clear violation of the law and against the public good. Juvenalis Ngowi in “Arbitral Tribunals: Do they have the power to issue interim measures during the proceedings?” discusses the powers of the Arbitral Tribunal to grant such orders and examines some procedural rules which empower arbitrators to issue such orders, the scope of those powers, and the factors to be considered when granting interim measures in the arbitral proceedings.

In “Examining the Efficacy of Mediation as A Tool for Accessing Justice in Kenya: Opportunities, Challenges, and Future Perspectives” Murithi Antony undertakes a thorough examination of mediation as a form of ADR in the Kenyan context. He identifies opportunities arising from the integration of mediation into the country’s legal system and explores barriers impeding its widespread adoption. The article concludes with a resounding call to action for all stakeholders to champion the use of mediation collaboratively and proactively, given its proven efficacy in dispute resolution.

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Way Forward in Applying Collaborative Approaches Towards Conflict Management

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*

It is necessary to embrace and utilize collaborative approaches in managing conflicts. These techniques include mediation, negotiation, and facilitation. These mechanisms are effective in managing conflicts since they encourage parties to embrace and address disagreements through empathy and listening towards mutually beneficial solutions. Collaborative approaches also have the potential to preserve relationships, build trust, and promote long term positive change. They also ensure a win-win solution is found so that everyone is satisfied which creates the condition for peace and sustainability. These approaches are therefore ideal in managing conflicts. It is therefore important to embrace collaborative approaches in order to ensure effective management of conflicts.

In addition, it is necessary for third parties including mediators and facilitators to develop their skills and techniques in order to enhance the effectiveness of collaborative approaches towards conflict management. For example, it has correctly been observed that mediators and facilitators should listen actively and empathetically in order to assist parties to collaborate towards managing their dispute. Therefore, when a dispute arises, the first step should involve listening to all parties involved with an open mind and without judgment. This should entail active listening, which means paying attention to both verbal and nonverbal cues and acknowledging the emotions and perceptions involved.

It has been observed that by listening empathetically, a third party such as a mediator of facilitator can understand each person’s perspective and start to build a foundation for resolving the conflict through collaboration. In addition, while collaborating towards conflict management, it is necessary to encourage and help parties to focus on interests and not positions. It has been pointed out that focusing positions can result in a standstill which can delay or even defeat the conflict management process. However, by identifying and addressing the underlying interests parties can find common ground and collaborate towards coming up with creative solutions towards their conflict.

Mediators and facilitators should also assist parties to look for areas of agreement or shared goals. Identifying a common ground can build momentum and create a positive environment for resolving the conflict. Further, in order to ensure the effectiveness of collaborative approaches in conflict management, it is necessary to build strong collaboration. It has been asserted that strong collaboration can be achieved by establishing a shared purpose, cultivating trust among parties, encouraging active participation by all parties, and promoting effective communication.

Strong collaboration enables parties to develop trust between and among themselves and strengthen communication channels between the various parties. It also helps to generate inclusive solutions that arise from wider stakeholders’ views. Therefore while applying collaborative approaches, it is necessary for parties to foster strong collaboration by identifying common goals, building trust, ensuring that all stakeholders are involved, and communicating effectively in order to come up with win-win outcomes.

Finally, while embracing collaborative approaches in conflict management, it is necessary for parties to consider seeking help from third parties if need arises. For example, negotiation is always the first point of call whenever a conflict arises whereby parties attempt to manage their conflict without the involvement of third parties. It has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone.

It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. However, it has been correctly observed that negotiation may fail especially if the conflict is particularly complex or involves multiple parties due to challenges in collaborating. In such circumstances, where negotiation fails, parties should consider resorting to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party. A mediator or facilitator can assist parties to collaborate and continue with the negotiations and ultimately break the deadlock.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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 and the Top Arbitrator in Kenya in 2023.

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Opportunities and Challenges of Collaborative Conflict Management

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*

One of the key collaborative approaches that can be applied in conflict management is mediation. Mediation has been defined as a method of conflict management where conflicting parties gather to seek solutions to the conflict, with the assistance of a third party who facilitates discussions and the flow of information, and thus aiding in the process of reaching an agreement.

Mediation is usually a continuation of the negotiation process since it arises where parties to a conflict have attempted negotiations, but have reached a deadlock. Parties therefore involve a third party known as a mediator to assist them continue with the negotiations and ultimately break the deadlock. A mediator does not have the power to impose a solution upon the parties but rather facilitates communication, promotes understanding, focuses the parties on their interests, and uses creative problem solving to enable the parties to reach their own agreement.

Some of the core values and principles guiding mediation as a collaborative approach towards conflict management include impartiality, empathy, valued reputation, and confidentiality. It has also been pointed out that mediation has certain attributes which include informality, flexibility, efficiency, confidentiality, party autonomy and the ability to promote expeditious and cost effective management of dispute which makes it an ideal mechanism for managing disputes.

Mediation is an effective mechanism that can foster collaboration due to its potential to build peace and bring people together, binding them towards a common goal. Mediation can also foster effective management of conflicts by building consensus and collaboration. It has been argued that mediation can enhance collaboration towards conflict management due to its emphasis on the need for a mediator who listen to the wants, needs, fears, and concerns of all sides. Therefore, for mediation to be effective in fostering collaboration, the approach must be mild and non-confrontational because the goal is to make all parties feel comfortable expressing their views and opinions.

Another key collaborative approach towards conflict management is negotiation. It has been defined as an informal process that involves parties to a conflict meeting to identify and discuss the issues at hand so as to arrive at a mutually acceptable solution without the help of a third party. Negotiation is one of the most fundamental methods of managing conflicts which offers parties maximum control over the process66. It aims at harmonizing the interests of the parties concerned amicably. Negotiation has been described as the process that creates and fuels collaboration.

Negotiation fosters collaboration since it involves all parties sitting down together, talking through the conflict and working towards a solution together. Negotiation has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone. It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. If negotiation fails, parties may resort to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party.

Facilitation is another key collaborative approach towards conflict management. Facilitation entails a third party known as a facilitator who helps parties to a conflict to understand their common objectives and achieve them without while remaining objective in the discussion. A facilitator assists conflicting parties in achieving consensus on any disagreements so that they have a strong basis for future action.

It has been pointed out that facilitation is effective in fostering collaboration in conflict management particularly in conflicts which are complex in nature or those that involve multiple parties. In such conflicts, it is necessary to seek outside help from a neutral third party to facilitate the discussion as parties work towards mutually acceptable outcomes.

Applying collaborative approaches towards conflict management offers several advantages. It has been pointed out that collaborating results in mutually acceptable solutions. Such solutions can therefore be effective and long lasting negating the likelihood of conflicts reemerging in future. Collaborating signifies joint efforts, gain for both parties and integrated solutions arrived at by consensual decisions.

Collaborating is also very effective when it is necessary to build or maintain relationships since it focuses on the needs and interests of all parties in a dispute. It has been observed that collaborative approaches emphasize trust-building, open communication, and empathizing with each other’s perspectives which goes beyond resolving conflicts to facilitate deeper understandings of each other. Collaborative approaches can therefore lead to better interpersonal connections.

Collaborating can also result in constructive decision-making since encouraging active engagement and open dialogue helps others think outside of the box and explore innovative paths towards conflict management. Further, by encouraging the participation and involvement of all stakeholders, collaboration ensures that everyone feels heard, valued and understood which is very essential in managing conflicts.

In addition, collaborating sets the tone for future conflict resolutions since it gives those involved the shared responsibility to resolve their problems. However, collaborative approaches towards conflict management have also been associated with several drawbacks. For example, it has been observed that collaborative approaches may not be easy to implement since they involve a lot of effort to get an actionable solution. It has been observed that thorough discussions, active participation, and exploring multiple perspectives as envisaged by collaborative approaches take time.

Collaborating may therefore require patience and dedication to ensure all voices are heard and meaningful resolutions are reached. Achieving consensus through collaborative approaches can also be difficult since conflicting opinions, varying conflict goals, and emotional variables can make the consensus-building process challenging and time-consuming. As a result of these challenges, it has been asserted that collaborative approaches towards conflict management are frequently the most difficult and time-consuming to achieve.

Further, it has been argued that over use of collaboration and consensual decision-making may reflect risk aversion tendencies or an inclination to defuse responsibility. Despite these challenges, collaborative approaches towards conflict management are ideal in ensuring win-win and long lasting outcomes. It is therefore necessary to embrace and apply collaborative approaches towards conflict management.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 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 and the Top Arbitrator in Kenya in 2023.

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