Connect with us

News & Analysis

Top Arbitrator in Kenya 2024: Prof. Kariuki Muigua, OGW, PhD, C.Arb.

Published

on

African CIArb Trustee Emeritus and Top Arbitrator in Kenya 2023, Prof. Kariuki Muigua, OGW, PhD, CIArb

Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration representing Republic of Kenya, President of Republic of Kenya Order of Grand Warrior (OGW) Awardee 2023, the African Arbitrator of the Year 2022 and the African ADR Practitioner of the Year 2022, is the THE LAWYER AFRICA Top Arbitrator in Kenya 2024. He is one of the most qualified and decorated Arbitrators in Africa being a Chartered Arbitrator (2015), Fellow of the Chartered Institute of Arbitrators (FCIArb), Accredited/Certified Mediator and Advocate of the High Court of Kenya of 35 Years. Previously, he has been ranked among the Top Six (6) Dispute Resolution Experts (Arbitration) in Kenya by Chambers & Partners (Band 1) and among the Top three (3) Arbitrators in Kenya by THE LAWYER AFRICA in 2022/2023. He has handled numerous complex commercial arbitrations and mediations having subject value of over Half Trillion (Ksh. 500 Billion) in the last 20 years of ADR practice.

In 2021, Prof. Kariuki Muigua was awarded the Inaugural CIArb (Kenya) Lifetime Achievement Award 2021 for his immense contribution to arbitration and ADR practice in Kenya and East Africa region.  Prof. Muigua is a foremost ADR Scholar and Academic having written his PhD Thesis on Mediation. Prof. Kariuki Muigua served as the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) from 2012 to 2015 and is the Africa Trustee of the Chartered Institute of Arbitrators from 2019. He was also awarded the coveted ADR Practitioner of the Year Award 2021 by the Nairobi Law Society at the Nairobi Legal Awards and ADR Publisher of the Year 2021 by the CIArb (Kenya).

Prof. Muigua is a Member of the Nairobi Centre of International Arbitration Faculty, is an Accredited Tutor of the Chartered Institute of Arbitrators (Kenya Branch) and also teaches International Commercial Arbitration at the University of Nairobi both at undergraduate and postgraduate level and is the author of leading ADR Text Books including “Settling Disputes Through Arbitration in Kenya”, “Resolving Conflicts through Mediation in Kenya” and “Alternative Dispute Resolution and Access to Justice in Kenya. Prof. Muigua is also the Editor in Chief of the Leading ADR Peer-Reviewed Journals in East Africa, namely, Alternative Dispute Resolution Journal (Official Journal of the CIArb Kenya) and the Journal of Conflict Management and Sustainable Development (JCMSD).

Relevant Education and Qualifications on Arbitration

  • Professor of Environmental Law and Dispute Resolution
  • Member, Permanent Court of Arbitration
  • CIARB Africa Trustee Emeritus (2019-2022)
  • Chartered Arbitrator 2015.
  • Accredited/Certified Professional Mediator (MTI) 2015.
  • Fellow of the Chartered Institute of Arbitrators (FCIArb), 2012.
  • University of Nairobi, Ph.D., 2011. Thesis titled “Resolving Environmental Conflicts in Kenya through Mediation”
  • Module 4 Arbitration – October 2010.
  • Master of Laws (LLM), 2005 specializing in Environmental Law and Natural Resource Conflicts/Dispute Resolution and studied advanced course on International Commercial Arbitration
  • Member of the Chartered Institute of Arbitrators (MCIArb), 2002.
  • Advocate of High Court of Kenya, 1989.

Work Highlights, Recognitions and Memberships on Arbitration

  • Top Arbitrator in Kenya 2023/24
  • Member of Permanent Court of Arbitration (PCA)
  • African ADR Practitioner of the Year 2022
  • African Arbitrator of the Year 2022
  • ADR Practitioner of the Year in Kenya 2021.
  • ADR Publisher of the Year 2021
  • CIArb (Kenya) Inaugural Lifetime Achievement Award 2021
  • Regional Trustee for Africa, Chartered Institute of Arbitrators (CIArb) Board of Trustees.
  • Member National Steering Committee for Formulation of the Alternative Dispute Resolution Policy (Government of Kenya), 2020
  • Senior Lecturer, School of Law, University of Nairobi, International Commercial Arbitration;
  • Senior Partner, Kariuki Muigua & Co. Advocates specializing in, among others, Alternative Dispute Resolution, Arbitration and Mediation.
  • Tutor, Chartered Institute of Arbitrators-Kenya Teaching and researching Alternative Dispute Resolution Methods at all levels, namely: entry level, Associate level, Member level and fast-track to fellow level.
  • Awardee, Chartered Institute of Arbitrators Chairman’s medal, with citation for exemplary service, December, 2015.
  • Chartered Arbitrator of the Chartered Institute of Arbitrators
  • Fellow of the Chartered Institute of Arbitrators (FCIArb)
  • Branch Chairman of CIArb-Kenya from 2012 to 2015
  • Council of the Chartered Institute of Arbitrators (CIArb) – Kenya chapter.
  • Member and past chairperson of the sub-committee on Information Technology (IT), CIArb
  • Member of the Legal Committee Chartered Institute of Arbitrators (CIArb) – Kenya chapter
  • Member, Meditation Accreditation Committee Panel of Mediators Accredited for Commercial Mediation (The Judiciary, Republic of Kenya).
  • Member of London Court of International Arbitration (LCIA) (2002)
  • Member, Kigali International Arbitration Centre (KIAC) International Panel of arbitrators.
  • Member, Nairobi Centre for International Arbitration (NCIA) Panel of International Arbitrators.
  • Member, Nairobi Centre for International Arbitration (NCIA) Panel of Domestic Arbitrators.
  • Member, Nairobi Centre for International Arbitration (NCIA) Panel of Domestic Mediators.
  • Member of the National Environment Tribunal (Nominee of the Law Society of Kenya).
  • Member of the Law Society of Kenya.

Key Consultancies and Collaborations in Arbitration and ADR

  • Negotiated the 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.
  • Consultant for IDLO, Kenya Judiciary & NCIA, Development and Alignment of Legal & Policy Framework with Aim to Deepen ADR for Access to Justice and Commercial Disputes”- January 2018.
  • Consultant for the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA Court of Justice) to Review and Revise COMESA Court of Justice Arbitration Rules (2003) – January 2018.
  • Consultant for the Commission for the Implementation of the Constitution (CIC), IDLO and the UNDP in preparing a “Report for Review of Policy, Legislation and Administrative Structures on Access to Justice: Existing Gaps and Proposed Reforms to Align with the Constitution”- 2015.
  • Consultant by the KENYA LAND ALLIANCE in preparing a “Review and Analysis of its draft ADR guide and Training Manual to offer guidance in resolution of land disputes”- August, 2013.

Some Books and Book Chapters Published on Arbitration and ADR

  • Muigua, K., Settling Disputes through Arbitration in Kenya, 4th Edition, Glenwood Publishers, Nairobi – 2022.
  • Muigua, K., Alternative Dispute Resolution and Access to Justice in Kenya, Glenwood Publishers, Nairobi – 2015.
  • Muigua, K., Resolving Conflicts through Mediation in Kenya, Glenwood Publishers, Nairobi – 2013.
  • Muigua, K., Settling Disputes through Arbitration in Kenya, Glenwood Publishers, Nairobi – 2012.
  • Muigua, K., Book Chapter: ‘Effectiveness of Arbitration Institutions in East Africa,’ in Onyema, E. (ed), The Transformation of Arbitration in Africa: The Role of Arbitral Institutions, (Kluwer Law International, The Netherlands, 2016).
  • Muigua, K., Book Chapter: Chapter 24: ‘Dispute Resolution Mechanisms for Environmental Governance,’ in Prof. Patricia Kameri-Mbote and Dr. Robert Kibugi (eds), Environmental Governance in Kenya: Implementing the Constitutional Framework, – 2020).

Some of Journal Articles Published in Arbitration and ADR

  • Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Explaining the Efffectiveness of Construction Arbitration: An Organizational Justice Perspective,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, Volume 13, Issue 3 (2021)
  • Muigua, K., Managing Governance Conflicts Through Alternative Dispute Resolution in Kenya, Governance Journal, Volume 1, Issue 2, 2020, pp 91-106.
  • Muigua, K., Arbitration Law and the Right of Appeal in Kenya, Alternative Dispute Resolution, Volume 9, No 2, (2021), pp. 21-43.
  • Muigua, K., Looking Into the Future: Making Kenya a Preferred Seat for International Arbitration, Alternative Dispute Resolution, Volume 9, No 1, (2021), pp. 1-51.
  • Muigua, K., Africa’s Role in the Reform of International Investment Law and the Investor State Dispute Settlement (ISDS) System, Journal of Conflict Management and Sustainable Development, Volume 5, No 1, (September, 2020).
  • Muigua, K., ‘Promoting Sports Arbitration in Kenya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 8, No 1, (2020), pp. 1-30.
  • Muigua, K., ‘Enhancing the Court Annexed Mediation Environment in Kanya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 8, No 2, (2020), pp. 20-40.
  • Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Explaining Delays in Construction Arbitration: A Process-Control Model Approach,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, Volume 12, Issue 2 (May 2020).
  • Muigua, K., Enhancing the Court Annexed Mediation Environment in Kenya, Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 9 (1) (July, 2020).
  • Muigua, K., The Singapore Convention on International Settlement Agreements Resulting from Mediation: Challenges and Prospects for African States, Volume 4, No 3, (May, 2020).
  • Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Effectiveness of Arbitration in Contractual Disputes: Tension between Procedural Efficiency and Award Quality,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 11, No. 2 (2019): 04519003.
  • Muigua, K. & Ombati, J., ‘Achieving expeditious Justice: Harnessing Technology for Cost Effective International Commercial Arbitral Proceedings,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 7(1):1-32, (April, 2019).
  • Muigua, K., ‘Making Mediation Work for all: Understanding the Mediation Process,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 7(1):120-141, (April, 2019).
  • Muigua, K., ‘Promoting International Commercial Arbitration in Africa,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 5, No 2, (2017), pp. 1-27.
  • Muigua, K., ‘Legitimising Alternative Dispute Resolution in Kenya: Towards a Policy and Legal Framework,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 5, No 1, (2017), pp. 74-104.
  • Muigua K., “The Lawyer as a Negotiator, Mediator and Peacemaker in Kenya,” Law Society of Kenya Journal, Vol. 12, No. 2, 2016, pp. 39-66.
  • Muigua, K., ‘Constitutional Supremacy over Arbitration in Kenya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 4, No 1, (2016), pp. 100-131.
  • Muigua, K., ‘Effective Management of Commercial Disputes: Opportunities for the Nairobi Centre for International Arbitration,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 4, No 1, (2016), pp. 155-180.
  • Muigua, K., ‘Building Legal Bridges: Fostering Eastern Africa Integration through Commercial Arbitration,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 3, No 1, (2015), pp.45-87.
  • Muigua, K., ‘Effective Justice for Kenyans: is ADR Really Alternative?’ The Law Society of Kenya Journal, Vol. II, 2015, No. 1, pp. 49-62.
  • Muigua, K., ‘Role of the Court Under Arbitration Act 1995: Court intervention before, pending and after Arbitration in Kenya,’ Kenya Law Review Journal, 2008-2010.

 Some Presentations, Papers and Seminars Made on Arbitration

  • Muigua, K., Arbitration Law and the Right of Appeal in Kenya, A Paper presented at the Law Society of Kenya Continuing Professional Development Webinar on Arbitration held on 13th November 2020.
  • Muigua, K., Adopting the Singapore Convention in Kenya: Insight and Analysis, Working Paper for the Singapore Convention Webinar Held on 19th August 2020.
  • Muigua, K., Virtual Arbitration Amidst COVID-19: Efficacy and Checklist for Best Practices, A Discussion Paper for the Chartered Institute of Arbitrators Kenya Branch (CIArb-K) Webinar ADR Talk Series 8 held on 28thMay 2020.
  • Muigua, K., Promoting Sports Arbitration in Africa, a discussion Paper for the Chartered Institute of Arbitrators (Kenya Branch) 2nd annual lecture on the theme ‘Promoting Sports Arbitration in Africa’ held on Thursday 28th November, 2019 in Nairobi, Kenya.
  • Muigua, K., Negotiating Dispute Settlement terms in Bilateral Investment Treaties (BITS) and Economic Partnership Agreements (EPAs), Paper Presented at the Nairobi International Arbitration Conference, held at the Intercontinental Hotel, Nairobi-Kenya, on 4th – 6th December, 2016.
  • Muigua, K., Reawakening Arbitral Institutions for Development of Arbitration; Arbitration Institutions in Africa Conference, 2015, Addis Ababa, Ethiopia. Theme: The Role of Arbitration Institutions in the Development of Arbitration in Africa.
  • Muigua, K., Building Legal Bridges: Fostering Eastern Africa Integration through Commercial Arbitration, Paper presented, at the 3rd Annual East Africa International Arbitration Conference 2015 held on 9th and 10th April, 2015 at Hyatt Regency Hotel, Dar Es Salaam-Tanzania.
  • Muigua, K., ADR: The Road to Justice in Kenya, Chartered Institute of Arbitrators-Kenya Branch International Arbitration Conference, Conference held on 7th & 8th August, 2014 at Sarova Whitesands Hotel, Mombasa, Kenya.
  • East Africa International Arbitration Conference Muigua, K., Promoting International Commercial Arbitration in Africa, the East Africa International Arbitration Conference, held on 28-29 July 2014, at Fairmont the Norfolk, Nairobi.
  • Muigua, K., Making East Africa a Hub for International Commercial Arbitration: A Critical Examination of the State of the Legal and Institutional Framework Governing Arbitration in Kenya, Kigali Arbitration Centre (KIAC), Arbitration workshop for EAC region 24th -25th May 2013.
  • Muigua, K., Overview of Arbitration and Mediation in Kenya, Stakeholder’s Forum on Establishment of Alternative Dispute Resolution (ADR) Mechanisms for Labour Relations in Kenya, held at the Kenyatta International Conference Centre, Nairobi, on 4th – 6 th May, 2011.

Some Research and Scholarship Supervised on Arbitration

  • Allan A. Abwunza, Developing A Framework for Effective Arbitration Of Contractual Disputes In The Construction Industry of Kenya,’ Jomo Kenyatta University of Agriculture & Technology. (Completed PhD Thesis)
  • Sikuta Moses, The Implications of Public Policy Considerations in the Enforcement of International Arbitral Awards in Kenya (Ongoing PhD Thesis)
  • Jimmy Winny Mwende, A Critique of Section 6 of the Arbitration Act’, University of Nairobi. 2014 (Completed LLM Thesis).
  • Ajima Daisy Owuor, Making Kenya a Hub for Arbitration of International Financial Services Disputes’, University of Nairobi. 2014 (Completed LLM Thesis).
  • Gad Gathu, A Critique of Kenyan Judiciary’s Capacity for Enforcement of International Commercial Arbitration Awards, University of Nairobi. 2015 (Completed LLM Thesis).
  • Edel Njoki Michuki, Arbitration Practice and Access to Justice in Kenya, University of Nairobi, 2015 (Completed LLM Thesis).
  • Kilonzo Kituku, Facilitating International Arbitration in Kenya’, University of Nairobi (Completed LLM Thesis).
  • Anne Wanjiru Mwangi, A Critique of the Contribution of International Commercial Arbitration Toward the Realisation of the Right of Access to Justice in Kenya (Completed LLM Thesis).
  • George Gilbert Otieno, A Critique of Arbitration Clauses/Agreement in Employment Contracts. (Completed LLM Thesis).
  • James Ndungu Njuguna, Arbitration as a Tool for Management of Natural Resource and Community Land Conflicts in Kenya. (Completed LLM Thesis).
  • Peter Mwangi Muriithi, The Place of International Arbitration in East Africa: A Case Study of the Effectiveness of the East African Court of Justice as an International Arbitral Tribunal (Completed LLM Thesis).

Conclusion

Prof. Kariuki Muigua, PhD is one of Africa’s foremost Arbitrators and ADR experts and has handled dozens of arbitration matters and disputes as a member of tribunals and panels and as counsel for parties. He is a leader in arbitration scholarship and edits several journals and periodicals in the area to promote research in dispute resolution and conflict management. As the African Regional Trustee of Chartered Institute of Arbitrators, he is at the forefront in promoting adoption of arbitration as the preferred mode of dispute resolution especially by young professionals and businesses. Recently, he sponsored Prof. Kariuki Muigua Annual ADR Essay Award to encourage university students to research, study and write on ADR and Arbitration in Africa.

News & Analysis

The Nexus between Environmental Social and Governance (ESG) and Arbitration

Published

on

By

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) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

Arbitration is form of Alternative Dispute Resolution (ADR) mechanisms. ADR refers to a set of mechanisms that are applied in management of disputes without resort to adversarial litigation. It has been described as a private and consensual process where parties to a dispute agree to present their grievances to a third party for resolution. It is argued that ESG principles have become a model for sustainable business development through which a corporations’ goal for solving environmental, social and governance problems is achieved. Consequently, ESG considerations have an increasing impact in international business as evidenced by the incorporation of sustainability clauses in investment contracts. In such contracts, investors are required to adhere to the concept of sustainable development as envisaged under the contracts and failure to do so may result in ESG related disputes.

In the wake of the climate change debate, there have been calls for responsible business practice towards climate change mitigation through measures such as reduction of carbon emissions. The Paris Agreement on Climate Change has raised the awareness of the need for global efforts to combat climate change and the role of responsible and ethical corporate behavior towards achieving this goal. Further, corporations are increasingly required to safeguard human rights as envisaged by ‘S’ pillar of ESG.

However, some corporations have been accused of violating these ESG concerns as a result of their business practices. Some corporations have been accused of failing to promote climate change mitigation through reduction of carbon emissions and transitioning to cleaner energy production. Further, some corporations have been accused of violating fundamental human rights such as the right to a clean and healthy environment especially in the investment sphere in Africa. These instances have resulted in an increasing number of ESG-related disputes. The growth of ESG concerns has seen corporations being increasingly required to embrace ESG principles in their business practices. Consequently, ESG clauses are being adopted in commercial and investment contracts.

In case of violation of such clauses, ESG related disputes are bound to occur. It has been asserted that adoption of ESG related practices into pre-existing social and governance models adopted by corporations would be disruptive. The inclusion of ESG clauses in commercial contracts not only points to the importance of ESG concerns to companies but it also serves as potential source of disputes where such considerations are not complied with. ESG issues are not only reshaping corporate behavior across the globe but can also be a potential battleground in international disputes25. This creates the need for an effective mechanism of management of such disputes in order to enhance ESG principles in the quest for Sustainable Development.

Arbitration has for a long time been the most viable mechanism for management of international commercial and investment disputes. It offers a neutral forum for the management of disputes and addresses some of the concerns that parties may have in relation to the other parties’ legal system. In international commercial and investment arbitration, parties are reluctant to submit to the jurisdiction of the other party due to the likelihood of favoritism by the host judicial system. Further, arbitration has the potential of facilitating expeditious management of disputes.

In international commercial and investment arbitration, there is need to manage disputes expeditiously in order to preserve the commercial interests of parties. The viability of arbitration in management of international commercial disputes is further enhanced by the availability of a legal framework for the recognition and enforcement of foreign arbitral awards. The New York Convention provides the legal framework for the recognition and enforcement of foreign arbitral awards across different jurisdictions. Consequently, the adoption of ESG elements in international commercial and investment agreements has resulted in the use of arbitration to manage disputes arising from such agreements.

ESG concerns have become prominent in investor-state arbitration with arbitral tribunals having to determine issues relating to climate change, corruption and human rights. It has been asserted that the growth of ESG will redefine the practice of arbitration as it seeks to adapt to the new concerns created by ESG. However, the flexibility of arbitration and its ability to adapt to emerging concerns means that it is well positioned to manage ESG disputes. However, there is need for reform in order to enhance the role of arbitration in managing ESG disputes.

*This article is an abridged version of the Article The Place of Environmental, Social and Governance (ESG) in Arbitration (Available for download at Kariuki Muigua & Co. Advocates Website, follow the link) 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.

Hamilton. J & Coulet-Diaz. M., ‘Arbitration & the ESG Era’ available at https://www.whitecase.com/news/media/arbitration-esg-era (accessed on 28/09/2022).

International Arbitration in 2022., ‘The Rising Significance of ESG and the Role of International Arbitration’ available at https://www.freshfields.com/en-gb/our-thinking/campaigns/internationalarbitration-in-2022/the-rising-significance-of-esg-and-the-role-of-international-arbitration/ (accessed on 28/09/2022)

Mazhorina. M.V., ‘ESG Principles in International Business and Sustainable Contracts’ available at https://aprp.msal.ru/jour/article/view/3223?locale=en_US (accessed on 28/09/2022).

Moses. L.M, ‘The Principles and Practice of International Commercial Arbitration’ 2 nd Edition, 2017, Cambridge University Press 28 Ibid 29Muigua. K., ‘Promoting International Commercial Arbitration in Africa’ available at http://kmco.co.ke/wp-content/uploads/2018/08/PROMOTING-INTERNATIONAL-COMMERCIALARBITRATION-IN-AFRICA.pdf

Muigua. K., ‘International Investment Law and Policy in Africa: Human Rights, Environmental Damage and Sustainable Development’ available at http://kmco.co.ke/wpcontent/uploads/2018/11/International-Investment-Law-and-Policy-in-Africa-AILA-Conference-Paper5-11-2018.pdf (accessed on 28/09/2022)

Muigua. K., ‘Realising Environmental, Social and Governance Tenets for Sustainable Development’ available at http://kmco.co.ke/wp-content/uploads/2022/07/Realising-Environmental-Social-andGovernance-Tenets-of-Sustainable-Development-Kariuki-Muigua-July-2022.pdf (accessed on 28/09/2022)

Muigua. K., ‘Settling Disputes Through Arbitration in Kenya’ Glenwood Publishers Limited, 4th Edition, 2022

Ross. A., ‘We need talk about ESG’ available at https://globalarbitrationreview.com/we-need-talkabout-esg (accessed on 28/09/2022)

The ALP Review., ‘The Importance of ESG and its effect on International Arbitration’ available at https://www.alp.company/sites/default/files/ALP%20Review%20- %20The%20Importance%20of%20ESG %20and%20its%20effect%20on%20International%20Arbitration.pdf (accessed on 28/09/2022).

United Nations Conference on International Commercial Arbitration, ‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ United Nations, 1958

Von Wobeser., ‘The Role of Arbitration in ESG Disputes’ available at https://www.vonwobeser.com/index.php/publication?p_id=1650 (accessed on 28/09/2022)

Continue Reading

News & Analysis

Enhancing the Role of Arbitration in Management of ESG Disputes

Published

on

By

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) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

Arbitration represents a viable mechanism for management of ESG disputes. The following are proposals for interventions towards embracing arbitration in management of ESG disputes for Sustainable Development towards enhancing the use of arbitration in ESG disputes:

Enhancing Knowledge in ESG Concerns

Statistics show that many ESG related disputes are being managed through arbitration. According to the International Chamber of Commerce, engineering, construction and energy disputes represent the highest number of cases handled representing 38% of all cases registered so far. Such disputes entail ESG components such as renewable energy projects, environmental protection and human rights concerns. This demonstrates that ESG and arbitration are inextricably linked. Arbitration practitioners thus need to equip themselves with knowledge in ESG related matters in order to be better placed to manage ESG related disputes.

Promoting Sustainable Development

Sustainable Development has been defined as development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs. This concept entails a combination of elements including environmental protection, economic development and social issues. The importance of Sustainable Development has seen the adoption of the Sustainable Development Goals as the global blueprint of development. Most of the Sustainable Development Goals entail aspects of ESG such as clean water and sanitation, affordable and clean energy, industry, innovation and infrastructure and climate action. Arbitration practitioners should therefore promote the principles of sustainable development when managing ESG related disputes. This could entail requiring investors to comply with the host country environmental laws and ESG standards in mining, energy and construction disputes which have an ESG bearing.

Upholding Human Rights

The ‘S’ pillar in ESG seeks to promote responsible and ethical corporate behavior through aspects such as respect for human rights. However, corporate behavior especially in the investment sphere in Africa has resulted in gross violation of human rights. Some corporations which have invested in oil exploration have been accused of human right abuses, environmental degradation and unsustainable peace due to their business culture. In Kenya, a multinational corporation that has invested in the agricultural sector has been accused of human right abuses such as killings, rape, and other forms of sexual and gender-based violence allegedly committed by its guards, bad labour practices and land injustices against the neighbouring communities. Some of these disputes have ended up in arbitration where tribunals are called upon to adjudicate on human rights issues. Arbitrators should thus seek to uphold human rights in such disputes by rendering awards that are in line with human rights standards. By promoting human rights, arbitrators will be embracing the ‘S’ pillar that is fundamental in the ESG debate.

Promoting Good Governance

The Governance pillar in ESG seeks to achieve good financial and accounting standards as well as legal and regulatory compliance, such as transparency, corporate structures and ethics in corporate conduct. It also seeks to align Governance with the Sustainable Development Goals where governance issues include industry, innovation and infrastructure (Goal 9); peace, justice and strong institutions (Goal 16); and partnerships with public and private institutions (Goal 17). Good governance can be promoted through arbitration by rendering awards that adhere to good governance practices such as transparency, accountability, reporting and disclosure.

Seeking Expert Assistance in Complex ESG Matters

Arbitration has a significant role in promoting ESG tenets in areas such as climate change. Arbitrators play a significant role in shaping and adapting international law to respond to the climate crisis. However, in some instances, arbitration has been slow to act to act in response to the climate crisis. Some climate change concerns such as determining adherence to climate change commitments through low carbon transition requires arbitrators to be fully informed and engaged in such concepts. This may require expert analysis and guidance from persons with requisite knowledge in environmental matters. Arbitrators should therefore seek expert assistance in such issues in order to be fully informed and render awards that promote ESG principles.

Conclusion

The relationship between Environmental, Social and Governance (ESG) and arbitration continues to grow. Adoption of ESG by corporations as a means of promoting responsible and ethical business practices and the wide use of arbitration in management of international commercial and investment disputes points to increased use of arbitration in management of ESG related disputes. In managing such disputes, arbitrators should promote ESG considerations whilst balancing the needs and interests of parties involved in issues such as climate change. Arbitration represents a viable mechanism for managing ESG disputes while simultaneously promoting Sustainable Development. There is need to enhance the viability of arbitration in management of ESG related disputes.

*This article is an abridged version of the Article The Place of Environmental, Social and Governance (ESG) in Arbitration 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.

References

Amao. O., ‘Corporate Social Responsibility, Human Rights and the Law: Multinational corporations in Developing Countries.’ Routledge, 2011.

Cummins. T et al., ‘ESG Litigation – How Companies Can Get Ready, Respond and Resolve Claims’ available at https://www.emerald.com/insight/content/doi/10.1108/JOIC-07-2021-0032/full/html (accessed on 29/09/2022)

Fitzmaurice, M., ‘The Principle of Sustainable Development in International Development Law’ International Sustainable Development Law, Vol. 1.

Greenwood. L., ‘The Canary is Dead: Arbitration and Climate Change’ Journal of International Arbitration, Volume 38, Issue 3 (2021).

Miles. W., ‘BVI: A Frontline Focus for Resolving Future Climate Change Related Disputes’ available at https://www.bviiac. org/Portals/0/Files/Publications/Wendy%20 Miles %20QC_BVI_ A%20Frontline%20Focus%20for%20Resolving%20Future%20Climate%20Change%20Related %20Disputes.pdf (accessed on 29/09/2022)

Krajewski, M. ‘Human Rights in International Investment Law: Recent Trends in Arbitration and Treaty-Making Practice.’ Available at SSRN 3133529 (2018).

Maiangwa.B & Agbiboa.D., ‘Oil Multinational Corporations, Environmental Irresponsibility and Turbulent Peace in the Niger Delta’ Africa Spectrum 2/2013: 71-83

Kenya Human Rights Commission., ‘Heavy price for… egregious human rights violations’ available at https://www.khrc.or.ke/2015-03-04-10-37-01/press-releases/737-heavy-price-for-kakuzi-s-egregioushuman-rights-violations.html (accessed on 29/09/2022).

RL360, “Governance-The G in ESG,” Available at: https://www.rl360.com/row/funds/ investmentdefinitions/g-in-esg.htm (accessed on 29/09/2022)

Sustainable Development’ available at https://sdgs.un.org/goals (accessed on 29/09/2022)

The ALP Review., ‘The Importance of ESG and its effect on International Arbitration’ available at https://www.alp.company/sites/default/files/ALP%20Review%20- %20The%20Importance%20of%20ESG %20and%20its%20effect %20on%20International%20Arbitration.pdf

United Nations., ‘Sustainable Development Goals’ available at https://sdgs.un.org/goals (accessed on 28/09/2022)

World Commission on Environment and Development, Our Common future. Oxford, (Oxford University Press, 1987).

Continue Reading

News & Analysis

Way Forward in Managing Risk and Liability of ESG Litigation

Published

on

By

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) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

In order for companies to manage the risk and liability associated with ESG litigation, it is imperative for them to strengthen their ESG reporting and disclosure requirements. It has been observed that recent ESG trends have driven the requirement by businesses to report on ESG aspects such as human rights and environmental standards as evidenced by emerging legal frameworks requiring companies to report on human rights and environmental issues, emerging mandatory human rights due diligence legislation, and increased legal enforcement and litigation risks.

As a result, it is important for companies to treat public disclosures in relation to ESG matters seriously and consider taking independent auditing and verification steps, particularly for annual ESG-related reports and/or other material ESG disclosures. Such an approach can help companies effectively manage and reduce the risk of ESG related litigation.

In addition, it has been argued that there is need for companies to embrace best practices in order to mitigate the risks of ESG litigation and also address such litigation when it arises. For example, it has been suggested that companies should conduct risk assessments in order to determine the likelihood of ESG related suits and deal with such concerns immediately; undertake public engagement to order to ensure openness and transparency in ESG matters; build knowledge on ESG issues in order to be well equipped to handle ESG claims when they arise; and strengthen their management systems and internal practices in order to enhance compliance with ESG standards.

It has been observed that ESG litigation is associated with several risks to companies including regulatory and enforcement risk, reputational risk, damage to brand, potential disruption by activists and financial risks such as loss of access to capital and financial losses as a result of damages, fines and other forms of monetary compensation. It is also imperative to strengthen access to justice in ESG matters. It has been pointed out that in order for litigants to be given the right of access to courts in ESG matters, whether individually, collectively, or as a third party or amicus curiae, the criteria pertaining to standing, which differ from jurisdiction to jurisdiction, must be followed.

It is also necessary to widen and strengthen the jurisdiction of courts on ESG issues such as climate change. Further, it has been pointed out that there is need to embrace techniques such as litigation funding in order to provide the financial stability and support needed to pursue legal action without compromising on the quality of representation or legal strategy in ESG matters. It has been argued that litigation funding can be an effective strategy for needy claimants to pursue claims against a company that they may ordinarily not be able to afford, enabling them to ultimately to hold companies to account for ESG failures.

Finally, it is imperative for companies to think creatively and strategically in order to effectively resolve ESG claims. It has been pointed out that ESG claims may significantly differ from other types of litigation companies have previously faced, hence the need for creative solutions towards these claims. For example, in ESG claims, there is need to bear in mind both the litigation aspects of a dispute, and broader ESG concerns including those around reputation and access to capital. As a result, it has been suggested that there is need for companies to be alive to the potential for resolving ESG claims outside the court room, and what mitigation strategies could be deployed to avoid litigation.

Alternative Dispute Resolution (ADR) mechanisms are ideal in managing ESG disputes by fostering privacy, cost effective and expeditious management of disputes while also allowing parties to select experts to hear and determine contentious ESG matters. In addition, it has correctly been observed that businesses would normally prefer to have their disputes managed in a private manner in order to prevent ruining their image in public and also in an expeditious and cost-effective manner in order to protect business interests.

It has also been pointed out that the use of ADR mechanisms such as mediation in managing ESG related disputes is a practical demonstration of a sustainability-oriented business culture since mediation can offer a quick, flexible, consensual and win-win solution based on the mutually accepted interests of the parties. ADR mechanisms can therefore be an effective tool to enable companies manage the risks associated with ESG litigation.

*This is an extract from the Article: Fostering Environmental, Social and Governance (ESG) Litigation for Sustainability, Available at: https://kmco.co.ke/wp-content/uploads/2024/02/Fostering-Environmental-Social-and-Governance-ESG-Litigation-for-Sustainability.pdf (Accessed 2nd March 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.

References

African Development Bank Group., ‘Environmental, Social and Governance (ESG).’ Available at https://www.afdb.org/en/topics-and-sectors/topics/environmental-social-and-governance-esg (Accessed on 05/02/2024).

Ahurst., ‘ESG Litigation – Get Ready Respond and Resolve.’ Available at https://www.ashurst.com/en/insights/esg-litigation—get-ready-respond-and-resolve/ (Accessed on 05/02/2024).

Banda ML and Fulton CS, ‘Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law’ (2017) 47 Environmental Law Reporter.

Barbosa. A et al., ‘Integration of Environmental, Social, and Governance (ESG) Criteria: Their Impacts on Corporate Sustainability Performance.’ Humanit Soc Sci Commun 10, 410 (2023). Available at https://doi.org/10.1057/s41599-023-01919-0 (Accessed on 03/02/2024).

British Business Bank., ‘What is ESG – A Guide for Businesses.’ Available at https://www.britishbusiness-bank.co.uk/finance-hub/business-guidance/sustainability/what-is-esg-aguide-for-smallerbusinesses/ (Accessed on 03/02/2024).

Fitzmaurice. M., ‘The Principle of Sustainable Development in International Development Law.’ International Sustainable Development Law., Vol 1.

Giovannoni. E., & Fabietti. G., ‘What Is Sustainability? A Review of the Concept and Its Applications.’ In: Busco, C., Frigo, M., Riccaboni, A., Quattrone, P. (eds) Integrated Reporting. Springer, Cham. Available at https://doi.org/10.1007/978-3-319-02168-3_2 (Accessed on 03/02/2024).

Global Campus of Human Rights., ‘Rethinking Environmental, Social, and Governance (ESG) Investing for Successful Sustainability and Human Rights.’ Available at https://gchumanrights.org/gcpreparedness/preparedness-development/article-detail/rethinkingenviron mental-social-andgovernance-esg-investing-for-successful-sustainability-and-human-rights5039.html (Accessed on 05/03/2024).

Gramatidis.B & Emvalomenos. D., ‘Sustainability in Dispute Resolution -Mediation as an ESG Practice.’ Available at https://www.bahagram.com/sustainability-in-dispute-resolution-mediation-as-anesgpractice/ (Accessed on 05/02/2024).

Hackett. D et al., ‘Growing ESG Risks: The Rise of Litigation.’ Available at https://www.bakermckenzie.com/- /media/files/insight/publications/2020/10/growing_esg_risks _the_rise_of_litigation.pdf (Accessed on 05/02/2024).

Heinberg. R., ‘What Is Sustainability?.’ Available at https://cdn.auckland.ac.nz/assets/arts/documents/What%20is%20Sustainability.pdf (Accessed on 03/02/2024).

Kemp. B et al., ‘The Rise of ESG Litigation and Horizontal Human Rights Enforcement.’ Available at https://www.lexology.com/library/detail.aspx?g=07a94453-f2aa-490a-a7e1-f6c25256cbf9 (Accessed on 05/02/2024).

Latham & Watkins LLP., ‘ESG Litigation Roadmap.’ Available at https://www.lw.com/admin/upload/SiteAttachments/ESG-Litigation-Roadmap.pdf (Accessed on 05/02/2024).

Li. T., et al., ‘ESG: Research Progress and Future Prospects.’ Available at https://pdfs.semanticscholar.org/0dd4/941ebea33330210daff5f37a1c8cdd0547d7.pdf (Accessed on 03/02/2024).’

Li. T., et al., ‘ESG: Research Progress and Future Prospects.’ Op Cit 24 Ahmad. H., Yaqub. M., & Lee. S. H., ‘Environmental-, Social-, and Governance-Related Factors for Business Investment and Sustainability: A Scientometric Review of Global Trends.’ Available at https://link.springer.com/article/10.1007/s10668-023-02921 (Accessed on 03/02/2024).

Mathis. S., & Stedman. C., ‘Environmental, Social and Governance (ESG).’ Available at https://www.techtarget.com/whatis/definition/environmental-social-and-governanceESG#:~:text= Environmental%2C%20social%20and%20governance%20(ESG)%20is%20a%20framework%2 0used,and%20opportunities%20in%20those%20areas (Accessed on 03/02/2024).

May. S., & Radcliffe. M., ‘The Evolving ESG litigation Landscape.’ Available at https://www.grantthornton.co.uk/insights/the-evolving-esg-litigation-landscape/ (Accessed on 05/02/2024).

McKenzie. S., Philippides. M., & De. Meyer., ‘A Look to the Future: Litigation Risks Faced by the Financial Sector in Relation to ESG Statements.’ Available at https://www.investafrica.com/insights-/a-look-to-thefuture-litigation-risks-faced-by-the-financial-sector-in-relation-to-esg-statements (Accessed on 05/03/2024).

Mikhaeel. M., ‘How Human Rights Due Diligence Affects the ‘E’ in ESG.’ Available at https://www.financierworldwide.com/how-human-rights-due-diligence-affects-the-e-in-esg (Accessed on 05/02/2024).

Muigua. K., ‘(Re) Examining Environmental, Social and Governance (ESG) and Human Rights.’ Available at https://kmco.co.ke/wp-content/uploads/2024/01/Re-Examining-Environmental-Social-andGovernance-ESG-and-Human-Rights.pdf (Accessed on 05/02/2024).

Muigua. K., ‘Greenwashing: A Hindrance to Achieving Sustainability?’ Available at https://kmco.co.ke/wp-content/uploads/2023/08/Greenwashing-A-hindrance-to-AchievingSustainability -Kariuki-Muigua-August-2023.pdf (Accessed on 05/02/2024).

Muigua. K., ‘Promoting Climate Litigation in Kenya for Sustainability.’ Available at https://kmco.co.ke/wp-content/uploads/2023/08/Promoting-Climate-litigation-in-Kenya-forSustainability-Kariuki-Muigua-August-2023.pdf (Accessed on 05/02/2024).

Norton. C., ‘Growing ESG Litigation Is Advancing Thinking on New Practices Needed.’ Available at https://www.linkedin.com/pulse/growing-esg-litigation-advancing-thinking-new-practicesnorton?utm_source=share&utm_medium=member_android&utm_campaign=share_via (Accessed on 03/02/2024).

Peterdy. K., & Miller. N., ‘What is ESG?’ Available at https://corporatefinanceinstitute.com/resources/esg/esg-environmental-social-governance (Accessed on 03/02/2024).

Runyon. N., ‘How Litigation Funding Drives Progress in the ESG Agenda.’ Available at https://www.thomsonreuters.com/en-us/posts/esg/litigation-funding-esgagenda/#:~:text=A%20driving %20force %20in%20access%20to%20justice&text=Litigation%20funding%2 0also%20provides%20the,of %20representation%20or%20legal%20strategy. (Accessed on 05/02/2024).

Stuart. L.G et al., ‘Firms and Social Responsibility: A Review of ESG and CSR Research in Corporate Finance.’ Journal of Corporate Finance 66 (2021): 101889.

Thailand Arbitration Center., ‘Alternative Dispute Resolution: Significance of ESG in Arbitration.’ Available at https://thac.or.th/alternative-dispute-resolution-significance-esg-arbitration/ (Accessed on 05/02/2024).

The 3 pillars of Sustainability: Environmental, Social and Economic., Available at https://www.enel.com/company/stories/articles/2023/06/three-pillars-sustainability (Accessed on 03/02/2024).

United Nations General Assembly., ‘Transforming Our World: the 2030 Agenda for Sustainable Development.’ 21 October 2015, A/RES/70/1., Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda%20for%20Sustainabl e%20Development%20web.pdf (Accessed on 03/02/2024).

United States Environmental Protection Agency., ‘What is Sustainability.’ Available at https://www.epa.gov/sustainability/learn-about-sustainability (Accessed on 03/02/2024).

World Commission on Environment and Development., ‘Our Common Future.’ Oxford, (Oxford University Press, 1987).

Xia, F., Chen, J., Yang, X., Li, X. and Zhang, B., ‘Financial Constraints and Corporate Greenwashing Strategies in China’ (2023) 30 Corporate Social Responsibility and Environmental Management 1770.

Continue Reading

Trending