News & Analysis

Management of Energy Disputes using Arbitration in Africa

Published

7 months ago

February 1, 2024

Admin

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 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)*

The need for effective management of energy disputes at the global stage is envisaged under the Energy Charter Treaty. The Charter stipulates that energy disputes between an investor and a contracting state shall be settled amicably. In the absence of amicable settlement of disputes, the Charter provides for the settlement of energy disputes through other mechanisms including courts and administrative tribunals of the contracting party to the dispute, international arbitration and conciliation. In relation to energy disputes between contracting parties, the Charter provides that such disputes shall be managed through diplomatic channels and where such channels fail, then the dispute shall be managed through an ad hoc arbitral tribunal. The Energy Charter Treaty therefore sets out mechanisms for management of energy disputes including amicable settlement, use of courts and tribunals, international arbitration, conciliation and diplomacy.

Arbitration has been identified as the predominant method of dispute resolution for energy-related disputes on the African continent. It has been observed that over the past decades, arbitration has emerged as a key mechanism for dispute resolution in Africa’s growing energy industry. This is due to the fact that arbitration has developed into the preferred mode of management of disputes especially those that are transnational in nature. It has been correctly observed that in the face of globalization, the need for effective and reliable mechanisms for management of commercial disputes as well as other general disputes involving parties from different jurisdictions has not only become desirable but also invaluable.

At the international level, arbitration has a transnational applicability and guarantees neutrality in the determination of disputes by addressing differences that may arise as a result of multiple legal systems. Further, arbitration also guarantees enforcement of decisions through the New York Convention which provides a harmonized legal framework for the recognition and enforcement of foreign awards in arbitration. Arbitration also has a number of attributes including privacy, confidentiality, party autonomy and the ability to foster expeditious and cost-effective management of disputes. These features make arbitration a viable mechanism for managing disputes.

The need for expeditious management of energy disputes is of paramount importance. It has been pointed out that disputes in the energy sector can take a very long time to be resolved, during which there may be significant disruptions to energy supply. Parties therefore have a particular interest in resolving disputes swiftly. For example, according to the International Chamber of Commerce (ICC), half of all emergency arbitrator proceedings under the ICC rules concern disputes in the infrastructure/energy sectors.

International Commercial Arbitration has thus been widely embraced as the preferred mechanism of managing global commercial disputes including energy disputes. It has been pointed out that foreign investors’ preference for arbitration may be explained by arbitration’s flexibility, the ability to provide for confidentiality and the ability to enlist specialist, commercial-minded arbitrators to determine the dispute, and its ability to provide for a neutral forum in complex energy disputes involving international parties, particularly when compared to litigation before domestic courts.

As a result of its advantages, there has been prevalence of arbitration in African energy projects. For example, it has been observed that the growing renewable energy sector in Africa is embracing arbitration in managing disputes due to several reasons which include the confidentiality of arbitration proceedings and awards which preserves the information and data behind the new technologies at the heart of renewable energy projects; finality and enforceability of arbitral awards under the New York Convention; ability to provide a neutral and final dispute resolution forum since renewable energy projects often involve joint ventures between investors or contractors from several jurisdictions; the flexibility of parties in choosing a panel of arbitrators that have the most relevant technical expertise in the subject matter; the ability to consolidate cases in multi-party arbitration either under the terms of an arbitration clause or under the rules of an arbitral institution thus avoiding the risk of competing tribunals and inconsistent awards; and the ability to protect investors under investor/state arbitration.

Arbitration of energy disputes is envisaged in energy projects under the 2013 Tanzanian Model Product Sharing Agreement (PSA). The PSA seeks to ensure that petroleum operations including exploration activities are conducted in an ethical, efficient, safe, transparent and accountable manner on the basis of the best international environmental, social and economic sustainability principles in order to achieve optimal long-term petroleum resource exploitation for maximum value creation for equitable benefit and welfare of the people of the United Republic of Tanzania. It provides for management of disputes between investors and the Republic of Tanzania through negotiations and in the event such negotiations fail, then such disputes shall be managed through arbitration. The PSA envisages arbitration of energy disputes in Tanzania under the auspices of the International Chamber of Commerce (ICC).

In addition, the Ugandan Model Production Sharing Agreement also envisages the use of arbitration in managing energy disputes related to the exploration, development and production of petroleum. It stipulates that a dispute arising under the Agreement which cannot be settled amicably within one hundred and twenty (120) days, shall be referred to arbitration in accordance with the United Nations Commission for International Trade Law (UNCITRAL) Arbitration Rules. Further, the Standard Power Purchase Agreement of Kenya provides for final settlement of disputes through arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce.

Arbitration of energy disputes in Africa often takes the form of investment arbitration often taking the form of investor/state arbitration and commercial arbitration. In the context of investor/state arbitration, it is estimated that there are over five hundred Bilateral Investment Treaties (BITs) between foreign investors and African countries including almost fifty intra-African BITs in force, alongside more than thirty multilateral treaties with investment protections, including the COMESA (Common Market for Eastern and Southern Africa) Treaty (1993); the OIC (Organisation of Islamic Cooperation) Investment Agreement (1981); the Economic Community of the Western African States (ECOWAS) Supplementary Act for Common Investment Rules for the Community (2008) and the Common Investment Code (2019); as well as the Arab League of States’ Arab Investment Agreement (1980) covering investments in various sectors including energy.

Against this backdrop, there have been a number of Africa-related ICSID cases involving energy disputes. In its 2023 annual report, ICSID notes that North Africa and Sub-Saharan Africa accounted for 9% each of the cases registered in Financial Year 2023 with most of the cases involving the oil, gas, and mining industries as well as electric power and other energy sources. For commercial arbitration, there has been an increase in energy disputes involving parties from Africa before international arbitration centres including the International Chamber of Commerce and the London Court of International Arbitration.

In addition, there are a number of regional arbitration centres gaining prominence in Africa such as the Cairo Regional Centre for International Commercial Arbitration (CRCICA), the Arbitration Foundation of Southern Africa (AFSA), Lagos Court of Arbitration (LCA), the Kigali International Arbitration Centre (KIAC), the Nairobi Centre for International Arbitration (NCIA), the Mediation and Arbitration Centre (MARC) in Mauritius, and the Casablanca International Mediation and Arbitration Centre (CIMAC) which have been vital in fostering energy arbitration in Africa.

*This is an extract from the Book: Promoting Rule of Law for Sustainable Development (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 2022) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. 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 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

Africa Development Bank Group., ‘Light Up and Power Africa – A New Deal on Energy for Africa.’ Available at https://www.afdb.org/en/the-high-5/light-up-and-powerafrica-%E2%80%93-a-new-deal-on-energy-for-africa (Accessed on 04/12/2023).

Africa Union., ‘Agenda 2063: The Africa we Want.’ Available at https://au.int/sites/default/files/documents/33126-docframework_document_book.pdf (Accessed on 04/12/2023).

Ashurst., ‘Managing and Resolving Cross-Border Disputes in the Energy Sector.’ Available at https://www.ashurst.com/en/insights/managing-and-resolving-cross-borderdisputes-in-the-energy-sector/ (Accessed on 02/12/2023).

Burges-Salmon., ‘Energy Disputes Guide: Managing Risk and Avoiding Disputes in your Energy Project.’ Available at https://www.burges-salmon.com/energydisputes-guide-managing-risk-and-avoiding-disputes-in-your-energy-project (Accessed on 02/12/2023).

Clearly Gottlieb., ‘Resolving Energy Disputes in Africa Through Arbitration and Alternative Dispute Resolution (‘ADR’).’ Available at https://content.clearygottlieb.com/regions/africa-outlook/resolving-energy-disputes-in-africathrough-arbitration-and-alternative-dispute-resolution/index.html (Accessed on 02/12/2023).

Financier Worldwide Magazine., ‘FORUM: Managing Energy and Natural Resources Industry Disputes.’ Available at https://www.financierworldwide.com/forum-managingenergy-and-natural-resources-industry-disputes (Accessed on 02/12/2023).

International Centre for Settlement of Investment Disputes., ‘Annual Report: 2023.’ Available at https://icsid.worldbank.org/sites/default/files/publications/ICSID_AR2023_ENGLISH_web_ spread.pdf (Accessed on 02/12/2023).

International Energy Agency., ‘Access to Electricity.’ Available at https://www.iea.org/reports/sdg7- data-and-projections/access-to-electricity (Accessed on 04/12/2023).

International Energy Agency., ‘Africa Energy Outlook: 2022.’ Available at https://iea.blob.core.windows.net/assets/220b2862-33a6-47bd-81e9- 00e586f4d384/AfricaEnergyOutlook2022.pdf (Accessed on 04/12/2023).

International Energy Agency., ‘Africa Energy Outlook: 2022.’ Op Cit 29 Global Arbitration Review., ‘Energy Arbitration in Africa.’ Available at https://globalarbitrationreview.com/review/the-middle-eastern-and-african-arbitrationreview/2022/article/energy-arbitration-in-africa (Accessed on 06/12/2023).

Kaledzi. I., ‘How Could Ethiopia’s Dam Dispute Escalate?.’ Available at https://www.dw.com/en/how-could-ethiopias-dam-dispute-escalate/a-66798628 (Accessed on 06/12/2023).

McMahon. M., Shah. P., ‘The Rise of Renewable Energy Disputes and Arbitration.’ Available at https://www.stewartslaw.com/news/rise-of-renewable-energydisputes/ (Accessed on 02/12/2023).

Moses, ‘The Principles and Practice of International Commercial Arbitration’ 2nd Edition, 2017, Cambridge University Press.

Muigua. K., ‘Alternative Dispute Resolution and Access to Justice in Kenya.’ Glenwood Publishers Limited, 2015.

Muigua. K., ‘Fusion of Mediation and Other ADR Mechanisms with Modern Dispute Resolution in Kenya: Prospects and Challenges.’ Available at http://kmco.co.ke/wpcontent/uploads/2022/11/Fusion-of-Mediation-and-Other-ADRMechanisms-with-Modern-DisputeResolution-in-Kenya-Prospects-and-Challenges.pdf (Accessed on 06/12/2023).

Muigua. K., ‘Nurturing International Commercial Arbitration in Kenya.’ Available at https://kmco.co.ke/wp-content/uploads/2021/10/Nurturing-International-CommercialArbitration-in-Kenya.pdf (Accessed on 06/12/2023).

Muigua. K., ‘Promoting International Commercial Arbitration in Africa.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/PROMOTINGINTERNATIONAL-COMMERCIALARBITRATION-IN-AFRICA.pdf (Accessed on 06/12/2023).

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

Nalule. V., Olawuyi. D., ‘Introduction to International Energy Arbitration Disputes in Africa.’ The Palgrave Handbook of Arbitration in the African Energy and Mining Sectors. Palgrave Studies in Energy Transitions. Palgrave Macmillan, Cham. Available at https://doi.org/10.1007/978-3-030-96183-1_1-1 (Accessed on 06/12/2023).

Republic of Kenya., ‘Standard Power Purchase Agreement.’ Available at https://ppp.worldbank.org/public-privatepartnership/sites/ppp.worldbank.org/files/documents/Kenya_ppa_ppfull.pdf (Accessed on 06/12/2023).

Republic of Tanzania., ‘Model Product Sharing Agreement, 2013.’ Available at https://www.resourcecontracts.org/contract/ocds-591adf-8006566420/download/pdf (Accessed on 06/12/2023).

Republic of Uganda., ‘Model Production Sharing Agreement.’ Available at https://www.unoc.co.ug/wp-content/uploads/2018/06/MPSA.pdf (Accessed on 06/12/2023).

The Energy Charter Treaty., Available at https://www.energycharter.org/fileadmin /DocumentsMedia/ Legal/ECTC-en.pdf (Accessed on 06/12/2023).

United Nations Commission on International Trade Law., ‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards.’ (New York, 1958).

United Nations Conference on Trade and Development., ‘Commodities at a Glance: Special Issue on Access to Energy in Sub-Saharan Africa.’ Available at https://unctad.org/publication/commoditiesglance-special-issue-access-energy- subsaharanafrica#:~:text=Access%20to%20energy%20is%20defined,be%20 scaled%20up %20over%20time (Accessed on 04/12/2023).

United Nations Environment Programme., ‘Our Work in Africa.’ Available at https://www.unep.org/regions/africa/ourworkafrica#:~:text=The%20continent%20has%2040%20percent,internal%20renewable%20 fresh%20water%20source (Accessed on 04/12/2023).

United Nations., ‘Advancing SDG 7 in Africa.’ Available at https://sdgs.un.org/sites/default/files/2023- 06/2023%20Advancing%20SDG7%20in%20the%20Africa062923.pdf (Accessed on 04/12/2023).

United Nations., ‘Transforming Our World: The 2030 Agenda for Sustainable Development.’ Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda%20for%20 Sustainabl e%20Development%20web.pdf (Accessed on 04/12/2023).

United Nations: United Nations Commission on International Trade Law.,’ Convention on International Settlement Agreements Resulting from Mediation.’ United Nations, New York, 2019., Available at https://uncitral.un.org/sites/uncitral.un.org/files/singapore_convention_eng.pdf (Accessed on 06/12/2023).

White & Case., ‘Investment Treaty Protection: How to Safeguard Foreign Investments in Africa.’ Available at https://www.whitecase.com/insight-ourthinking/africa-focus-winter-2022-investmenttreatyprotection #:~:text=As%20of%20October%202022%2C%20there%20were%20525%20BITs%20with%20African,OI% 20(Organisation%20of%20Islamic%20Cooperation) (Accessed on 06/12/2023).

Admin

admin@thelawyer.africa | Website | + posts

Up Next

Managing Energy Disputes Using Negotiation and Mediation in Africa

Don't Miss

Energy Disputes in Africa

Click to comment

News & Analysis

What is Carbon Markets?

Published

2 months ago

July 8, 2024

MMA Advocates LLP

Written by Faith Nyambura Kabora, Advocate.

Carbon markets are a mechanism designed to reduce greenhouse gas emissions which are essentially gases that trap heat in the atmosphere and contribute to the negative impacts of climate change such as prolonged drought and rising of sea levels.

Carbon markets operate on the principle of putting a price on carbon emissions to create commercial/economic incentives for public and private entities to reduce their carbon footprint and invest in cleaner, sustainable practices.

Ideally, by putting a price on carbon, the carbon markets encourage sustainable environmental practices and help counties meet their emission reduction targets under international treaties, like the Paris Agreement, which Kenya is a signatory to. For a broader understanding, here is how a carbon market works;

A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
The participants can then buy and sell the allowances. Ideally, those who reduce their emissions more efficiently sell their surplus allowance to those who find it more challenging to reduce the emissions. If a company pollutes a lot, they need to buy more permissions, and if they do not pollute as much, they can sell their extra permissions.
Entities are required to hold enough allowances to cover their actual emissions. If they exceed allocated allowances, they face penalties or, as expounded above, they buy additional allowances. This is the part where compliance becomes mandatory for all the key players.
The price of the allowances fluctuates based on supply and demands and reflects the cost of emitting greenhouse gases. It is essentially like paying for pollution.

A carbon market plays a pivotal role in advancing climate action and promoting sustainable practices by incentivizing companies to reconsider their pollution practices, which can result in financial consequences as pollution becomes a costly endeavor. In Kenya, the introduction of a Carbon Market is imperative as the world confronts the dire consequences of climate change. Furthermore, it offers a commercial opportunity for investors considering the growing demand for environmentally friendly and carbon neutral products and services.

As mentioned above, the Paris Agreement is one of the most important international treaties dedicated strengthen global response to the negative impact of climate change. Ultimately, the Agreement’s goal is to motivate countries to limit global emissions and more importantly, to hold them accountable for their actions around reducing their carbon footprints.

Kenya as a signatory to the Paris Agreement has made significant contributions towards fulfilling the obligations under the Paris Agreement of limiting global temperature. The Climate Change (Amendment) Act 2023, nudges Kenya towards the realization of Article 6 of the Paris Agreement by introducing provisions and regulation of and participation in carbon markets.

MMA Advocates LLP

+254 729-999-333 | info@mmaadvocates.co.ke | Website | + posts

As one of the top law firms in Nairobi, MMA Advocates is renowned for its proactive strategy and innovative legal lawyer advice. Our firm is committed to delivering strategic assistance that not only tackles current difficulties but also equips clients for future legal trends and advancements. As top lawyers in Nairobi Kenya, we take great satisfaction in our ability to combine in-depth legal knowledge with creative problem-solving. We keep a close eye on business trends and legal advancements to deliver timely guidance that enables our clients to make wise choices.

Our main goal as MMA Advocates is to establish long-lasting partnerships based on integrity, decency, and reliability. Since every client’s circumstance is unique, our best advocates in Kenya offer timely service and individualized attention at every stage of our collaboration. We make sure our clients are informed and empowered throughout their legal journey because we value openness and transparency in communication. In every case we take on, we are deeply committed to obtaining positive results and client satisfaction. This is just one aspect of our unwavering commitment to quality.

Whether you are a startup negotiating regulatory obstacles, an established corporation expanding, or a private citizen seeking legal assistance on personal problems, our Best Corporate Lawyers in Kenya are dedicated to becoming your legal partner. Our expertise include Commercial Litigation, Real Estate & Development, Fintech, Public Procurement (Public Private Partnerships), Project Finance, Public Law Litigation, Legal Audits & Compliance Advisory and Crisis Management.

We hope to arm you with the legal know-how and strategies needed to achieve your objectives. Our team enjoys taking on challenging legal matters with creativity and strategic understanding, protecting your rights and effectively achieving your goals. With a thorough comprehension of both regional laws and global norms, we are prepared to confidently and competently lead you through the complexities of corporate law.

In the intensely competitive legal arena, our tailored legal and strategic solutions distinguish us. We value depth over breadth, guaranteeing our clients our full dedication and unparalleled efficiency. Where many spread themselves wide, we narrow our focus to a select few of the most challenging cases. We tread the path less traveled.

To find out more about how MMA Advocates in Nairobi Kenya can help you with your legal issues, get in touch with us. With our team of committed professionals and our standing as one of the top law firms in Nairobi, we are well-positioned to offer outcomes that surpass expectations and guarantee your success in a legal environment that is always changing.

News & Analysis

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

Published

5 months ago

April 28, 2024

Kariuki Muigua & Company

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.

Kariuki Muigua & Company

+254 020-2210281 | admin@kmco.co.ke | Website | + posts

Kariuki Muigua & Company Advocates is a Top-Tier Kenyan law firm situated at the heart of Nairobi city in Kenya. We are a broad-based practice with a reputation for offering a full range of quality services to our domestic and international clients.

At KM&CO, we take pride in offering personalized attention to our diverse clientele. Our practice aspires to offer efficient and cost-effective legal solutions that meet our esteemed clients’ needs in a timely and competent manner.

KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.

News & Analysis

Way Forward in Applying Collaborative Approaches Towards Conflict Management

Published

6 months ago

March 24, 2024

Kariuki Muigua & Company

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.

References

Bercovitch. J., ‘Conflict and Conflict Management in Organizations: A Framework for Analysis.’ Available at https://ocd.lcwu.edu.pk/cfiles/International%20Relations/EC/IR403/Conflict.ConflictManagementinOrga nizations.pdf (Accessed on 01/03/2024).

Bercovitch. J., ‘Mediation Success or Failure: A Search for the Elusive Criteria.’ Cardozo Journal of Conflict Resolution, Vol. 7, p 289.

Bloomfield. D., ‘Towards Complementarity in Conflict Management: Resolution and Settlement in Northern Ireland,’ Journal of Peace Research., Volume 32, Issue 2.

Burrell. B., ‘The Five Conflict Styles’ Available at https://web.mit.edu/collaboration/mainsite/ modules/module1/1.11.5.html (Accessed on 01/03/2024).

Demmers. J., ‘Theories of Violent Conflict: An Introduction’ (Routledge, New York, 2012).

Diana. M., ‘From Conflict to Collaboration’ Available at https://www.pmi.org/learning/library/conflict-collaboration-beyond-projectsuccess-1899 (Accessed on 01/03/2024).

Food and Agriculture Organization., ‘Collaborative Conflict Management for Enhanced National Forest Programmes (NFPs)’ Available at https://www.fao.org/3/i2604e/i2604e00.pdf (Accessed on 01/03/2024).

International Organization for Peace Building., ‘Natural Resources and Conflict: A Path to Mediation.’ Available at https://www.interpeace.org/2015/11/naturalresources-and-conflict-a-path-to-mediation/ (Accessed on 01/03/2024).

Isenhart. M.W., & Spangle. M., ‘Summary of “Collaborative Approaches to Resolving Conflict” ‘ Available at https://www.beyondintractability.org/bksum/isenhart-collaborative (Accessed on 01/03/2024).

Kaushal. R., & Kwantes. C., ‘The Role of Culture and Personality in Choice of Conflict Management Strategy.’ International Journal of Intercultural Relations 30 (2006) 579– 603.

Leeds. C.A., ‘Managing Conflicts across Cultures: Challenges to Practitioners.’ International Journal of Peace Studies, Volume 2, No. 2, 1997.

May. E., ‘Collaborating Conflict Style Explained In 4 Minutes’ Available at https://www.niagara institute.com/blog/collaborating-conflict-style/ (Accessed on 01/03/2024).

Miroslavov. M., ‘Mastering the Collaborating Conflict Style In 2024’ Available at https://www.officernd.com/blog/collaborating-conflictstyle/#:~:text=It’s%20one%20of%20the%20strat egies,their%20underlying%20needs %20and%20interests. (Accessed on 01/03/2024).

Muigua. K & Kariuki. F., ‘ADR, Access to Justice and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/ADR-access-tojustice-and-development-inKenyaRevised-version-of-20.10.14.pdf (Accessed on 01/03/2024).

Muigua. K., ‘Alternative Dispute Resolution and Access to Justice in Kenya.’ Glenwood Publishers Limited, 2015.

Muigua. K., ‘Reframing Conflict Management in the East African Community: Moving from Alternative to ‘Appropriate’ Dispute Resolution.’ Available at https://kmco.co.ke/wpcontent/uploads/2023/06/ Reframing-ConflictManagement-in-the-East-African-CommunityMoving-from-Alternative-toAppropriate-Dispute-Resolution (Accessed on 01/03/2024).

Muigua. K., ‘Resolving Conflicts through Mediation in Kenya.’ Glenwood Publishers Limited, 2nd Edition., 2017.

Quain. S., ‘The Advantages & Disadvantages of Collaborating Conflict Management’ Available at https://smallbusiness.chron.com/advantagesdisadvantages-collaborating-conflict-management-36052.html (Accessed on 01/03/2024).

Samuel. A., ‘Is the Collaborative Style of Conflict Management the Best Approach?’ Available at https://www.linkedin.com/pulse/collaborative-style-conflictmanagement-best-approach-samuel-ansah (Accessed on 01/03/2024).

United Nations., ‘Land and Conflict’ Available at https://www.un.org/en/landnatural-resources-conflict/pdfs/GN_ExeS_Land%20and%20Conflict.pdf (Accessed on 01/03/2024).

Weiss. J., & Hughes. J., ‘Want Collaboration?: Accept—and Actively Manage— Conflict’ Available at https://hbr.org/2005/03/want-collaboration-accept-andactively-manage-conflict (Accessed on 01/03/2024).

Kariuki Muigua & Company

+254 020-2210281 | admin@kmco.co.ke | Website | + posts

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.