News & Analysis

Codes of Ethics Applicable to Arbitrations in Africa

Published

10 months ago

February 10, 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)*

There has been progress towards strengthening ethics in arbitration as envisaged by several codes and institutional rules on ethics. The International Bar Association (IBA) has formulated guidelines on conflicts of interest in international arbitration. The guidelines apply to international commercial arbitration and international investment arbitration and are designed to assist parties, practitioners, arbitrators, institutions and courts in dealing with the fundamental ethical concerns of impartiality and independence.

Among the fundamental principles encapsulated in the guidelines is impartiality and independence. According to the guidelines, every arbitrator shall be impartial and independent of the parties at the time of accepting an appointment to serve and shall remain so until the final award has been rendered or the proceedings have otherwise finally terminated. The guidelines further seek to address the ethical concern of conflict of interest. They require an arbitrator to decline to accept an appointment or, if the arbitration has already been commenced, refuse to continue to act as an arbitrator, if he or she has any doubt as to his or her ability to be impartial or independent. According to the guidelines, the rules on conflict of interest are aimed at fostering confidence in the arbitral process.

The IBA guidelines also envisage the ethical duty of disclosure. They require an arbitrator to disclose any facts or circumstances that may, in the eyes of the parties, give rise to doubts as to his or her impartiality or independence prior to accepting appointment or a soon as the arbitrator becomes aware of such facts or circumstances. The IBA guidelines also govern parties to an arbitration and require them to disclose any relationship, direct or indirect, with the arbitrator. Disclosure of such relationships is aimed at reducing the risk of an unmeritorious challenge of an arbitrator’s impartiality or independence based on information learned after the appointment.

The IBA guidelines are important in strengthening ethics in arbitration by providing specific guidance to arbitrators, parties, institutions and courts as to which situations do or do not constitute conflicts of interest, or should or should not be disclosed. The IBA guidelines represent an attempt to formulate a code of ethics in arbitration at the international level. The guidelines have gained wide acceptance within the international arbitration community.

At the Institutional level, the Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members sets out professional and moral principles to govern the conduct of members of the Chartered Institute of Arbitrators while discharging their mandate. The Code requires members to maintain integrity and fairness while managing disputes and withdraw from acting if they can longer fulfill this obligation.

The Code further requires members to disclose all interests, relationships and matters likely to affect their independence and impartiality before and throughout the arbitration process. It also requires members to be competent and only accept appointments to manage disputes only when they are appropriately qualified or experienced. In addition, the Code requires arbitrators to ensure that parties are adequately informed of all the procedural aspects of the arbitration process. It further requires members to maintain trust and confidence of the dispute resolution process. The Code is therefore an important source of professional conduct, ethics, integrity and etiquette for members of the Chartered Institute of Arbitrators. It governs ethical issues in arbitration including integrity, fairness, conflict of interest, competence, trust and confidence.

The London Court of International Arbitration (LCIA) has also made progress towards strengthening ethics in arbitration vide its arbitration rules which contain general guidelines for the parties’ legal representatives. This has been described as the first attempt to set out an ethical framework for regulating the conduct of counsel in international arbitration at an institutional level. The guidelines define the standards of ethical conduct expected of counsel appearing before the LCIA or its tribunal.

The guidelines prohibit legal representatives from engaging in certain conduct including activities intended unfairly to obstruct the arbitration or to jeopardise the finality of any award, knowingly making any false statement to the arbitral tribunal or the LCIA Court, knowingly procuring or assisting in the preparation of or relying upon any false evidence, knowingly concealing or assisting in the concealment of any document (or any part thereof) which is ordered to be produced by the arbitral tribunal, and deliberately initiating or attempting to initiate any unilateral contact with a member of the arbitration tribunal in relation to the arbitration proceedings.

These guidelines are binding upon the parties’ legal representatives pursuant to article 18.5 of the LCIA rules. They are aimed at promoting good and ethical conduct for parties’ legal representatives appearing before the LCIA. Further, arbitral institutions in Africa have made progress towards strengthening ethics in arbitration by formulating rules and guidelines to govern ethical conduct in arbitration proceedings.

The Nairobi Centre for International Arbitration (NCIA) has developed a code of conduct for arbitrators. The Code requires an arbitrator, when approached with an appointment, to conduct reasonable enquiries with regard to potential conflict of interest that may arise from his or her appointment for that particular matter that may affect impartiality and independence. It requires an arbitrator to accept appointment only where certain requirements have been met. This is where an arbitrator is fully satisfied that he is independent of the parties at the time of the appointment, and is able to remain so until final award has been rendered, able to discharge his duties without bias, has adequate knowledge of the language of the proceedings, has adequate experience and ability for the case at hand, and is able to give to the proceedings the time and attention which parties are reasonably entitled to expect.

The Code also requires arbitrators to conduct proceedings with integrity and fairness61. Arbitrators are also required to disclose any interest or relationship that affects impartiality or creates an unfavorable appearance of partiality or bias. The Code is also aimed at fostering appropriateness in communication between the tribunal and parties. It forbids an arbitrator from discussing the case with any party in the absence of the other party.

The Code also safeguards the ethical requirements of honesty, trust and confidentiality and requires arbitrators to keep confidential all matters relating to the proceedings. Further, it requires arbitrators to make their decisions in a just, independent and deliberate manner. The Code also aims at strengthening ethics in terms of fees charged by arbitrators and requires them to adopt and adhere to the NCIA Schedule of Fees. The NCIA Code of Conduct for Arbitrators is therefore vital in strengthening ethics in arbitration. It requires arbitrators to observe fundamental standards of ethical conduct.

The Arbitration Foundation of Southern Africa has also designed a Code of Conduct that stipulates ethical principles and standards to govern arbitrators. The Code requires an arbitrator to always discharge his or her duties in such manner as to ensure a fair administration of justice between the parties. Further, it requires an arbitrator to only accept appointment where the arbitrator is satisfied that he or she can act impartially and independently in that matter and disclose any matter that impair the ability to act independently and impartially.

The Code also stipulates the ethical duty of an arbitrator to act diligently and efficiently, and always with due courtesy to the parties and their witnesses. Further, it enshrines the duty of confidentiality and requires the arbitrator to ensure that the proceedings remain confidential unless the parties agree otherwise. The Code also envisages the ethical duty of an arbitrator to ensure efficient management of disputes and requires an arbitrator to devote sufficient time and proper attention to the matter and employ procedures which avoid unnecessary cost or delay and which promote the efficient management of disputes.

The Kigali International Arbitration Centre vide its arbitration rules also aims at strengthening ethical practice in arbitration. The rules require an arbitrator to be and remain at all times independent and impartial and not act as the advocate of the parties. The rules further require the Centre, in confirming or appointing arbitrators, to have due regard to any qualifications required of an arbitrator by the agreement of the parties and to such consideration as are likely to secure an impartial and independent arbitrator. They also require the Centre to consider whether the arbitrator has sufficient availability and ability to determine the case in a prompt and efficient manner appropriate to the nature of arbitration.

Before appointment or confirmation, a prospective arbitrator is required to sign a statement of acceptance, availability, impartiality and independence. The arbitrator is also required to disclose to the Centre any facts or circumstances that may give rise to justifiable doubts as to his or her impartiality. Where these ethical requirements have not been met, the rules allow parties to challenge the appointment of an arbitrator if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence or if the arbitrator does not possess any requisite qualification on which the parties have agreed.

*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 2023) 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

Arbitration Foundation of Southern Africa., ‘Code of Conduct.’ Available at https://arbitration.co.za/domestic-arbitration/code-of-conduct/ (Accessed on 12/10/2023).

Chartered Institute of Arbitrators., ‘Code of Professional and Ethical Conduct for Members.’ Available at https://www.ciarb.org/media/4231/ciarb-code-of-professional-andethical-conduct-for-members.pdf (Accessed on 11/10/2023).

Constitution of Kenya, 2010, Article 159 (2) (c), Government Printer, Nairobi.

Dattilo. V., ‘Ethics in International Arbitration: A Critical Examination of the LCIA General Guidelines for the Parties’ Legal Representatives.’ Available at https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=2369&context=gjicl (Accessed on 11/10/2023).

Harding. K., ‘Arbitration – The Role of Ethics and its Nature.’ Available at https://kluwerlawonline.com/journalarticle/Arbitration:+The+International+Journal+of+Arbitration,+ Mediation+and+Dispute+Management/64.3/AMDM1998013 (Accessed on 11/10/2023).

International Bar Association., ‘IBA Guidelines on Conflicts of Interest in International Arbitration.’ Available at https://www.ibanet.org/MediaHandler?id=e2fe5e72-eb14-4bba-b10d-d33dafee8918 (Accessed on 12/10/2023).

Kigali International Arbitration Centre., ‘Arbitration Rules, 2012.’ Available at https://kiac.org.rw/wp-content/uploads/2023/06/KIAC-arbitration-rules.pdf (Accessed on 12/10/2023).

London Court of International Arbitration., ‘LCIA Arbitration Rules 2020.’ Available at https://www.lcia.org/Dispute_Resolution_Services/lcia-arbitration-rules-2020.aspx (Accessed on 11/10/2023).

Meadow. C., ‘Ethics in ADR: The Many “Cs” of Professional Responsibility and Dispute Resolution’ 28 Fordham Urb. L.J. 979-990 (2001).

Meadow. C., ‘Ethics Issues in Arbitration and Related Dispute Resolution Processes: What’s Happening and What’s Not.’ University of Miami Law Review, Volume 56, N0. 4 (2002).

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

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-to-justice-anddevelopment-inKenyaSTRATHMORE-CONFERENCE-PRESENTATION.pdf (Accessed on 11/10/2023).

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

Muigua. K., ‘Promoting International Commercial Arbitration in Africa.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/PROMOTING-INTERNATIONALCOMMERCIAL ARBITRATION-IN-AFRICA.pdf (Accessed on 11/10/2023).

Muigua. K., ‘Promoting Professional Conduct, Ethics, Integrity & Etiquette in ADR.’ Available at http://kmco.co.ke/wp-content/uploads/2022/05/PromotingProfessionalConduct-Ethics-Integrity-Etiquette-in-ADR.pdf (Accessed on 11/10/2023).

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

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

Nairobi Centre for International Arbitration., ‘Code of Conduct for Arbitrators, 2021.’ Available at https://ncia.or.ke/wp-content/uploads/2021/07/3.-NCIACODE-OF-CONDUCT-FOR-ARBITRATORS-2021.pdf (Accessed on 12/10/2023).

Nairobi Centre for International Arbitration., ‘Confidentiality in Arbitration: Evaluating Legal and Ethical Dilemmas.’ Available at https://ncia.or.ke/wpcontent/uploads/2022/10/Confidentiality-in-Arbitration-Evaluating-Legal-andEthical-Dilemmas-1.pdf (Accessed on 12/10/2023).

Rajoo. D., ‘Importance of Arbitrators’ Ethics and Integrity in Ensuring Quality Arbitrations.’ Contemporary Asia Arbitration Journal, Vol. 6, No. 2, pp 329-347 (2013).

Ripley-Evans. J., & De Sousa. M., ‘2022 SOA Arbitration in Africa Survey Reveals a Thriving Market for Arbitration on the Continent.’ Available at https://hsfnotes.com/africa/2022/11/25/2022-soas-arbitration-in-africa-survey-reveals-athriving-market-for-arbitration-on-the-continent/ (Accessed on 11/10/2023).

Rogers. C., ‘The Ethics of International Arbitrators.’ Available at https://www.international-arbitration-attorney.com/wp-content/uploads/InternationalArbitration-Doctrine-49international_arbitration.pdf (Accessed on 11/10/2023).

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

United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.

World Intellectual Property Organization., ‘What is Arbitration’ Available at https://www.wipo.int/amc/en/arbitration/what-is-arb.html (Accessed on 11/10/2023).’

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News & Analysis

What is Carbon Markets?

Published

5 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

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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

7 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

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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

9 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.

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