News & Analysis

Operationalizing the Loss and Damage Fund

Published

10 months ago

February 15, 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 Loss and Damage Fund is designed to provide financial assistance to nations most vulnerable and impacted by the effects of climate change. It recognizes the injustices caused by climate change whose impacts are more severe in developing countries. Its adoption will add a third pillar to the global climate finance landscape alongside mitigation and adaptation. The COP 28 outcome is a key milestone towards the operationalization of the Loss and Damage Fund.

There is need to implement the outcome in order to reap the benefits presented by the Loss and Damage Fund. In addition, it is imperative to close the global climate financing gap and address the root causes of climate change in order to effectively confront climate change. Operationalizing the Loss and Damage Fund is an important global agenda that needs to be achieved in order to unlock climate finance and foster climate justice.

At COP 28, parties of the UNFCCC reached a historic agreement on the operationalization of the Loss and Damage fund and funding arrangements. The decision sets out the purpose of the Fund which is to assist developing countries that are particularly vulnerable to the adverse effects of climate change in responding to economic and non-economic loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events.

The Agreement invites the World Bank to operationalize the Fund as a World Bank hosted financial intermediary fund for an interim period of four years. According to the Agreement, the Loss and Damage Fund will endeavour to assist those countries that are vulnerable to the adverse impacts of climate change in mobilizing external finance to strengthen their efforts to respond to loss and damage while supporting both the achievement of international goals on Sustainable Development and the eradication of poverty.

The Decision sets out the scope of the Fund which is to provide finance for addressing a variety of challenges associated with the adverse effects of climate change, such as climate-related emergencies, sea level rise, displacement, relocation, migration, insufficient climate information and data, and the need for climate-resilient reconstruction and recovery. The Fund will focus on priority gaps within the current landscape of institutions, including global, regional and national institutions, that are funding activities related to responding to loss and damage.

In relation to the legal status of the Loss and Damage, the COP 28 decision sets out that the Fund will possess international legal personality and appropriate legal capacity as is necessary for the exercise of its functions, the fulfilment of its objectives and the protection of its interests, in particular the capacity to enter into contracts, to acquire and dispose of movable and immovable property, and to institute legal proceedings in defence of its interests.

In addition, in terms of the relationship of the Fund to the Conference of the Parties and the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, the COP 28 decision provides that the Fund will be designated as an entity entrusted with the operation of the Financial Mechanism of the Convention, which also serves the Paris Agreement, and will be accountable to and function under the guidance of the Conference of the Parties (COP) and the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement.

The COP 28 decision further stipulates that the Loss and Damage Fund will be governed and supervised by a Board that is its decision-making body. The Board will have responsibility for setting the strategic direction of the Fund and for the Fund’s governance and operational modalities, policies, frameworks and work programme, including relevant funding decisions.

Further, in terms of eligibility, the COP 28 decision sets out that developing countries that are particularly vulnerable to the adverse effects of climate change are eligible to receive resources from the Fund. The Fund is intended to promote and strengthen national responses for addressing loss and damage through pursuing country-led approaches, including through effective involvement of relevant institutions and stakeholders, in particular women, vulnerable communities and Indigenous Peoples.

In order to foster access to financial resources by developing countries, the COP28 decision requires the Fund to develop simplified procedures and criteria for fast-tracked screening to determine functional equivalency with internationally recognized standards of national and/or regional funding entities’ safeguards and standards to manage funded programmes and projects in country, as appropriate. In addition, in terms of financial inputs, the COP 28 outcome provides that the Fund is able to receive contributions from a wide variety of sources of funding, including grants and concessional loans from public, private and innovative sources, as appropriate.

In relation to financial instruments, the COP 28 outcome provides that the Fund will provide financing in the form of grants and highly concessional loans on the basis of the Board’s policy for the provision of grants, concessional resources and other financial instruments, modalities and facilities. In addition, the Fund may deploy a range of additional financial instruments that take into consideration debt sustainability (grants, highly concessional loans, guarantees, direct budget support and policy-based finance, equity, insurance mechanisms, risk- sharing mechanisms, pre-arranged finance, performance-based programmes and other financial products, as appropriate) to augment and complement national resources for addressing loss and damage.

The COP 28 outcome also requires programmes, projects and other activities financed by the Fund to be regularly monitored for impact, efficiency and effectiveness. The cop 28 outcome is therefore important in operationalizing the Loss and Damage Fund and expanding the landscape of climate finance. Operationalization of the Fund has been described as an essential tool to deliver climate justice. It is therefore necessary to implement the COP 28 outcome in order to operationalize the Loss and Damage Fund.

In addition, it has been asserted that the loss and damage funds should be new and additional – and come as grants not loans in order to fulfill the purpose of the Fund. It is also imperative for the world to close the climate financing gap. It has been highlighted that the current climate change funding pledges fall far short of what is actually required to mitigate the worst impacts of climate change and to deal with the unavoidable consequences. Developed countries have failed to deliver on an agreed climate finance target of $100 billion annually by 2020 resulting in inadequacy, imbalance and unpredictability of climate finance flows to developing countries thus affecting implementation of mitigation and adaptation measures in developing countries.

There is an apprehension that the Loss and Damage Fund may suffer from the same fate of inadequate funding thus affecting the response to climate change in vulnerable countries. The world urgently needs to find more resources for mitigation, adaptation and loss and damage so that climate change will not erode humanity’s chances to deliver on the Sustainable Development Goals.

Finally, it is imperative to confront the global problem of climate change by addressing its root cause through reducing greenhouse gas emissions. Unless this is achieved, more countries will continue to face the devastating effects of climate change. This calls for all countries especially the developed countries which are the largest contributors to global greenhouse emissions to comply with their climate commitments under the Paris Agreement as set out in their Nationally Determined Contributions (NDCs). Through this, the threat of climate change will be minimized and the Loss and Damage Fund will only be required in extreme cases.

The Loss and Damage Fund holds immense promises in enhancing the global response to climate change. It can unlock climate finance and foster climate justice. There is need to operationalize the Fund in order to provide financial assistance to nations most vulnerable and impacted by the effects of climate change towards climate justice.

*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

Anderson. K., ‘What is the COP 27 Loss and Damage Fund?’ Available at https://greenly.earth/en-us/blog/company-guide/what-is-the-cop27-loss-anddamage-fund (Accessed on 25/12/2023).

Climate Finance., ‘Climate Finance Essential for Mitigating and Adapting to Climate Change.’ Available at https://www.iberdrola.com/sustainability/what-is-climatefinance (Accessed on 25/12/2023).

Giles. M., ‘The Principles of Climate Justice at CoP27.’ Available at https://earth.org/principlesofclimatejustice/#:~:text=That%20response%20should%20be%20based,the%20conse quences%20of%20clim ate%20change (Accessed on 25/12/2023).

Hill. A.,& Babin. M ‘Why Climate Finance is Critical for Accelerating Global Action.’ Available at https://www.cfr.org/in-brief/why-climate-finance-critical-acceleratingglobal-action (Accessed on 25/12/2023).

Hong. H., Karolyi. G. A., & Scheinkman. J.A., ‘Climate Finance.’ Review of Financial Studies, Volume 33, Issue 3 (2020).

Muigua. K., ‘Unlocking Climate Finance for Development.’ Available at https://kmco.co.ke/wp-content/uploads/2023/08/Unlocking-Climate-Finance-forDevelopment.pdf (Accessed on 25/12/2023).

Paris Agreement., Available at https://unfccc.int/sites/default/files/english_paris_agreement.pdf (Accessed on 25/12/2023).

Reliefweb., ‘A Loss and Damage Fund: Two Big Challenges.’ Available at https://reliefweb.int/report/world/loss-and-damage-fund-two-big-challenges (Accessed on 18/09/2023).

Rumble. O, & Gilder. A., ‘Who, What, Where? The Loss and Damage Fund’s Unresolved Questions.’ https://africanarguments.org/2023/07/who-what-wherethe-loss-and-damage-funds-unresolved-questions/ (Accessed on 19/09/2023).

Sultana. F., ‘Critical Climate Justice’ Available at https://www.farhanasultana.com/wpcontent/uploads/Sultana-Critical-climatejustice.pdf (Accessed on 25/12/2023).

The London School of Economics and Political Science., ‘What is Climate Finance?’ Available at https://www.lse.ac.uk/granthaminstitute/explainers/what-is-climatefinance-and-where-will-itcomefrom/ (Accessed on 25/12/2023).

UNFCCC., ‘Decision -/CP.27 -/CMA.4: Funding Arrangements for Responding to Loss and Damage Associated with the Adverse Effects of Climate Change, Including a Focus on Addressing Loss and Damage.’ Available at https://unfccc.int/sites/default/files/resource/cma4_auv_8f.pdf (Accessed on 25/12/2023).

United Nations Climate Change., ‘Introduction to Climate Finance.’ Available at https://unfccc.int/topics/introduction-to-climate-finance (Accessed on 25/12/2023).

United Nations Climate Change., ‘Introduction to Climate Finance.’ Op Cit 9 United Nations Framework Convention on Climate Change., Available at https://unfccc.int/files/essential_background/background_publications_htmlpdf/ application/pdf/con veng.pdf (Accessed on 25/12/2023).

United Nations Climate Change., ‘Loss and Damage.’ Available at https://unfccc.int/topics/adaptation-and-resilience/the-bigpicture/introduction#loss-and-damage (Accessed on 25/12/2023).

United Nations Climate Change., ‘Operationalization of the New Funding Arrangements, including a Fund, for Responding to Loss and Damage referred to in Paragraphs 2–3 of Decisions 2/CP.27 and 2/CMA.4.’ Available at https://unfccc.int/documents/636558 (Accessed on 25/11/2023).

United Nations Environment Programme., ‘What you Need to Know about the COP 27 Loss and Damage Fund.’ Available at https://www.unep.org/news-andstories/story/what-you-need-know-about-cop27-loss-and-damage-fund (Accessed on 25/12/2023).

Wyns. A., ‘COP 27 Establishes Loss and Damage Fund to Respond to Human Cost of Climate Change.’ The Lancet Planetary Health, Volume 7, Issue 1 (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

+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

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.

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).

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