News & Analysis

The Role of Trade in Climate Action

Published

10 months ago

February 17, 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)*

Trade has been identified as one of the tools and sectors of the economy that can spur climate action. According to UNCTAD, trade-related measures can help drive both climate and sustainable development actions across the globe. Some of the key trade policy instruments that can spur climate action include trade liberalization, standards and labelling, international investment protection treaties, and technology transfer. However, the efficacy of these instruments in climate action is hindered by several barriers including challenges to technology transfer, concerns about the methodologies adopted in developing standards and labels, and lack of reform of International Investment Agreements.

Trade has an important role to play in the global response to climate change, providing economies with tools to draw on in their efforts to mitigate climate change and to adapt to its consequences. Trade plays a fundamental role in helping countries transition to low carbon economies. It has been rightly observed that in order to effectively confront climate change, to provide all people with clean and affordable energy and to reduce dependency on fossil fuels substantially, both developed and developing countries will have to restructure their economies to low carbon economies. For this profound restructuring to happen, major investments in low carbon technology are needed, in addition to significant changes in life styles.

It has been observed that this process of technological innovation or dissemination of low carbon technologies will largely depend on international trade and investment of both private and public actors. As a result, international trade can favour the pursuit of climate change goals. According to UNCTAD, trade-led development can bolster climate action using coordinated and inclusive approaches to accelerate a global just transition to a low-carbon economies. It further asserts that trade can be a powerful tool to accelerate the energy transition and support resilient development pathways with low emissions.

In addition, trade can facilitate access to environmentally preferable goods and services and to technologies and know-how critical to boosting innovation and building capabilities to support climate change mitigation and adaptation efforts in all countries. It has been asserted that clean technologies are at the heart of Sustainable Development and the global response to climate change. Trade is a major factor in fostering access to clean technologies.

According to the World Trade Organization (WTO), trade and trade policies, in conjunction with relevant policies and international cooperation, can help to alleviate some of the impacts of climate change, including on food security, by contributing to enhancing economic resilience. WTO further posits that international trade can help support climate change strategies, such as prevention and reduction of, and preparedness for, climate risk, as well as recovery and rehabilitation from climate disasters. In addition, trade can also contribute to strengthening food security during climate-induced supply-side disruptions. WTO also points out that trade can facilitate the acquisition and deployment of technologies that can contribute to climate change adaptation especially in countries most vulnerable to climate shocks.

Trade can also contribute to climate action through the reduction of traderelated emissions. It has been observed that trade-related emissions, those associated with the global production and distribution of goods and services, contribute to roughly a quarter of all carbon dioxide emissions. Therefore, trade policies and instruments are needed in order to reduce trade-related emissions towards enhancing the global response on climate change.

The role of trade in climate action is recognized under the United Nation’s 2030 agenda for Sustainable Development. The agenda identifies international trade as an engine for inclusive economic growth and poverty reduction, and contributes to the promotion of Sustainable Development across all the Sustainable Development Goals including climate action. SDG 17 seeks to accelerate international trade through measures such as promoting a universal, rules-based, open, non-discriminatory and equitable multilateral trading system under the WTO; and providing trade-related capacity building for developing countries in order to enable countries pursue the Sustainable Development agenda including climate action.

At the continental level, the African Union Climate Change and Resilient Development Strategy and Action Plan acknowledges the role of trade in climate action. It points out that there is potential for the African Continental Free Trade Area (AfCFTA) to enable Africa’s response to climate change through targeted trade-related measures. These measures include the exemption of environmental goods and technologies such as turbines and photovoltaic systems from sensitive and exclusion lists; prioritisation of the liberalisation of trade in environmentally related services; giving due attention to the harmonisation and strengthening of environmental standards and regulation under the relevant provisions of the AfCFTA Protocol on Trade in Goods and Protocol on Trade in Services as well as within the framework of the African Quality Standards Agenda; and the mainstreaming of climate friendly considerations into the negotiations on investment, intellectual property rights, competition policy and e-commerce.

At the regional level, the East African Community Climate Change Policy Framework also recognizes the role of trade in climate action. It urges member states to address technology transfer barriers, including rules of trade tariffs, intellectual property rights and technical trade barriers such as standards, ecolabeling in order to enhance the role of trade in climate action within the East African region. At the national level, the National Climate Change Framework Policy of Kenya focuses on the link between sustainable national development in Kenya and climate change across all sectors of the economy including trade. According to the Policy, a robust, diversified and climate resilient trade sector is imperative for Kenya to attain low carbon climate resilient development.

The Policy acknowledges that the trade sector depends on products and services developed by other sectors of the economy, and therefore any adverse climate change impacts of such sectors, will likely impact trade. For example, the Policy acknowledges that the agriculture, manufacturing and transportation sectors, which are key cogs for internal and international trade, are highly vulnerable to climate variability and extreme weather events. Therefore, according to the Policy, a successful trade sector will require building resilience across the entire economy of Kenya. Trade is therefore vital in climate action. There is need to embrace trade policy instruments at the national, regional, continental and global levels in order to strengthen the response towards climate change.

*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 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

African Union Climate Change and Resilient Development Strategy and Action Plan (2022-2032)., Available at https://au.int/sites/default/files/documents/41959- docCC_Strategy_and_Action_Plan_ 2022-2032_08_02_23_Single_Print_Ready.pdf (Accessed on 18/12/2023).

Bellon. M., & Massetti. E., ‘Economic Principles for Integrating Adaptation to Climate Change into Fiscal Policy.’ Available at https://www.elibrary.imf.org/view/journals/066/2022/001/article-A001- en.xml#:~:text=Summary,private%20and%20public%20sector%20responses. (Accessed on 18/12/2023).

Bors. K., & Fischer. C., ‘A New Generation of Labels Provides Companies a Credible Way to Talk About Climate Action.’ Available at https://www.southpole.com/blog/a-newgeneration-of-labels-provides-companies-a-credible-way-to-talk-about-climate-action (Accessed on 19/12/2023).

BRILL., ‘International Investment Law and Climate Change: Reframing the ISDS Reform Agenda.’ Journal of World Investment & Trade., No. 24 of 2023., pp 766-791.

Caribbean News Global., ‘COP 28: UNCTAD and Partners to Advance ProDevelopment Climate Goals.’ Available at https://caribbeannewsglobal.com/cop-28- unctad-and-partners-to-advance-pro-development-climate-goals/ (Accessed on 18/12/2023).

East African Community., ‘EAC Climate Change Policy Framework.’ Available at https://www.eac.int/environment/climate-change/eac-climate-change-policy-framework (Accessed on 18/12/2023).

Hu. X., ‘The Impacts of the Trade Liberalization of Environmental Goods on Power System and CO2 Emissions.’ Energy Policy, Volume 140, May 2020.

International Centre for Trade and Sustainable Development., ‘Trade Elements in Countries’ Climate Contributions under the Paris Agreement.’ Available at https://euagenda.eu/upload/publications/untitled-81229-ea.pdf (Accessed on 18/12/2023).

International Institute for Sustainable Development., ‘Trade Policy Tools and Instruments for Addressing Climate Change and Sustainable Development.’ Available at https://www.iisd.org/system/files/publications/trade_tools_climate_sd.pdf (Accessed on 18/12/2023).

International Organization for Standardization., ‘ISO 14001:2015: Environmental Management Systems.’ Available at https://www.iso.org/standard/60857.html (Accessed on 19/12/2023).

Meyer-Ohlendorf. N., & Gerstetter. C., ‘Trade and Climate Change: Triggers or Barriers for Climate Friendly Technology Transfer and Development?’ Available at https://www.ecologic.eu/sites/default/files/publication/2015/meyerohlendorf_gerstetter-09-trade-and-climate-change_0.pdf (Accessed on 18/12/2023).

Muigua. K., ‘Achieving Sustainable Development, Peace and Environmental Security.’ Glenwood Publishers Limited, 2021.

Muigua. K., ‘Africa’s Role in the Reform of International Investment Law and the Investor State Dispute Settlement (ISDS) System.’ Available at https://kmco.co.ke/wpcontent/uploads/2020/08/Africas-Role-in-the-Reform-of-International-Investment-law-andthe-Investor-State-Dispute-Settlement-ISDS-System-Kariuki-Muigua-August-2020.pdf (Accessed on 19/12/2023).

Muigua. K., ‘Bilateral Investment Treaties and Environmental, Social and Governance in Africa.’ Available at https://kmco.co.ke/wpcontent/uploads/2023/07/Bilateral-Investment-Treaties-and-Environmental-Socialand-Governance-in-Africa-1.pdf (Accessed on 18/12/2023).

Muigua. K., ‘Enhancing Low Carbon Development for Sustainability.’ Available at https://kmco.co.ke/wp-content/uploads/2023/09/Enhancing-Low-CarbonDevelopment-for-Sustainability-.pdf (Accessed on 18/12/2023).

Republic of Kenya., ‘Sessional Paper No. 3 of 2016 on National Climate Change Framework Policy.’ Available at https://www.undp.org/sites/g/files/zskgke326/files/migration/ke/0540af2c4328 bfbad3dd0f5da 6f817f450428f6bb96dc4e2c5d9647085794f93.doc (Accessed on 18/12/2023).

The Economic Times., ‘What is Trade.’ Available at https://economictimes.indiatimes.com/definition/trade (Accessed on 18/12/2023).

United Nations Climate Change., ‘About Carbon Pricing.’ Available at https://unfccc.int/about-us/regional-collaboration-centres/the-ciaca/about-carbonpricing#Which-types-of-carbon-pricing-exist?- (Accessed on 19/12/2023).

United Nations Climate Change., ‘What is Technology Development and Transfer?.’ Available at https://unfccc.int/topics/what-is-technology-developmentandtransfer#:~:text=In%201992%2C%20 when%20countries%20established,that%20reduce %20emissions%20o f%20GHGs (Accessed on 19/12/2023).

United Nations Conference on Trade and Development., ‘The International Investment Treaty Regime and Climate Action.’ Available at https://unctad.org/system/files/officialdocument/diaepcbinf2022d6_en.pdf (Accessed on 18/12/2023).

United Nations Department of Economic and Social Affairs., ‘Forum on Climate Change and Science and Technology Innovation.’ Available at https://www.un.org/en/desa/forumclimatechangeandscience-and-technologyinnovation (Accessed on 18/12/2023).

United Nations Environment Programme., ‘Fossil Fuel Subsidy Reform.’ Available at https://www.unep.org/explore-topics/green-economy/what-we-do/economic-and-fiscalpolicy/fiscal-policy/policy-analysis-3 (Accessed on 18/12/2023).

United Nations Environment Programme., ‘Indicator 12. c.1.’ Available at https://www.unep.org/explore-topics/sustainable-development-goals/why-do-sustainabledevelopment-goals-matter/goal-12- 9#:~:text=Reducing%20fossil%20fuel%20subsidies%20is,countries%20reporting%20on%2 0this%20indicator. (Accessed on 18/12/2023).

United Nations Framework Convention on Climate Change., ‘Paris Agreement.’ Article 10 ., Available at https://unfccc.int/sites/default/files/english_paris_agreement.pdf (Accessed on 18/12/2023).

United Nations Framework Convention on Climate Change., United Nations, 1992., Article 4 (1) (c) Available at https://unfccc.int/resource/docs/convkp/conveng.pdf (Accessed on 18/12/2023).

United Nations General Assembly., ‘Transforming Our World: the 2030 Agenda for Sustainable Development.’ 21 October 2015, A/RES/70/1., Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustainabl e%20Development%20web.pdf (Accessed on 18/12/2023).

United Nations., ‘What is Climate Change?’ Available at https://www.un.org/en/climatechange/what-is-climate-change (Accessed on 18/12/2023).

World Trade Organization., ‘Trade Policy Tools for Climate Action.’ Available at https://www.wto.org/english/res_e/booksp_e/tptforclimataction_e.pdf (Accessed on 18/12/2023).

World Trade Organization., ‘World Trade Report 2022: Climate Change and International Trade.’ Available at https://www.wto.org/english/res_e/booksp_e/wtr22_e/wtr22_ch2_e.pdf (Accessed on 18/12/2023).

Admin

admin@thelawyer.africa | Website | + posts

Up Next

Embracing Trade Policy Instruments for Climate Action: Opportunities and Challenges

Don't Miss

Way Forward in Achieving Right of Health for All

Click to comment

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

+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

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).

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.