News & Analysis

The Framework for ESG and Corporate Respect for Human Rights

Published

7 months ago

March 18, 2024

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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, January 2024)*

ESG are increasingly driving corporate respect for human rights. It has been observed that as companies increasingly recognize the reputational and financial risks of adverse human rights impacts, corporate human rights commitments and due diligence practices have become more prevalent. The relationship between human rights and corporate sustainability practices is recognized under the United Nations 2030 Agenda for Sustainable Development. The Agenda represents a shared blue print for peace and prosperity for people and the planet in the quest towards the ideal of Sustainable Development.

The Agenda envisions attainment of the ideal of Sustainable Development through 17 Sustainable Development Goals (SDGs) which seek to strike a balance between social, economic and environmental facets of sustainability. It has been argued that human rights and the 2030 Agenda for Sustainable Development are inextricably linked. The 2030 Agenda is explicitly grounded in international human rights. It has been asserted that the 17 SDGs seek to realize the human rights of all, and more than 90% of the targets directly reflect elements of international human rights and labour standards.

The United Nations Guiding Principles on Business and Human Rights provide a framework for realizing Environmental, Social and Governance standards within the human rights framework by enshrining the corporate responsibility to respect human rights. They are the world’s most authoritative, normative framework guiding responsible business conduct and addressing human rights abuses in business operations and global supply chains.

The Principles are grounded in recognition of States’ existing obligations to respect, protect and fulfil human rights and fundamental freedoms; the role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; and the need for rights and obligations to be matched to appropriate and effective remedies when breached.

Among the fundamental principles under the framework is that business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved. Embracing the United Nations Guiding Principles on Business and Human Rights can therefore promote corporate respect for human rights under the ESG agenda.

In addition, The Hague Rules on Business and Human Rights Arbitration flow from the UN Guiding Principles on Business and Human Rights and provide a framework through which business entities can be compelled to comply with ESG standards through arbitration. Further, the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises on Responsible Business Conduct are recommendations jointly addressed by governments to multinational enterprises to enhance the business contribution to Sustainable Development and address adverse impacts associated with business activities on people, planet, and society.

The Guidelines provide that Multinational Enterprises should respect the internationally recognised human rights of those affected by their activities. They further urge Multinational Enterprises to avoid causing or contributing to adverse human rights impacts and address such impacts when they occur; seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts; have a publicly available policy commitment to respect human rights; carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts; and provide for or co-operate through legitimate processes in the remediation of adverse human rights impacts where they identify that they have caused or contributed to these impacts.

One of the key goals of ESG is to foster sustainable, responsible or ethical investments. The OECD Guidelines can help Multinational Enterprises achieve this goal by integrating human rights due diligence in their investment practices. Further, the International Labour Organization (ILO) Declaration on Fundamental Principles and Rights at Work seeks to foster respect for fundamental human rights and freedoms at work.

The ILO Declaration stipulates that in seeking to maintain the link between social progress and economic growth, the guarantee of fundamental principles and rights at work is of particular significance in that it enables the persons concerned to claim freely and on the basis of equality of opportunity their fair share of the wealth which they have helped to generate, and to achieve fully their human potential.

It sets out fundamental human rights and freedoms that should be upheld by all persons including states and businesses among them being the freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the effective abolition of child labour; the elimination of discrimination in respect of employment and occupation; and a safe and healthy working environment.

The ILO Declaration is an expression of commitment by governments, employers’ and workers’ organizations to uphold basic human rights and values that are vital to social and economic lives. At a continental level, the African Commission on Human and Peoples’ Rights through its Resolution on Business and Human Rights in Africa states that respect for human rights norms and principles by business enterprises in the countries of operation is a prerequisite for the Sustainable Development envisaged in African Union’s Agenda 2063.

The Resolution seeks to foster effective domestication of applicable regional human rights standards on business and human rights and the development of mechanisms for their effective implementation. It urges Africa to embrace a human rights-based approach to development.

At a national level, the Nairobi Securities Exchange (NSE) ESG Disclosures Guidance Manual encourages listed companies to assess impact of ESG issues to their organisations (such as climate change and human rights) in addition to their organisations own ESG impacts to society (such as material resource use and emissions) when determining material ESG impacts for disclosure. It requires listed companies to report on several ESG issues including their impacts on human rights, and how they manage these impacts. The NSE Disclosures Guidance Manual is therefore important in enhancing respect for human rights by listed companies in Kenya by requiring them to report on their human rights practices in their ESG Disclosures.

From the foregoing, it emerges that human rights are well placed within the ESG framework at the global, continental and national levels. However, it has been pointed out that some corporations fail to connect human rights standards and processes with ESG criteria and investment practices because of a prevailing lack of understanding on how human rights issues should be reflected in social criteria, environmental and governance indicators.

In addition, it has been contended that in most instances where human rights are considered in the ESG framework, they are limited to the ‘S’ tenet of ESG and not incorporated in other factors. Further, it has been argued that the human rights criteria adopted by most companies is limited to addressing climate change, advancing diversity and safety in the workplace, and striving for ethical supply chains. It has been pointed out that while these issues are critically important, they do not reflect the full spectrum of human rights.

As a result of the foregoing, it has been contended that ESG as a framework does not sufficiently capture harms to people (and resulting risk to business) or guide decisions that take human rights into account. Further, it has been argued that ESG can easily fail to identify and address notable human rights harms. It is therefore necessary to embrace human rights within the ESG framework in order to foster sustainability.

*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

African Commission on Human and Peoples’ Rights., ‘Resolution on Business and Human Rights in Africa’ -ACHPR/Res.550 (LXXIV), 2023.

African Union., ‘African Charter on Human and Peoples’ Rights.’ Available at https://au.int/sites/default/files/treaties/36390-treaty-0011_- _african_charter_on_human _and_peoples_rights_e.pdf (Accessed on 24/01/2024).

Ahmad. H., Yaqub. M., & Lee. S. H., ‘Environmental-, Social-, and GovernanceRelated Factors for Business Investment and Sustainability: A Scientometric Review of Global Trends.’ Available at https://link.springer.com/article/10.1007/s10668- 023-02921-x (Accessed on 23/01/2024).

Barbosa. A et al., ‘Integration of Environmental, Social, and Governance (ESG) Criteria: Their Impacts on Corporate Sustainability Performance.’ Humanit Soc Sci Commun 10, 410 (2023). Available at https://doi.org/10.1057/s41599-023-01919-0 (Accessed on 23/01/2024).

Boyle. A., ‘Human Rights and the Environment: Where Next’ The European Journal of International Law, Vol. 23, No. 3.

British Business Bank., ‘What is ESG – A Guide for Businesses.’ Available at https://www.british-business-bank.co.uk/finance-hub/businessguidance/sustainability/what-is-esg-a-guide-for-smaller-businesses/ (Accessed on 23/01/2024).

Business & Human Rights Resource Centre., ‘Commentary: Human Rights are not Just an ESG Factor’ Available at https://www.business-humanrights.org/en/latestnews/commentary-human-rights-are-not-just-an-esg-factor/ (Accessed on 24/01/2024).

Cedric.R., ‘Accountability of Multinational Corporations for Human Rights Abuses.” Utrecht Law Review 14.2 (2018): 1-5.’

Constitution of Kenya., 2010., Government Printer, Nairobi.

Ethical Trading Initiative., ‘Human Rights Due Diligence.’ Available at https://www.ethicaltrade.org/insights/issues/human-rights-due-diligence (Accessed on 25/01/2024).

Feldman. D., Mkhize. M., & Edmonds-Camara. H., ‘2023 African Forum on Business and Human Rights: What do companies need to know?.’ Available at https://www.globalpolicywatch.com/2023/09/2023-african-forum-on-businessand-human-rights-what-do-companies-need-to-know/ (Accessed on 25/01/2024).

Flacks. M., & Norman. H., ‘What Does the ESG Backlash Mean for Human Rights?’ Available at https://www.csis.org/analysis/what-does-esg-backlash-mean-humanrights (Accessed on 24/01/2024).

Geneva Centre for Security Sector Governance., ‘Human Rights Due Diligence.’ Available at https://www.securityhumanrightshub.org/toolkit/factsheets/humanrights-due-diligence.html (Accessed on 25/01/2024).

Global Campus of Human Rights., ‘Rethinking Environmental, Social, and Governance (ESG) Investing for Successful Sustainability and Human Rights.’ Available at https://gchumanrights.org/gc-preparedness/preparednessdevelopment/article-detail/rethinking-environmental-social-and-governance-esginvesting-for-successful-sustainability-and-human-rights-5039.html (Accessed on 24/01/2024)

Henisz. W, Koller. T, & Nuttall. R., ‘Five Ways that ESG Creates Value.’ McKinsey Quarterly, 2019

International Labour Organization., ‘Business and the Labour Dimension of Human Rights Due Diligence.’ Available at https://www.ilo.org/empent/areas/businesshelpdesk/WCMS_867782/lang–en/index.htm (Accessed on 24/01/2024).

International Labour Organization., ‘Declaration on Fundamental Principles and Rights at Work.’ Available at https://www.ilo.org/wcmsp5/groups/public/— ed_norm/—declaration/documents/normative instrument/wcms_716594.pdf (Accessed on 24/01/2024).

Kemp. B et al., ‘The Rise of ESG Litigation and Horizontal Human Rights Enforcement.’ Available at https://www.lexology.com/library/detail.aspx?g=07a94453-f2aa-490a-a7e1- f6c25256cbf9 (Accessed on 25/01/2024).

Khobe. W., ‘The Horizontal Application of the Bill of the Rights and the Development of the Law to give Effect to Rights and Fundamental Freedoms’ (2014) 1, Journal of Law and Ethics.

Mathis. S., ‘Environmental, Social and Governance (ESG).’ Available at https://www.techtarget.com/whatis/definition/environmental-social-andgovernance-ESG (Accessed on 23/01/2024).

Matu. D., ‘Improving Access to Justice in Kenya through Horizontal Application of the Bill of Rights and Judicial Review’ Available at https://press.strathmore.edu/uploads/journals/strathmore-lawreview/SLR2/2SLR1_Article_4.pdf (Accessed on 24/01/2024).

Mikhaeel. M., ‘How Human Rights Due Diligence Affects the ‘E’ in ESG.’ Available at https://www.financierworldwide.com/how-human-rights-due-diligence-affectsthe-e-in-esg (Accessed on 25/01/2024).

Munoz. P., ‘Bridging the Human Rights Gap in ESG.’ Available at https://www.bsr.org/en/blog/bridging-the-human-rights-gap-in-esg (Accessed on 24/01/2024).

Nairobi Securities Exchange., ‘ESG Disclosures Guidance Manual.’ Available at https://www.nse.co.ke/wp-content/uploads/NSE-ESG-Disclosures-GuidanceManual.pdf (Accessed on 24/01/2024).

Office of the High Commissioner for Human Rights., ‘Corporate Human Rights Due Diligence – Identifying and Leveraging Emerging Practices.’ Available at https://www.ohchr.org/en/special-procedures/wg-business/corporate-humanrights-due-diligence-identifying-and-leveraging-emergingpractices#:~:text= The%20prevention%20of%20adverse%20impacts,people%2C%20n ot%20risks%20to%20business (Accessed on 25/01/2024).

Office of the High Commissioner for Human Rights., ‘Investors, ESG and Human Rights.’ Available at https://www.ohchr.org/en/calls-for-input/2023/investorsesg-and-human-rights (Accessed on 23/01/2024).

Office of the High Commissioner for Human Rights., ‘Investors, ESG and Human Rights.’ Op Cit 89 Ibid 90 Rydzak. J., ‘ESG Data Needs a Human Rights Upgrade.’ Available at https://rankingdigitalrights.org/mini-report/esg-data-needs-a-human-rightsupgrade/#:~:text=ESG%20scores%20ignore%20human%20rights ,strive%20for%20et hical%20supply%20chains (Accessed on 25/01/2024).

Office of the High Commissioner for Human Rights., ‘What are Human Rights.’ Available at https://www.ohchr.org/en/what-are-human-rights (Accessed on 24/01/2024).

Organization for Economic Cooperation and Development (OECD)., ‘Guidelines for Multinational Enterprises on Responsible Business Conduct’ Available at https://www.mofa.go.jp/mofaj/files/100514804.pdf (Accessed on 24/01/2024)

Peterdy. K., & Miller. N., ‘What is ESG?’ Available at https://corporatefinanceinstitute.com/resources/esg/esg-environmental-socialgovernance/ (Accessed on 23/01/2024).

Simmons & Simmons., ‘Human Rights Due Diligence as Part of ‘Social’ in ESG.’ Available at https://www.simmonssimmons.com/en/publications/ckkce2jhz1nwg09857iumkfpb/human-rights-duediligence-as-part-of-social-in-esg (Accessed on 24/01/2024).

Stuart. L.G et al., ‘Firms and Social Responsibility: A Review of ESG and CSR Research in Corporate Finance.’ Journal of Corporate Finance 66 (2021): 101889 10 Li. T., et al., ‘ESG: Research Progress and Future Prospects.’ Available at https://pdfs.semanticscholar.org/0dd4/941ebea33330210daff5f37a1c8cdd0547d7.pd f (Accessed on 23/01/2024).

The Danish Institute for Human Rights., ‘Integrated Review and Reporting on SDGs and Human Rights.’ Available at https://sdghelpdesk.unescap.org/sites/default/files/2019- 07/integrated_review.pdf (Accessed on 24/01/2024).

The East African Centre for Human Rights., ‘A compendium on economic and social rights cases under the Constitution of Kenya, 2010’ available at https://eachrights.or.ke/wpcontent/uploads/2020/07/A_Compendium_On_Economic_And_Social_Rights_Cas es_Under_The_Constitution_Of_Kenya_2010.pdf (Accessed on 24/01/2024).

The Hague Rules on Business and Human Rights Arbitration., Available at https://www.cilc.nl/cms/wp-content/uploads/2019/12/The-Hague-Rules-onBusiness-and-HumanRights-Arbitration_CILC-digital-version.pdf (Accessed on 24/01/2024).

UN Guiding Principles Reporting Framework., Available at https://www.ungpreporting.org/wpcontent/uploads/UNGPReportingFramework_2017.pdf (Accessed on 25/01/2024).

United Nations General Assembly., ‘Transforming Our World: the 2030 Agenda for Sustainable Development.’ 21 October 2015, A/RES/70/1., Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustainabl e%20Development%20web.pdf (Accessed on 24/01/2024).

United Nations Guiding Principles on Business and Human Rights., Available at https://www.ohchr.org/sites/default/files/documents/publications/guidingprinc iplesbusinesshr_en.p df (Accessed on 24/01/2024).

United Nations Guiding Principles on Business and Human Rights., Op Cit 123 European Union’s Corporate Sustainability Reporting Directive., Available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32022L2464 (Accessed on 25/01/2024).

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

United Nations., ‘Human Rights.’ Available at https://www.un.org/en/globalissues/humanrights#:~:text=International%20Human%20Rights%20Law&text=The%20United%20 Nations%20has%20defined,in%20carrying%20out%20their%20responsibilities. (Accessed on 24/01/2024)

United Nations., ‘International Covenant on Civil and Political Rights.’ Available at https://treaties.un.org/doc/treaties/1976/03/19760323%2006- 17%20am/ch_iv_04.pdf (Accessed on 24/01/2024).

United Nations., ‘International Covenant on Economic, Social and Cultural Rights.’ Available at https://treaties.un.org/doc/treaties/1976/01/19760103%2009- 57%20pm/ch_iv_03.pdf (Accessed on 24/01/2024).

Universal Declaration of Human Rights., Available at https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf (Accessed on 24/01/2024).

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News & Analysis

What is Carbon Markets?

Published

4 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.

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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

6 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

7 months ago

March 24, 2024

Kariuki Muigua & Company

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.

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.