Volume 8 No. 2 30th

ALTERNATIVE DISPUTE RESOLUTION
Volume 8 Issue 2 2020

Alternative Dispute Resolution is a journal of the Chartered Institute of Arbitrators
(Kenya Branch).
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© Chartered Institute of Arbitrators, Kenya
All rights reserved. No article published in this journal may be reproduced, transmitted
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contributors and not necessarily those of the Chartered Institute of Arbitrators, Kenya.
EDITOR-IN-CHIEF
Dr. Kariuki Muigua, Ph.D, Africa Trustee (CIArb), FCIArb
(Chartered Arbitrator)
ASSOCIATE EDITORS
Mr. Wilfred Mutubwa, FCIArb
Ms. Jacqueline Waihenya, FCIArb
EDITORIAL TEAM
Mr. Simon Ondiek, FCIArb
Mr. Ngararu Maina, ACIArb
Mr. James Njuguna, ACIArb
Ms. Anne W. Kiramba, ACIArb
Dr. Francis Kariuki, Ph.D, FCIArb
Ms. Endoo Dorcas Chepkemei, MCIArb
KENYA BRANCH COMMITTEE

Chairman & Executive Committee Convenor: Mr. Samuel Nderitu, FCIArb
Vice Chairman: Mr. Wilfred Mutubwa, FCIArb
Hon. Secretary: Ms. Wanjiku Muinami, MCIArb
Vice Hon. Secretary: Ms. Eunice Lumallas, FCIArb
Hon. Treasurer: Ms. Jacqueline Waihenya, FCIArb

Chairman, Marketing Committee Convenor: Dr. Kenneth Wyne, Ph.D, FCIArb
Chairman & Convener Legal Committee Convenor: Mr. Kyalo Mbobu, FCIArb
Chairman, Education and Membership: Mr. Collins Namachanja, FCIArb
MEMBERS
Hon. Justice (RTD) Aaron Ringera, FCIArb (Chartered Arbitrator)
Dr. Kariuki Muigua, Ph.D, FCIArb (Chartered Arbitrator)
Mr. Kihara Muruthi, FCIArb (Chartered Arbitrator)
Mr. Paul Ngotho, FCIArb (Chartered Arbitrator)
Senator Sylvia Kasanga, MCIArb
Mr. Andrew Waruhiu, MCIArb
Mr. Arthur Igeria, FCIArb
Mr. Patrick Kisia, FCIArb
Mr. Calvin Nyachoti, FCIArb (Chartered Arbitrator) Immediate Past Chairman -

ex-officio Member.
Patron: The Honourable the Chief Justice & President of the
Supreme Court of Kenya
This Journal should be cited as (2020) 8(2) Alternative Dispute Resolution

ISBN 978-9966-046-14-7
Editor’s Note
Welcome to the, Alternative Dispute Resolution Journal Vol. 8 No. 2, 2020, a

publication of the Chartered Institute of Arbitrators—Kenya Branch (CIArb-K).
The Journal is published in hard copy and also online at www.ciarbkenya.org.
This Volume contains papers covering the whole spectrum of ADR mechanisms
including arbitration, mediation, negotiation and construction adjudication.
The papers featured in the volume entail scholarly discussion on themes such
as: Arbitrator Conduct; Enhancing the Court Annexed Mediation Environment
in Kenya; Constitutional Limits to Party Autonomy in Arbitration; Effective
Dispute Settlement in the Construction and Energy Industry; Virtual
Proceedings in ADR; Relationship between Arbitral Tribunals and Courts in
Kenya and Concerns facing the Investor-State Dispute Settlement Mechanism.
ADR mechanisms are the preferred mode of dispute management due their
unique advantages. However, concerns continue to emerge on how to fully reap
from the benefits of ADR and promote access to justice.
The Journal offers useful insight on some of these concerns. The ongoing efforts
to formulate policy and legal framework on ADR in Kenya are welcome since
this will firmly entrench ADR within the legal environment in Kenya and
enhance its practice.
The Journal also addresses some emerging issues in the practice of ADR such as
Virtual Alternative Dispute Resolution Proceedings in light of the COVID-19
pandemic.
In order to ensure the highest quality of scholarly standards and credibility of

information, the Journal is peer reviewed and refereed. The Editorial Team also
welcomes feedback from our readers across the globe to enable us continually
improve the publication.
CIArb (Kenya) is grateful to the Publisher, contributing authors, Editorial Team,

Reviewers, scholars and those who have made it possible to continue producing
such an important publication that has had a tremendous impact on scholars,
ADR practitioners and general readers worldwide.
Dr. Kariuki Muigua, Ph.D; FCIArb (Chartered Arbitrator) (Accredited Mediator)

Editor,
Nairobi, June 2020
Alternative Dispute Resolution – Volume 8 Issue 2
Content Author Page

The Art and Science of Virtual Proceedings: Shifting the Paradigm in Jacqueline Waihenya 1
Alternative Dispute Resolution Tribunals
Enhancing the Court Annexed Mediation Environment in Kenya. Kariuki Muigua 20
Bangalore Principles on Judicial Conduct: A Framework Lady Justice Monica K. Mugenyi 41

For Arbitrator Conduct?
ISDS Reforms: The Forum Menu Paul Ngotho 54
Current Problems of the Investor-State Dispute Settlement W. A. Mutubwa 86

Mechanism: Proposals for Future Reforms Hector Charles, Cynthia Mwihaki,
Nura Adan Guyo
Lana Mohamed, Tunu Kache
Abdurrahman Mohamed
An Uncertain Future: The Relationship Between Arbitral Tribunals Kethi Kilonzo 99

and Courts in Kenya
Enforcement of Multi-Tiered Dispute Resolution Clauses Hazron Maira 110
Mega-Regional Trade Agreements: Analyzing their Impact on Treaty Peter Mwangi Muriithi 131
Policy and Law and their Modes of Dispute Resolution Mechanisms
An Overview of Negotiating Peace Agreements in East Africa Henry Murigi 151
Effective Dispute Settlement as a Catalyst for Infrastructure Eng. Bwalya Lumbwe 168
Development in the Construction and Energy Industry
Constitutional Limits to Party Autonomy in Arbitration in Kenya Eric Thige Muchiri 186
Claims, Conflicts and Disputes in Construction Industry- Eng. Odhiambo Aluoch 203
Where is the Engineer?
Practicability of Neutrality of Mediators: Demystifying the Julius Nyota & 228

Interplay between Mediator Neutrality and Power Imbalances Bernard Nthiga
Towards Resolution of the Trophy Hunting Conflict Leslie Olonyi 242

The Art & Science of Virtual Proceedings: Shifting (2020) 8(2) Alternative Dispute Resolution
The Paradigm in Alternative Dispute Resolution
Tribunals: Jacqueline Waihenya
The Art & Science of Virtual Proceedings: Shifting The Paradigm in

Alternative Dispute Resolution Tribunals
By: Jacqueline Waihenya*
This paper considers the paradigm shift necessitating virtual proceedings following the
various institutional guidelines and laws that were instituted at the onset of COVID-
19 pronounced and issued by the World Health Organization as well as the Kenyan
Ministries of Health and Interior and Coordination of National Government all
requiring social distancing and imposing stay at home policies. In some jurisdictions
Kenya being one of them, the Courts were initially closed. The Judiciary later put in
place upscaling of operations geared primarily towards the use of virtual proceedings in
the delivery of judgments and the dispensation of urgent applications. Adapting to
online and virtual proceedings within the Alternative Dispute Resolution (ADR) space
has been more challenging to track due to the private nature of most proceedings.
However, shared experiences by practitioners and participants in ADR can give an
insight into their experiences comparative to the litigation sphere. The writer further
chanced upon a Webinar conducted by ICSID entitled The Art and Science of Virtual
Hearings which made some very useful contributions to the practical experience of
conducting virtual proceedings from the perspectives of the Tribunal, the Counsel and
their witnesses1 which she is inclined to share.
* Fellow of the Chartered Institute of Arbitrators (FCIArb); Chartered Mediator –

Institute of Chartered Mediators & Conciliators (ICMC)[2018]; Certified Advance
Mediation -Mediation Training Institute [2018]; Certified Advance Mediation (Family &
Divorce) - Mediation Training Institute [2015]; Certified Professional Mediator –
Mediation Training Institute [2012]; Kenya Judiciary Accredited Mediator [2016]; LLB
(Hons) University of Nairobi; Kenya School of Law (Post Graduate) Diploma; Advocate
of the High Court of Kenya; Fellow Certified Public Secretary – Institute of Certified
Public Secretaries (ICPSK); Accredited Governance Auditor ICPSK; Vice Chair – Kenya
National Chamber of Commerce & Industry (Mombasa Chapter)[2019-2021]; Convenor,
ADR Committee – Mombasa Law Society; Treasurer – Chartered Institute of Arbitrators
Kenya Branch [2017 to 2020]; Member, National Steering Committee for the Formulation
of the Alternative Dispute Resolution Policy 2020.
1 International Centre for Settlement of International Disputes – Webinar: The Art &
Science of Virtual Hearing (5 May 2020) ICSID Available at
https://www.youtube.com/watch?v=Xroz4e8Ctv0 Last accessed on 8 May 2020
1
1. Introduction
COVID-19 and the resultant social distancing guidelines, rules and regulations
dealt a mighty blow against business as usual and triggered a new normal in a
multitude of countries around the globe. In Kenya, an ad hoc National Council
on Administration of Justice (NCAJ) committee appointed on March 15, 2020
comprising representatives from the Judiciary, Office of the Attorney General,
Police, Office of the Director of Public Prosecutions (ODPP), Kenya Prisons
Service, Law Society of Kenya (LSK), Probation and Aftercare Service (PACS)
and Ethics and Anti-Corruption Commission (EACC) among others took a
variety of steps to adjust normal court and allied operations promoting the
adoption of online procedures in lieu.2 Since then upscaling of Court
proceedings has seen an increase in the use of virtual proceedings which has
proven to be a monumental trigger to the manner in which our proceedings are
being carried out creating a brand new paradigm.
In the past virtual proceedings have been more the exception and not the norm
and have been used only where it has been impossible or impracticable for one
or more participants to attend.3 In most cases this has entailed accommodating
a disabled participant or one who had challenges making it to the hearing venue
due to geographical location e.g. they were located in a different county or even
jurisdiction and/or health challenges where they could not travel due to
medical considerations. Typically, the methods adopted previously have
ranged from admitting a sworn witness statement or facilitating one or more
parties to join in using video conferencing. Understandably virtual proceedings
have seen greater application in international arbitrations comparative to
tribunal proceedings along the ADR Continuum. This paper will specifically
2National Council on the Administration of Justice – Measures Implemented by the Justice

Sector to Prevent the Spread of the CoronaVirus (19th March 2020) NCAJ Available at
https://ncaj.go.ke/measures-implemented-by-the-justice-sector-to-prevent-the-
spread-of-the-coronavirus/ Last accessed on 8 May 2020
3 Janet Walker C. Arb – An Arbitrator’s Perspectives (March 2020) Available at
https://int-arbitrators.com/wp-content/uploads/2020/03/Virtual-Hearings-An-
Arbitrators-Perspective.pdf Last accessed on 8 May 2020
2
focus on mediation and arbitration proceedings and where appropriate

compare and contrast with litigation.
The new paradigm however requires us to consider online hearings and

proceedings as the new normal with the virtual platform being used for and by
every single participant in the proceedings including the tribunal, the counsel,
parties and their witnesses. The paradigm shift has been abrupt and wholesale
and it therefore requires us to rethink the old online versus in person
proceedings and what the implications are both from the technical, procedural,
substantive viewpoints not to mention the psychological and mental
perspectives as well.
2. Virtual Proceedings
The court room has for a long time been considered to be the centre of complex
system of information exchange and management because lawyers and judges
deal with “data” making it highly probable that virtual technology was not only
practicable but desirable.4 The data itself comprising such matters as case
names, parties, counsel, legal briefs & other legal materials, pleadings,
motions/applications and supporting documents, prescribed forms,
administrative procedures and steps, court proceedings/records, electronic
images, exhibits, diaries, scheduling of mentions, hearings and case
management processes. This data except in certain cases has largely had to be
made available to the public to cater for matters of public and/or media interest.
Around the globe a prevalence to prefer court and arbitral proceedings to be
held in person within the physical edifices of a court or conference room has
however seen the depressed or slow adoption of virtual proceedings
particularly within the litigation and domestic arbitration sphere.
4Lederer, Fredric I., "The Road to the Virtual Courtroom? A Consideration of Today’s -- and
Tomorrow’s -- High Technology Courtrooms" (1999). Faculty Publications. 212 pg.803
Available on https://scholarship.law.wm.edu/facpubs/212 Last accessed on 8 May
2020
3
2.1 Meaning of Virtual Proceedings

There is no consensus on the meaning of the term virtual proceedings within
the context of arbitration, mediation and/or litigation. And in actual fact a
variety of terms have emerged to describe hearings carried on virtually using a
technology platform with the tribunal, counsel, parties and/or witnesses being
physically in different locations. The term “Electronic Case Management” has
been used by the Kenyan Judiciary5 whilst “Remote Hearing” has gained
currency in the United Kingdom Civil Courts6. Within the ADR sphere the term
adopted is Remote Dispute Resolution Hearings with remote dispute resolution
being defined to include but not be limited to video and audio conferences,
email and offline means such as documents-only proceedings.7 Other terms that
have been used have included been eHearing8, Online proceedings, Video
Conferencing etc and they have come to be used interchangeably to denote
proceedings and/or hearings that are carried out virtually as opposed to the
traditional in-person hearings/proceedings.
2.1.1 Online Dispute Resolution (ODR)

It is important to distinguish online dispute resolution (ODR) from virtual
hearings as the dispute resolution processes are intended to address very
separate and distinct areas9. United Nations Commission on International Trade
5 Practice Directions on Electronic Case Management 2020 – Kenya Gazette No.2357 of

4 March 2020
6 Civil Justice in England and Wales: Protocol Regarding Remote Hearings (26 March
2020) Available at https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-

hearings.Protocol.Civil_.GenerallyApplicableVersion.f-amend-26_03_20-1.pdf Last
accessed on 8 May 2020. This is an amendment to the UK Civil Court Guidance on How
to Conduct Civil Hearings Remote Hearings (Protocol Regarding Remote Hearings)
published on 20 March 2020.
7 The Chartered Institute of Arbitrators has also issued a Guidance Note on Remote
Dispute Resolution Hearings as well. Available at

https://www.ciarb.org/media/8967/remote-hearings-guidance-note.pdf
Last accessed on 9 May 2020.
8 eHearing is the term used by the Hong Kong Judiciary
9 Mireze Philippe – Offline or Online? Virtual Hearings or ODR? – (April 2020) Kluwer
Arbitration Blog Available at

http://arbitrationblog.kluwerarbitration.com/2020/04/26/offline-or-online-virtual-
hearings-or-odr/ Last accessed on 10 May 2020
4
Law (UNCITRAL) finalized and adopted the Technical Notes on Online Dispute
Resolution at its forty-ninth session in 201610 and these are non-binding. ODR
as articulated in the Technical Notes is geared towards dealing with low value
sales or service cross border disputes in contracts concluded using electronic
communication, that is to say, ecommerce. ODR per the Notes encompasses a
broad range of approaches and forms (including but not limited to ombudsmen,
complaints boards, negotiation, conciliation, mediation, facilitated settlement,
arbitration and others) and the potential for hybrid processes comprising both
online and offline elements.
2.2 Technology in Tribunals and Courts

Today international arbitration tribunals and to an increasing extent Courts or
domestic arbitral tribunals are likely to contain different levels of technology.
This may include a combination of options for example (1)Electronic filing
(potentially with document display capability), (2)Foreign language translation
(potentially simultaneous – with audio or visual and textual presentation),
(3)Multimedia court records captured using stenographic real-time electronic
transcripts accompanied by digital audio and video, (4)Information and
evidence retrieval using imaged documents available from CD-ROM or other
data storage and retrievable by a computer system, (5)Access to legal materials
and case-specific information from video, DVD, or high-definition storage
devices, (6)High-technology information and evidence display systems (often
multimedia screen capability), (7)Teleconferencing and videoconferencing
(which may include remote appearance, remote hearing or remote testimony),
(8)Public access to court information via the World Wide Web or secure access
to court documents and evidence via a network (intranets or internet). 11 Thus,
in Kenya there are high chances that an arbitrator will be able to provide for at
10 United Nations Commission on International Trade Law - Technical Notes on Online

Dispute Resolution (2016)(UNCITRAL) Available at
https://uncitral.un.org/sites/uncitral.un.org/files/media-
documents/uncitral/en/v1700382_english_technical_notes_on_odr.pdf Last accessed
on 9 May 2020
11 Schofield, Damian - Handbook of Research on Practices and Outcomes in Virtual Worlds
and Environments – Chapter: Virtual Evidence in the Courtroom (January 2011) Publisher:
IGI Global, Editors: Harrison Yang, Stephen Yuen, pp.200-216
5
the very least a hybrid of electronic filing with hardcopies supplied as well as
some form of teleconferencing or videoconferencing during various portions of
the proceedings before them because of the prevailing infrastructure which
provides fairly stable and reliable connectivity.
2.3 Arbitration, Technology and the Law

Though the Kenyan Arbitration Act does not specifically provide for virtual or
online proceedings it does contemplate the use of technology within the
arbitration process though the provisions it makes are limited to the creation of
the arbitration agreement. The Act considers an agreement in writing to include
an exchange of letters, telex, telegram, facsimile, electronic mail or other means
of telecommunications which provide a record of the agreement.12 The Kenyan
Arbitration Act further extends to the arbitral tribunal the commensurate
powers as the High Court in the instance where an application for interim
measures of protection are is made.13 The High Court has available to it the
oxygen principle also known as the overriding objective principle when
disposing of matters and which further requires such courts to handle all
matters presented before it for the purpose of attaining the just determination
proceedings, the efficient disposal of the business of the court, the efficient use
of the available judicial and administrative resources, the timely disposal of the
proceedings, and all other proceedings in the court, at a cost affordable by the
respective parties and the use of suitable technology.14
One of the best and widely accepted articulations of the general principles of
arbitration is that at Section 1 of the English Arbitration Act, 1996 to the effect
that the object of arbitration is to obtain the fair resolution of disputes by an
impartial tribunal without unnecessary delay or expense;15 the parties should
be free to agree how their disputes are resolved, subject only to such safeguards
12 Sections 4(3) and 9 – Kenyan Arbitration Act, 1995

13 Section 18 – Kenyan Arbitration Act, 1995
14 Section 1B – Civil Procedure Act, Act No.3 of 1924 (Rev. 2012)
15 Section 1(a) – English Arbitration Act, 1996
6
as are necessary in the public interest;16 and the non-intervention of courts.17 The
Kenyan equivalent can be gleaned from the arbitrator’s duty to treat all the
parties with equality and be given a fair and reasonable opportunity to present
their case.18 The parties to arbitration are also under an obligation to do all things
necessary for the proper and expeditious conduct of the arbitral proceedings19
and they are further free to agree on the procedure to be followed by the arbitral
tribunal in the conduct of the proceedings.20 It is therefore arguable that
provided parties to an arbitral proceeding are amenable to the use of virtual
proceedings at any or all of the stages of the process starting from the creation
of the arbitration agreement, to the referral of an arbitral dispute, the hearing
and determination of interim matters and even where a merit hearing may take
place the inescapable conclusion is that the law reflects an inclination towards
accepting arbitration via virtual proceedings in Kenya. Further, given the
provisions of Section 1B(e) of the Civil Procedure Act matters within the ambit
of the Mediation Practice Directions on Court Annexed Mediation21 the same
conclusion may be arrived at regarding mediation.
2.4 Institutional recognition of Virtual Proceedings

A number of institutions have proceeded to issue guidance notes including but
not limited to the Chartered Institute of Arbitrators (CIArb), International
Chamber of Commerce International Court of Arbitration (ICC) and the Seoul
Protocol on Video Conference in International Arbitration. Whilst various
institutions have ventured in this direction for the purposes of this paper we
will consider those of the foregoing below:
2.4.1 The Chartered Institute of Arbitrators (CIArb)

CIArb published the Guidance Note on Remote Dispute Resolution Hearings in the
wake of the COVID-19 restriction of movement implications. The Guidance
16 Section 1(b) – English Arbitration Act, 1996

17 Section 1(c) – English Arbitration Act, 1996
18 Section 19 – Kenyan Arbitration Act, 1995
19 Section 19A – Kenyan Arbitration Act, 1995
20 Section 20(1) – Kenyan Arbitration Act, 1995
21 Gazette Notice No.7268 of 2018
7
Note seeks to reassure disputing parties that through the application of sensible
checks parties were still in a position to use remote procedures for full resolution
of their disputes even where parties to the dispute were unable to meet
physically. The Guidance Note is stated to be intended for use in conjunction
with and adjusted to any governmental and arbitral institutions’ advice with
reference to any dealings during the COVID-19 pandemic and moving forward
into the future. The Guidance Note is applicable in respect of arbitration,
mediation, adjudication, negotiation, expert determination, dispute boards, or
any other type of alternative dispute resolution. The Guidance Note covers a
number of issues and it is premised on the availability of minimum, reliable
electrical supply and access to a stable and secure internet connection and takes
cognizance of the fact that there are a number of commercial internet platforms
that are available for video and/or conferencing. It covers diverse matters such
as security, venue, platforms, interpreters, witnesses and experts, procedural
documentation, confidentiality and privacy concerns. On the legal matters the
Guidance Note considers the requirement for the express affirmative agreement
of the parties to adopt a remote hearing approach ensuring complete
compliance with various institutional, governmental and/or statutory
provisions applicable in differing jurisdictions and exhorts the various ADR
tribunals to achieve enforceable awards and it annexes a preliminary checklist
to consider prior to conducting remote dispute resolution proceedings.22
2.4.2 International Chamber of Commerce International Court of Arbitration

ICC has also issued ICC Guidance Note on Possible Measures Aimed at Mitigating
the Effects of the COVID-19 Pandemic23 to augment the existing ICC Arbitration
Rules.24 Virtual hearings contemplated by the Guidance Note are
audioconference, videoconference, or other similar means of communication
22CIArb Guidance Note on Remote Dispute Resolution Hearings Ibid Supra Note No.8
23 ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19
Pandemic Available at
https://cms.iccwbo.org/content/uploads/sites/3/2020/04/guidance-note-possible-
measures-mitigating-effects-covid-19-english.pdf Last accessed on 9 May 2020
24ICC Arbitration Rules (2012) [Rev.2017] Available at https://iccwbo.org/dispute-
resolution-services/arbitration/rules-of-arbitration/ Last accessed on May 2020

8
which can be activated if the parties agree or if the arbitral tribunal so

determines. In such a case the tribunal and parties must take into account,
openly discuss and plan for special features of proceeding in that manner. In the
event a tribunal determines to proceed with a virtual hearing without party
agreement, or over party objection, it should carefully consider the relevant
circumstances and also whether any resultant award will be enforceable. Cyber
Protocols or implementing procedures highlighted by the ICC include the
implication of time zones, logistics, real time transcription, use of interpreters,
procedures for identifying all participants, taking evidence from fact witnesses
and experts, use of demonstratives e.g. shared screens on virtual hearing
platforms and the use of the electronic hearing bundle. The ICC Hearing Centre
in Paris is able to provide technical support though parties are at liberty to use
commercial third-party applications e.g. Microsoft Teams, Vidyocloud and
Skype for Business which it has licensed or Zoom, BlueJeans and GoToMeeting
which the institution had used successfully. A key consideration in the use of
any platform was security and confidentiality.25
2.4.3 The Seoul Protocol on Video Conference in International Arbitration

The Seoul Protocol on Video Conferencing in International Arbitration has its
roots in the 7th Asia Pacific ADR Conference, held in Seoul, Korea on 5-6
November 2018 following discussions on the opportunities and challenges
posed by videoconferencing. It was established to serve as a guide to best
practice for planning, testing and conducting video conferences in international
arbitration to facilitate the effective and fair use of technology in ADR
proceedings as well as to mitigate challenges particularly as pertains to security.
The Protocol is viewed as a practical guide as to what must be observed when
hearing witnesses via video conference in international arbitration
proceedings.26 The Protocol considers preparatory arrangements to be made for
video conferencing, technical requirements, witness examination,
25ICC Guidance Note Ibid Supra No.22

26Nino Sievi - Video Conferencing in International Arbitration – Seoul Protocol as guide to
best practice (25 March 2020) Lex Futura Available at
9
Video conferencing venue, security, participants, documents and technical

requirements as well as interpretation.27
3. Practical Considerations
Courts and tribunals are still considered the last bastions of oral tradition and
from the foregoing a sense that virtual proceedings guidance notes and practice
directions are geared to respond to the challenges presently posed by the
COVID-19 pandemic. Many forecasts point to a prolonged experience rather
than a brief one and there is therefore great value in reassessing the possibility
of adopting virtual proceedings not only within the immediate context but
possibly moving forward into the future. The oral tradition champions have
expressed the desire to retain the in-person merit hearings provided safety
considerations allow it and this is well enshrined in existing legal instruments
for example Article 10 of the CIArb Guidelines for Witness Conferencing in
International Arbitration28 which provides as follows:-
“There may be circumstances when a witness is unable to attend at the

hearing venue for a conference but may be able to give evidence by video.
The dynamics and ease of communication of witnesses giving evidence
side by side are likely to be adversely altered when they are physically
dislocated. A witness conference in such circumstances may be
undesirable save where the tribunal considers that time or other
constraints or considerations prevail over the limitations of evidence being
given by video.
https://www.lexfutura.ch/en/whats-keeping-us-busy/article/video-conferencing-
in-international-arbitration-seoul-protocol-as-guide-to-best-practice/ Last accessed on
10 May 2020
27 Korean Commercial Arbitration Board – Seoul Protocol on Video Conferencing (18 March
2020) KCAB - Available at

https://globalarbitrationreview.com/digital_assets/9eb818a3-7fff-4faa-aad3-
3e4799a39291/Seoul-Protocol-on-Video-Conference-in-International-Arbitration-
(1).pdf Last accessed on 10 May 2020
28 CIArb Guidelines for Witness Conferencing in International Arbitration (April 2019)
Available at https://www.ciarb.org/media/4595/guideline-13-witness-conferencing-
april-2019pdf.pdf Last accessed on 10 May 2020
10
There is however a growing critical mass that views the unfortunate

circumstances as an opportunity to embrace technology and adopt it to achieve
and/or facilitate the fair and expeditious disposal of pending dispute resolution
proceedings as a practical consideration. To achieve this any tribunal and/or
counsel requires to critically assess the following key issues (1) Legal Concerns;
(2) Cyber-protocols and logistics which are highlighted below:
3.1 Legal Concerns

This is the primary concern particularly for the tribunal and the and it entails a
consideration of (1) existing and prevailing substantive and/or procedural legal
requirements that require to be complied with; (2) the best evidence rule as it
applies on a case by case basis; and (3) enforceability of any resultant award.
3.1.1 Thus per Guidance Note on Remote Dispute Resolution Hearings domestic
laws and regulations that are applicable as well as government
requirements on social distancing require to be heeded. For international
arbitrations the substantive law and lex arbitri must also be taken into
consideration as well especially as regards due process, external
relationship with the courts and existing public policies as well as the
law of the seat.29 And thus for instance in Tanzania National Roads Agency
v Kundan Singh Construction Limited Miscellaneous Civil Application
No.171 of 2012 [2013] eKLR the Honourable Mr. Justice Muya stated as
follows:-
"In our present case the final award was arrived at in breach of the express
terms of the agreement between the parties which contains the arbitration
clause that any dispute shall be referred to arbitration and shall be
governed by the law of Tanzania. There is ample evidence from the
Respondents replying affidavit and further affidavit that the decision of
the majority as set out in the award was made contrary to the laws of
Tanzania. Should the court condone that breach by recognizing and
enforcing the award. I find there would be no justification legally or
29Alistair Henderson – Lex Arbitri, Procedural Law & the Seat of Arbitration: Unravelling
the Laws of the Arbitration – Singapore Academy of Law Journal (2014) 26 SAcLJ 886
11
morally to condone a breach of a contract Between two parties and it

would contrary to the public policy of Kenya to allow a court to be used
towards that end."
3.1.2 The best evidence rule is a common law principle that requires the
original documents to be produced and where it exists then such
document is the best evidence and ought to be presented to the tribunal.
Virtual proceedings may require to adopt a system where parties present
an agreed bundle of documents. The CIArb Guidance Note provides for
the list of documents and the electronic bundle to be provided whilst the
Seoul Protocol provides for the agreed bundle of documents.
3.1.3 The enforceability of the award is a critical issue to be considered and at

all times the tribunal requires to keep in mind the provisions of the
United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York, 1958) or as it is commonly referred to New
York Convention as domesticated by the Kenyan Arbitration Act, 1995.
The upshot of the above is that the usual provisions of undertaking a
successful arbitral proceeding will apply with the primary change being
the platform over which the Tribunal, Counsel, Parties and Witnesses
communicate. It is therefore important that prior to agreeing to engage
in a virtual proceeding they do so thoughtfully, considering and
evaluating the practical and legal challenges and implications of virtual
proceeding, and strategically implementing the virtual hearing
procedures to ensure an effective and efficient arbitral process that
results in an enforceable arbitral award.30
30Winston & Strawn LLP - Arbitration Proceedings in The Age of Virtual Hearing Rooms (9
April 2020) - Available at
https://www.winston.com/en/thought-leadership/arbitration-proceedings-in-the-
age-of-virtual-hearing-rooms.html Last accessed on 10 May 2020
12
3.2 Cyber-protocols & Logistical Requirements
3.2.1 Cyber-protocols consider the technical and logistical requirements that

require to be taken into account to support and ensure a successful
virtual proceeding. The bare minimum is a neutral who is familiar with
virtual platforms, their dynamics and the legal implication as well as
availability of reliable electrical supply and access to a stable and secure
internet connection for all participants.
3.2.2 Technical requirements are however varied with a number of

institutions providing customized virtual hearing rooms and support for
example ICC and CIArb. The current trend however is for institutions to
accommodate third-party commercial internet based platforms
provided the participants involved, especially the counsel and parties
are familiar with them and that they expressly agree to their use.
3.2.3 Equipment required will also vary depending on the elected platforms
as some of the institutional and/or arbitral chambers have sophisticated
equipment. However, basic requirements for the tribunal and counsel
include at least 2/3 laptops per person. The laptops should be equipped
with internet connectivity, a web cam, microphone and speakers as well
as a mobile phone with Whatsapp capability. These should enable the
tribunal achieve reasonable standards of trial advocacy especially in
document intensive proceedings such that one screen should have live
notes and documents and the other audio visual capacity to view all the
participants whilst making it straightforward to reference documents
such as exhibits, legal authorities/pleadings, transcripts and/or
correspondence. The Whatsapp is generally useful to facilitate ease of
communicating between teams and or especially in the event of down
times which is a practical reality in many cases.
3.2.4 Planning & Cooperation between the counsels for each of the parties is
key to the success of a virtual hearing particularly with regard to the
13
inspection and discovery process. The Seoul Protocol provides thus at

Article 4.3
The Parties may agree on utilizing a shared virtual document

repository (i.e. document server) to be made available via
computers at all Venues, provided that the Parties use best efforts
to ensure the security of the documents (i.e. from unlawful
interception or retention by third parties).
Article 8 of the ICC Note also provides for requesting that the parties
establish an agreed chronology of facts, joint lists of issues in dispute or
other similar jointly produced documents that help define and narrow
the range of issues in dispute.
3.2.5 Identification of Participants, taking Evidence & Witness Credibility is

another key area. In the first instance it is critical to identify the number
of participants in the virtual proceeding as this will impact the platform
to be used, the equipment and other logistical considerations. The
Appendix to the ICC Note makes reference to (1)Agreeing the number
and list of participants (arbitrators, parties, counsel, witnesses, experts,
administrative secretaries, interpreters, stenographers, technicians, etc.);
(2)Agreeing the number of participants per virtual room and whether a
360º view for all participating rooms is required or necessary;
(3)Agreeing regarding virtual rooms that will permit the arbitrators, and
each side in the case, to confer privately amongst themselves during the
hearing;(4)Identifying all log-in locations and points of connection;
(5)Agreeing that each individual present in each virtual room will be
identified at the start of the videoconference; and (6)In light of the above,
consulting and agreeing among parties and tribunal on the hearing date,
duration and daily timetable taking into account the different time
zones.
3.2.6 The implication and/or management of different timezones for the

participants is an important logistical issue that keeps coming up in
14
international arbitrations and increasingly mediation proceedings

featuring an international character. This is a matter that requires due
consideration to ensure a fair and just virtual proceeding.
3.2.7 Trial Advocacy & Etiquette: Virtual proceedings will of necessity change
the approach by counsel and the tribunal with the greater burden resting
on counsel. Given the nature of the platform considerations may include
the following:
(1) Focused Advocacy, that is to say, greater preparation in regards

to the selection of documents to be used, the ease of ability to
reference documents in the agreed bundle;
(2) Team Coordination particularly the means within which the

members of one team are able to communicate with each other is
also a key consideration for trial advocacy particularly where
members of one team may have no option but to be in separate
locations. There may be value in having separate breakout/chat
rooms for the teams on the same platform for the virtual
proceeding in question or on an entirely different platform.
(3) Dress Code and Onscreen Appearance are an important issue. It

entails determining what background is the best, how does one’s
face appear on the screen? It is advisable to avoid having a
window behind you, your face should be centered in the frame
and that you can be seen clearly. Further, though virtual
proceedings are considered to be less formal it is important that
one appears in usual business attire.
(4) When preparing it is useful to have speaking notes that are

structured and have numbered arguments. The language you
employ should be clear simple English especially where
interpreters are required and it is useful to ensure that you are
being followed. This is remarkably easier as the audience are all
15
on a screen in front of you as opposed to the usual distance in in

person hearings. Due to this Counsel should also limit theatrics
before the tribunal because one is literally in the tribunals face.
(5) Onscreen etiquette also demands that the participants all ensure
that they are in a quiet place and the normal everyday noises
should be avoided where possible. All speakers who are not
currently speaking ought to remain on mute unless and until
called upon to avoid unnecessary interruptions.
3.2.8 Costs – The initial capital expenditure to acquire the necessary

equipment, hardware and software, as well as training for all the various
platforms can be significant. However, where one considers the savings
in travel costs virtual proceedings are poised to reduce costs in the long
run.
4. Conclusion
From the foregoing it is clear that the increased adoption of virtual proceedings
by arbitral tribunals, mediators and other neutrals as well as courtrooms around
the world is one of the unintended consequences of the COVID-19 pandemic
and the resultant social distancing and stay at home policies. It has created the
new normal in the dispensation of justice.
Time will tell whether or not virtual proceedings will replace in person merit
hearings and/or proceedings. Chances are that moving forward tribunals will
increasingly adopt a hybrid approach. However, it cannot be gainsaid that
virtual proceedings will undoubtedly be an important aspect of any
proceedings in the near as well as the distant future and it therefore behooves
governments and institutional bodies to provide appropriate frameworks on the
one hand and on the other that tribunals require to adopt an approach that
ensures that virtual proceedings in ADR meet the agreement of the parties, are
just and fair and that any resultant awards, decisions and/or outcomes are
enforceable.
16
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19
Enhancing The Court Annexed Mediation (2020) 8(2) Alternative Dispute Resolution
Environment in Kenya: Kariuki Muigua
Enhancing The Court Annexed Mediation Environment in Kenya
By: Kariuki Muigua*
Abstract
The paper explores the workings of court annexed mediation in Kenya. With the recent
entry in force of the Singapore Mediation Convention, the place of mediation has been
elevated. Consequently, some of the shortcomings previously associated with mediation
such as recognition and enforcement of settlement agreements have now been catered for
under the Convention. This has created a conducive environment for the growth of
mediation. In Kenya, court annexed mediation was introduced by the judiciary in 2015
and has witnessed notable success. The paper argues that if court annexed mediation is
well actualised, it can enhance access to justice in Kenya and enable the country reap
the benefits of mediation as a form of Alternative Dispute Resolution (ADR). The paper
highlights some of the successes of court annexed mediation. It also pinpoints some
concerns and challenges facing court annexed mediation and suggests solutions aimed
at enhancing the mediation environment in Kenya in line with the spirit of ADR
embraced under the Constitution of Kenya, 2010.
1. Introduction
Mediation is a form of alternative dispute resolution where an acceptable,
impartial and neutral third party, who has no authoritative decision-making
power, assists disputing parties in voluntarily reaching their own mutually
acceptable settlement of the issues in dispute.1 It has also been defined as a
voluntary, informal, consensual and strictly confidential and non-binding
dispute resolution process in which a neutral third party helps parties reach a
* PhD in Law (Nrb), FCIArb (Chartered Arbitrator), LL. B (Hons) Nrb, LL.M
(Environmental Law) Nrb; Dip. In Law (KSL); FCPS (K); Dip. In Arbitration (UK);
MKIM; Mediator; Consultant: Lead expert EIA/EA NEMA; BSI ISO/IEC 27001:2005
ISMS Lead Auditor/ Implementer; Advocate of the High Court of Kenya; Senior
Lecturer at the University of Nairobi, School of Law; Chair of the Private Law
Department at the University of Nairobi, School of Law.
1Moore, C., The Mediation Process: Practical Strategies for Resolving Conflict, (Jossey-
Bass Publishers, San Francisco, 1996, p. 14
20
negotiated solution. 2 Mediation flows from negotiation. It arises where parties

to a dispute have attempted negotiations but have reached a deadlock.3 As a
result, parties agree to involve a third party to assist them continue with the
negotiation process with the aim of breaking the deadlock.4 This demonstrates
the voluntariness of the mediation process since parties have to agree to the
mediation process and the mediator.
Mediation is recognised as one of the international conflict management

mechanisms by the Charter of the United Nations.5 The Constitution of Kenya,
2010, also recognises mediation as one of the guiding principles that is to be
promoted by courts and tribunals.6 Mediation has several advantages which
include, inter alia, cost-effectiveness, flexibility, confidentiality, ability to
preserve relationships and promoting expeditious resolution of disputes. 7
Mediation plays an important role in conflict management. The underlying idea
behind mediation and other forms of ADR is to promote efficient, effective and
expeditious management of disputes in order to provide a conducive
environment for human growth and development.8
However, whereas mediation and other Alternative Dispute Resolution (ADR)

mechanisms have been lauded due to the above advantages, there is still a
school of thought that is completely against them. Critics of ADR mechanisms
2 Muigua. K., ‘Resolving Conflicts Through Mediation in Kenya’ Glenwood Publishers,

2nd Ed., 2017
3 Ibid
4 Ibid
5 Article 33 of the Charter of the United Nations provides that ‘The parties to any
dispute, the continuance of which is likely to endanger the maintenance of international

peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements,
or other peaceful means of their own choice’
6 Constitution of Kenya, 2010, Article 159 (2) ‘In exercising judicial authority, the courts
and tribunals shall be guided by the following principles- (c) alternative forms of
dispute resolution including reconciliation, mediation, arbitration and traditional
dispute resolution mechanisms shall be promoted.
7 Muigua. K., ‘Resolving Conflicts Through Mediation in Kenya’ Op Cit
8 Muigua.K., Alternative Dispute Resolution and Access to Justice in Kenya, Glenwood
Publishers Limited, 2015

21
have argued inter alia that; there is imbalance of power between the parties,
there is absence of authority to consent (especially when dealing with aggrieved
groups of people), that ADR presupposes the lack of a foundation for continuing
judicial involvement and that Adjudication promotes justice rather than peace,
which is a key goal in ADR.9 It has further been argued that a settlement will
thereby deprive a court of the occasion and, perhaps, even the ability to render
an interpretation.10 Thus, when parties settle, society gets less than what appears
and for a price it does not know; parties might settle while leaving justice
undone.11
Such views reflect the shortcomings of mediation and other ADR mechanisms.
These include: lack of checks and balances through public scrutiny to determine
whether justice was done; surrender of legal rights due to insistence on fairness
at the expense of justice; lack of precedents due to the confidential nature of
mediation; unequal bargaining power and difficulty in enforcing mediation
agreements.12
Several measures have been adopted nationally and globally in order to address
the challenges related to mediation while promoting the spirit of ADR. In
Kenya, Court Annexed Mediation was introduced in 2015 and is conducted
under the umbrella of the judiciary. Further, to deal with the problem of
enforceability of mediation agreements, the Singapore Convention on
International Settlement Agreements Resulting from Mediation came into
force in August 2019.13
9 Owen Fiss, “Against Settlement”, 93Yale Law Journal 1073(1984)

10 Ibid
11 Ibid
12 Clarke. G.R., & Davies. I.T., ‘ADR-Argument for and Against Use of the Mediation
Process Particularly in Family and Neighbourhood Disputes’ QLD. University of

Technology Law Journal, available at
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=18&ved=2ah
UKEwjUqc7M88vnAhVHT8AKHXK5Bl8QFjARegQICRAB&url=https%3A%2F%2Ffanyv88.com%3A443%2Fhttps%2Flr.l
aw.qut.edu.au%2Farticle%2Fdownload%2F343%2F335&usg=AOvVaw0ZDgE91blBjnz
wXPAdtHFZ (Accessed on 12/02/2020)
13 United Nations Convention on International Settlement Agreements Resulting from
Mediation, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-

22
The paper briefly analyses salient provisions of the Singapore Convention and
how it will change the mediation landscape both nationally and globally.
Further, it seeks to examine the workings of court annexed mediation in Kenya
and suggest necessary interventions that will ensure that the country reaps full
benefits from the programme while promoting the spirit of mediation and
Alternative Dispute Resolution in general.
2. The Singapore Convention On International Settlement Agreements

Resulting from Mediation
Drafting of the Singapore Convention was informed by a number of factors
within the sphere of international trade. There was the recognition by states of
the value for international trade of mediation as a method for settling
commercial disputes in which the parties in dispute request a third person or
persons to assist them in their attempt to settle the dispute amicably.14Further,
it was noted that mediation is increasingly used in international and domestic
commercial practice as an alternative to litigation, and that the use of mediation
results in significant benefits, such as reducing the instances where a dispute
leads to the termination of a commercial relationship, facilitating the
administration of international transactions by commercial parties and
producing savings in the administration of justice by States.15
Further, the trend has been that the outcome of a mediation is treated as a
contractual agreement enforced as such and not as an award as in the case of
arbitration (emphasis added).16 This created a problem in many states in that
one party may pull out of such an agreement and seek court intervention as if
documents/EN/Texts/UNCITRAL/Arbitration/mediation_convention_v1900316_en
g.pdf (Accessed on 14/02/2020)
14 Ibid, Preamble
15 Ibid, Preamble
16 Muigua. K., ‘The Singapore Convention on International Settlement Agreements
Resulting from Mediation: Challenges and Prospects for African States’ available at
http://kmco.co.ke/wp-content/uploads/2019/12/The-Singapore-Convention-on-
International-Settlement-Agreements-Resulting-from-Mediation-Kariuki-Muigua-
December-2019.pdf (Accessed on 10/02/2020
23
the mediation never took place. These factors necessitated the drafting of the
Singapore Convention in a bid to address this challenge.17
The convention defines “mediation” as a process, irrespective of the expression

used or the basis upon which the process is carried out, whereby parties attempt
to reach an amicable settlement of their dispute with the assistance of a third
person or persons (“the mediator”) lacking the authority to impose a solution upon
the parties to the dispute (emphasis added).18 The convention sets out certain
general principles to guide the practice of international mediation. Under the
convention, each party shall enforce a settlement agreement in accordance with
its rules of procedure and under the conditions laid down in the convention
(emphasis added).19 It applies to an agreement resulting from mediation and
concluded in writing by parties to resolve a commercial dispute (“settlement
agreement”) which, at the time of its conclusion, is international .20
The convention also lays down certain requirements for reliance on settlement
agreements. It requires that a party relying on a settlement agreement under the
Convention should supply to the competent authority of the Party to the
Convention where relief is sought: the settlement agreement signed by the
parties; evidence that the settlement agreement resulted from mediation, such
as: the mediator’s signature on the settlement agreement; a document signed by
the mediator indicating that the mediation was carried out; an attestation by the
institution that administered the mediation; or in the absence of (i), (ii) or (iii),
any other evidence acceptable to the competent authority.21
It also highlights grounds upon which relief being sought in relation to

enforcement of a settlement agreement may not be granted. These include
where: a party to the settlement agreement was under some incapacity; the
settlement agreement being relied upon is null and void, not binding or is not
17 Ibid
18 United Nations Convention on International Settlement Agreements Resulting from
Mediation, ‘Singapore Convention’ Article 2 (3)
19 Ibid, Article 3 (1)
21 Ibid, Article 4(1).
24
final according to its terms or has been subsequently modified; obligations in

the settlement agreement have not been performed or are not clear or
comprehensible; granting relief would be contrary to the terms of the settlement
agreement; there was a serious breach by the mediator of standards applicable
to the mediator or the mediation without which breach that party would not
have entered into the settlement agreement and there was a failure by the
mediator to disclose to the parties circumstances that raise justifiable doubts as
to the mediator’s impartiality or independence and such failure to disclose had
a material impact or undue influence on a party without which failure that party
would not have entered into the settlement agreement.22 Grant of relief may also
be refused by the Competent Authority on grounds of public policy and where
the subject matter of the dispute is not capable of settlement by mediation under
the law of that Party.23
The convention allows for reservations where a party to the Convention may
declare that: it shall not apply the Convention to settlement agreements to which
it is a party, or to which any governmental agencies or any person acting on
behalf of a governmental agency is a party, to the extent specified in the
declaration; or it shall apply this Convention only to the extent that the parties
to the settlement agreement have agreed to the application of the Convention.24
The Singapore Convention can play an important role in enhancing the
mediation environment in Kenya beyond court annexed mediation. With the
numerous investment and commercial activities being undertaken in Kenya,
commercial and trade disputes are unavoidable.25 Efficient mechanisms for
management of such disputes are essential in order to preserve commercial
relationships and promote economic growth.26 Mediation is one of the

25 Muigua. K., ‘Utilising Alternative Dispute Resolution Mechanisms to Manage
Commercial Disputes’ available at

http://kmco.co.ke/wp-content/uploads/2018/09/Utilising-Alternative-Dispute-
Resolution-Mechanisms-to-Manage-Commercial-Disputes-Kariuki-Muigua-7th-
September-2018.pdf (Accessed on 14/02/2020)
26 Ibid
25
mechanisms that have been used universally in management of such disputes.27

However, the foregoing discussion has shown that mediation suffers from
several shortcomings such as enforceability of settlement agreements. Adoption
of the Singapore Convention will enhance the mediation environment in Kenya
by providing a framework for enforcement of international settlement
agreements.
3. Uncitral Model Law on Mediation

The Singapore Convention is consistent with the UNCITRAL Model Law on
International Commercial Mediation and International Settlement Agreements
Resulting from Mediation, 2018 (Model Law). This is intended to provide
parties with the flexibility to adopt either the Singapore Convention or the
Model Law as stand-alone legal instruments or both as complementary
instruments in order to facilitate a comprehensive legal framework on
mediation.28 The Model Law, 2018, amends the Model Law on International
Commercial Conciliation, 2002 and applies to international commercial
mediation and international settlement agreements.29 It covers procedural
aspects of international commercial mediation including inter alia appointment
of mediators, conduct of mediation, disclosure of information, termination of
proceedings and resort to arbitral or judicial proceedings.30 Further, it provides
uniform rules on enforcement of settlement agreements and also addresses the
27 Africa ADR –a new African Arbitration Institution”, available at

http://www.lexafrica.com/news-africa-adr-a-new-african-arbitration-institution
(Accessed on 14/02/2020)
28 United Nations Commission on International on International Trade Law , “United
Nations Convention on International Settlement Agreements Resulting from Mediation

(New York, 2018) (the "Singapore Convention on Mediation") Available at
https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_a
greements (Accessed on 10/02/2020)
29 United Nations Commission on International Trade Law, “UNCITRAL Model Law
on International Commercial Mediation and International Settlement Agreements

Resulting from Mediation, 2018 (amending the UNCITRAL Model Law on International
Commercial Conciliation 200) Available at
documents/uncitral/en/annex_ii.pdf (Accessed on 14/02/2020)
30 Ibid, S 2
26
right of a party to invoke a settlement agreement in a procedure.31 It has been

argued that creation of a uniform enforcement process for settlement
agreements achieved through international mediation, the Singapore
Convention and Model Law will begin to place mediation on an equal footing
with arbitration and litigation as a method of international dispute resolution.32
With the increasing commercial and investment activities being undertaken in
the country some of which involve multinational corporations, there is need to
enhance the international commercial mediation environment in the country. In
addition to the Singapore Convention which mainly deals with enforcement of
settlement agreements, Kenya can adopt the Model Law to cover procedural
aspects of international commercial mediation such as appointment of
mediators and conduct of mediation. Adoption of this framework will create an
assurance on the enforcement of settlement agreements and will boost the
practice of international commercial mediation in Kenya.
4. Mediation in The African Context

African communities have since time immemorial had their own mechanisms
of resolving conflicts as they arose amongst them.33 These mechanisms were
designed to ensure that there was continued co-existence of the communities
and that conflicts were fully addressed to prevent their re-emergence in future.34
These mechanisms were designed along principles such as common
humanity/communal living, reciprocity and respect.35 The mechanisms
employed by indigenous African Communities reflect the present day ADR
mechanisms. These included negotiation and mediation where people would sit
down informally and agree to resolve their differences on their own or in some
instances, with the aid of institutions such as elders or riika (age-sets).36
31 Ibid, S 3
32 Hioureas. C, “The Singapore Convention on International Settlement Agreements
Resulting from Mediation: A New Way Forward?” Available at
https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1567&context=bjil
(Accessed on 10/02/2020)
33 Muigua.K., Alternative Dispute Resolution and Access to Justice in Kenya, Op Cit
34 Ibid
36 Ibid
27
Mediation is therefore not a novel concept in Kenya since it has been practiced
for many centuries.
Thus, while promoting mediation and other ADR mechanisms, it is important

that these mechanisms promote the values and cultures that have been
embedded in African communities for ages. Conflict management in the African
context was designed to promote peace, harmony, co-existence and maintain
the social fabric that held communities together.37 It has been argued that
culture is an essential part of conflict and conflict resolution.38 Cultures are
embedded in every conflict since conflicts arise in human relationships. Further,
cultures affect the way we name, blame, frame, and attempt to tame conflicts. 39
The mediation environment in Kenya therefore needs to reflect the culture of
African communities.
5. Court Annexed Mediation in Kenya

Court-annexed mediation arises where parties in litigation engage in mediation
outside the court process and then move the court to record a consent
judgment.40 It has also been defined as the mediation of matters which a judicial
officer has ordered to go to mediation or which are mediated pursuant to a
general court direction (e.g. a procedural rule which states that parties to a
matter make an attempt to settle the matter by way of mediation before the first
case management conference).41
37 Kariuki. F., African Traditional Justice Systems, available at http://kmco.co.ke/wp-

content/uploads/2018/08/African-Traditional-Justice-Systems.pdf (Accessed on
14/02/2020)
38 LeBaron.M., Culture and Conflict: Beyond Intractability, available at
http://sociologycultures.pbworks.com/w/file/fetch/101971144/Culture%20and%20
Conflict%20print%20friendly%20%20Beyond%20Intractability.pdf(Accessed on
14/02/2020)
39 Ibid
40 Muigua. K., ‘Court Sanctioned Mediation in Kenya-An Appraisal’ available at
http://kmco.co.ke/wp-content/uploads/2018/08/Court-Sanctioned-Mediation-in-
Kenya-An-Appraisal-By-Kariuki-Muigua.pdf (Accessed on 10/02/2020)
41 Ibid
28
In Kenya, Court Annexed Mediation is conducted under the umbrella of the

court.42 The project commenced in 2015 through legislative and policy reforms
to accommodate mediation in the formal court process.43 These included
amendment to the Civil Procedure Act to provide for reference of cases to
mediation. Under the Act, the court may direct that any dispute presented
before it be referred to mediation: on the request of the parties concerned; where
it deems it appropriate to do so; or where the law so requires.44 Where a dispute
has been referred to mediation by the court, parties are required to select a
mediator for that purpose whose name appears in the mediation register
maintained by the Mediation Accreditation Committee.45 Such mediation is
conducted in accordance with the mediation rules. An agreement between the
parties shall be recorded in writing and registered with the court which referred
the dispute to mediation; such an agreement is enforceable as a judgment of the
court. 46 No appeal lies against such an agreement.47 The Act also establishes the
Mediation Accreditation Committee whose functions include inter alia
maintaining a register of qualified mediators and setting up appropriate
training programmes for mediators.48
The Civil Procedure Rules also allows the court to adopt and implement, on its
own motion or at the request of the parties, appropriate means of dispute resolution
such as mediation for the attainment of the overriding objective envisaged
under sections 1A and 1B of the Civil Procedure Act (emphasis added).49 Where
a court mandated mediation adopted pursuant to the rule fails, the court is
42 The Judiciary, ‘Court Annexed Mediation: A Solution for You’ available at

http://kenyalaw.org/kenyalawblog/wp-content/uploads/2016/04/Court-Annexed-
Mediation-at-the-Judiciary-of-Kenya..pdf (Accessed on 10/02/2020)
43 The Judiciary, State of the Judiciary and the Administration of Justice: Annual Report
2018-2019, Judiciary Innovativeness in Access to Justice: Unlocking the Potential of

Court Annexed Mediation’ available at
https://www.judiciary.go.ke/resources/reports/ (Accessed on 10/02/2020)
44 Civil Procedure Act, Cap 21, S 59B (1), Government Printer, Nairobi
45 Ibid, S 59B (2)
46 Ibid, S 59B (4)
47 Ibid, S 59B (5)
48 Ibid, S 59A (4)
49 Civil Procedure Rules, Order 46, rule 20 (1)
29
mandated to forthwith set the matter down for hearing and determination in
accordance with the Rules.50
The Mediation (Pilot Project) Rules, 2015 were enacted to give effect to the
amendments made to the Civil Procedure Act and provide a legal framework
on Court Annexed Mediation in Kenya. The Rules provide that every civil action
instituted in court after their commencement shall be subjected to mandatory
screening by the Mediation Deputy Registrar and those found suitable may be
referred to mediation.51 Where a case has been referred to mediation after
screening, the mediation Deputy Registrar is required to notify the parties of the
decision within seven (7) days.52 Seven days after receipt of such notification,
parties are required to file a case summary in the prescribed form.53 Such
mediation is conducted by a person registered as a mediator by the Mediation
Accreditation Committee who is selected by the parties from a list of three
qualified mediators nominated by the mediation Deputy Registrar.54 The rules
further prescribe a time limit of sixty (60) days from the date of referral to
mediation within which the proceedings should be concluded.55
Since the inception of Court Annexed Mediation in 2015 via the pilot phase in
the Commercial and Family Divisions of the High Court in Nairobi, the program
has expanded to 12 other counties.56 According to statistics from the judiciary,
as at 30th June 2019, 3517 matters have been referred to mediation, 2593
concluded, with 1279 matters settled successfully representing a settlement rate
of 50 per cent.57 Further, Kshs. 7.2 billion that had been held in litigation has
50 Ibid, Order 46, rule 20 (3)

51 Legal Notice No. 197, The Civil Procedure Act (Cap 21), The Mediation (Pilot Project)
Rules, 2015, Rule 4 (1), Government Printer, Nairobi
52 Ibid, Rule 5
53 Ibid
54 Ibid, Rule 6
55 Ibid, Rule 7

Court Annexed Mediation’ Op Cit
57 Ibid
30
ended up being released through court annexed mediation.58 The Mediation

Accreditation Committee has also accredited 645 mediators in order to facilitate
court annexed mediation.59
Court Annexed Mediation has so far played an important role in enhancing

access to justice in Kenya. The judiciary acknowledges that for cases that have
been referred to mediation, the average time for their conclusion is less in
comparison to the time taken under the normal court process.60 This reflects the
expeditious nature of mediation and the need to enhance its environment in
Kenya. Court annexed mediation can be a game changer in the access to justice
discourse in the country. By combining the attributes of mediation such as
voluntariness, party autonomy and expeditious disposal of disputes with the
powers of courts to enforce agreements, court annexed mediation can be an
important asset in conflict management in the country. It is therefore imperative
to ensure efficiency of the process to enable the country reap from its benefits.
6. Court Annexed Mediation in Kenya: Challenges

While court annexed mediation in Kenya is well underway, it faces several
challenges that needs to be addressed in order to enhance its efficiency. Further,
various concerns have been raised with regards to the working of court annexed
mediation in Kenya. Addressing such challenges and concerns can enable the
country achieve the ideal environment for court annexed mediation. Some of
these challenges and concerns are discussed below.
a. Voluntariness and Autonomy

Voluntariness and party autonomy are essential characteristics of mediation. It
is non-coercive in that parties have autonomy over the forum, the process, and
the outcome.61 However, these aspects are to a large extent defeated in court
annexed mediation. The voluntariness and the autonomy over the process and
58 Ibid
59 Ibid
60 Ibid
61 Muigua. K., ‘Achieving Lasting Outcomes: Addressing the Psychological Aspects of
Conflict Through Mediation’ available at http://kmco.co.ke/wp-

content/uploads/2018/08/Addressing-the-Psychological-Aspects-of-Conflict-
Through-Mediation-3RD-AUGUST-2018-1.pdf (Accessed on 12/02/2020)
31
the outcome may be diminished since it is pursuant to an order of the court

where the settlement has to be returned back to court for ratification.62 To this
extent, it has been argued that court annexed mediation does not fully capture
the attributes of mediation such as: voluntariness; autonomy over the forum; choice
of the mediator; control over the process and the outcome (emphasis added).63 Court
annexed mediation therefore raises concerns related to the aspects of mediation
since the court order referring a matter to mediation interferes with an essential
characteristic of mediation being its voluntary nature.
However, coercion into mediation does not deprive the process of its capacity
to ensure parties reach a resolution to the dispute. In fact, it is arguable that
court annexed mediation brings parties to the table since there are parties who
would otherwise be unwilling to negotiate or mediate. It is however imperative
to ensure that the voluntariness and autonomy of the process is guaranteed.
b. Non-Settlement of Matters Through Court Annexed Mediation

Nearly half of the matters that have been referred to court annexed mediation
have ended up not being settled. According to the judiciary, in the financial year
2018/2019, 933 out of the 1879 matters processed through mediation were not
settled.64 This is attributed to various factors such as parties failing to reach an
agreement, non-compliance of parties and termination of matters by the
parties.65 In some instances, such matters have ended up being referred back to
courts for litigation thus defeating the entire purpose of court annexed
mediation. This raises concerns as to the efficacy of court annexed mediation.
c. Costs of Mediation
While ADR mechanisms have generally been hailed as being cost effective, this
characteristic may be defeated in court annexed mediation. In court annexed
mediation, referral of a case to mediation may happen after parties have
incurred costs such as legal fees through drafting pleadings and filing the
62 Muigua. K., ‘Court Sanctioned Mediation in Kenya-An Appraisal, Op Cit

63 Ibid

65 Ibid
32
same.66 Currently, there is no framework for recovery of costs where a case has
been referred to mediation. Thus, parties may end up incurring further costs in
the process. Further, where parties fail to reach a settlement agreement and such
case reverts back to the court, the costs of the entire process ends up being higher
than what parties had intended. There is need to ensure efficiency of court
annexed mediation to enable parties benefit from the attributes of mediation.
d. Lack of Awareness of Court Annexed Mediation

Since its roll out in 2015 at Nairobi, court annexed mediation has expanded to
12 other counties in Kenya.67 It can therefore be argued that more than half of
the country is not aware of the process. Further, most court users are not aware
or are yet to fully embrace mediation and other ADR mechanisms. This
demonstrates the reason why a high number of matters are still being filed in
courts necessitating screening and referral of some of them to mediation. There
is need to create public awareness on the presence and operation of court
annexed mediation and other ADR mechanisms to enable Kenyans embrace
these mechanisms and reduce backlog in courts.
e. Lack of Efficient Negotiation Skills by the Parties

Mediation flows from negotiation since the mediator merely facilitates
discussions between the disputing parties.68 Negotiation skills are thus of
utmost importance in the process. Statistics from the judiciary show that nearly
half of the matters that have been referred to court annexed mediation have
ended up not being settled.69 This can be attributed to among other factors, the
lack of efficient negotiation skills by the parties. There may be need to provide
basic negotiation skills to parties before they set down for court annexed
mediation.
66 Muigua. K., ‘Court Sanctioned Mediation in Kenya-An Appraisal, Op Cit


33
f. Capacity of Mediators
Court annexed mediation deals with various disputes including commercial
matters. Some of the mediators may not have the necessary skills and expertise
in such areas making them ill equipped to facilitate the process. There is need
for capacity building through training programmes for mediators to ensure that
they are well informed and able to efficiently discharge their duties.
7. Enhancing Access to Justice in Kenya Through Court Annexed Mediation:

way Forward
a. Early Referral of Disputes to Mediation

The Mediation (Pilot Project) Rules, 2015 provide for a system of screening of
civil actions and referral to mediation for those cases that are found suitable.70
The judiciary through the Office of the Mediation Deputy Registrar should
ensure that this process is done early enough to avoid instances where cases are
referred to mediation after significant steps have already been taken by parties
in the litigation process. This would enable parties minimise costs of the process
while contributing to expeditious disposal of disputes.
b. Implementing the Ideals of the ADR Policy

The ADR policy is intended to strengthen, guide and support the growth of
Alternative Dispute Resolution (ADR) in the Country in order to achieve
optimal delivery of access to justice for all Kenyans.71 The policy proposes a
number of recommendations aimed at enhancing the practice of ADR in Kenya
which include inter alia enactment of an Alternative Dispute Resolution Act and
establishment of an ADR division of the High Court to be the focal point for
linkage and coordination of the ADR sector.72 The policy recognises the
importance of ADR mechanisms and their role in promoting access to justice.73
70 Legal Notice No. 197, The Civil Procedure Act (Cap 21), The Mediation (Pilot Project)
Rules, 2015, Rule 4, Government Printer, Nairobi
71 Alternative Dispute Resolution Policy (Zero Draft), available at
https://www.ncia.or.ke/wp-content/uploads/2019/08/ZERO-DRAFT-NATIONAL-
ADR-POLICY_P.pdf (accessed on 14/02/2020)
72 Ibid
73 Ibid
34
Implementing the ideals of the policy will be mark an important milestone in

enhancing the ADR environment in Kenya including mediation.
c. Maintaining of Quality Standards in Mediation

While mediation is generally understood to be an informal process, there is need
to maintain quality standards in court annexed mediation. This relates to the
fact that since the process is conducted under the auspices of the court, there
may be perception on the part of the parties that the court in some way exercises control
over the process (emphasis added). Thus, if a mediator is incompetent or if the
process falters, the reputation of the court and the entire judicial system stands
to suffer.74 The Civil Procedure Act establishes the Mediation Accreditation
Committee whose functions include inter alia enforcing a code of ethics for
mediators as may be prescribed and setting up appropriate training
programmes for mediators.75 The Committee needs to step up its mandate in
order to promote quality of the practice of court annexed mediation in Kenya.
d. Enhanced Support for Court Annexed Mediation

While there has been notable success with court annexed mediation since its roll
out in the country, there are notable challenges such as non-compliance by
advocates and parties and resistance from legal practitioners.76 The judiciary has
proposed measures to curb these challenges such as streamlining and
integration of court annexed mediation into the justice system.77 It also plans to
establish mediation rooms in courts under construction.78 Sensitisation exercises
should also be conducted targeting the public, advocates and other
stakeholders. The challenge on non-compliance with directions of mediators
needs to be addressed through measures such as summons, citation for
contempt and injunctions which can only be enforced by courts. There should
also be sustainable funding by the judiciary to support the process. The
74 F. Kirkham, “Judicial Support for Arbitration and ADR in the Courts in England and
Wales”, 72 (1) Arbitration 53, (2006).
75 Civil Procedure Act, Cap 21, S 59 A (4)

77 Ibid
78 Ibid
35
programme also needs to be rolled out to the rest of the country in a progressive
manner in order to enhance its impact.
e. Capacity Building
There is need to enhance capacity building through training new mediators and
enhancing the efficiency of those already accredited by the Mediation
Accreditation Committee. Under the Civil Procedure Act, the functions of the
Committee include setting up appropriate training programmes for mediators.79
The committee needs to further this function to enhance capacity building that
will facilitate court annexed mediation. Mediators need also to learn some basic
principles of law such as commercial law principles of ‘liability’ and ‘quantum’
in addition to understanding mediation. This will in turn enhance their capacity
to facilitate the mediation process.
f. Embracing the Spirit of Mediation in Court Annexed Mediation

Court annexed mediation needs to reflect the true attributes of mediation which
include voluntariness, privacy, confidentiality and party autonomy. Thus, the
courts through the Mediation Deputy Registrar should not coerce parties into
mediation. The process should be voluntary and where parties intend to litigate
their dispute, they should not be forced to undertake court annexed mediation
through mandatory screening of their cases. As a suggestion, the consent of
parties should be sought before their matter is referred to mediation. Further,
the mediator in charge of the proceedings should not impose his/her decision
on the parties in the name of reaching a settlement and enhancing expeditious
disposal of the parties. The mediator should merely facilitate the process and
any decision or agreement should come from the parties themselves. Where
parties fail to agree, the mediator should file a report to that effect rather than
suggesting or imposing solutions to the parties. Through this, the true spirit of
mediation can be reflected in court annexed mediation.
8. Conclusion
The importance of mediation continues to be realised across the globe. With the
recent enactment of the Singapore Convention, the future of mediation looks
79 Civil Procedure Act, Cap 21, S 59 A (4) (e)

36
bright. Kenya can borrow from the Model Law on Mediation to create a legal
and institutional framework that supports mediation. However, it should be
borne in mind that conflict management is culture specific. The best practices
from the African culture can be distilled and incorporated into a mediation and
ADR framework. In Kenya, entrenchment of mediation in the judicial system
through court annexed mediation offers viable opportunities for the country to
benefit from the positive aspects of the process. The programme has so far
witnessed significant success and promises a brighter future for the country in
its journey towards enhancing access to justice for all. However, more needs to
be done to enhance the court annexed mediation environment in Kenya and
ensure the country fully benefits from such a noble idea.
37
References
Charter of the United Nations, available at

https://www.un.org/en/sections/un-charter/un-charter-full-text/
Civil Procedure Act, Cap 21, Government Printer, Nairobi
Civil Procedure Rules, 2010, Government Printer, Nairobi
Clarke. G.R., & Davies. I.T., ‘ADR-Argument for and Against Use of the
Mediation Process Particularly in Family and Neighbourhood Disputes’ QLD.
University of Technology Law Journal, available at

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=18&
ved=2ahUKEwjUqc7M88vnAhVHT8AKHXK5Bl8QFjARegQICRAB&url=https
%3A%2F%2Flr.law.qut.edu.au%2Farticle%2Fdownload%2F343%2F335&usg=
AOvVaw0ZDgE91blBjnzwXPAdtHFZ
Constitution of Kenya, 2010, Government Printer, Nairobi
F. Kirkham, “Judicial Support for Arbitration and ADR in the Courts in England
and Wales”, 72 (1) Arbitration 53, (2006).
Hioureas. C, “The Singapore Convention on International Settlement

Agreements Resulting from Mediation: A New Way Forward?” Available at
https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1567&cont
ext=bjil
Kariuki. F., African Traditional Justice Systems, available at

http://kmco.co.ke/wp-content/uploads/2018/08/African-Traditional-
Justice-Systems.pdf
LeBaron.M., Culture and Conflict: Beyond Intractability, available at

http://sociologycultures.pbworks.com/w/file/fetch/101971144/Culture%20
and%20Conflict%20print%20friendly%20%20Beyond%20Intractability.pdf
38
Legal Notice No. 197, The Civil Procedure Act (Cap 21), The Mediation (Pilot
Project) Rules, 2015, Government Printer, Nairobi
Moore, C., The Mediation Process: Practical Strategies for Resolving Conflict,
(Jossey-Bass Publishers, San Francisco, 1996
Muigua. K., ‘Achieving Lasting Outcomes: Addressing the Psychological

Aspects of Conflict Through Mediation’ available at http://kmco.co.ke/wp-
content/uploads/2018/08/Addressing-the-Psychological-Aspects-of-Conflict-
Through-Mediation-3RD-AUGUST-2018-1.pdf
Muigua. K., ‘Court Sanctioned Mediation in Kenya-An Appraisal’ available at

http://kmco.co.ke/wp-content/uploads/2018/08/Court-Sanctioned-
Mediation-in-Kenya-An-Appraisal-By-Kariuki-Muigua.pdf
Muigua. K., ‘Resolving Conflicts Through Mediation in Kenya’ Glenwood

Publishers, 2nd Ed., 2017
Muigua. K., ‘The Singapore Convention on International Settlement

Agreements Resulting from Mediation: Challenges and Prospects for African
States’ available at http://kmco.co.ke/wp-content/uploads/2019/12/The-
Singapore-Convention-on-International-Settlement-Agreements-Resulting-
from-Mediation-Kariuki-Muigua-December-2019.pdf
Muigua. K., ‘Utilising Alternative Dispute Resolution Mechanisms to Manage

Commercial Disputes’ available at http://kmco.co.ke/wp-
content/uploads/2018/09/Utilising-Alternative-Dispute-Resolution-
Mechanisms-to-Manage-Commercial-Disputes-Kariuki-Muigua-7th-
September-2018.pdf
Muigua.K., Alternative Dispute Resolution and Access to Justice in Kenya,

Glenwood Publishers Limited, 2015
Owen Fiss, “Against Settlement”, 93Yale Law Journal 1073(1984)
39
The Judiciary, ‘Court Annexed Mediation: A Solution for You’ available at

http://kenyalaw.org/kenyalawblog/wp-content/uploads/2016/04/Court-
Annexed-Mediation-at-the-Judiciary-of-Kenya.pdf
The Judiciary, State of the Judiciary and the Administration of Justice: Annual
Report 2018-2019, Judiciary Innovativeness in Access to Justice: Unlocking the
Potential of Court Annexed Mediation’ available at
https://www.judiciary.go.ke/resources/reports/
United Nations Commission on International on International Trade Law,

“United Nations Convention on International Settlement Agreements Resulting
from Mediation (New York, 2018) (the "Singapore Convention on Mediation")
Available at
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ment_agreements
United Nations Commission on International Trade Law, “UNCITRAL Model

Law on International Commercial Mediation and International Settlement
Agreements Resulting from Mediation, 2018 (amending the UNCITRAL Model
Law on International Commercial Conciliation 200) Available at
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ion
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from Mediation, (New York, 2018) (the “Singapore Convention on Mediation”)
available at
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ment_agreements
40
Bangalore Principles on Judicial Conduct: (2020) 8(2) Alternative Dispute Resolution
A framework for Arbitrator Conduct?
Lady Justice Monica K. Mugenyi
Bangalore Principles on Judicial Conduct: A Framework for Arbitrator

Conduct?
By: Lady Justice Monica K. Mugenyi *
A. Introduction
The balance of power in most governance structures is typically skewed in
favour of the executive branch of government, as opposed to the judicial or
legislative limbs. In June 1998, a Colloquium on Parliamentary Sovereignty and
Judicial Independence in the Commonwealth held at Latimer House,
Buckinghamshire, United Kingdom produced the Latimer House Guidelines on
Parliamentary and Judicial Independence. These Guidelines were the precursor to
the Commonwealth (Latimer House) Principles that were adopted in 2003 with a
view to entrenching the exercise of responsibility and restraint by each arm of
government in performance of its constitutional function so as to avoid
encroaching on the legitimate constitutional mandate of the other branches.1
Running concurrently with the foregoing governance initiatives was a global
push to address the then creeping (in some cases, runaway) vice of corruption
within the judicial branch of governments. On the one hand, Commonwealth
judicial officers meeting under their umbrella group, the Commonwealth
Magistrates and Judges Association (CMJA), had adopted the Lammisol
Conclusions on Combating Corruption within the Judiciary in Lammisol, Cyprus in
June 2002; and, on the other hand, in November 2002 the Bangalore Principles of
Judicial Conduct were promulgated, a culmination of the Bangalore Draft
Principles of Judicial Conduct as adopted by the Judicial Group on
Strengthening Judicial Integrity and revised by a Round Table Meeting of Chief
Justices from both Civil and Common Law backgrounds.2
* Lady Justice Monica K. Mugenyi, FCIArb, Principal Judge – East African Court of
Justice/ Justice of the Court of Appeal – Uganda
1 Plan of Action for Africa on the Commonwealth (Latimer House) Principles on the
Accountability of the Relationship between the Three Branches of Government,
Commonwealth Secretariat, 2005.
2 See Long Title and Explanatory Note, The Bangalore Principles of Judicial Conduct,
p.1, pp. 9 – 11.

41
The Bangalore Principles on Judicial Conduct, 2002 (‘the Bangalore Principles’)

were promulgated to perform the dual function of engendering the institutional
independence of judiciaries across the world, as well as providing standards for
the judicial conduct of individual judges. In terms of the latter function, the
Principles address two (2) aspects of judicial ethics: first, the knowledge
required of judges in performance of their judicial duties (Know-How) and,
secondly, the conduct expected of judges in both their official and personal
capacities. Sometimes referred to as ‘Know-Be values’, the first five Principles
encapsulate the ethical standards required of judges, captured under the
Principles of Independence, Impartiality, Integrity, Propriety and Equality. On
the other hand, the Principle of Competence and Diligence represents the
technical ‘Know-How’ expected of judges in performance of their judicial duties.3
The Bangalore Principles were formally included in the Compendium of UN
Standards and Norms relating to the Administration of Justice in 2016, making
them the global standard for judicial conduct.
B. Snapshot of the Bangalore Principles

The Bangalore Principles are drafted in such a manner as to include explanatory
notes that clarify the gist of each Principle. It is from the explanatory notes, as
well as a Commentary on the Bangalore Principles of Judicial Conduct by the United
Nations Office on Drugs and Crime (UNODC) that the following summation of
the Principles is derived.
1. Independence
The term ‘Independence’ under the Bangalore Principles essentially
denotes the adjudication of disputes honestly and impartially, on the
basis of the law and evidence on record, without external pressure,
influence or interference (including from other judges).4 To avert
external influence, judges are required to maintain personal conduct that
is fairly withdrawn from their communities. The test of a judge’s
3 Martin, Jorge Jimenez, Guaranteeing an Independent and Efficient Judiciary through

Training, Judicial Integrity Views 2018 – 2019, Global Judicial Integrity Network
(UNODC), p.35
4 See also R vs. Beauregard, Supreme Court of Canada (1987) LRC (Const) 180 at 188,
per Chief Justice Dickson.

42
independence in this regard is similar to a related test applicable to the

question of judicial bias or prejudice, to wit, whether such judge would
be perceived as independent by a reasonable observer. Understandably
so, given that the principles of Independence and Impartiality would
appear to have some co-related and overlapping characteristics. Indeed,
Article 14(1) of the International Covenant on Civil and Political Rights
underscores the fundamental rule that ‘everyone shall be entitled to a
fair hearing before a competent, independent and impartial tribunal
established by law.’
2. Impartiality
Impartiality under the Bangalore Principles denotes the absence of bias
(actual or perceived) by a judge or tribunal. Bias in this context may be
deduced from real or perceived conflict of interest flowing from a
judge’s relationship with parties, advocates or third parties; the judge’s
behavior on the bench, or his or her partisan associations & activities
outside the court. The Principle of Impartiality thus provides an ethical
standard that underscores the need for judges to conduct themselves in
such a manner as would minimise the incidence of recusals on account
of bias or prejudice. For instance, ex parte communication between
judges and parties, their legal representatives or witnesses would be
considered unacceptable judicial conduct in so far as it reflects the
perception of bias. A judge should therefore ensure that such
communication is promptly relayed to the opposite party to forestall any
such perception.
This high standard of judicial conduct is intended to entrench the

minimum tenets of a fair trial, that is, ‘a trial by an impartial and
disinterested tribunal in accordance with regular procedures.’5 In that
regard, Civil Procedure Rules or Codes within the East African region
do broadly provide for and demand due judicial compliance with the
following basic procedural measures:
5 Black’s Law Dictionary, 8th Edition, p. 634

43
i. Adequate notice to parties about the proceedings.

ii. Ample time for parties to prepare their respective cases.
iii. Opportunity to present evidence & arguments (with interpretation if
required).
iv. Legal representation.
v. Delivery of a reasoned decision rendered without undue delay.
vi. Parties informed of their right of appeal where applicable.
However, the foregoing standards and operational provisions

notwithstanding, judges whose impartiality is compromised or in
respect of whom there is a legitimate perception of partiality must
disqualify themselves from the conduct of a case. Owing to the intrinsic
nature of adjudication, parties’ consent (or the lack thereof) is irrelevant
to a judge’s decision for recusal. This is because in most Common Law
constitutional orders, courts exercise judicial power in trust for their
communities. Thus, unlike arbitration, adjudication is a public process
the impartiality of which is manifestly important to the observing public.
It is pertinent to note, however, that a judge’s personal values,
philosophy, or beliefs about the law may not necessarily constitute bias.
Opinion, which is acceptable, is to be distinguished from Bias, which is
unacceptable. Knowledgeable judges would ordinarily have a scholarly
opinion on a myriad of topics, as well as a personal philosophy or beliefs.
They cannot be expected to degenerate into empty minds carrying
mental blank sheets! Thus, it was observed by the United States (US)
Supreme Court that ‘proof that a judge’s mind is a tabula rasa (blank
slate) would be evidence of a lack of qualification, not lack of bias.’6
3. Integrity
Integrity encompasses the totality of what is expected of a judge. The
Principle of Integrity as espoused in the Bangalore Principles seeks to
posit an ethical standard for a judge’s personal conduct on and off the
Bench, as well as the conduct of judges viz the image of the judiciary
they serve in. Hence, not only should a judge’s personal conduct be
6 Laird vs. Tatum, United States Supreme Court (1972) 409 US 824
44
literally above reproach, the judge’s conduct should generally reaffirm

public faith in the judiciary. Judges are therefore expected, at all times
(not only in the discharge of official duties), to act honourably and in a
manner befitting that judicial office; be free from fraud, deceit and
falsehood; be good and virtuous in behaviour and character, and
observe the most scrupulous respect for and fidelity to the law.
4. Propriety & the Appearance of Propriety

This Principle hinges largely on public perception of the totality of a
judge’s conduct. What matters most is not necessarily what a judge does
or does not do but, rather, what the public thinks a judge has done, might
do or is capable of doing. The test for impropriety is whether the judge’s
conduct compromises his/her ability to execute the judicial function
with integrity, impartiality, independence and competence, or the
conduct is likely to create, in the mind of a reasonable observer, the
perception that the judge’s ability to so carry out his/her judicial duties
is impaired. Thus, on the one hand, judges are enjoined to avoid
relationships or activities that could denote partiality or prejudice and,
in the same vein, preserve the confidentiality and integrity of the judicial
process. It is in that spirit that the Bangalore Principles impose a duty
upon judges to interest themselves in and establish the financial interests
of their family members to obviate questions of impropriety. Hence, for
instance, serving judges should neither engage in legal practice nor
preside over cases involving family members, or matters in which either
they or members of their families have interests.
The definition of a judge’s family in this context is quite broad thus

placing a considerably onerous duty upon judges.7 It includes a judge’s
‘spouse, son, daughter, son-in-law, daughter-in-law and any other
close relative or person who is a companion or employee of a judge
and who lives in a judge’s household.’ Given the diverse global
cultural background in which this ethical standard is sought to be
applied, it remains to be seen how enforceable this Principle is. What
7 See the Definition Section of the Bangalore Principles.

45
might be considered an acceptable request for information in one society

could constitute a taboo of enormous proportions in another, not to
mention an unacceptable infringement on personal space in yet another
context. Further, the jury is still out as to the propriety of retired judges
engaging in legal practice. Whereas some jurisdictions maintain a
dignified silence on the subject, others have attempted to clarify the duty
upon judges post-retirement. Retired judges of the Court of Justice of
the European Union (CJEU) are bound by the same duty of integrity,
dignity, loyalty and discretion as serving judges.8 Subject to the
foregoing duty, they may nonetheless serve as ‘as agent, counsel,
adviser or expert or provide a legal opinion or serve as an arbitrator’,
and may participate in matters that were neither pending before them
nor connected to cases they handled as judges in the Court and, after
three (3) years post-retirement, may even appear before the CJEU itself
as legal representatives of parties.9
5. Equality
This BP basically underscores the equality of all persons before the law.
It prohibits discriminatory conduct by judges, parties and other court
users on the basis of race, religion, sex, sexual orientation, gender,
cultural diversities, etc. Judges are enjoined to treat all court users with
courtesy and dignity, and similarly ensure the adherence of the same
standards of decorum by all court users.
6. Competence & Diligence

As has been quite correctly opined, ‘nothing is more likely to bring
about an erosion of public confidence in the administration of justice
than the continued adherence by the courts to rules and doctrines
which are unsound and lead to unjust outcomes.’10 In a nutshell, judges
must possess an astute knowledge of their tools of trade. They should
8 Article 9(1) of the Code of Conduct for Members and Former Members of the Court of Justice
of the European Union.
9 Article 9(2) and (3) of the same Code of Conduct.
10 Mason, Anthony, The Australian Judiciary in the 1990s, (1994), The Sidney Papers, p.
111 at 114.
46
know and apply the law, as well as keep abreast with new
developments. No less is expected of them in terms of competence. With
regard to diligence, it is the duty of judges to consider matters soberly,
decide them impartially and act expeditiously so as to achieve a
balanced application of the law and prevent the abuse of process. To that
end, judges are expected to ensure prudent case management that
negates unnecessary delays in the judicial process, and maintains order
and decorum in court proceedings. They are also expected to deliver
astute, reasoned judgments that conclusively resolve the dispute
between the parties.
C. Arbitral Ethics: a Sine qua non?

An interrogation of the ethical principles and values that are inherent in the
arbitral process is pertinent to a discussion as to whether there is, in fact,
need for more comprehensive standards of arbitral ethics. The overall
objective of arbitration is quite instructive in this regard. Section 1(a) of the
English Arbitration Act designates that objective as ‘the fair resolution of
disputes by an impartial tribunal without unnecessary delay or expense.’
That legal provision succinctly demarcates the values of fairness and
impartiality as core tenets of arbitration. The objective of arbitration also
embraces the expeditious and inexpensive components of arbitration as the
backdrop against which the core values therein should ensue. The operative
word for that purpose would be the term ‘unnecessary’, which presupposes
that in some instances some degree of delay and expense are inevitable.
Nonetheless, perhaps for purposes of forestalling the undeniable
subjectivity that could arise, the English Arbitration Act goes ahead to
explicitly propound the general duty of an arbitral tribunal. To that end,
section 33(1)(a) and (b) underscores the vitality of fairness, impartiality and
diligence in the arbitral process. It qualifies this emphasis on the foregoing
attributes by correlating them, first, to the integrity of the arbitral process in
so far as each party is given a reasonable opportunity to present their
respective cases and, secondly, to the notion of arbitration as an inexpensive,
expeditious, yet fair alternative dispute resolution mechanism. Finally, the
same Arbitration Act does, in section 24(1)(a) and (b), quite categorically
47
designate lack of impartiality or incompetence on the part of an arbitrator as

sufficient grounds for his/ her removal.
In like vein, the Arbitration Act of Kenya (as amended) does in section 13(3)
designate an arbitrator’s lack of impartiality or independence as grounds for
a challenge to his/ her appointment. Interestingly, under the same
provision, an arbitrator’s mental incapacity to conduct arbitral proceedings
(or justifiable doubts as to his/ her ability to do so) is also outlined as a
ground for a challenge to an appointment. This brings to the fore the
question as to whether an otherwise competent arbitrator might,
nonetheless fall mentally short on account of other considerations such as
his/ her personal temperament and predisposition. Further, section 19 of
the same Act enjoins arbitral tribunals to treat each party with equality and
extend a fair and reasonable opportunity to each of them to present their
respective cases. Construed in its literal sense, section 19 would appear to
explain the notion of equality by demonstrable fairness and reasonability in
the conduct of the arbitral proceedings. However, it is proposed herein that
an arbitrator that perhaps complies with the parties’ preferred procedural
rules might not necessarily be sufficiently averse to non-discrimination
against any of them on account of their race, gender, religion, sexual
orientation or other considerations.
Arbitration does pride itself in its being a party-driven, private and

conclusive form of dispute resolution. However, whereas it is the
prerogative of the parties to elect to submit to arbitration at their preferred
terms, the integrity of the arbitral tribunal, process and award is such a sine
qua non to the success of arbitration that the need for minimum ethical
standards for all arbitrators cannot be over-emphasized. Indeed, the
flexibility, timeliness and cost-effectiveness of arbitration would only
deliver a fair and credible result where the integrity of the tribunal is
unassailable. Integrity in this regard would encompass the tribunal’s
competence and diligence, which is an essential prerequisite to the finality
of the award, as well as the timeliness and cost-effectiveness of the process
in so far as it minimizes undue court intervention. In the same vein, a
48
tribunal’s impartiality and propriety reinforces the acceptability and finality

of the award, as does its independence from external influence, and the
equal and fair treatment of all parties, witnesses, experts etc. Needless to
state, one of the main attractions of arbitration over other forms of dispute
resolution is the privacy that accrues to the process and award. The
preservation of that privacy, particularly in commercial arbitrations
involving business rivals and their trade secrets, is the ultimate test of the
integrity of an arbitral tribunal. Undoubtedly, therefore, the law and
practice of arbitration would be a tad incomplete without due provision for
minimum ethical standards for arbitrators.
The International Bar Association (IBA) Rules of Ethics for International

Arbitration, 1987 (‘the Rules’) and the IBA Guidelines on Conflict of Interest in
International Arbitration, 2014 (‘the Guidelines’) do provide a regulatory
framework for arbitral ethics. From the onset, in introductory remarks, the
Rules state quite categorically that arbitrators should be ‘impartial,
independent, competent, diligent and discreet.’ The need to be discreet is
particularly in tandem with the general view that arbitration is a private and
confidential process. Rule 1 does then lay the foundation for the general
thrust of the Rules. It enjoins arbitrators to embody the attribute of
impartiality throughout the arbitration and conduct the arbitral proceedings
with diligence and efficiency (competence) in order to deliver a result that
is just and effective. Indeed, the question of bias is a common thread
throughout the Rules, the elements thereof as outlined in Rule 3 poignantly
reflecting the values of independence and propriety as espoused in the
Bangalore Principles. It might have been quite plausible to posit that, aside
from the general duty imposed on arbitrators in Rule 1 to be free from bias,
the Rules appear to address the question of bias only in so far as it pertains
to appointment of arbitrators. This appears to be the main thrust of Rules
3.3, 3.4, 4 and 5; Rule 7 restricting itself to the need for diligence in the
conduct of the arbitral proceedings. However, the designation of Rule 1 as
a ‘Fundamental Rule’ would appear to grant it pre-eminence in the Rules
and, to that extent, places a non-derogatable duty upon arbitrators to avoid
bias. On the other hand, the Guidelines encapsulate seven (7) General
49
Standards that seek to avert conflict of interest situations and thus entrench
the impartiality and independence of arbitrators. Like the Bangalore
Principles, they do also contain explanations that clarify the import of the
Standards. They further categorise conflict of interest scenarios into lists of
waivable and no-waivable situations that, though obviously not absolutely
comprehensive, are nonetheless an invaluable guide to arbitrators on how
to approach the issue of conflict of interest. The Guidelines’ outreach is quite
broad given that they do pertain to arbitrators with or without a legal
background and are applicable to both commercial and investment
arbitration.
Thus, it would appear that whereas the IBA Rules provide a general
framework for arbitrator ethics, the IBA Guidelines provide a practical
guide to how bias that manifests as conflict of interest can be negated. The
question is whether the 2 instruments comprehensively address the myriad
of ethical issues that do pertain to arbitration as a dispute resolution process.
Do the Rules and Guidelines sufficiently address the issues that arise from
the Principles of Integrity and Equality as defined in the Bangalore
Principles in so far as they pertain to an arbitrator’s general conduct,
temperament, disposition and sense of judgment both at a personal level
and in the conduct of arbitral proceedings? Within the ambit of section 13
of the Kenya Arbitration Act, might an otherwise competent arbitrator that
is not necessarily biased or riddled with conflict of interest issues, but
predisposed to a dishonest, discourteous, careless and thoughtless
disposition impact on the acceptability of an award to parties? Similarly,
considering the provisions of section 19 of the same Act, would an arbitrator
that is not sufficiently grounded in the intricacies of minorities, sexualities,
demographic, gender and other related equality issues conduct an
arbitration that meets the threshold of procedural fairness that is
encapsulated in that statutory provision? In any event, procedural fairness
that takes into account the rules of natural justice (as seems to be the import
of sections 19) is not necessarily synonymous with due cognizance of the
intricate equality issues engrained in Principle 5 of the Bangalore Principles,
which should accrue to a just and effective dispute resolution process.
50
Above all, where parties do not pose or address the foregoing questions in
the underlying arbitration agreement, should they be ignored at a regulatory
level?
D. Applicability of the Bangalore Principles to Arbitration

The regulation of judicial conduct arose from the need to hold judiciaries
accountable without compromising institutional judicial independence or
individual judges’ autonomy in decision-making. This is captured
succinctly in Kenya’s Judicial Service Code of Conduct and Ethics, 2013, the
purpose of which is ‘to establish standards of ethical conduct of judicial
officers (and) … be construed so as not to impinge on the essential
independence of judicial officers in the making of judicial decisions.’11 At
institutional level, it was anticipated that the establishment of universally
acceptable standards of ethical conduct for judges would provide judiciaries
with a peer-reviewed framework for regulating judicial conduct. The jurists
that participated in the promulgation of the Bangalore Principles also sought
to promote adjudication as an effective, inexpensive and expeditious mode
of dispute resolution. That is the essence of the notion of judicial economy.
Conversely, at a personal level, it was hoped that universal standards would
provide much needed guidance to individual judges in the execution of their
judicial function, while concurrently establishing standards or values by
which they could be held to account. Can a similar case be made for the
arbitration fraternity? Considering the pivotal function of integrity in
arbitration, the comparative informality and flexibility of the arbitral process
would inevitably be susceptible to insurmountable integrity pitfalls that can
neither be ignored nor accommodated. That notwithstanding, it is
imperative that the intrinsic nature of adjudication be juxtaposed against the
essence of arbitration to garner an appreciation of the limitations of a one-
size fits all approach to the applicability of the Bangalore Principles to the
latter process. While drawing from the wisdom underlying the Bangalore
Principles is neither untenable nor entirely unfathomable, the constraints
faced in their enforcement by judiciaries themselves, let alone their
adaptability to arbitration cannot be summarily disregarded either.
11 See Preamble to the Code of Conduct, para. 2.

51
It will suffice to note here that the unethical conduct that is sought to be
addressed by the Bangalore Principles is to be distinguished from typical
judicial misconduct, which is a disciplinary issue. The professional
standards encapsulated in the Bangalore Principles simply represent best
practice that judges should aspire to and should not be equated to conduct
justifying disciplinary action unless a breach is of such magnitude as to
justify such sanction.12 Thus the enforcement of the Bangalore Principles is
largely peer-driven. By contrast, the related ethical standards
notwithstanding, arbitration is a private, contractual dispute resolution
process that is shielded from the prying eyes of an intrusive public. How
then would peer enforcement of ethical conduct be achieved? And what
would be acceptable parameters within which arbitration peers that are
otherwise strangers to the agreement between the parties and the arbitral
tribunal inquire into the conduct of an arbitrator? This is compounded by
the fact that judges terms of engagement are fundamentally different from
those of arbitrators. Judges hold judicial power in trust for the people and
are therefore accountable to the public; not so with arbitrators who are
purely bound by their contractual terms. Consequently, given the notion of
party autonomy or ‘freedom of contract’, on what premise would arbitrators
appointed by and arguably agreeable to the parties be held to account?
Would considerations of public interest suffice?
E. Conclusions and Way Forward

Arbitration is steadily taking root in various jurisdictions. As global
communities increasingly grapple with the vice of corruption in both public
and private space, it is inevitable that ethical issues will gain prominence in
the practice of arbitration. It is arguable that the adoption of comprehensive
ethical standards/ values would further enhance public confidence in
arbitration as a viable alternative to adjudication. Arbitrators would be
rightly viewed as neutral arbiters with unassailable personal integrity and
12 Jayawickrama, Nihal, From Independence to Accountability – The Bangalore

Principles of Judicial Conduct, Presentation made at conference of Chief Justices and
Presidents of Supreme Courts and Constitutional Courts of Africa, 2018
52
thus the moral authority to engage in ADR. Furthermore, bringing

unequivocal and comprehensive clarity to what is acceptable ethical conduct
could provide much needed guidance to arbitration practitioners and users
alike. Indeed, to the extent that court intervention plays a pivotal role in the
arbitration process, the vitality of integrity to both processes cannot be over-
stated. Might it not then be prudent to consider holding both judges and
arbitrators to similar or related ethical standards?
The legitimacy of the Bangalore Principles is derived from the fact that they
were crafted by judges for judges. Many judiciaries world over have
adapted them to their home-grown, national judicial codes of conduct.
Similarly, arbitrators are best-placed to agree on enforceable ethical
standards of practice. The IBA Rules and Guidelines are an absolutely
invaluable contribution to arbitral ethics from the vantage point of legal
practitioners. We do know, nonetheless, that arbitration is a cross-cutting,
multi-disciplinary dispute resolution process. It is for arbitrators to
determine whether or not the regulatory framework in place presently is
sufficient for its purpose or it requires strengthening to aptly address the
intrinsic dictates of arbitration.
‘Do I believe in Arbitration? I do. But not in arbitration between the

lion and the lamb, in which the lamb is in the morning found inside
the lion.’13
Arbitrators should commit to offering the public an arbitration process that

addresses the social dichotomies present within society; one that is as
effective to the mighty as it is to the might-less; one the standards of which
are drenched in unquestionable personal and procedural integrity.
13 Samuel Gompers, Labour Union Leader (1850 – 1924)

53
ISDS Reforms – The Forum Menu: (2020) 8(2) Alternative Dispute Resolution
Paul Ngotho
ISDS Reforms – The Forum Menu
Paul Ngotho
Background
That the current Investor-State Dispute Settlement (ISDS) regimes are
fundamentally flawed is old news, leaving for serious consideration only how
and when the reforms would be addressed. The current ISDS emerged from the
aftermath of the Second World War, when much of Africa and Asia had no voice
while China, Japan, Singapore, South Korea, India and Brazil had not emerged
as the major players in the international arena they are today. The mineral
resources in much of less developed countries (LCDs) had not been discovered.
Investors came from a handful of states, which enjoyed powerful positions as
ex-colonial powers while many new, inexperienced host states were competing
for the precious investment. Strong nationalism and rhetoric from host states
did not yield much on the negotiating table, where investor states adopted a
take-it-or-leave-it stance. One can see why the dispute clauses in some of the
bilateral and multilateral investment treaties (BITs and MITs) were skewed in
favour of the investors and why meaningful ISDS reforms must include BITs
and MITs themselves.
States have been known to make knee-jerk reactions like terminating BITs,
banning foreign arbitrators, lifting immunity against arbitrators or imposing
criminal sanctions on arbitrators. Even regional patch-up operations are not a
viable in the long term. If anything, they demonstrate the dilemmas and
frustrations which states and other actors face in the current ISDS regimes.
“Investor-State dispute settlement is unfortunately not dead”, lamented the

The author is an economist, Chartered Surveyor and Chartered Arbitrator. He holds
a Master of Laws (LL.M) degree in International Dispute Resolution from the University
of London. He presented a shorter earlier version of this paper in the African Institute
of International Law (AIIL) and Asian-Africa Legal Consultative Organisation
(AALCO) seminar in Arusha, Tanzania on 19 th -21st November 2018. This article is part
of his series on arbitrator integrity and ISDS reforms. His Nairobi Centre for
International Arbitration conference presentation of 5 th March 2020 titled, “ISDS
Reforms: Arbitrator Integrity Deficit” is found at https://youtu.be/4Quc-xiWcwo
54
Paul Ngotho
Office of the United Nations High Commissioner for Human Rights in a news
release1 on 19 April 2016.
The reasons why users are dissatisfied with the current ISDS systems are well
documented. However, the political-economic dynamics which have made
ISDS reforms necessary and urgent have not been fully appreciated. Yet any
solution must reflect those dynamics.
Firstly, and probably most significantly, is that the traditional dichotomy of the
more developed countries (MDCs) producing the investors while the LDCs
were the host states has changed, making the call for a fair system universal.
There are increasing investments between MDCs themselves and between
LCDs. In addition to the odd LCD national who invests heavily in an MDC,
sovereign funds and private investors from Arabian states, which were formerly
purely recipients on foreign investment, have invested in the US and Europe.
All this leads to the same state contributing investment and acting as a host state
at the same time but in different transactions. The interests of investor and host
states have converged irreversibly.
Secondly, LCDs still need foreign investment to exploit their resources. Their
level of desperation is apparent from the fact that some of them are still signing
BITs which contain onerous terms. Their young and demanding populations
coupled with ambitious development goals and the high cost of exploring and
exploiting natural resources have put economic and political strains on LCDs.
The universal recognition of peoples' rights over their natural resources does
not seem to have strengthened LCDs’ negotiation position much.
Thirdly, the collapse of USSR in 1980s robbed the world of a much-needed

counterbalance in the world arena, leaving LCDs at the mercy of European and
North American states and their attendant multi-lateral agencies. The investor
nations used their strong financial position and historical ties with the host
1 https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=19839&LangID=E last accessed on 11 th May 2020.
55
Paul Ngotho
states to force political and economic reforms in LCDs, which had little option
that to comply.
Fast forward to the 2000s. It has taken states decades to redefine themselves and
to calibrate their relationships with others in the new era. UK's reluctant and
drawn out joinder of European Union, the subsequent painfully chaotic Brexit
and US President Trump’s criticism of NATO financial arrangements should be
viewed in this light. In the process, the world spins quite recklessly with even
nuclear arms being treated like toys - at least one adult male in debatable, if not
decidedly unsound, mind has the codes to all his country's atomic arsenal.
The dynamics on the supply side of the investment market equation also
changed to LCDs’ benefit. Cash-rich China, and to some extent Japan and the
Arab states, were shopping aggressively for resources and investment
opportunities. Suddenly, LCDs had options without explicit political strings.
Concerns have arisen over LCDs’ over-dependence on China for investment

and credit. There is also apprehension on how China, a relatively new lender,
might enforce its rights in the event of default. The US and some of the European
states are also now heavily economically dependent on China, but they are less
vulnerable than the LCDs.
The convergence of MDCs' and LDCs' interests put both groups on the same
side in agitating for ISDS reforms in order to achieve a system which is fair to
all. It's amazing how fast simply putting the boot on the other foot changes the
mindset. It has also let to dilemmas. For example, South Africa has terminated
BITs in which it is host state and retained the ones in which it is the investor.
This gives a hint of who between investors and states is benefiting more from
the flawed ISDS system but also the awkwardness which some states face in the
ISDS reforms.
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Paul Ngotho
Polanco R2. advances the view that in order to address some of the criticisms
leveled against ISDS, a large majority of states have taken a 'normative' strategy,
negotiating or amending investment treaties with provisions that potentially
give more control and greater involvement to the contracting parties, and
notably the home state. This is particularly true of agreements concluded in the
past fifteen years.
Amending a few of the 3,000-odd BITs and initiatives like introducing new
national or regional BIT templates will not fully address the underlying ISDS
problem, which is multi-faceted and global in nature. When two states each with
its own BIT template negotiate a new BIT, one template will yield? The ISDS
challenge is much broader and not amenable to localised patchwork at BIT,
regional or continental levels in a globalised world.
This article gives the background to ISDS analyses and attempts to rank
objectively the various forum options. It will restrict itself to adjudicative ISDS
and not negotiation, mediation, conciliation, fact-finding, UN General
Secretary's Good Office etc all of which are still very important because they
prevent the escalation of disputes as well as facilitate early and amicable
settlement, which should be given a change even though success cannot be
guaranteed. Suffice to say that conciliation and mediation take up of BIT
disputes has been slow especially after the existence of a dispute becomes
public.
The Criticisms
Criticisms of the existing ISDS regimes have been classified into six themes as
follows:
1. Excessive costs and recoverability of cost awards
2 The Return of the Home State to Investor-State Disputes: Bringing Back Diplomatic
Protection? Cambridge University Press, 2018. See comments at
https://www.wti.org/research/publications/1196/the-return-of-the-home-state-to-
investor-state-disputes-bringing-back-diplomatic-protection/ last accessed 11th May
2020.
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Paul Ngotho
2. Excessive duration of proceedings

3. Lack of consistency and coherence in legal interpretation
4. Incorrectness of decisions
5. Lack of diversity among ISDS adjudicators
6. Lack of independence, impartiality & neutrality
Tafadzwa Pasipanodya3 adopts that list, which does not claim to be universal
or exhaustive. The six and additional issues are discussed in a different order
below.
Firstly, arbitrators in investment arbitrations are mainly party-appointed.

Parties' right to determine how their dispute is resolved and to appoint the
tribunal is one of the characteristic features of arbitration as opposed to courts.
Yet it creates the potential of arbitrators favouring their benefactors in
appreciation of the appointment and to ensure future appointments in this
apparently lucrative field. In arbitration, such concerns are absent only when
the parties either mutually and jointly appoint the whole tribunal or allow a
third party with the appointment of the entire tribunal.
Secondly, double hatting, where the same familiar faces exchange roles between
arbitrator and counsel in different arbitrations has been critiqued as incestuous
and inherently unhealthy. It is inconceivable in national courts, where it should
in fact be tolerated due to diversity of cases and issues they handle. However,
investment arbitration is uniquely vulnerable to this practice because the issues
and standards under consideration are the same in nearly all the cases. For
example, a person who has interpreted what an investment is as an arbitrator in
one case cannot, if he has an inkling of professional integrity in him, argue
differently as counsel in a different case with similar or identical circumstances.
A detailed discussion of double hatting is found in the ESIL Reflection The Ethics
and Empirics of Double Hatting4, , part of which states:
3 “Issues with the current ISDS System: From Diagnosis to the Desirability and
Feasibility of Reform”, a paper presented in the AIIL-AALCO Arusha Seminar, 2018
4 https://esil-sedi.eu/post_name-118/ last accessed on 11th May 2020.
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Paul Ngotho
“In his closing speech at the 2015 European Society of International Law
conference, Philippe Sands took aim at some of the association’s
members. The international legal profession, he maintained, bore some
responsibility for the legitimacy crisis in international law. The crux of
his concern was the ethics of appointments. To a reasonable observer, it
might appear that international lawyers were prioritising their material
and political interests over independence and impartiality.
Sands named four specific practices. First, select lawyers and law firms were
‘capturing’ international investment arbitration and charging excessive fees.
Second, International Court of Justice (ICJ) judges were acting as arbitrators –
seemingly the ‘only’ international court to allow this practice. Third, some
judges and arbitrators were too close to states, participating in the
appointment processes of state counsel or leaking confidential information to
governments. Fourth, he labeled as ‘deplorable’ another practice of double
hatting in which individuals act simultaneously as arbitrators and legal counsel
in international investment arbitration” (Emphases added.)
That lawyers an integral part of this problem, as of many others in investment

and international commercial arbitration. Hear the EU Commissioner Cecilia
Malmstrom's statement on 5 May 2015: “(M)y assessment of the traditional ISDS
system has been clear - it is not fit for purpose in the 21st Century. I want the
rule of law, not the rule of lawyers.”5 (Emphases added.)
Sands is saying that the ISDS system is under siege from a cartel of international
law firms, which employ arbitrators-cum-litigators to control the judicial
outcomes and to protect both their fees and market. Those firms can be
reasonably expected to resist meaningful reforms because they would be
adversely affected. Effective reforms must either involve their cooperation or
strategies to lessen their stranglehold of ISDS.
5 “Investments in TTIP and beyond -- toward an International Investment Court” at

http://trade.ec.europa.eu/doclib/press/index.cfm?id=1303 last accessed on 11th May
2020.
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Paul Ngotho
Interestingly, the law firms are the major sponsors of most arbitration
conferences, the main forum for discourse on all matters arbitral. They directly
or otherwise control the agenda, content and tone through various means
including key-note speeches as well as reserved moderator and choice speaker
slots. As for the international arbitration journals, one just has to read the lists
of editors. Little wonder that the reform agenda is still a marginal issue in
international law discourses.
Thirdly, investors are increasingly challenging the legislative and regulatory

roles of sovereign states by filing cases which are based on the actions taken by
states in good faith to enhance or control public health, environment and
national security. Thus Phillip Morris, even though it lost, tried to use ISDS to
force Uruguay to change its laws on cigarette packaging and marketing
claiming that they amounted to expropriation as they affected it adversely.
Fourthly, the finality of arbitral awards even when they have factual or legal
errors is considered too rigid and unjust. Correction of errors as allowed by
nearly, if not absolutely, all arbitration rules and national arbitration laws deals
with typographical errors and rarely allows delving into the merits. Appeals or
setting aside on merits are an exception to the rule.
Fifthly, confidentiality, which is understandable and perfectly acceptable when

only private parties are concerned, is ill-suited where public interest and public
funds are involved. The great strides which have been made to introduce
transparency in ISDS recently do not seem to have addressed all the concerns
fully. Ideally, a single individual citizen or community in a host state which is
adversely affected by the actions of a foreign investor should be able to make an
independent arbitration claim against the investor regardless of the state’s
action or inaction.
The sixth criticism is the perceived inconsistency and incoherence in the

decisions of ad hoc and other arbitral tribunals. This problem, which is
significant on its own, has multiple consequences like unstable and
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Paul Ngotho
unpredictable jurisprudence, which are bad for planning and business. These
interrelated problems erode confidence in arbitration as an ISDS forum.
Funke Adekoya SAN6 has pointed to five arbitrations arising from the
Argentina-US BIT. Argentina had removed stabilisation measures during
economic crisis. Three tribunals determined that the action did not satisfy either
the necessary defence under customary international law or the emergency
clause under the BIT while two tribunals concluded that the action met the
emergency defence under the BIT.
The inconsistency aside, two further comments are worth making at this
juncture. First, those arbitrations were administered. That demonstrates that the
delimitation of charges of inconsistencies to ad hoc arbitrations is unjustified.
Indeed, the 6 criticisms against ISDS regime have always been raised against ad
hoc arbitration in favourable contrast with institutional arbitrations. The
complaint about inconsistency and incoherence is in fact common in both
administered and ad hoc arbitrations. It has been levelled even against ICSID,
which runs administered arbitrations and has one of the most developed system
of precedents and in-house “appeals” or annulment procedures. Second, and
more significant, similar criticisms have been levelled against ICJ, the
“international court” per excellence, which has tenured judges. That bursts the
myth that the establishment of an international investment court can cure the
inconsistency problem.
Seventhly, that high arbitral awards against LCDs compete or threaten

development and recurrent budgets. This is a controversial issue. On one hand,
it could be that the relatively high quantum in awards is justified. A party's
ability to pay is not, itself, one of the usual issues for determination in any
arbitration. That the gross revenues or even profits of some multinational
corporations exceed the combined GDP of several LCDs is also not a
consideration in the determination of liability or quantum. On the other, some
6 The Practical Considerations of Having a World Investment Court. Paper presented in

the AIIL-AALCO ISDS Conference, Arusha 19-21st November 2018
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Paul Ngotho
of the methods used in quantifying damages, especially when projects abort

before any significant money is actually invested, are suspect and require
thorough and sober interrogation within and without the ISDS fora.
The quantum awarded in the arbitration between Process and Industrial

Development Ltd and Nigeria has drawn much attention and is currently the
subject of litigation in both the US and UK. Interest alone at 7 % p.a. or USD
1.2m daily was about USD 2.3 billion during the first five years, raising the total
sum due to about USD 9 billion in 2018 and probably USD 10 billion in 2020.
Such figures raise emotions and political pressure in LDCs and tend to divert
discourse from the real issues like critical evaluation of the damage
quantification methods.
Eighthly, states are exposed to frivolous claims which must be defended at

colossal costs in a system under which they are not assured to recover their
expenses even if they win. The cost of investment arbitrations is high in relative
terms and competes with the LDCs governments' ability to provide basic
services and stifles their development agenda. MDCs might also find the cost
high in absolute terms but they are probably mollified by the fact that much of
the money, being legal fees for international law firms, remains in their
economies.
International arbitrators are, unmistakably, created in large European and

American law firms' senior partners' image in terms of age, race, gender,
nationality, profession and the law schools attended. This should not be
surprising, given that arbitrators are appointed not by parties but by their
counsel, who are more comfortable with their own types. Thus, the law firms
have contributed immensely not only to the lack of diversity and exorbitant
costs but also to the other problems facing ISDS. Much ink, air miles, conference
time, research and lobbying have gone into the diversity and inclusion debate
in the last ten years. However, diversity, while most desirable, cannot cure the
more fundamental underlying problems in ISDS. Users will not stop
complaining about incongruence of awards if the panels became more or truly
diverse.
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Paul Ngotho
It is necessary to distinguish complaints against ISDS from those against foreign

investors. States have a duty to carry out due diligence on potential investors
and traders to establish if they have been paying taxes or been blacklisted in
their home states or elsewhere. This might involve lifting the veil to see the
names behind the investment companies and to establish who their local
spanner boys are. In the World Duty Free7 case, a little initiative would have
established that the company was under receivership when it signed the initial
contract. Due diligence on Cortec8 would have raised unmistakable red flags.
Calvo Doctrine and Hull Formula

For completeness, discussion on ISDS in historical, current or future contexts
must pay homage to Calvo and Hull. Apparently, some of the issues haunting
ISDS today were considered century ago and left unresolved. If that is so, then
one cannot help wondering if there is any chance that they will be resolved now,
soon or ever.
The clamour to modify investment regimes and ISDS is merely the reincarnation
of the Calvo Doctrine9, named after Carlos Calvo (1824-1906). Clavo was an
Argentinian diplomat and legal scholar. The doctrine evolved in mid-1800s,
when Argentina was heavily indebted and under the threat of military
intervention from the investor states. The timing of the current debate is hardly
surprising, given that some LCDs are heavily indebted and others admittedly
over-indebted.
The Calvo Doctrine was essentially restated by the Drago Doctrine, which was
propagated by the Argentine foreign minister Luis Drago in 1902. At the time
7https://www.trans-lex.org/241400/_/world-duty-free-co-ltd-v-the-republic-
ofkenya-icsid-case-no-arb-00-7/ last accessed on 11th May 2020.
8 https://www.italaw.com/sites/default/files/case-documents/italaw10051.pdf last accessed on
11th May 2020.
9 The doctrine was advanced by Carlos Calvo, in his International Law of Europe and
America in Theory and Practice (1868) source
https://www.britannica.com/topic/Calvo-Doctrine last accessed on 11th May 2020.
63
Paul Ngotho
Venezuela was indebted to Great Britain, Germany, and Italy, which threatened
armed intervention to collect. Drago advised the United States government that
“public debt cannot occasion armed intervention nor even the actual occupation
of the territory of (Latin) American nations.”
The Calvo Doctrine advocates the regulation of the jurisdiction of governments

over aliens and the scope of their protection by their home states. It maintains
that aliens should not enjoy more rights or more amenable standards than the
nationals of the states where they invest and that uniform standards should
apply for all nations, regardless of the size or economic strength. It also
maintains that foreigners who held property in Latin American states and who
had claims against the governments of such states should apply to the courts
within such nations for redress instead of seeking diplomatic intervention.
Furthermore, nations were not entitled to use armed force to collect debts owed
them by other nations. Some aspects of the Doctrine were incorporated into
BITs.
The Hull Formula is named after Cordell Hull (1871– 1955). It recognises
minimum standards in international law which apply and which superseded
national standards. It advocates prompt, adequate and effective compensation
for investors after expropriation. Not much needs to be said about the Hull
Formula except that much of it has prevailed in the long run and found their
way into national laws, BITs and customary international law. For example, the
international minimum standard is integral in customary international law. It
basically says that there is a minimum standard of treatment which applies to
foreign investors regardless of any lower standard might apply to nationals
when it comes to payment for expropriations.
The Reform Menu

The ISDS reform options which render themselves for serious consideration are
four: national investment courts, new multilateral courts, a reformed ICSID and
a new/reformed international arbitral institution. Before discussing each of
them, some hope has been put on new or additional codes of conduct for
arbitrators. While such cannot possibly do any harm, their contribution to the
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Paul Ngotho
solution is very limited because the international judges and arbitrators against
whom the complaints are raised are all ostensibly reputable lawyers and
members of prestigious bar associations, each of which has a code and
disciplinary measures. Indeed, a good number of them are members of multiple
bars - typically a colourful assortment of European and American bars
sometimes spiced up with something Latino, Arabic or Asian.
National Investment Courts

Every state would like its investment disputes determined by its own national
courts. Such courts have, and will always, play a major role in investor-dispute
resolution especially in the support of ad hoc arbitrations and the enforcement
of non-ICSID awards. A recent intervention by Kenyan High Court10 stopped
the enforcement of an award from an ad hoc arbitration in an investor dispute
which had, apparently, previously been dismissed by an ICSID tribunal. The
investor has appealed. The role national courts play in commercial, and to a
lesser extent in investment, arbitrations, is still significant. What is under
discussion is whether such courts should decide the merits of investment
disputes.
Special national courts are promoted by governments, which are typically

respondents in many national arbitrations, some international arbitrations and
in nearly all investment disputes. Listen to the sales pitch, in New York, from
the The Netherlands Commercial Court:
“The NCC is a newly established commercial court focused on resolving

complex international commercial disputes. Located in the centre of European
business, Amsterdam, the NCC is conducting its proceedings in English,
allowing foreign- speaking attorneys to participate in the case without a
translator. Joining the team of already existing international commercial courts
in Singapore, Dubai, Qatar and London, the NCC incorporates a number of
invaluable advantages. In addition, the NCC aims to make each proceeding
more efficient and less extensive, and therefore, shorter and less expensive than
10 http://kenyalaw.org/caselaw/cases/view/159886/ last accessed on 11th May 2020.

65
Paul Ngotho
in other international commercial courts. Launched only in January 2019, the

NCC is already becoming an attractive alternative to cross- border litigation
and arbitration."11
The China International Commercial Court is, quite understandably, a function

of the Belt and Road Initiative (BRI):
“...the formal inauguration on 29 June 2018 of a new Chinese court

specifically focused on resolving BRI disputes (the Court) is another step...as
a forum for resolving BRI disputes. BRI projects are generally financed wholly
or largely by Chinese funders, and constructed by Chinese contractors using
largely Chinese workforces, so these entities might try to negotiate for dispute
resolution in China.
However, whether non-Chinese parties will be willing to submit to the

jurisdiction of the Court remains to be seen...doubts will linger over its
independence and impartiality (whether fairly or unfairly). The obvious lack
of neutrality, just in terms of location, will always be a big factor making other
dispute resolution jurisdictions attractive. And then there is the problem of
enforcement, in which arbitration reigns supreme...It is also possible that, in
wholly Chinese-funded projects, submission to the jurisdiction of the Court may
be a condition of funding. ”12
According to Tanzania's Constitutional and Legal Affairs minister Augustine

Mahiga, the country plans to enact a law that will facilitate the settling of
disputes with investors in the country in order to increase transparency and cut
unnecessary costs13. The move is consistent with Tanzania's approach to
11https://nyiac.org/events/nyiac-talks-an-introduction-to-the-netherlands-
commercial-court/ last accessed on 11th May 2020

12 https://www.ciarb.org/resources/features/china-international-commercial-
court/ last accessed on 11th May 2020.
13 https://www.iarbafrica.com/en/news-list/17-news/956-new-law-on-settling-
investment-disputes-in-the-
offing?utm_source=ActiveCampaign&utm_medium=email&utm_content=I-
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Paul Ngotho
investment arbitrations generally as reflected in the country's recent public

statements and legislation14.
At this rate, investors will soon be invited to a full beauty parade of copied and
pasted versions of special national investment courts. Will the investors bite?
Will the stone which Hull so vehemently rejected become, finally, the ultimate
quoin stone of ISDS? Sam Luttrell15 thinks not: “From the international business
person's perspective, the most significant risk is that judges in other states may
be biased against foreign parties. Humphrey O'Sullivan puts it more graphically
'there is little use in going to law with the devil if the court while the court is
held in hell'”. That was in 1831. Little has changed the last 189 years. Foreign
investors' morbid fear of national courts in hosts states is not baseless. It is not
like foreign investors do not know the door to the local court! They have been
there every day for traffic, pick-pocket, employment and physical planning
matters16 etc.
“Special” national courts to handle investment disputes are quite easy to set up
and relatively inexpensive to run as funding would also be assured. They would
also have full-time judges of national repute. But that is all in their favour. The
criticisms against national courts generally are weighty, leading to their reject
by investors as unfit for purpose. Thus the carrot lies in courts' newness and
specialty, which states would make believe guarantee fairness to the foreign
investors.
However, the current spate of states quickly retreating into cocoons called
special national courts is a zero-sum game once every state has such a court. It
could also lead to a quagmire.
Arb+Weekly&utm_campaign=I-Arb+Weekly+25%2F4%2F2019 last accessed on 11th

May 2020.
14 Reference is made to Public Private Partnership Amendment (Amendment) Act.
No.9 of 2018 and Natural Resources and Natural Wealth Management Act of Tanzania.
15 Bias in International Commercial Arbitration, Kluwer Law International
16 https://www.capitalfm.co.ke/news/2019/04/court-orders-kiambu-to-process-
tatu-city-building-approvals/ as an example. Last accessed on 11th May 2020.
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Paul Ngotho
It would be unfair to suggest that all national judges or that all national courts
are biased against foreigners in general or foreign investors in particular.
However, their independence is, in the eyes of foreign investors, a hit-and-miss
affair at best or suspect at the very least. The investors might not to take the risk
of a forum in which the selection, renumeration, retirement and removal of each
adjudicator are all dependent on the opponent. Even lesser matters like the
exposure of a judge to transfer from the special court to a less glamourous one
could be influenced by states directly or indirectly.
In addition, patriotism is an important consideration in investment and

international arbitration. The current ISDS systems generally require that no
member of the tribunal shares nationality with either party. Even ICJ allows a
party to appoint an ad hoc judge to balance the situation whenever one party
shares nationality with one of the permanent judges.
States could deal with the nationality bias issue quite easily by reserving the
presidency, some or most of the seats in the special courts to non-citizens. They
would then administratively ensure that no member of the bench in a particular
case shares nationality with the investor in each case. However, they are most
unlikely to take that approach due to national sentiments and probably fear of
losing control of the courts.
Investors would also love a court they could control. Since they are not able to
do that legitimately, the best they could negotiate for is for disputes to be heard
in courts in their home states, a prospect which host states would not normally
accept.
The other major drawback to special national courts is the venue. Being national
courts, they are likely to routinely hear cases in the host state in spite of powers
to sit elsewhere. Host states could easily frustrate foreign investors and their
witnesses through arrests for genuine or trumped up charges timed to frustrate
the investor's case in court. Non-judicial harassment includes trailing, phone
tapping, stage-managed muggings and food poisoning. Foreigners might
suddenly start receiving undue attention from pickpockets and street urchins.
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Paul Ngotho
Counsel might require licences from the host state's attorney general while the
investor's foreign expert witnesses might require work permits as opposed to
visitor's visas all of which are controlled by governments. Governments are
known to play hard ball as any private party in arbitration and are never short
of tricks.
Few judiciaries, even in the MDCs, can withstand sustained pressure from their
governments. Not to mention that some jurisdictions have particularly pro-
government judges. Foreign investors are not about to take the risk.
The other drawback is that judgements of national courts are not as widely
enforceable in other states as foreign arbitral awards are under the New York
Convention. The problem of sovereign immunity would dodge the special
courts throughout.
A special national court might achieve a reasonable level of consistency and

coherence. However, for certain, the jurisprudence across several jurisdictions
on the same issues is likely to be much more chaotic than what ISDS is currently
accused of.
Multilateral/International Investment Arbitration Court(s)
According to Schwarzenberger in the Manual of International Law:
“the only difference between arbitration and judicial settlement lies in the
method of selecting the members… While, in arbitration proceedings, this
is done by agreement between the parties, judicial settlement presupposes
the existence of a standing tribunal with its own bench of judges and its
own rules of procedure which parties to a dispute must accept”
The perfect international investment court would be made up of tenured judges,

who would work to high ethical standards and be truly impartial and
independent. It would also be free from political manipulation by states and
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Paul Ngotho
would have trial and probably appeal chambers. Its decisions would be binding
and enforceable worldwide.
Parties are, quite unexpectedly, disinterested in arbitration under regional

courts, whose judges are tenured and nominees of the member states. The courts
are free of charge to the users. They are, however, prone to regional political
dynamics and to crippling under-funding. Investors have given many of them
a wide berth. The East African Court of Justice and COMESA court are,
apparently quite unpopular ISDS destinations. Each had in November 2018
handled only three investment disputes even though they had been in existence
for decades.
The ICJ and the International Criminal Court (ICC17 ) are probably the best
examples of truly international courts. They are permanent and have tenured
judges, who have impressive credentials. Yet ICJ is facing the same criticisms as
the ISDS - inconsistency, time, costs, domination by MDCs especially the
permanent members of the UN Security Council.
S. Gozie Ogbodo has, for example, criticised the ICJ as follows:
“nomination of ad hoc judges by parties under Article 31 of the ICJ Statute

corrupts the integrity of the Court by allowing a party before it to
nominate an ad hoc judge if none of the ICJ judges is a nationality of the
party. In other words, every party before the ICJ is entitled to either a judge
of the same nationality on the Court or an ad hoc judge. On the face of it,
this practice may be geared towards ensuring fairness and democracy in
the operation of the Court. However, a critical examination of this practice
- as well as the outcome - portrays an abuse of the judicial process at the
highest level. The records indicate that ad hoc judges typically vote for
their country of nationality, irrespective of the majority decision of the
Court. Guaranteeing a contentious party the right to a representative
17 Not to be mistaken for the International Chamber of Commerce, which has a reputable
arbitral institution.
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Paul Ngotho
judge does not augur well for the Court’s image of impartiality. The
impression created by this practice is that a party can only be guaranteed
a fair and impartial justice before the Court if, and only if, the party is
represented by one of the judges – either one of the elected judges or an ad
hoc judge. Moreover, the mere fact that a party before the court must have
a representative judge does not only negate the impartial appearance of
the Court but speaks volumes about its ability to dispense States-blind
justice to the parties before it. This practice contravenes the claim that a
member of the Court is not a delegate of the government of her/his own
country. Since an ad hoc judge is an appointee of a state party before the
Court, the likelihood of future appointment will definitely sway the judge
to be sympathetic to the state party which typically is his home state.”18
The discovery that a large number of ICJ judges were carrying out private
arbitrations in complete violation of the absolute prohibition under Article 16.119
of the ICJ Statute bursts the myth that tenured judges would necessarily work
to higher ethical standards than private arbitrators. As noted by Sands
elsewhere in this article, the ICJ judges are in fact quite close to states and not
because of nationality but because states are actual or potential clients in private
arbitrations.
ICC, the criminal court not the arbitral institution by the same initials, has been
accused of unduly targeting African states. That allegation requires objective
analysis against the worldwide geographical occurrence of the violations which
ICC is mandated to handle. Such an analysis is beyond the scope of this paper
but a few observations would be in order.
18An Overview of the Challenges Facing the International Court of Justice in the 21st
Century at
https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1159&context=ann
lsurvey last accessed on 11th May 2020.
19 “No member of the Court may not exercise any political or administrative function,
or engage in any other occupation of a professional nature” (Emphasis added.)
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Paul Ngotho
At one stage, the African Union requested that the U.N. Security Council defer
the cases against Kenya’s president Uhuru Kenyatta and his deputy, William
Ruto, for one year to allow them to deal with the aftermath of an attack by Al
Qaeda-linked Somali militants. But the 15-member Security Council was split -
seven members, including Russia and China, voted in favor, and eight
abstained, including France, the United States and Britain. Resolutions need
nine votes and no vetoes to pass. Britain, France, the United States, China and
Russia hold veto powers.20
ICC itself admitted “political interference” as the reason for terminating the
Kenyan cases. It did not say where the interference came from. The US embassy
and various European missions in Nairobi had, over the years, issued
statements which make them suspect. The US was a rather queer participant
because it was not then or at any stage bound by the Rome Statute. Therefore, it
was playing Unoka, who Chinua Achebe refers to in Things Fall Apart as, “the
outsider who wept louder than the bereaved”.
Moreno Ocampo21, the ICC Prosecutor who carried out the investigations and
partly prosecuted the Kenyan cases, came highly recommended, having gained
his fame in high-profile cases in Argentina. This former Transparency
International board member had earned coveted honours - being on lists like
“Brave Thinkers” and “100 Top Global Thinkers” but his 9-year tenure at the
ICC was, in this author's view, an unmitigated disaster. The Court itself
criticised his shameless attempt to rely on material which he refused to disclose
to the accused in the Thomas Lubanga. He then deliberately or otherwise
botched the Kenyan cases by shoddy investigations.
In addition, ICC has faced some rather pedestrian challenges. Sample this:
20https://www.reuters.com/article/us-kenya-icc-un/africa-fails-to-get-kenya-icc-
trials-deferred-at-united-nations-idUSBRE9AE0S420131115 last accessed 11th May
2020.
21https://getnicklaw.com/our-team/luis-moreno-ocampo/ last accessed on 11th May
2020.
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Paul Ngotho
“Unqualified judges, in some cases with no expertise on international

law and in one case no legal qualifications, have been appointed to key
positions because of highly politicised voting systems and a lack of
transparency...To elect a person to the ICC who doesn't even have a law
degree for example, is a most unfortunate precedent to have set.”22
(Emphasis added.)
How did the premier international civil and criminal courts both end up being
managed like the judiciary of a banana republic? Few national courts in the
world today are that depraved even in police states and military dictatorships.
How did the ICJ and ICC get here? The answer is contained above and underlined,
for ease of reference.
There is little motivation to create a new “world investment” court today. States,
particularly LCDs, are not enthusiastic to sign a new treaty to create such a court
given their experiences with ICC, ICJ and ICSID.
The proposed European Union and US Transatlantic Trade and Investment

Partnership (TTIP) proposal is worth commenting on. According to Stephen M.
Schwebel, an international arbitrator and former ICJ President,
“The EU now proposes to replace investor-State arbitration by an

Investment Court System, a Tribunal of the First Instance composed of
15 judges appointed jointly by the EU and the US, of which five would
be EU nationals, five US nationals and five nationals of third countries.
Three judges would be randomly assigned to each case; the disputing
parties would not choose the particular judges...the Commission’s
objective is to replace all investment dispute settlement mechanisms
with a permanent International Investment Court and an Appeals
Tribunal.”23
22 https://www.google.com/amp/s/amp.theguardian.com/law/2010/sep/08/law-
international-court-justice-legal last accessed on 11th May 2020.
23 http://isdsblog.com/2016/05/30/former-icj-president-criticizes-ec-investment-
court-proposal/ last accessed on 11th May 2020.
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Paul Ngotho
The appointment of the judges of the court of first instance is like that of the
Iran-US Claims Tribunal, which has 9 members of whom the 3 are Iranian, 3 US
nationals and 3 from other states. Under TTIP, the investors would have no role
to play either in the initial recruitment of the judges or the subsequent
appointment of the panel to hear a specific case. Even the states would not have
that option, but they do not need it since they will have played the greater role
in the appointment of the entire court!
Furthermore, the fact that a panel of 3 would be chosen at random means that
there is a possibility of two or all three members of any panel coming either from
EU or from US appointees thus undermining confidence in the system.
According to Schwebel in the paper quoted above:
“the fundamental objection to the EU Commission’s proposal to replace

investor/state arbitration with an investment court is that it would replace the
current system, which on any objective analysis works reasonably well, with a
system that would face substantial problems of coherence, rationalization,
negotiation, ratification, establishment, functioning and financing”
The possibility of states populating the court with pro-state arbitrators to the
detriment of the investors coupled with the fact that the more powerful states
carry more weight in the appointment of the judges mean that the appointment
of judges might be an exercise of horse trading.
Judge Schwebel24, is critical of the EU's TTIP, and suggests that the current ISDS
is fairer because “(T)he costs of investor/state arbitration are borne by the
parties, but under the EU’s approach they would apparently be borne by States
alone.” That might or might not be correct or unique to TTIP as the
establishment and maintenance costs of ICSID as well as the regional or special
national courts are funded by states. The same would apply to an international
24 The Proposals of the European Commission for Investment Protection and an

Investment Court System on 17th May 2016. Available at http://isdsblog.com/wp-
content/uploads/sites/2/2016/05/THEPROPOSALSOFTHEEUROPEANCOMMISSI
ON.pdf last accessed 11th May 2020.
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Paul Ngotho
investment arbitration court, just as happens now with ICJ and ICC. The
representation and witness costs as well as disbursements would be borne by
parties themselves and awarded to the prevailing party in the end even though
this practice is not universal. In fact, award of costs to the prevailing party might
be more assured under some special national courts depending on the legal
tradition and the applicable municipal law of the subject state. Therefore,
minimal weight should be given to Schwebel's views above.
The Permanent Court of Arbitration (PCA) is not a court but an arbitral

institution, which primarily applies the UNCITRAL arbitration rules. Since
inception of PCA, it had as at November 2018 been asked to appoint arbitrators
in 725 cases, of which 170 were ISDS matters. That year it administered 170
disputes and had 3-inter-state, 95 investor-state and 50 contract-based
arbitrations pending.
Regional courts fall under the above broad heading. Sibling rivalry, mistrust,
interests and politics undermine such courts. A case study would be in order
here to demonstrate the hard choices which states have to make. Tanzania,
Uganda and the joint venture oil companies25, after months of negotiations,
agreed that any disputes arising from contracts on the 24-inch (61 com) wide
1,445 km export pipeline from Ugandan oilfields to the Tanzanian port of Tanga
would be arbitrated “in London”26, which probably means LCIA.
They would be paying three times - they fund the idle capacity at EACJ and
Southern African Development Community (SADC) and would then have to
pay for arbitrations in London. Yet the states are bound to later complain about
cost should arbitration become necessary.
25 Total E&P, Tullow Oil Uganda and China National Offshore Oil Company
26 https://www.iarbafrica.com/en/news-list/17-news/952-london-to-arbitrate-ea-
oil-pipeline-
projectrows?utm_source=ActiveCampaign&utm_medium=email&utm_content=I-
Arb+Weekly&utm_campaign=I-Arb+Weekly+25%2F4%2F2019 last accessed on 11th
May 2020.
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Tanzania had initially said it would host the arbitration, but the other partners
preferred a neutral country. Both Uganda and Tanzania are members of the East
African Community and so the EACJ, which has mandate to arbitrate such
disputes and is in Tanzania, would have been the most logical choice. Both
Tanzania and Uganda have, like other member states, donated judges to the
court. The judges have, in addition to experience, been trained as professional
arbitrators – at public expense, of course.
Other options were available nearby at Kigali International Arbitration Centre

in Rwanda and Nairobi Centre for International Arbitration in Kenya. No visas
would be required for East African witnesses or counsel. Both centres have lists
of international arbitrators drawn from practitioners all over the world and
allow parties to come with arbitrators of their own choice.
Rwanda is not involved in the pipeline at all and so it will be considered first. It
has had problems with Uganda the last couple of years leading to closure of the
border27 in 2019. Case closed. Kenya is still unhappy with Uganda's decision to
do the pipeline deal with Tanzania instead of Kenya. Indeed, Kenya's president
was slighted in a summit of regional presidents as he had not been informed of
Uganda's final choice in good time. May be Uganda and Tanzania could not
trust Kenya as a forum for their dispute. They certainly considered that their
best interests would be secured by arbitrating in London.
Africa's choice of foreign arbitration centres and arbitrators is traditionally

blamed on “poor advice” and ignorance with respect to the available options.
Such arguments are not only self-serving but incorrect. At least in the case of the
Uganda-Tanzania pipeline example above, the states made conscious and
informed decisions after considering the various options and interests.
Ascribing ignorance to states, which are legally advised essentially by their
27 https://www.bbc.com/news/world-africa-47495476 last accessed on 11th May

2020.
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Paul Ngotho
respective learned attorneys general is unfair, patronising and simplistic. This

author cannot accept that the states will be considered knowledgeable only
when they make certain choices. He is inclined to give the devil his due: African
states' consistent choice of foreign arbitration centres is deliberate and
thoroughly informed. That is not to say that the behavior is rational or
unchangeable.
The OHADA model, which involves, first and foremost, uniform arbitration
laws and then creation of a regional court replacing all national courts with
respect to certain disputes, requires a lot of political goodwill. It has a lot of
potential for Africa especially following the formation of the Africa Arbitration
Association under the auspices of the African Union. However, the fact that
majority of the member states are capital receiving states will be a major
challenge, which might not be resolved by the inclusion of non-Africans in the
panel of arbitrators. It is doubtful that African Union would restrain itself from
interfering with AFAA the way it attempted to intervene with block boycott of
the ICC following the Kenyan cases as discussed above.
A Reformed ICSID
The ICSID Convention, which entered into force in 1966, was meant to establish
institutional and legal framework for foreign investment dispute settlement by
providing an independent, depoliticised forum for arbitration, conciliation and
fact-finding. While signing the ICSID Convention in April 2019, Djibouti's
Minister of Economy & Finance in Charge of Industry, Commerce &Tourism,
Ilyas Moussa Dawaleh said, “(J)oining ICSID is part of a series of actions that
the government of Djibouti has undertaken to transform the business and
investment environment in Djibouti, create employment opportunities for
youth and women, and to boost economic growth in the country.”28 The signing
brings to 163 the number of states which have signed the convention, which has
28https://www.iarbafrica.com/en/news-list/17-news/950-djibouti-signs-icsid-
convention-to-encourage-
investment?utm_source=ActiveCampaign&utm_medium=email&utm_content=I-
Arb+Weekly&utm_campaign=I-Arb+Weekly last accessed on 11th May 2020.
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Paul Ngotho
been ratified by 154 states.
Given the criticisms which have been leveled against ISDS generally and ICSID
in particular, the fact that any state signed the Convention in 2019 is an
indication that states still have a substantial residual level of confidence in ICSID
and/or that they are desperate to attract foreign investment. Djibouti's unique
circumstances have been discussed elsewhere29.
During ICSID's relatively long history, from 1966 to 2006, no state which was
bound by the ICSID Convention denounced the treaty. For forty years there
were no exits, only entries. To-date, only 3 states which have been bound by the
ICSID have denounced the Convention, i.e. Bolivia from 3 rd November 2007,
Ecuador from 7th January 2010 and Venezuela from 25th July 2012 – the last exit
was 7 years ago. That compares favourably with 13, the number of states which
have become bound by the Convention since 2007 – Canada, Mexico, Sao and
Principe, Kosovo, Iraq, Haiti, Cabo Verde, Montenegro, Nauru, Qatar, San
Marino, South Sudan and Serbia. The entries are more than 4 times the exits.
The ratio is more impressive when one considers states like Djibouti which have
since 2007 indicated their intentions, even though they are not yet bound by the
ICSID Convention30. In comparison, the New York Convention, which is older
than the ICSID Convention by eight years and has more significant impact on
states, had as at 20th April 2019 159 contracting states, which are bound by that
treaty31.
Judge Schwebel opines that ICSID, having successfully administered a very

large number of cases, is now facing criticism mounted against it and
investor/state arbitration more broadly by “uninformed or misinformed critics
have made so much uninformed and misinformed noise”. That comment calls
29 http://arbitrationblog.kluwerarbitration.com/2019/05/30/djibouti-signs-the-
icsid-convention-the-big-question-is-why/ last accessed on 11th May 2020.
30https://icsid.worldbank.org/en/Documents/icsiddocs/List%20of%20Contracting
%20States%20and%20Other%20Signatories%20of%20the%20Convention%20-
%20Latest.pdf last accessed on 11th May 2020.
31 http://www.newyorkconvention.org/countries last accessed on 11th May 2020.
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Paul Ngotho
for verification of the credentials of some of the ISDS critics cited above.
Gus van Harten is a law professor at Osgoode Hall Law School in Toronto,
Canada, and specialises in investment arbitration. He has “studied the field
closely since foreign investor lawsuits against countries began to explode in the
late 1990s... (and) received a PhD in the subject from the London School of
Economics and Political Science in the mid-2000s."32
What about Philippe Sands33? After completing his postgraduate studies at

Cambridge, he spent a year as a visiting scholar at Harvard Law School. He was
appointed Queen's Counsel in 2003. He is a British and French lawyer at Matric
Chamber and Professor of Laws and Director of the Centre on International
Courts and Tribunals at the University of London. A specialist in international
law, he appears as counsel and advocate before many international courts and
tribunals, including the ICJ, International Tribunal for the Law of the Sea,
European Court of Justice, European Court of Human Rights and the
International Criminal Court. He also serves on the panel of arbitrators at the
ICSID and the Court of Arbitration for Sport. He is the author of sixteen books
on international law. His book East West Street: On the Origins of Genocide and
Crimes against Humanity (2016) has been awarded numerous prizes.
Schwebel has also described the ISDS criticisms as being “more colorful than
they are cogent” and addressed three of the criticisms against ICSID in a simple
and factual manner. Firstly, on the claim that tribunals are biased toward
investors, he draws from Susan Franck’s research, which concluded that, of 144
publicly available awards as of January 2012, states won 87 cases (about 60%)
when arbitrators resolved a dispute arising under a treaty, while investors won
57 (40%) and that, even when investors were awarded damages, they won
significantly less than the average amount claim of USD 343m, and that about a
quarter of investment claims were dismissed at the jurisdictional stage. His
32 https://gusvanharten.wordpress.com last accessed on 11 th May 2020.

33https://www.matrixlaw.co.uk/wp-content/uploads/2016/03/Philippe-Sands-
QC-2.pdf last accessed 11th May 2020.
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Paul Ngotho
conclusion is that the findings hardly suggest bias against states.
At face value, that research shows, that the arbitration tribunals are unbiased.
Yet it could be that, for example, states could win 75, 80 or 90% of the time given
more independent tribunals. Conversely, a state success rate of only 20 or 30%
would not necessarily mean that the tribunals were either biased against
investors. Such statistics do not prove anything either way and are unhelpful in
the assessment of tribunals' independence and impartiality. The relatively high
dismissal rate on jurisdiction and low success rate on merits in spite of the best
legal and expert advice which investors can buy speaks more about the quality
of some of the cases which are mounted against states than about the
independence and impartiality of the arbitral tribunals.
On the alleged asymmetry which gives investors’ freedom to bring claims

against states, while states cannot bring claims against investors, Judge
Schwebel's response is that states can, and have, brought counterclaims against
investors under ICSID and UNCITRAL. Fair enough.
Regarding the often-conflicting arbitral awards, he readily admits the charge

and says that such cannot be unexpected in the decentralized, horizontal nature
of the ISDS system. He adds that conflicting interpretations of similar provisions
in BITs often arise because tribunals are responding to differences in the facts of
each case and that even in the relatively centralized, hierarchical judicial
systems of a state, conflicts among courts are common, aptly demonstrated by
the inconsistencies between state and federal jurisprudence in the US.
As for the noise makers, this author is proud to be one of them and solemnly
pledges to pitch his voice several decibels higher to keep alive the debate on the
small matter of the ICJ judges admitted willful violation of an express statutory
provision. Even if institutional failures in ICJ and the UN stop the matter from
being addressed, he wants his solitary noise to be on record. He would rather
be ignorant (i.e. "uninformed and misinformed "as Schwebel would say) since
that could be cured more easily than arrogance.
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Paul Ngotho
According to Edmund Northcott and Acacia Hosking34, the changes in the

works at ICSID are limited to electronic filing, disclosures of third party
funding, requirement of parties consent for publication of awards, security for
costs, bifurcation, requirement for parties to challenge the arbitrator within 20
days of the basis of challenge arising instead of “promptly”, new time lines for
selection of arbitrators and for publication of awards etc. Those changes would
enhance ICSID's operations. However, they would have minimal impact on
costs and duration of proceedings and no effect whatsoever on the remaining
for criticisms, i.e. inconsistent and “incorrect “decisions”, incoherence and the
real or perceived lack of diversity, independence, impartiality and integrity.
Amendment of the Convention itself would be quite cumbersome, if not

impossible. Article 65 stipulates that any contracting state may propose
amendment of this Convention by sending a proposed amendment to the
Secretary-General not less than 90 days prior to the meeting of the
Administrative Council at which such amendment is to be considered. The
proposal would then be transmitted to all the members of the Administrative
Council, which, according to Article 66, shall decide by a majority of two-thirds
of its members. The proposal shall then be circulated to all Contracting States
for ratification, acceptance or approval. Each amendment shall enter into force
30 days after dispatch by the depository of this Convention of a notification to
contracting states that “all Contracting States have ratified, accepted or
approved the amendment”.
Thus, any amendment must be ratified by all the Contracting states to be

effective. Getting all the contracting states to ratify an amendment would
probably take decades. Therefore, reforming ICSID through mandatory or
optional arbitration rules is a more practical solution. Will ICSID make the
necessary reforms or perpetuate the status quo by running with the hares and
hunting with the hounds through cosmetic changes?
3410 Things you need to know about the new draft ICSID Rules
https://www.kwm.com/en/be/knowledge/insights/10-things-you-need-to-know-
about-the-new-draft-icsid-rules-20181119 last accessed on 11th May 2020.
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Paul Ngotho
International Arbitral Institutions
The challenges and practical difficulties with each of the above options opens a
unique opportunity for innovative and reputable arbitral institutions in
international commercial arbitration to diversify to investment arbitration
through rules which address the various criticisms. While a proven track record
would be advantageous, the opportunity is open to new institutions also. There
may even be room for like-minded institutions to jointly developing the rules
but administering the arbitrations independently.
There are several categories of arbitral institutions: government-sponsored,

professional associations, independent international bodies and completely
privately owned institutions. Each category has its strength and weaknesses,
which define its suitability for this role. CIArb, for instance, specialises in
arbitrator training, standards, appointments and ad hoc arbitrations. It seems
averse to administered arbitration, which is much more popular in ISDS.
The International Bar Association has developed various guidelines for

application in domestic and international arbitrations. Since arbitrator integrity
is a major complaint, then ISDS reforms must embrace the CIArb and IBA
expertise in that area.
Empirical Evaluation of ISDS Options
This section comes with a health warning. The arguments made above are not
dependent on this section. Therefore, the paper remains valid if the analysis in
this section turns out to be incorrect.
The following table is an attempt to introduce a level of objectivity into the

debate. It is work in progress and reflects the author's interim thoughts as at 31st
December 2019. Even the weights (0-5 and 0-10) and scores are provisional. It
could even be that he has left out some of the issues which should be scored.
This paper is complete even without this section.
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Paul Ngotho
Matrix of ISDS Options

Special Int'l Rfmd Reformed
Nat. Investment Arbitral ICSID
Courts Court Institutions
Absence of bias (0-10) 4 7 7 9
Advantage* of parties' choice 0 0 10 10
of tribunal (0-10)
Costs of proceedings 10 5 0 5
(0-10)
Absence of inconsistency, 10 8 6 8
incoherence and incorrect
decisions (0-10)
Taking too long (0-5) 4 5 3 3
Lack of diversity (0-5) 0 3 5 5
Confidentiality (0-5) 0 2 5 0
Total Scores 28 30 36 40
Ranking 4 3 2 1
* The right of parties to take part in the appointment of the tribunal is here taken
as an advantage, but that it can also considered a disadvantage is
acknowledged.
A reformed ICSID emerges the most viable option but, should it not rise to the
occasion, while then the next contender is reformed arbitral institutions. The
relatively low score of an international investment court is unexpected. The
above approach might give the wrong impression that the choice is between one
or two option versus all the others. In reality, all of the options will be attempted
simultaneously, competing for space and disputes until one or two fora takes
clear dominance probably twenty years down the line.
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Paul Ngotho
Obviously, an analysis of the situation a completely different matrix, weights

and assumptions would give different scores. However, the author believes that
the ranking is likely to remain the same considering the arguments found
elsewhere in this paper.
Timelines
The ideal time for ISDS reforms was 20 years ago. The next ideal time was
yesterday. The third is today. Obviously, how soon they will take place depends
much of the option or options which are chosen. Some regional and special
national courts are up and walking already, while creation of more is a copy and
paste affair, which can be done in a hurry. The other options are inherently slow
due to the numbers of players involved.
The Chartered Institute of Arbitrators (CIArb) held a panel discussion35 in

London on 13th February 2019 under the telling theme, “Evolution, Not
Revolution: CIArb’s Work on Investor State Dispute Settlement (ISDS) Reform
at UNCITRAL Working Group III”. It recognised the need for reforms to
improve the consistency, clarity and predictability. The participants cautioned
that reforms should be carried out an incremental way. They advocated
evolution, which, at least in the strictly scientific sense, has no agenda, time
frame or pre-determined outcome.
Evolution has evidently failed to recognise, let alone address, these complaints
for decades.
It has its place and has in fact been going on silently all the while. One just has
to consider the changes in arbitration jurisprudence, BIT content, confidentiality
in investment arbitrations, the so- called Americanisation of arbitration and the
gender diversity to appreciate the role which evolution has played.
35https://www.ciarb.org/news/evolution-not-revolution-ciarb-sets-out-its-approach-
to-the-question-of-isds-reform/ last accessed on 11th May 2020.
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Paul Ngotho
However, the pace in ISDS reforms must be determined by the issues which are
currently at stake. The demonstrated paucity in ethics among some arbitrators
and lack of confidence in the entire ISDS system cannot be left to evolutionary
forces. You can't cross a river in installments.
Continued resistance to reforms could lead to the next stage: many states'
refusal to take part in ISDS or to honour awards. That would put ISDS, states,
investors, arbitral institutions and arbitrators in a most awkward position and
pressurise the various players to cooperate in accelerating the ISDS reforms.
African states' threat, whether justified or not, to quit the Rome Statute en mass
shows that the clamour for ISDS regimes could turn nasty if not addressed in a
timely, fair and orderly manner.
Epilogue
To put things in perspective: would a national judiciary, faced with such flaws,
survive? If not, then ISDS must not be allowed to survive in its current state. A
legal, political, economic or even mechanical system which is inherently flawed
is costly to maintain in the short run and must be replaced sooner than later.
Finally, the pro- and anti- arbitration pendulum moves all the time, but the
metal ball never stops or spins out of control. Despite all the criticism, many
parties, even when they have other domestic and international options, still
prefer arbitration to litigation. Internationally, the practical choices are fewer:
they are between arbitration and arbitration.
85
Current Problems of the Investor-State Dispute (2020) 8(2) Alternative Dispute Resolution
Settlement Mechanism: Proposals for Future Reforms:
W A Mutubwa, Hector Charles, Cynthia Mwihaki,
Nura Adan Guyo,Lana Mohamed, Tunu Kache &
Abdurrahman Mohamed
Current Problems of the Investor-State Dispute Settlement

Mechanism: Proposals for Future Reforms
By: W A Mutubwa, Hector Charles, Cynthia Mwihaki, Nura Adan

Guyo, Lana Mohamed, Tunu Kache & Abdurrahman Mohamed
1. Introduction
Traditionally, investor-state arbitration (ISA) has being perceived as a system to
solve international investment dispute that entails numerous advantages. These
include; the depolarization of the dispute -a “small” investor could bring a claim
against a powerful state, being heard in a neutral forum with a previously
established framework of procedural rules, the neutrality and independence of
a qualified arbitrators knowing about the claim, a cheaper, flexible and
expeditious way of settling an investment dispute, the perception for investors
of a greater control and security over the process than litigating before the local
courts as well as major chances that the award would be enforceable against
the host state.1 In other words, investor-state arbitration was perceived with a
sense of legitimacy within the previously existing dispute settlement landscape.
However, the day to day of international investment arbitration has shown

several disadvantages of the system that are generating the mistrust of the
parties, bringing a sense of uncertainty and inefficiency towards the system.
Investment arbitration has several unique features such as: the long-term
*FCIArb LL. B(Hons), LL.M (Unisa) LL.D Candidate (Unisa) Advocate, CIArb and
Kenya Judiciary Accredited Mediator
* Hector Charles LL. B (Riara)
* Cynthia Mwihaki LL. B (Riara);
*Nura Adan Guyo LL. B (Riara)
*Lana Mohamed (Riara)
* Tunu Kache LL. B (Riara)
* Abdurrahman Mohamed LL. B (Riara)
1For examples of advantages of Arbitration over litigation see,

https://www.tuckerlaw.com/2015/02/13/advantages-disadvantages-arbitration-vs-
court-litigation. Accessed on 13th June 2020.
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Abdurrahman Mohamed
relationship that normally exist between an investor and a host state, the
international law and international treaties will determine the applicable law to
an investment dispute or the investor will be challenging -in a long and costly
process- acts or measures taken by a sovereign state.2
As a result, the following disadvantages of the current practice of international

investment arbitration have been perceived: confidentiality of the awards and
lack of transparency, huge costs of the process, the expertise of the arbitrators,
their independency and impartiality, the lack of a right balance between
investors’ rights and host state legitimate policy changes, time delay until an
arbitral award is rendered and the fact that the award is binding without the
possibility of appeal.3
The legitimacy crisis faced by investment arbitration is endangering the

ultimate ability of investor-state arbitration to achieve its goals.4 Put it in another
way, an investment arbitration mechanism without the necessary external
legitimation might not be an efficient and effective method to solve an
investment dispute between a foreign investor and a host state. In fact, there is
also a perception that ISA institutions -ICSID and UNCITRAL for instance- are
“in a state of paralysis and unable to move beyond the status quo”.5
2. Current Problems
2.1 Confidentiality and lack of transparency

Confidentiality and transparency have always been linked. In fact, while the
former has historically been considered as a reason to choose the arbitration, the
2UNCTAD, Investor–State Disputes: Prevention and Alternatives to Arbitration.

3Marboe, I
(2018)https://www.researchgate.net/publication/325138087_Damages_in_Investor-
State_Arbitration_Current_Issues_and_Challenges/citation/download
4Shany Y. Assessing the Effectiveness of International Courts: A Goal-based Approach (Oxford
University Press, 2014).

5Trakman E. Investor State Arbitration or Local Courts: (Journal of World Trade 46, no.
1, Kluwer Law International BV, the Netherlands, 2012) pg. 120.

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Abdurrahman Mohamed
lack of transparency during the whole process as well as in the awards, is

nowadays one of the major ISA concerns.6
Confidentiality seems justifiable in commercial arbitration where private

interest and parties were involved. However, in investment arbitration public
interest of the host countries are also on the table, so the acceptability and
credibility of arbitral awards are elements of major importance.7 That is why the
lack of transparency and the confidentiality of the awards avoid the
development of a coherent and consistent legal doctrine which may increase the
efficiency of the tribunal´s performance, as well as the quality of its reasoning
in the award.8 Indeed, if similar cases would be treated alike, the perception of
fairness will be promoted enhancing the legitimacy of the system. In addition,
a major transparency would decrease the uncertainty faced by both investors
and host states by the time to make a decision regarding their investment or the
governmental policy respectively.
Consequently, there are those who demand greater transparency “in knowledge
about the existence of arbitral proceedings, a significant number of which take place in
secret, openness of hearings and transparency of documentation as well as greater
accountability of arbitrators for their decisions”9 and assert that “without a sense of how
the law will be applied -and access to the awards making those determinations- there can
be little justified reliance”.10
A further concern is that within ICSID arbitration proceedings parties request

private hearings and the resulting arbitration awards are normally not
6 Michael Nolan (2015) “Challenges to The Credibility of the Investor-State Arbitration

System” American Law Business Review at p.429.
7 Yannaca C. Transparency and Third Party Participation in Investor-state Dispute Settlement
Procedures (Chapter 1) on International Investment Law: A Changing Landscape (OECD

2005) 26-27
8 Franck S. Challenges Facing Investment Disputes.pg 188.
9 Muchlinski P. The COMESA Common Investment Area: Substantive Standards and
Procedural Problems in Dispute Settlement. pg. 8.

10 Franck S. Challenges Facing Investment Disputes.
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Abdurrahman Mohamed
published unless the disputing parties give their consent, including the
involvement of countervailing public interests.11
This “closed doors” focusing of ISA on issues involving public interest, has
generated pressure from the public and interest groups that claim for the end of
that practice and the publication of the awards.12 At the end, an investment
arbitral awards may have significant outcomes -for instance, in the national
budget of a state or on its future performance or investment decisions-, so the
public interest in international investment disputes outcomes is totally justified
and understandable. This is the explanation of the major transparency
requirement, despite the consideration of the publication on the protection of
confidential information related to the private business of an investor or to
governmental information.13
2.2 Costs
Arbitration has generally thought to be a less expensive way to solve disputes
than litigating in court. Contrary to those expectations, there are a lot of costs
linked to investment arbitration that have proved otherwise.
From one hand, we have the economic costs; in the case that it is concluded that
the host state violated any of the treaty provisions, damages ranges from tens
of thousands to billions of dollars.14 There are also costs of the own process,
which entails the payment of legal fees, arbitrators’ fees, the costs of experts
and/or witnesses if needed and the administration fee of the arbitration center
knowing about the dispute.15 Moreover, this cost is becoming even higher due
to the complexity of the investment disputes.16
11 Trakman E. Investor State Arbitration or Local Courts. pg. 101-103

12 Ibid.
13 Ibid.
14 See note 3 above.
15 Muchlinski P. The COMESA Common Investment Area.Pg 6.
16 Sauvant P. The International Investment Law and Policy Regime Pg. 12.
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Abdurrahman Mohamed
The social and financial implications for the host country of paying large
monetary awards could have disastrous consequences for the country and
might lead to hard negotiations regarding debt financing and/or
reconstruction.17
The economic costs can be even greater if we take into account the possibility of
the so called “multiple proceeding”, where investors seek relief claiming against
its host state in different arbitration proceedings. In addition, this might lead to
the existence of parallel proceeding and the eventual possibility of conflicting
awards.18
From the other hand, the arbitration costs involve more than economic ones,
such as reputational -the host country’s reputation can be at stake due to the
challenge of its regulation policies19 or time costs -because the proceeding might
take several years, affecting both investors and governments.20
These kinds of costs, as said before, affect both foreign investors and host states.
The former ones, especially when they are small and medium-sized enterprises,
may not have enough resources to litigate due to the time and high legal fees
costs.
The later ones, remarkably when they are developing or poor countries which
lack the experience to defend themselves properly, might not have enough
financial resources to hire an adequate counsel. All this may lead to settlements
even when one of the parties potentially could prevail.21
17 Muchlinski P. The COMESA Common Investment Area. Pg. 6

18Yannaca K. Improving the System of Investor-State Dispute Settlement (OECD Working
Papers on International Investment, 2006/01, OECD Publishing) 17-18.
19 Karl P. The International Investment Law and Policy Regime.pg 12.
20 UNCTAD, Investor–State Disputes: Prevention and Alternatives to Arbitration.pg 4
21 Ibid.
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Abdurrahman Mohamed
2.3 Expertise
Yet another argument against the current arbitral dispute settlement
mechanism is the expertise of the arbitrators.22 In the arbitration system, parties
are the ones choosing the arbitrators, who tend to be experts in commercial law
field but have less or no expertise in the field of public international law. This
can lead not to paying the due attention to the eventual public consequences of
the award. Thus, one of the criticisms is that investment arbitrators do not take
into regard a wide state’s policies such as labour, health, environmental,
national security or the regulation and protection of the national market. On the
contrary, they focus their main attention in interpreting International
Investment Agreements (IIA) provisions literally -using the plain word
meaning-, with disregard of a major element, which is the public interest in the
state’s policy.23
Nonetheless, and given the kind of issues that investment arbitrators have to
deal with for instance, deciding about the fairness of an expropriation or
nationalization, they should not only be experts in investment and international
law, but also be in possession of good judgment skills.24
In the end, the easiest and most effective way to enhance the efficacy and
consistency of the international investment law is to assure that people with
proved knowledge and expertise in the field are the members of the tribunal.25
2.4 Impartiality and independency

There are also concerns regarding the impartiality and independency of ISA
arbitrators. In respect to their independence, there is a perception that they
might not be neutral in their adjudications, giving rise to a number of doubts on

23 Trakman E. Investor State Arbitration or Local Courts. pg. 102.
24 Ibid.
25 Appleton B. The Song is Over: Why it's Time to Stop Talking About an International
Investment Arbitration Appellate Body, in Alternatives to Investor-State Arbitration in a

Multipolar World (ASIL Proceedings, 2013) 26.
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the parties regarding the integrity and real fairness of the arbitration process.26
As a matter of example, there are not few cases in which the same arbitrator has
served as arbitrator and as a counsel of a corporation in two different cases
involving the same company, or where the arbitrator has purposely delayed the
process to favor one of the parties.27
It seems clear that in those cases the existence of potential conflict of interest is
hardly deniable, and that is why there are those who stood up for the creation
of a “code of ethics for arbitrators” that could serve to avoid those undesired cases
of conflicts of interest.28 For the same reason, there are those who demanded the
establishment of stricter rules to regulate the “appointment and eligibility” of
international investment arbitrators.29 In the end, independence is thought to be
an indicator of procedural fairness and proper decision-making process, which
reinforces the legitimacy of the system.30
Regarding the independency of arbitrators, it is generally thought that since

international investment cases involve huge amounts of money, they as well
attract political interests that might lead to partiality.31 The process of
appointment of arbitrators generates mistrust in this regard. The selection
processes of the arbitrators. It should be remembered that two of the arbitral
members are appointed by the parties to a dispute while the third, is appointed
by the two arbitrators, which makes difficult to vouch for their independence
and impartiality; and the possible interference of political bodies in their duty.32

27 Franck S. Challenges Facing Investment Disputes.pg 187.
28Karl P.The International Investment Law and Policy Regime.pg 8-9.
29Muchlinski P. The COMESA Common Investment Area.pg 8.
30 Shany Y. Assessing the Effectiveness of International Courts: A Goal-based Approach
(Oxford University Press, 2014) 65.

31Horn N. Arbitration and the Protection of Foreign Investment.pg 28.
32 Mackenzie, Ruth and Sands, Philippe. International Courts and Tribunals and the
Independence of the International Judge (Harvard International Law Journal, Volume 44,
Number 1, winter 2003) 272.
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In fact, it is not uncommon finding an arbitrator that has acted as a counsel for
the conflicting parties -either for investors or for states- in other cases.33
Some measures have been proposed in order to ensure that there are no
extraneous factors influencing arbitrators’ decision-making process. Some of
those measures are as follows: the creation of standing panels of arbitrators in
order to avoid doubts in regard to their selection process, widening the
interpretation faculties of the parties with respect to treaty provisions when they
have to decide about an ongoing investment dispute or/and regulate
specifically under which parameters or criteria host states will have the right to
make policy changes in the public and general interest, even if it entails a
damage or imposes some limits to international foreign investors’
investments.34
2.5 Right Balance between investors’ rights and host states’ legitimate policy
changes
In the international investment sphere, it is not clear whether investment
treaties exist to provide protection to investors’ investments or to encourage the
public welfare through the attraction of foreign investment. 35
While commentators do not agree on the ultimate reason, most of them agree
about the fact that arbitral tribunals have not been extremely successful by the
time to find a right balance between the investors’ interests and the public
interests of the host states.36 As a consequence, Investor-State Dispute
Settlement (ISDS) mechanism is generating the well-known “chilling effect” on
governments, meaning that they are refraining from taking numerous
regulatory measures for the benefit of the general interest because of the
potential threat of a claim before an international arbitral tribunal.37 That is why
33 Gaukrodger D and Gordon K. Investor-State Dispute Settlement.pg 44 and 94.

34 Karl P. The International Investment Law and Policy Regime pg. 9.
35 Anthea R. Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty
System (The American Journal of International Law, Vol. 107:45, 2013) 51

36 European Parliament, Investor-State Dispute Settlement (ISDS) Provisions.pg 73.
37 European Parliament, Investor-State Dispute Settlement (ISDS) Provisions pg. 74.
93
Abdurrahman Mohamed
International Investment Agreements(IIA) are providing clauses that allow host

states wide regulation capability in issues connected to sustainable
development objectives such as the preservation of natural resources or the
protection of humans’ and animals’ life and health.38
Moreover, the actual system is thought to generate a breach of the existing links
between investors and host states, which is exactly the opposite of what both
parties are looking for. While states are looking to attract and promote foreign
direct investment (FDI) as a way to encourage their country’s economic
development, investors seek good returns on their international investment that
may require more probably, numerous years of uninterrupted operations.39
In short, ISDS mechanism should provide an adequate balance between

investors’ and host states’ rights and obligations. It should provide investors
with the necessary substantive and procedural rights to overcome their
concerns about local courts, but it should also make possible for host state the
adoption of legitimate policy decision on the benefit of public interest.40
2.6 Time
Another major concern is that arbitration was originally designed to be an
expedited method to solve a dispute and lately has proven to be otherwise. 41
The average time to reach a final award and its execution has risen significantly.
Parties use different cunning resources to that extent, ranging from recourse to
provisional measures to the initiation of an annulment procedure. So far, the
average duration for a case to be finally settled by a final award varies from
three to four years, without making any different from litigating before the
38 UNCTAD, World Investment Report 2015: Reforming International Investment

Governance.pg 112.
39 UNCTAD, Investor–State Disputes: Prevention and Alternatives to Arbitration. pg. 19.
40 Muchlinski P. The COMESA Common Investment Area. pg. 11.
41 Particularly when litigation lawyers transplant their litigation discovery processes
into the arbitral process. See note 3 above.

94
Abdurrahman Mohamed
national courts of the host state.42 There are also those who establish the average
of ages even in a higher threshold, ranging between seven and nine years.43
2.7 Arbitral awards are binding without the existence of an appeal body
Without the possibility to appeal a binding final award, there are only two ways
of challenging an arbitral award available to the parties.44 The first and main
one is the procedure to review the final arbitral award. Its main goal is to set
aside the award in the case that new facts have emerged after the award was
rendered and are of such nature that the final award could have been to the
contrary.45
The second one is the annulment procedure, which is an option available only
in a few cases where errors in the process or the due omission of reasoning
occur.46 In these cases, if the arbitral tribunal declares the nullity of the award,
the original decision will be declared invalid. However, there does not exist the
possibility of modifying the arbitration award on the merits.47 That is to say, in
the case that there is an error in the application of law by the arbitral tribunal,
that error could not be remedied.48
An appeal mechanism is the only way to achieve the modification of an award

based on the same facts that were known by the arbitral tribunal. In addition,
an appellate body cannot only change the first tribunal decision but also require
that tribunal to amend its own mistakes.49 The fact that the resulting arbitral
award is binding without the possibility of appeal has commonly been seen as
42UNCTAD, Investor–State Disputes: Prevention and Alternatives to Arbitration. pg. 18

43 Lvesque C. Encouraging Greater Use of Alternative Dispute Resolution in Investor-State
Dispute Settlement: Opportunities and Challenges.
44 Yannaca K. Improving the System of Investor-State Dispute Settlement. Pg. 4-7.
45 Article 34 of the UNCITRAL Model Arbitration Law
https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-
54671_Ebook.pdf. Accessed on 13th June 2020.
46 E. g Article 52 0f the ICSID Convention.
47 Trakman E. Investor State Arbitration or Local Court. pg. 101.
48 Rachel. Recent Trends in Investor–State Dispute Settlement pg. 131.
49 Yannaca K. Improving the System of Investor-State Dispute Settlement. Pg. 6-8.
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Abdurrahman Mohamed
a positive aspect of the arbitration mechanism over the traditional judicial

settlement but its creation is becoming these days an element of growing
importance.50
Unreasoned and inconsistent awards can create confusion on both sides. First,
they may make it difficult for the parties to understand the scope and the extent
of investor’s protection under a treaty as well as the circumstances that need to
concur so the host state is found liable under an IIA. Secondly, they could be
questioned by the parties because the awards might be perceived as unfair and
lacking the required reasoning, especially as far as cost-related measures and
costs shifts is concerned and thirdly, parties may not be able to negotiate
effectively because they lack the necessary criteria, rules or precedent system to
make an accurate cost-benefits calculus.51
3. Conclusion
Investment arbitration comprises of substantial public interests e.g.
environmental standards and protections, public health regulation, labour
standards or nuclear power related measures. The current state of affairs,
unfortunately encourages inconsistent, contradictory, less well reasoned and
mistaken decisions are therefore difficultly justifiable.
50 European Parliament, Investor-State Dispute Settlement (ISDS) Provision pg. 64.

51 Franck & Susan. Challenges Facing Investment Disputes.pg 190.
96
Abdurrahman Mohamed
Bibliography
Anthea R. Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty
System (The American Journal of International Law, Vol. 107:45, 2013) 51
Appleton B. The Song is Over: Why it's Time to Stop Talking About an International
Investment Arbitration Appellate Body, in Alternatives to Investor-State
Arbitration in a Multipolar World (ASIL Proceedings, 2013) 26. European

Parliament, Investor-State Dispute Settlement (ISDS) Provisions.pg 64-74.
Franck S. Challenges Facing Investment Disputes.
Gaukrodger D and Gordon K. Investor-State Dispute Settlement.
Horn N. Arbitration and the Protection of Foreign Investment.
Karl P. The International Investment Law and Policy Regime.
Lvesque C. Encouraging Greater Use of Alternative Dispute Resolution in Investor-

State Dispute Settlement: Opportunities and Challenges.
Mackenzie, Ruth and Sands, Philippe. International Courts and Tribunals and the
Independence of the International Judge (Harvard International Law Journal,
Volume 44, Number 1, winter 2003)
Muchlinski P. The COMESA Common Investment Area: Substantive Standards

and Procedural Problems in Dispute Settlement.
Rachel. Recent Trends in Investor–State Dispute Settlement
Sauvant P. The International Investment Law and Policy Regime
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Shany Y. Assessing the Effectiveness of International Courts: A Goal-based Approach

(Oxford University Press, 2014).
Trakman E. Investor State Arbitration or Local Courts: (Journal of World Trade

46, no. 1, Kluwer Law International BV, the Netherlands, 2012)
UNCTAD, Investor–State Disputes: Prevention and Alternatives to Arbitration.
UNCTAD, World Investment Report 2015: Reforming International Investment

Governance.
Yannaca C. Transparency and Third Party Participation in Investor-state Dispute

Settlement Procedures (Chapter 1) on International Investment Law: A Changing
Landscape (OECD 2005)
Yannaca K. Improving the System of Investor-State Dispute Settlement (OECD

Working Papers on International Investment, 2006/01, OECD Publishing)
98
An Uncertain Future: The Relationship Between (2020) 8(2) Alternative Dispute Resolution
Arbitral Tribunals and Courts in Kenya:
Kethi D. Kilonzo
An Uncertain Future: The Relationship Between Arbitral Tribunals

and Courts in Kenya
By: Kethi D. Kilonzo
Abstract
Section 10 of the Arbitration Act limits the intervention of the courts in matters
governed by the Act. Often, this does not stop parties, who agreed to arbitrate
their disputes, from seeking the intervention of the courts when they are
dissatisfied with the results of the arbitral process. Protracted legal battles over
the setting aside, recognition and enforcement of arbitral awards are an
anathema to one of the key principles of arbitration – speedy resolution of
commercial disputes. With courts expanding, through judicial interpretation,
the parameters within which a party can move to the Court of Appeal, and
ultimately to the Supreme Court, from a decision of the High Court under
Section 35 of the Arbitration Act, the limits of Section 10 are likely to be stretched
into territories that may render arbitral practice in Kenya unpredictable as well
as unattractive. The case for law reform has been made, and it is necessary, to
redefine the relationship between arbitral tribunals and the courts, to protect the
arbitral process from judicial overreach and parties in arbitral proceedings from
glaring unfairness.
1. Limited court intervention in arbitral matters is the fruit of party

autonomy
A party is the best custodian and protector of its own rights. It is also the best
determiner of the choice of forum to access justice. By agreeing to private
resolution of disputes, a party also agrees to limit its access to the courts. Such
a party cannot turn around to claim its contractual choice of an alternative
dispute resolution forum was a fetter to its access to justice.1 A party that
chooses arbitration does not have a right to a “correct” decision from the arbitral

Advocate of the High Court of Kenya, Fellow, Chartered Institute of Arbitrators
(Kenya Chapter), [email protected].
1 Tumaini Transport Services Limited vs Tata Chemicals Magadi Limited, (2017) eKLR.
99
Kethi D. Kilonzo
tribunal that can be vindicated by the courts.2 A party only has a right to a
decision that is within the ambit of its consent to have any dispute arbitrated
and that is arrived at following a fair process. When a party agrees to arbitration,
it buys the right to get the wrong answer.3
The courts have a fourfold role in the arbitral process: to provide judicial
assistance to the arbitral tribunals and the parties in the course of a reference, to
prevent a party who has agreed to arbitrate from pursuing his claim by
litigation, to exercise powers of review of arbitral awards in defined conditions
and to provide the necessary machinery for the enforcement of arbitral awards.4
In Kenya, the limits of the court’s intervention in the arbitral process are set out
in the Arbitration Act. For instance: a party can move the High Court for interim
measures of protection pending or during an arbitration;5 the High Court can
on the application of a party, stay court proceedings and refer the matter to
arbitration if the parties, in their agreement, opted for arbitration;6 and, it can
give recognition and enforcement to arbitral awards.7 Parliament’s primary
constitutional mandate is the making of laws. Those laws set the ultimate
directions of all activities in a state and the actions of all persons. The function
of the court is to test ordinary legislation against the Constitution and to
interpret and apply it where there is no conflict.8
2 AKN and another vs ALC and other appeals, (2015) SGCA 18.
3 Ibid.
4 Roy Goode, “Arbitration – Should Courts Get Involved”, Judicial Studies Institute
Journal, 2002.
5 Section 7 of the Arbitration Act.
8 Law Society of Kenya vs The Attorney General and the Central Organization of Trade
Unions, Supreme Court of Kenya, Petition No. 4 0f 2019.

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Kethi D. Kilonzo
2. Who will define “unfairness” in arbitral proceedings - the Superior Courts

or Parliament?
In Nyutu Agrovet Limited vs Airtel Networks Limited9, faced with the questions
whether Sections 10 and 35 of the Arbitration Act10 were unconstitutional, the
Supreme Court moved cautiously, admirably resisting the temptation to stretch
its judicial powers into the legislative realm. Recognizing the boundaries of its
jurisdiction, as well as the need for limited appellate reviews in exceptional
circumstances from decisions of the High Court given under Section 35 of the
Arbitration Act, the Supreme Court advised Parliament to cautiously craft and
legislate the grounds upon which a party can move, with leave, to the Court of
Appeal from a decision of the High Court. This decision was timely, coming at
time when there was increased frustration and confusion from the conflicting
decisions by the Court of Appeal on a party’s right to appeal if dissatisfied with
the decision of the High Court under Section 35 of the Arbitration Act.
In 2006, in Kenya Shell Limited vs Kobil Petroleum Limited11, the Appellant filed an
application for leave to appeal to the Court of Appeal from a decision of the
High Court rejecting its application to set aside an arbitral award under Section
35 of the Arbitration Act. The Court of Appeal decided that Section 35 of the
Arbitration Act did not take away the jurisdiction of the Court of Appeal to
grant a party leave to appeal from a decision given by the High Court.
In 2010, in Safaricom Limited vs Ocean View Beach Hotel Limited12, the Applicant
applied to the Court of Appeal for interim relief under Section 7 of the
Arbitration Act13 and Rule 5 (2) (b) of the Court of Appeal Rules. The dispute
between the parties arose from an Agreement that had an arbitration clause.
9 (2019) eKLR.
10 Section 10 of the Arbitration Act provides that courts should not intervene in matters
governed by the Act except where provided.
Section 35 of the Arbitration Act provides the grounds upon which an application to
set aside an arbitral award may be made to the High Court.
11 Civil Appeal No. 57 of 2006.
12 Civil Application No. Nai 327 of 2009.
13 Section 7 (1) of the Arbitration Act gives a right to a party to an arbitration agreement
to request for interim measures of protection from the High Court before or during
arbitral proceedings.
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Kethi D. Kilonzo
The High Court had dismissed a similar application made by the Applicant. At
the time the matter was pending before the High Court and the Court of Appeal,
the dispute had not been referred to arbitration. The Court of Appeal decided
that there was no right of appeal from a decision of the High Court made under
Section 7 of the Arbitration Act. Nonetheless, even in the absence of a statutory
mechanism available to the Applicant for appellate review, the Court of Appeal
decided that the extraordinary circumstances of the matter dictated
intervention. The Court of Appeal, as the final court14, had residual or inherent
jurisdiction to intervene as there was a miscarriage of justice. The jurisdiction
to exercise this power was not derived from statute or rule of law but from the
very nature of the Court of Appeal as a superior court of law. Such a power was
intrinsic in a superior court; it was its very lifeblood and essence. The High
Court had exceeded its jurisdiction, and usurped the jurisdiction reserved for
the arbitrator, and the Court of Appeal had to step in to correct this injustice as
the final court.
In 2012, in Nyutu Agrovet Limited vs Airtel Networks Limited15, five justices of the
Court of Appeal would differ with the decision of Kenya Shell Limited vs Kobil
Petroleum Limited16, setting the backdrop of a fiercely argued appeal at the
Supreme Court. The Court of Appeal struck out the Appellant’s appeal from a
decision of the High Court given under Section 35 of the Arbitration Act. The
decision of the court was unanimous with the Justices of Appeal laying out their
reasons in separate opinions.
Justice of Appeal Mr. Mwera stated that once a decision is made by the High
Court under Section 35 of the Arbitration Act it was final and must be respected
because the parties voluntarily chose it to be final. Justice of Appeal Mrs.
Karanja stated that a right of appeal must be conferred by statute. There was no
14 In the years that the decisions in Kenya Shell Ltd vs Kobil Petroleum Limited, Civil Appeal
No. 57 of 2006 and Safaricom Limited vs Ocean View Beach Hotel Limited, Civil Application
No. Nai 327 of 2009, were delivered, the Court of Appeal was the final court under the
Repealed Constitution. The 2010 Constitution had not been promulgated and the
Supreme Court had not been established.
15 Civil Appeal (Application) No. 61 of 2012.
16 Ibid.
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Kethi D. Kilonzo
right of appeal under Section 35 of the Arbitration Act and such a right could
not be inferred simply because it had not been expressly denied. The Appellant
could not call the oxygen principles17 to its aid. The oxygen principles were not
meant to replace the rules of procedure but to complement existing rules where
they were deficient or otherwise insufficient. The oxygen principles could not
confer a right of appeal where none existed.
Justice of Appeal Mr. M’Inoti stated that Section 35 of the Arbitration Act
provides a closed catalogue of circumstances that justify intervention by the
courts in an arbitral award, leaving no room for intervention on grounds other
than those stipulated.
Justice of Appeal Mr. Musinga stated that arbitration was constitutionally

recognized as one of the methods of resolving disputes where parties choose
that route. Sections 10 and 35 of the Arbitration Act were therefore not
unconstitutional. They were not a fetter to access to justice. They embed, in the
Arbitration Act, the internationally recognized principle of finality in
arbitration. Article 164 (3) of the Constitution did not accord a party to arbitral
proceedings the right to appeal from a decision of the High Court given under
Section 35 of the Arbitration Act.18
The Supreme Court agreed with the interpretation of the Court of Appeal that
Article 164 (3) of the Constitution does not confer the right of appeal from the
High Court to the Court of Appeal to any litigant.19 There was no automatic
right of appeal under Article 164 (3) of the Constitution from a decision of the
High Court made under Section 35 of the Arbitration Act. Jurisdiction was not
synonymous with a right of appeal: Article 164 (3) defined the extent of the
powers of the Court of Appeal but did not grant a litigant unfettered access to
the Court of Appeal. A party who desired for its appeal to be heard at the Court
of Appeal, had a duty to demonstrate under what law that right to be heard was
17 Sections 3A and 3B of the Appellate Jurisdiction Act.

18 Article 164 (3) of the Constitution provides that the Court of Appeal has jurisdiction
to hear appeals form the High Court and any other court or Tribunal as prescribed by
an Act of Parliament.
19 Nyutu Agrovet Limited vs Airtel Networks Limited, (2019) eKLR.
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Kethi D. Kilonzo
conferred. The party could not simply point to Article 164 (3) as the foundation
for that right.
The Supreme Court endorsed the Court of Appeal’s restrictive approach to the
interpretation of the Arbitration Act. Statutory limitations on appeals were not
an infringement to the right to access justice. Sections 10 and 35 of the
Arbitration Act were not unconstitutional and did not contravene Articles 4020,
4821, 5022 and 164 (3) of the Constitution. The Supreme Court adopted the
prescription by Justice of Appeal Mr. M’Inoti, that Section 10 of the Arbitration
Act was enacted to ensure predictability and certainty of arbitral proceedings
by specifically providing instances where a court can intervene. Parties who
agreed to arbitration required certainty on the instances when the jurisdiction
of the court could be invoked. Section 10 was meant to ensure that a party
would not invoke the jurisdiction of the court unless the Arbitration Act
specifically provided for such intervention.
Though agreeing with the observation of Justice of Appeal Mrs. Karanja that
Section 35 of the Arbitration Act did not answer the question whether an appeal
lies to the Court of Appeal from the decision of the High Court, the Supreme
Court drew different conclusions on the consequence of this silence. There was
no right to appeal; this, of itself, did not mean that the courts could not
intervene. The Supreme Court decided to strike a very delicate balance between
the principle of finality in arbitration by bringing court-based litigation to an
end at the High Court, and the injustice of a High Court’s unfairness that could
not be corrected through appellate review.
Despite taking a different road from that of the Court of Appeal in Safaricom
Limited vs Ocean View Beach Hotel Limited23, the Supreme Court arrived at the
same destination. It opined that Parliament, a fortiori, in a situation where an
20 Article 40 of the Constitution protects the fundamental right to property, which

includes the right to legal action.
21 Article 48 of the Constitution protects the fundamental right to access justice.
22 Article 50 of the Constitution protects the fundamental right to a fair hearing in civil,
criminal and other disputes.

23 Civil Application No. Nai 327 of 2009.
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Kethi D. Kilonzo
appeal was possible, could not have intended that the unfair process of a lower
court be immune from appellate review. Since there was no express bar to
appeals under Section 35 of the Arbitration Act, an unfair determination by the
High Court should not be immune from appellate review. In exceptional
circumstances, the court ought to have residual jurisdiction to inquire into such
unfairness. Circumscribed appeals may therefore be allowed to address
procedural failures and obvious injustices should not be left to subsist because
of the “no court intervention principle”.
The Supreme Court prescribed only one ground that met the test of exceptional
circumstances. It decided that the High Court had no power under Section 35 of
the Arbitration Act to set aside an arbitral award on constitutional grounds
raised before it for the first time. The Supreme Court rested its majority opinion
by stating that “an appeal may lie from the High Court to the Court of Appeal on a
determination under Section 35 where the High Court, in setting aside an arbitral
award, has stepped outside the grounds set out in Section 35 and thereby made a decision
so grave, so manifestly wrong, and which closed the doors of justice to either of the
parties. This circumscribed and narrow jurisdiction should be so sparingly exercised so
that only in the clearest cases should the Court of Appeal assume jurisdiction”. The
Supreme Court left it to Parliament to legislate on the other exceptions to Section
35 of the Arbitration Act. It firmly resisted the invitation to create a fresh
catalogue of exceptions under which a dissatisfied party could move to the
Court of Appeal from a decision of the High Court under Section 35 of the
Arbitration Act.
3. Arbitral practice has constitutional licence and does not impede access to
justice
The Supreme Court’s approach in Nyutu Agrovet Limited vs Airtel Networks
Limited24 cannot be faulted. Legislation’s proper place is Parliament. The
decision is also in tandem with the approach the Supreme Court has taken in
similar disputes, where parties have challenged the alternative dispute
resolution mechanisms provided in statutes. The Supreme Court has
consistently rejected the argument that alternative dispute resolution
24 (2019) eKLR.
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Kethi D. Kilonzo
mechanisms dilute the right to access to justice in ordinary courts. Instead, the
Supreme Court has embraced Parliament’s endeavour to declutter the courts by
providing specialized quasi-judicial dispute resolution mechanisms.
In Modern Holdings (EA) Limited vs Kenya Ports Authority25, the Petitioner

challenged the constitutionality of Section 62 of the Kenya Ports Authority Act
that requires disputes arising from the discharge of the statutory duties of the
Kenya Ports Authority to be negotiated, and if no agreement was reached, to
be referred to arbitration. The Supreme Court rejected the challenge, stating
that Section 62 of the Kenya Ports Authority Act is not an ouster clause. An
ouster clause was one that took away the jurisdiction of a competent court of
law, and denied a litigant any judicial assistance in the relevant matter, and at
the same time denied the courts any scope for intervention26. Section 62 of the
Kenya Ports Authority Act did not deny a party the right to litigate his claim
before a court of law thus rendering his claim non-justiciable. It provided a legal
recourse through negotiation or arbitration. It therefore provided an alternative
dispute resolution mechanism. Section 62 of the Kenya Ports Authority Act, and
other similar statutory provisions27 that offer alternative dispute resolutions
mechanisms, are not aberrations. These alternative dispute resolution forums
have been entrenched in Kenya’s legal system and their jurisdiction given
constitutional imprimatur.28
In Law Society of Kenya vs The Attorney General and Central Organization of Trade
Unions29, the Supreme Court stated that Parliament understands and
appreciates the needs of the people. The laws it enacts are directed to problems
which are made manifest by the experience of elected representatives. The
Supreme Court rejected the argument by the Law Society of Kenya that Section
25 (2020) eKLR.
26 Judges and Magistrates Vetting Board and 2 Others vs Center for Human Rights
Democracy and 11 others, (2014) eKLR.
27 Section 83 (1) of the Kenya Railways Corporation Act, Section 33 of the Kenya Airports
Authority Act, Section 29 of the Kenya Roads Act and Section 32 of the Inter-
Governmental Relations Act.
28 Modern Holdings (EA) Limited vs Kenya Ports Authority, (2020) eKLR.
29 Petition No. 4 of 2019.
106
Kethi D. Kilonzo
16 of the Work Injury Benefit Acts limited access by employees to court and was
therefore unconstitutional.30
The Chartered Institute of Arbitrators (Kenya Chapter) was joined as an

Interested Party in the battle between Nyutu Agrovet Limited and Airtel Networks
Limited before the Supreme Court.31 In its written submissions, the Chartered
Institute of Arbitrators took the following position:
(a) Section 35 of the Arbitration Act was silent on whether or not there was
a right of appeal from the High Court to the Court of Appeal;
(b) In the absence of any specific provision in domestic arbitration
prohibiting access to the Court of Appeal from the decisions made under
Section 35 of the Arbitration Act, such decisions were appealable;
(c) An interpretation that favored insulating High Court decisions under
Section 35 of the Arbitration Act from appeals would pose the risk of the
law being seen as protecting judgments of the High Court rather than
arbitral awards;
(d) Alleged breach of the Constitution was increasingly being adopted as an
additional ground of setting aside awards under Section 35 of the
Arbitration Act. Therefore, awards were being disturbed on grounds
that were not envisaged by Parliament, the parties and arbitral tribunals,
thereby making the High Court the first instance court dealing with
constitutional arguments advanced at the setting aside stage;
(e) It would not be in the interest of protecting the sanctity and finality of
arbitral awards if the doors for appeals were shut in cases where arbitral
awards were set aside by the High Court interpreting and applying
constitutional provisions; and
(f) The application of constitutional principles by the High Court to set
aside arbitral awards would ultimately undermine the practice and
benefit of arbitration.
30 Under Section 16 of the Work Injury Benefits Act, claims by employees for liability
and damages from occupational accidents or diseases are filed with and determined
by the Director of Occupational Safety and Health Services.
31 (2019) eKLR.
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Kethi D. Kilonzo
The Chartered Institute of Arbitrators (Kenya Chapter) proposed that the

Supreme Court provide for leave to appeal from the High Court to the Court of
Appeal under Section 35 of the Arbitration in the following circumstances:
where there was unfairness or misconduct in the decision-making process in
order to protect the integrity of the process; in order to prevent an injustice from
occurring and to restore confidence in the process of administration of justice;
where the subject matter was very important as a result of the ensuing economic
value; or, where the subject matter was very important as a result of the legal
principle at issue. Ultimately, the Supreme Court adopted a narrower approach.
It refused to re-write Section 35 of the Arbitration Act and directed this
challenge to Parliament. The Supreme Court also remitted the dispute between
Nyutu Agrovet Limited and Airtel Networks Limited32 to the Court of Appeal to
determine whether it fell under the narrow, circumscribed and exceptional
circumstances that merit an appeal from the High Court.
4. If left to the courts to delimit, widened court interventions will bode ill
for arbitral practice
Uncertainty looms for arbitration practice in Kenya. Now that the Supreme
Court has opened the door for appeals to the Court of Appeal from decisions of
the High Court, who will draw the boundary lines suggested by the Supreme
Court to ensure only the most meriting of cases reach the Court of Appeal? Will
the Court of Appeal resist invitations by disputants to expand its juridical
powers under Section 35 of the Arbitration Act? Will the Court of Appeal admit
challenges to decisions of the High Court given under Section 37 of the
Arbitration Act?33 Will the battle between Nyutu Agrovet Limited and Airtel
Networks Limited, and similar matters before the Court of Appeal, return to the
Supreme Court? Will arbitral awards that are subjected to protracted legal
battles through the 3-tier-hierachy of Kenya’s Superior Courts become the new
norm? This uncertainty bodes ill for arbitral practice in Kenya, and its place as
a center for alternative dispute resolution. Parliament, as hinted by the Supreme
Court in Nyutu Agrovet Ltd vs Airtel Networks Limited34, is the ideal place to settle
32 Ibid.
33 Section 37 of the Arbitration Act sets out the grounds under which the High Court
may refuse to recognize or enforce an arbitral award.
34 (2019) eKLR.
108
Kethi D. Kilonzo
this uncertainty. Left to the corridors of justice, finality and certainty will be
long coming.
109
Enforcements of Multi-Tiered Dispute Resolution (2020) 8(2) Alternative Dispute Resolution
Clauses: Hazron Maira
Enforcements of Multi-Tiered Dispute Resolution Clauses
By: Hazron Maira ⃰
Abstract
Multi-tiered dispute resolution clauses are a common provision in commercial
contracts. This is mostly due to the desire by the parties to have their disputes resolved
expeditiously and by cost effective procedures, while at the same time giving some
leeway, in the event a dispute is not resolved, for final resolution by arbitration or court
proceeding. However, it is not uncommon to find a party to such a clause failing to refer
a dispute to the first tier and instead referring it to other procedures or to the courts. The
response by the other party is usually to apply for the court to order a stay of the
proceedings while the parties comply with the provisions of a dispute resolution
agreement.
This paper examines enforcements of multi-tiered dispute resolution agreements. It

reviews the legal principles that guide courts dealing with applications for a stay of
proceedings while the parties comply with a provision in a dispute resolution clause. A
review how those principles are applied to both negotiation and mediation follows. On
negotiation, a review of the principles that govern the mechanism from Kenyan and two
other common law jurisdictions establishes that a multi-tiered dispute resolution clause
providing for parties to first attempt to resolve a dispute by negotiating in good faith is
not necessarily enforceable in all three jurisdictions.
1. Introduction
It is common practice for parties in a commercial relationship to have an
alternative dispute resolution (ADR) clause in their contract or in some cases, as
a separate agreement. Depending on their needs, contracting parties could
provide in the ADR clause for disputes to be resolved by themselves using an
agreed procedure or by one presided by an independent third party appointed
in accordance with a defined process. An ADR procedure can be
___________________________
⃰ MSc in Construction Law & Dispute Resolution (King’s College, London), BA (Building
Economics) Hons (UON), FCIArb.
110
determinative, which include arbitration clauses, binding expert valuations and

third party certifications where the parties agree that certain issues would be
finally and conclusively be resolved by a third party, or non-determinative,
which include negotiation, mediation, expert appraisal and non-binding rulings
from a mediator.1
During the sunset years of the twentieth century, a trend emerged in the
commercial world whereas contracting parties started incorporating in their
contracts dispute resolution clauses that required them, in the event of a dispute,
to first attempt to resolve it through a first tier procedure failing which, it was
escalated to the second tier procedure (which in most cases was arbitration) or
court proceedings.2 This led to the emergence of multi-tiered dispute resolution
clauses.3 The benefits of having such a clause can be summarised as; first, all
disputes are initially referred to the first-tier procedure and only disputes that
are not resolved can be escalated to the second tier procedure or to the courts.
This filtration process allows minor and simple disputes to be resolved fast and
by cost effective procedures rather than have them referred for arbitration or for
litigation.4 Second, in construction contracts where multi-tiered dispute
resolution clauses are common,5 disagreements and disputes are inevitable
especially in large and complex projects. By having multi-tiered dispute
resolution clauses that require early referrals of conflicts and disputes to
informal tiers that are part of the project, issues that can potentially lead to
1 Halifax Financial Services Ltd v Intuitive Systems Ltd [1999] 1 All ER (Comm) 303
2 One of the earliest commercial sector to incorporate multi-tiered dispute resolution
clauses in contracts was construction; see for example the dispute resolution clauses in
the 1986 contract in the Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993]
AC 334 and the 1996 Supplement of the FIDIC Red Book Standard Form.
3 IBA Litigation Committee (2015), Multi-Tiered Dispute Resolution Clauses. Available
at:
https://www.ibanet.org/LPD/Dispute_Resolution_Section/Litigation/multitiereddis
puteresolution.aspx. [Accessed on 09 October 2019]; - “Multi-tiered dispute resolution
clauses call for contracting parties to engage in negotiation, mediation, or some other
form or combination of alternative dispute resolution prior to commencing litigation or
arbitration.”
4 Doug Jones, Dealing with Multi-Tiered Dispute Resolution Process, (2009) 75
Arbitration 2,188
5 Mostly due to contractual provisions e.g. in FIDIC suite of contracts or statutory
requirements e.g. in England and Wales Construction Act 1996

111
hostilities between parties and disruptions to the project are dealt with at early
stages. This can lead to completion of project on time and within budget as well
as preserve ongoing business relationships.6
Parties in a commercial relationship who agree to have their disputes resolved

by ADR procedures must show good reasons for departing from the terms of
the agreement.7 One of the “good reason” for departing from the provisions of
a dispute resolution agreement is for a party to show that the entire clause or
part of it is not enforceable under the law because it is not in the form described
in Scott v Avery8; i.e. the clause must operate to make completion of the first tier
procedure a condition precedent to commencement of the second tier procedure
or court proceedings.9
Enforcements of ADR agreements is done not by ordering the parties to comply

with the provisions in the dispute resolution, but by forbidding them from using
other procedures from which they have agreed to abstain from until the end of
the dispute resolution process.10 Therefore, when a party claims a first tier
dispute resolution provision in a clause is not enforceable under the law or
disregards it and seeks resolution of a dispute either by other procedures or
court proceedings, the other party is entitled to respond by seeking enforcement
of the ADR agreement from the court by means of an order staying the other
procedure or court proceedings. The public interest in the enforcement of an
agreed ADR agreement was considered in Emirates Trading Agency Llc v Prime
Mineral Exports Private Ltd 11 and the court said;
“Enforcement of such an agreement when found as part of a dispute resolution

clause is in the public interest, first, because commercial men expect the court to
6 Hazron Maira, The Evolution, Role and Effects of Dispute Boards in Construction
Contracts, (2018) 6(1) Alternative Dispute Resolution, at p. 222/3
7 Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 353
8 (1856), 5 H.L. Cas. 811
9 Completion of first tier does not necessarily mean resolution of the dispute but can be
achieved by invoking terms of the agreement; for example, failure to resolve a dispute
within the stipulated time limits
10 Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236, at para 43
11 EWHC 2104 (Comm), at para 64
112
enforce obligations which they have freely undertaken and, second, because the
object of the agreement is to avoid what might otherwise be an expensive and time
consuming arbitration.”
In the discussion that follows, this paper first reviews the legal principles that
guide courts dealing with applications for enforcement of ADR clauses. A
review of how those principles are applied to negotiations and mediation
follows. With respect to negotiations, the paper reviews the principles
governing the procedure in Kenya, England and Wales as well as Australia and
establishes that the mechanism is not enforceable in all three jurisdictions.
2. Legal principles
The legal principles that guide courts dealing with applications for
enforcements of ADR agreements by ordering a stay of proceedings are in the
Constitution of Kenya, 2010 and common law.
2.1 The Constitution of Kenya, 2010

Article 159 (2) (c) provides that in exercising judicial authority, the courts and
tribunals shall promote alternative forms of dispute resolution including
reconciliation, mediation, arbitration and traditional dispute resolution
mechanisms, subject to clause (3)12. In Geoffrey M. Asanyo & 3 others v Attorney
General,13 The Supreme Court said that a concise reading of the judicial
principles in Article 159(2) of the Constitution would show the provisions are
non-derogable and have to be adhered to by all courts and tribunals exercising
judicial power/authority. Where there is a prima-facie case of derogation, it
behoves the Court to intervene so as to safeguard the Constitution within its
jurisdiction.14 Referring to Article 159 (2) (c), the Court agreed with the following
statement in the Council of County Governors v Lake Basin Development Authority
& 6 others Petition No. 280 of 2017; [2017];
12 Clause (3) states that traditional dispute resolution mechanisms shall not be used in a
way that (a) contravenes the Bill of Rights; (b) is repugnant to justice and morality or
results in outcomes that are repugnant to justice or morality; or (c) is inconsistent with
the Constitution or any written law.
13 [2018] eKLR
14 Ibid, at para 61
113
“… alternative dispute resolution processes are complementary to the judicial

process and by virtue of Article 159(2)(c) of the Constitution, the Court is
obligated to promote these modes of alternative dispute resolution. A Court is
entitled to either stay the proceedings until such a time as the alternative remedy
has been pursued or bring an end to the proceedings before the Court and leave
the parties to purse the alternative remedy.”15
The decision in Southern Shield Holdings Limited v Tandala Investment Company

Limited 16 confirms that an ADR mechanism need not be listed under article 159
(2) (C) for it to be promoted by Courts and Tribunals in exercising judicial
authority. In that case, a multi-tiered dispute resolution clause provided in parts
that “any dispute, controversy, or claim arising out of relating to this agreement or a
termination hereof….., whether in its interpretation, application or implementation
shall be resolved by way of consultations held in good faith between the parties."
Subsequent clauses provided for escalation to mediation and arbitration if a
dispute, controversy or claim is not resolved.
Following a dispute, the claimants, Southern Shield Holdings filed a suit in court
and the defendants, Tandala Investment filed an application pursuant to Section
6 of the Arbitration Act, 1995 for the court to stay proceedings pending reference
of all matters in respect of which the suit was brought to the ADR mechanisms
set out in the agreement between the parties. In court, the Plaintiff argued that
Article 159 of the Constitution of Kenya 2010, was inapplicable in the case on
the grounds that there had always been and remains to, that there was no
dispute or claim between itself and the defendants to be referred to Alternative
Dispute Resolution, pointing out the commencement of the suit was valid and
had never been inconsistent with Article 159 of the Constitution of Kenya 2010.
Having reviewed parties’ submissions and the authorities, the court was
satisfied there was a dispute, or claim or controversy that required to be referred
to the ADR in terms of the clause in the agreement, hence the invalidity of the
commencement of the suit. The court also found Article 159 (2) (c) of the
Constitution of Kenya 2010 was applicable to the case, and a stay of proceedings
was granted.
15 Ibid, at para 90
16 [2018] eKLR
114
2.2 Common law

Under common law, the doctrine of certainty in commercial contracts plays a
key role in courts’ decisions on whether to stay proceedings while the parties
comply with a provision in a dispute resolution agreement.
“Certainty is a desideratum and a very important one, particularly in

commercial contracts”17 for the simple reason that contracting parties are
entitled to know where they stand and act accordingly in the event of an
occurrence of any event that affect their respective rights.18 Therefore, the
parties’ rights and obligations must be agreed and defined with sufficient
certainty to enable any agreement to be effective in law.19 If parties fail to
identify with sufficient certainty what was agreed in the contract, it then
becomes impossible to hold that they had the same intention; in other words the
consensus ad idem would be a matter of mere conjecture.20
A court construing a clause strive to give effect to what parties have agreed and
is often reluctant to hold that an agreement is void for uncertainty, but has to be
satisfied the parties have an agreement which was intended to be legally
binding. As Lord Wright said in G Scammell & Nephew Ltd v. HC ad JG Ouston;21
"The object of the court is to do justice between the parties, and the court will
do its best, if satisfied that there was an ascertainable and determinate intention
to contract, to give effect of that intention, looking at substance and not mere
form. It will not be deterred by mere difficulties of interpretation. Difficulty is
not synonymous with ambiguity so long as any definite meaning can be
extracted."
17 Golden Strait Corporation v. Nippon Yusen Kubishka Kaisha [2007] UKHL 12, per Lord
Scott of Foscote
18Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana ("The Scaptrade") [1983]
QB 529, 540
19Sulamerica CIA Nacional De Seguros SA & Ors v Enesa Engenharia SA & Ors [2012] EWCA
Civ 638 at para 35

20 G Scammell & Nephew Ltd v. HC ad JG Ouston [1941] AC 251, 255
21 [1941] AC 251 at 268
115
It is indisputable that a dispute resolution clause forming part of a substantive

contract is a separate contract in its own rights. Consequently, the doctrine of
certainty equally apply to dispute resolution clauses. 22 In Wah (Aka Alan Tang)
& Anor v Grant Thornton International Ltd & Ors,23 the court after reviewing
authorities formulated the criteria for enforceability of ADR clauses and held
that in the context of a positive obligation to attempt to resolve a dispute or
difference amicably before referring a matter to arbitration or bringing
proceedings the test is whether the dispute resolution clause “prescribes,
without the need for further agreement, (a) a sufficiently certain and
unequivocal commitment to commence a process (b) from which may be
discerned what steps each party is required to take to put the process in place
and which is (c) sufficiently clearly defined to enable the Court to determine
objectively (i) what under that process is the minimum required of the parties
to the dispute in terms of their participation in it and (ii) when or how the
process will be exhausted or properly terminable without breach.”24 In the
context of a negative stipulation or injunction preventing a reference to a second
tier procedure or court proceedings until a given event like negotiation or
mediation, the question is whether the event is sufficiently defined and its
happening objectively ascertainable to enable the court to determine whether
and when the event has occurred.25 In attempting to define the minimum
ingredients necessary for an ADR clause to be given legal effect, it is not an issue
of just ticking but each case must be considered on its own terms,26 and courts
should not transpose a decision on a contractual provision in one case to
another.27
A useful guidance on how a court strive to give effects to parties’ dispute

resolution agreement that was intended to be binding but later one party claims
the clause or part of it is not sufficiently certain is to be found in Associated British
22 See Costain Ltd v Tarmac Holdings Ltd [2017] EWHC 319 (TCC) at para 42; “Dispute
resolution provisions require certainty. The parties need to know from the outset what
to do and where to go if a dispute arises.”
23 [2012] EWHC 3198 (Ch)
24 Ibid, at para 60
25 ibid, at para 61
26 Sulamerica v Enesa (supra fn. 19), at para 35
27 Openwork Ltd v Forte [2018] EWCA Civ 783, at para 24
116
Ports v Tata Steel UK Ltd 28 where a dispute resolution clause provided in part as
follows; "It is hereby agreed between the parties that in the event of any major physical
or financial change in circumstances affecting the operation of …. either party may serve
notice on the other requiring the terms of this Licence to be re-negotiated with effect from
the date on which such notice shall be served. The parties shall immediately seek to agree
amended terms reflecting such change in circumstances and if agreement is not reached
within a period of six months from the date of the notice the matter shall be referred to
an Arbitrator ……”
Associated British Ports sought a declaratory relief in court as to the proper

construction of the arbitration clause, and two of the issues to be determined
were; first, whether the arbitration clause was void for uncertainty because the
triggering event "any major physical or financial change in circumstances" was too
uncertain to create a binding obligation to refer a dispute to arbitration. Second,
there were no or insufficient objective criteria to guide an arbitrator in deciding
how to amend the Licence terms if a matter is referred to him so that the term is
too uncertain because it is akin to an agreement to agree.
Having reviewed the authorities, the Judge concluded that the case fell in the
category of cases where the court is particularly reluctant to find that a clause is
void for uncertainty. It was not difficult to see the commercial sense behind
including a clause of this kind because the parties were in a relationship of
mutual interdependence. The contract was long term and the clause was
intended to enable them carry out the first major reassessment of the
relationship.29
On the first issue, the court held that provided one can posit some changes
which would definitely fall within the scope of the phrase "major physical or
financial change in circumstances" and some changes which clearly falls outside
it, then the phrase is sufficiently certain to be enforceable even though it may be
difficult in the abstract to draw the precise divide between changes falling on
either side of the line.30 On the second issue, it was held that the clause was not
28 [2017] EWHC 694 (Ch)

29 Ibid, at para 34
30 Ibid, at para 43
117
as open ended as asserted and the arbitrator is not faced with setting new terms
in a vacuum. First, the arbitrator would have the existing terms of the Licence
and although the arbitration takes place against the background of the major
change, still the existing terms show what the parties considered to be a fair and
reasonable bargain in the circumstances that prevailed at the time the Licence
was entered into. Second, the limit on the arbitrator's task will be set by the
nature and effect of the major physical or financial change in circumstances that
has triggered the arbitration. The revision of the Licence that the arbitrator must
fashion has to reflect the effect of the change of the operation of the parties'
facilities. Thirdly, the arbitrator would be working within the parameters set by
the submissions of the parties.31 Therefore, the clause created a binding
obligation to refer a dispute to arbitration and the trigger was not too uncertain.
A stay of further proceedings was granted.
In rare circumstances or as a last resort, a court may find an ADR clause is void
for uncertainty if; first, it is legally or practically impossible to give to the parties'
agreement (or part of it) any sensible content, second, where there are a variety
of meanings fairly attributable to it and it is impossible to say which of them
was intended, and third, where the terms of the contract require further
agreement between the parties in order to implement them.32
3. Negotiation
Negotiation as a procedure for resolution of disputes involves discussions
between the disputing parties with the aim of settling their dispute(s) without
involvement of a third party. The principles governing the procedure may be
based on either the written or unwritten law. If the legal principles are governed
by statutes, the role of courts enforcing the ADR provisions is to “stick to the
precise words and not supplement or re-interpret what is written.”33 But, if the
legal principles are governed by unwritten law as is the case in most common
law jurisdictions, the status of a clause purporting to create a legal obligation for
31 Ibid, at paras 57 - 60
32 Durham Tees Valley Airport Ltd v Bmibaby Ltd & Anor [2010] EWCA Civ 485, at para 88;
UYCF Ltd v Forrester & Anor [2000] EWCA Civ 317, at paras 9-10
33 Lord Mance, Should the law be certain? The Oxford Shrieval lecture given in the
University Church of St Mary The Virgin, Oxford on 11th October 2011. Available at
https://www.supremecourt.uk/docs/speech_111011.pdf. [Accessed on 02 April 2020]
118
disputing parties to first negotiate a dispute in good faith before escalating it to

the next tier or court proceedings, and whether such a clause is legally binding
depends on a State’s courts finding that the provision is sufficiently certain. As
will be seen below, the findings by courts in one jurisdiction that such a clause
is sufficiently certain may not be persuasive for courts in another jurisdiction to
arrive at a similar finding for a clause with almost similar wording.
Although negotiation as an ADR mechanism is not listed in Article 159 (2) (c) of
the Constitution of Kenya 2010, the decision in Southern Shield v Tandala
Investment 34 confirms it is one of the mechanisms to be promoted by courts and
tribunals exercising judicial authority, and a multi-tiered dispute resolution
agreement providing for parties to first negotiate a dispute in good faith is
enforceable, if defined with sufficient certainty because a “Court of law cannot
re-write a contract between the parties.”35
In England and Wales, the current principles governing negotiations were first
formulated by the Court of Appeal in Courtney & Fairbairn Ltd v Tolaini Brothers
(Hotels) Ltd.36 where the court held that an agreement to negotiate, like an
agreement to agree, is not enforceable. The court reasoned that “a contract to
enter into a contract (when there is a fundamental term yet to be agreed) …. is
too uncertain to have any binding force. No court could estimate the damages
because no one can tell whether the negotiations would be successful or would
fall through: or if successful, what the result would be.”
The principle in Courtney v Tolaini was approved by the House of Lords in

Walford v Miles37 where the main issue before the court was whether an
agreement to negotiate in good faith, if supported by consideration, is an
enforceable contract. Lord Ackner, with whom the other law Lords agreed,
delivered the lead judgment speech and dismissed the appeal on two grounds;
First, he held that an agreement to negotiate, like an agreement to agree, is
34 supra fn.16
35 National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] eKLR; Dl Koisagat Tea
Estate Ltd v Eritrea Othodox Tewhdo Church Ltd [2015] eKLR
36 [1975] 1 WLR 297
37 [1992] 2 AC 128
119
unenforceable because it lacks the necessary certainty, and the concept of a duty
to carry on negotiations in good faith is inherently repugnant to the adversarial
position of the parties when involved in negotiations. Second, “a duty to
negotiate in good faith is as unworkable in practice as it is inherently
inconsistent with the position of a negotiating party. It is here that the
uncertainty lies. …., while negotiations are in existence either party is entitled to
withdraw from these negotiations, at any time and for any reason. There can be
thus no obligation to continue to negotiate until there is a 'proper reason' to
withdraw. Accordingly, a bare agreement to negotiate has no legal content.”
Having been pronounced by the highest court in the land, the principles in
Walford v Miles are binding unless overruled. It’s also instructive to note that in
both that case and Courtney v Tolaini, there was no concluded contract, and in
Walford v Miles, there was no express agreement to negotiate in good faith. In a
few instances, these deficiencies have been used by lower courts to distinguish
binding effects in Walford v Miles and clauses with express obligation to
negotiate.38 That notwithstanding, the principles in Walford v Miles reflect the
current settled state of English law on negotiations.39
The principles enunciated in Walford v Miles and Courtney v Tolaini have been
applied in cases involving resolution of disputes on ADR clauses. In Cable &
Wireless Plc v IBM United Kingdom Ltd.40, one of the issues before the court was
an application for a stay of proceedings pending the dispute being referred to
38 See Petromec Inc v Petroleo Brasileiro SA Petrobras [2005] EWCA Civ 891, paras 115 – 121
(though not in the context of an ADR clause and the statements were obiter), and
decision in Emirates Trading Agency Llc v Prime Mineral Exports Private Ltd [2014] EWHC
2104 (Comm) where the court distinguished Walford v Miles (like Courtney & Fairbairn
Ltd. v Tolaini Brothers which it approved) and said it was not a case of a dispute
resolution clause within a binding contract obliging the parties to seek to settle a dispute
under that contract within a time limited period, and therefore held that “a requirement
to engage in time limited negotiations" was a condition precedent to commencement of
arbitration.
39 See for example a recent court pronouncement in Chaggar v Chaggar & Anor [2018]
EWHC 1203 (QB), at para 190: - “…neither an agreement to negotiate in good faith nor
an "agreement to agree" creates an enforceable contract: Walford v Miles [1992] 2 AC 128
per Lord Ackner at 138B-H”
40 [2002] EWHC 2059 (Comm)
120
ADR. The application was founded on a multi-tiered dispute resolution clause

in the contract that provided in part that; “The Parties shall attempt in good faith to
resolve any dispute or claim arising out of or relating to this Agreement or any Local
Services Agreement promptly through negotiations…”
Having cited Courtney v Tolaini, the Judge said there was an obvious lack of
certainty in a mere undertaking to negotiate a contract or settlement agreement.
He said this was because a court would have insufficient objective criteria to
decide whether one or both parties were in compliance or breach of such a
provision and therefore, if in the present case the words of clause had simply
provided that the parties should “attempt in good faith to resolve the dispute or
claim”, that would not have been enforceable.
The principles on negotiations developed by English courts have not been

persuasive enough to Australian courts and a Judge from New South Wales
once described the status of law governing an ADR clause requiring parties to
negotiate in good faith as “unsettled”.41 However, the decision of New South
Wales Court of Appeal in United Group Rail Services Limited v Rail Corporation 42
show the direction of travel in that area of the law is towards a settled status.
That case concerned the content and operation of a multi-tiered dispute
resolution clause in engineering contracts for the designing and building of new
rolling stock. The clause provided in part that if a dispute or difference arose,
the parties were to “meet and undertake genuine and good faith negotiations with a
view to resolving the dispute or difference;” failing which the matter at issue would
be referred for arbitration. United Group asserted the provision was uncertain
and therefore void and unenforceable and Rail Corporation disagreed.
Having reviewed both the English and Australian authorities including Walford
v Miles, the court made observations of some essential propositions founded on
accepted authority and principle including; first, an agreement to agree is
incomplete, lacking essential terms; and that is not a question of uncertainty or
vagueness, but the absence of essential terms, and second, good faith is not a
41 Aiton Australia v Transfield (supra fn. 10) at para 103

42 [2009] NSWCA 177
121
concept foreign to the common law, the law merchant or businessmen and
women. 43
With regard to the principle in Courtney v Tolaini case, the court said the
reasoning equated an agreement to negotiate with an agreement to agree, and
it does not follow that an agreement to undertake negotiations in good faith fails
for the same reason. An agreement to agree to another agreement may be
incomplete if it lacks essential terms of the future bargain; and an agreement to
negotiate, if viewed as an agreement to behave in a particular way may be
uncertain but is not incomplete.44
The court was neither persuaded by the views of Lord Ackner in Walford v Miles
case and said that an obligation to undertake discussions about a subject in an
honest and genuine attempt to reach an identified result is not incomplete.
Referring to what Lord Ackner said that a party is entitled not to continue with,
or withdraw from negotiations at any time and for any reason, the court said
that would assume there is no relevant constraint on the negotiation or the
manner of its conduct by the bargain that has been freely entered into. The
restraint was a requirement to meet and engage in genuine and good faith
negotiations, and that expression has, in the context of the contract, legal
content.45
The court also held that an “honest and genuine approach to settling a
contractual dispute, giving fidelity to the existing bargain, does constrain a
party. The constraint arises from the bargain the parties have willingly entered
into. It requires the honest and genuine assessment of rights and obligations and
it requires that a party negotiate by reference to such.” 46 The objective yardstick
by which to measure the good faith or otherwise of a negotiating party’s stance
is honest and genuine negotiation, within the framework of fidelity to the
bargain and the posited controversy.47
43 Ibid, paras 56 - 58
44 Ibid, at para 64
45Ibid, at para 65
46 Ibid, at para 73
47 Ibid, at para 77
122
Recognising the important public policy in promoting efficient dispute

resolution, especially commercial dispute resolution, the court said it requires
that, where possible, real and enforceable content be given to clauses such as the
one before the court to encourage approaches by, and attitudes of, parties
conducive to the resolution of disputes without expensive litigation, arbitral or
curial.48 Therefore, the clause was not uncertain and was enforceable.
4. Mediation
There are many definitions of mediation and while it is generally accepted that
the purpose of the process is to assist people in reaching a voluntary resolution
of a dispute, in its simplest form, it can be said that mediation is negotiation
facilitated by a third-party.49 A clause providing for resolution of a dispute by
mediation must therefore include the administrative processes for selecting a
mediator and how to pay that person defined.50
In the Australian case of Hooper Bailie Associated Ltd v Natcon Group Pty Ltd, 51
the test for enforcement of a mediation clause was framed in the following
terms;
“An agreement to conciliate or mediate is not to be likened … to an agreement

to agree. Nor is it an agreement to negotiate, or negotiate in good faith, perhaps
necessarily lacking certainty and obliging a party to act contrary to its interests.
Depending upon its express terms and any terms to be implied, it may require
of the parties participation in the process by conduct of sufficient certainty for
legal recognition of the agreement.”
The other essential terms of an ADR clause purporting to create a binding

obligation for parties to refer a dispute for mediation include setting out in detail
the mediation process to be followed or incorporation of rules by reference to a
48 Ibid, at para 80
49 The Irish Law Reform Commission (2010), Alternative Dispute Resolution: Mediation
and Conciliation, at p. 20. Available at:
https://www.lawreform.ie/_fileupload/reports/r98adr.pdf. [visited on 12 September
2019]
50 Aiton Australia v Transfield (supra fn. 10) at para 69)
51 (1992) 28 NSWLR 194, 209 (cited in Aiton Australia v Transfield (supra fn. 10) at para 45)
123
specific mediation provider. In the English case of Sulamerica CIA Nacional De

Seguros SA & Ors v Enesa Engenharia SA & Ors,52 a contract had a mediation
clause that provided in part that; “If any dispute or difference of whatsoever nature
arises ….., the parties undertake that, prior to a reference to arbitration, they will seek
to have the Dispute resolved amicably by mediation.” The other parts of the clause
covered rights of the parties in respect of the Dispute, termination of the
procedure, steps to take if dispute not resolved, how to invoke the arbitration
process and the sharing of costs.
One of the issues before the court was whether the clause gave rise to any
binding obligation to mediate and if compliance with its terms was an essential
precondition to arbitration. The first instance Judge held the clause did not give
rise to any binding obligation. He had referred to and followed authorities in
each of which the court had expressed the view that an agreement to enter into
a prescribed procedure for mediation is capable of giving rise to a binding
obligation, provided that matters essential to the process do not remain to be
agreed. Regarding the instant case, the Judge held that the clause did not meet
those requirements, because it contained no unequivocal undertaking to enter
into a mediation, no clear provisions for the appointment of a mediator and no
clearly defined mediation process. Essential matters therefore remained for
agreement between the parties. Accordingly, the clause did not give rise to a
legal obligation of any kind, and in the absence of a binding obligation there
could be no effective precondition to arbitration. 53
The Court of Appeal agreed with the High Court Judge’s decision and said the
clause did not set out any defined mediation process, nor does it refer to the
procedure of a specific mediation provider. The most that might be said is that
it imposes on any party who is contemplating referring a dispute to arbitration
an obligation to invite the other to join in an ad hoc mediation, but the content of
even such a limited obligation is so uncertain as to render it impossible of
enforcement in the absence of some defined mediation process.54 In conclusion,
52 [2012] EWCA Civ 638,

53 Ibid, at para 33
54 Ibid, at para 36
124
the court said that if mediation is not defined with sufficient certainty, the
conditions cannot constitute a legally effective precondition to arbitration.55
Where the parties have incorporated mediation rules by reference to a specific

mediation provider, the courts give effects to the parties’ agreement by referring
to the published mediation provider’s procedures and terms upon which the
parties may proceed. In Cable & Wireless Plc v IBM United Kingdom Ltd.56, a multi-
tiered dispute resolution clause provided in part that “…the Parties shall attempt
in good faith to resolve the dispute or claim through an Alternative Dispute Resolution
(ADR) procedure as recommended to the Parties by the Centre for Dispute Resolution.57
However, an ADR procedure which is being followed shall not prevent any Party or
Local Party from issuing proceedings.” Following a dispute, Cable & Wireless (C &
W) declined to refer it to ADR and IBM sought enforcement of the clause by
seeking an order staying court proceedings.
In court, it was submitted on behalf of IBM that the court should give effect to
the parties’ agreement by ordering a stay of the proceedings while the parties
comply with the ADR provision in the clause. C & W claimed that since the last
sentence of the clause expressly contemplates the issue of proceedings where an
ADR procedure is being followed, it could not have been the mutual intention
that the reference to ADR should have binding effect, for the facility to
commence proceedings was inconsistent with the enforceability of the duty to
submit the dispute to ADR procedure. The Judge disagreed with C & W and
held that the clause had prescribed the means by which parties should attempt
to resolve the dispute, namely “through an (ADR) procedure as recommended to the
parties by (CEDR)”. The engagement can therefore be analysed as requiring not
merely an attempt in good faith to achieve resolution of a dispute but also the
participation of the parties in a procedure to be recommended by CEDR. By
resorting to CEDR and participating in its recommended procedure, these are
engagements of sufficient certainty for a court to ascertain whether they have
55 Ibid, at para 37
56 supra fn. nr 40
57 The Centre for Dispute Resolution (CEDR) is a London based International Dispute
Resolution Centre dealing with commercial mediation and conflict management

services. See details at https://www.cedr.com/ . (visited on 13 September 2019)
125
been complied with. Thus, if one party simply fails to co-operate in the
appointment of a mediator in accordance with CEDR’s model procedure or to
send documents to such mediator as is appointed or to attend upon the mediator
when he has called for a first meeting, there will clearly be an ascertainable
breach of the agreement in the ADR clause. IBM was thus at least prima facie,
entitled to the enforcement of the ADR agreement.
5. Conclusion
The provisions of Article 159 (2) (c) of the Constitution of Kenya 2010 are non-
derogable and a court is entitled to grant a stay of proceedings against a party
who is in breach of an agreement to refer a dispute to an ADR mechanism.
Where parties have provided for a multi-tiered dispute resolution clause, a
binding obligation to refer a dispute to a tier arises if the provision is defined
with sufficient certainty. If parties have entered into what they believe is a
binding dispute resolution clause, difficulties of interpretations would not
render such a clause (or any provision in it) void for uncertainty and a court of
law would strive to give effects to the intention of the parties, unless the
provision is meaningless or unintelligible.
Although negotiation is not listed in Article 159 (2) (c) of the Constitution of
Kenya 2010, it nevertheless falls under the mechanisms to be promoted by
courts and tribunals in exercising judicial authority. In most common law
jurisdictions, determination of whether a multi-tiered dispute resolution clause
providing for parties to undertake negotiation in good faith is enforceable
depends on the courts finding the provision to be sufficiently certain. In England
and Wales, courts have found such a clause not enforceable because; (1) an
agreement to negotiate, like an agreement to agree, is not enforceable because it
lacks the necessary certainty (2) it is not possible to estimate the damages
because it is not possible to tell whether the negotiations would be successful or
would fall through, and if successful, what the terms would be, and (3) a duty
to negotiate in good faith is unworkable because while negotiations are in
existence, either party is entitled to withdraw at any time and for any reason
without giving a reason. In Australia, a dispute resolution clause providing for
parties to meet and undertake genuine and good faith negotiations has been
found to be sufficiently certain and enforceable. The objective yardstick by
126
which to measure the good faith or otherwise of a negotiating party’s stance is

honest and genuine negotiation, within the framework of fidelity to the bargain
and the posited controversy. An honest and genuine approach to settling a
contractual dispute, giving fidelity to the existing bargain, does constrain a
party. The constraint arises from the bargain the parties have willingly entered
into, and it requires the honest and genuine assessment of rights and obligations
and it requires that a party negotiate by reference to such.
Sufficient certainty in a dispute resolution clause requiring parties to have a

dispute resolved by mediation is achieved by the parties setting out a defined
mediation process, making unequivocal undertaking to enter into a mediation
and in clear terms provide for the appointment and payment of a mediator. In
the alternative, parties may refer to the procedure of a specific mediation
provider with documented procedures and terms upon which they may
proceed.
127
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Constitution of Kenya, 2010. Available at:

http://www.kenyalaw.org:8181/exist/rest//db/kenyalex/Kenya/The%20C
onstitution%20of%20Kenya/docs/ConstitutionofKenya%202010.pdf.
[Accessed on 01 September 2019]
Doug Jones, Dealing with Multi-Tiered Dispute Resolution Process, (2009) 75

Arbitration 2,188
Hazron Maira, The Evolution, Role and Effects of Dispute Boards in

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IBA Litigation Committee (2015), Multi-Tiered Dispute Resolution Clauses.

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iereddisputeresolution.aspx. [Accessed on 09 October 2019]
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Mediation and Conciliation, at p. 20. Available at:
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November 2019]
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Halifax Financial Services Ltd v Intuitive Systems Ltd [1999] 1 All ER (Comm) 303
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[1983] QB 529
Scott v. Avery (1856), 5 H.L. Cas. 811
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eKLR
Sulamerica CIA Nacional De Seguros SA & Ors v Enesa Engenharia SA & Ors [2012]
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UYCF Ltd v Forrester & Anor [2000] EWCA Civ 317
Wah (Aka Alan Tang) & Anor v Grant Thornton International Ltd & Ors, [2012]
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Yam Seng PTE Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB)
130
Mega-Regional Trade Agreements: Analyzing their (2020) 8(2) Alternative Dispute Resolution
Impact on Treaty Policy and Law and their Modes
of Dispute Resolution Mechanisms.:
Peter Mwangi Muriithi
Mega-Regional Trade Agreements: Analyzing their Impact on Treaty

Policy and Law and their Modes of Dispute Resolution Mechanisms.
By: Peter Mwangi Muriithi *
Abstract
In the international arena, there is an emergence of a new type of trade agreements
namely Mega-regional trade agreements. These mega-regional trade agreements are
increasing in number and their unique characteristics have made them quite visible in
any international trade agreement discourse. Their ability to challenge the status quo
and displace the existing multilateral treaties on trade have made them relevant. An
example is their adverse effect on the Agreement establishing the World Trade
Organization a multilateral treaty on trades.
This discourse will seek to analyze, the impact of mega-regional trade agreements on
treaty policy and law and the various modes of dispute resolution mechanisms that they
have adopted.
Succinctly, the paper shall; give a brief introduction, analyze the impact of mega-
regional trade agreements for treaty policy and law, analyze modes of dispute resolution
mechanisms adopted by mega-regional trade agreements and lastly give a conclusion.
1. Introduction
Mega regional agreements are by definition treaties. Article 2 of the Vienna
Convention on the Law of treaties1 defines a treaty as an international
agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.
*LL.B-University of Nairobi, PGDL, Patent Agent, Court Accredited Mediator, MCIArb,

LL.M-University of Nairobi, & Publisher.
1 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United
Nations, Treaty Series, vol. 1155, p. 331, available at:<
https://www.refworld.org/docid/3ae6b3a10.html> accessed on 20/05/20
131
The term ‘mega-regionals trade agreements’ describes a trend in international trade

law to negotiate free trade agreements (‘FTAs’; Free Trade Areas) among
countries encompassing a considerable share of world trade. Unlike regional
trade agreements, they span across sub-regions.2
Mega-regional trade agreements (MRTA’s) are deep integration partnerships

between countries or regions with a major share of world trade and foreign
direct investment (FDI).3 Beyond simply increasing trade links, the deals aim to
improve regulatory compatibility and provide a rules-based framework for
ironing out differences in investment and business climates.4The major
economies have shifted trade-negotiating emphasis towards MRTA’s
The most significant examples of MRTA’s currently are; the Trans-Pacific

Partnership (TPP) agreement among Australia, Canada, Japan, Mexico, the
United States, and seven other countries; the Transatlantic Trade and
Investment Partnership (TTIP) agreement between the United States of America
(USA) and the European Union (EU); and the Regional Comprehensive
Economic Partnership (RCEP) agreement between Australia, China, India,
Japan, Korea, New Zealand and ten countries of the Association of Southeast
Asian Nations (ASEAN). These MRTA’s raises a host of short-term and long-
term questions in regards to their effect on treaty law and policy.5
Among these MRTA’s, the most significant currently are the Trans-Pacific
Partnership (TPP) and the Transatlantic Trade and Investment Partnership
(TTIP) between the USA and the European Union (EU), both promoted by the
USA.6
2 Christian Riffel, Mega regionals,

<https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-
9780199231690-e2177> accessed on 20/05/20
3 <https://www.weforum.org/agenda/2014/07/trade-what-are-megaregionals/>
lastly accessed on 21st July 2019

4 Ibid No.3
5 Chad P. Bown, Mega-Regional Trade Agreements and the Future of the WTO (Part of
Discussion Paper Series on Global and Regional Governance September 2016)

6 < https://www.weforum.org/agenda/2014/07/trade-what-are-megaregionals/>
132
These two MRTA’s would affect at least a quarter of world trade in goods and
services (TPP: 26.3%; TTIP: 43.6%) of global foreign direct investment.7
In particular, TPP and TTIP are classic examples of mega-regional Agreements

that seek to introduce innovative content that reflects twenty-first-century trade
and economic exchanges such that commitments are undertaken on “traditional
and new areas of trade” are likely to have far-reaching implications on global
trade regulation and public policy.8
MRTA’s are imperative in the achievement of trade liberalisation.9 Among all

the agreements actively negotiated by WTO members, MRTA’s have taken
centre stage. These are agreements with deep integration partnerships among
countries.10 Over the last few years, the number of MRTA’s has augmented to
such an extent of causing awareness globally.11
accessed on 20/05/20
7 < https://www.weforum.org/agenda/2014/07/trade-what-are-megaregionals/>
8Badri G. Narayanan and Sangeeta Khorana, Mega‑regional trade Agreements: Costly
distractions for developing countries.

9Dani Rodrik, What are the aims of the Mega-Regional Trade Deals?
<https://www.weforum.org/agenda/2015/06/what-are-the-aims-of-the-mega-
regional-trade-deals/>
accessed on 20/05/20.
10 Anabel Gonzalez, Mega-regional Trade Agreements Game-Changers or Costly
Distractions for The World Trading System?

<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja
&uact=8&ved=2ahUKEwjA0YXysazhAhXj6OAKHbkMDm4QFjAAegQIABAC&url=h
ttp%3A%2F%2Fwww3.weforum.org%2Fdocs%2FGAC%2F2014%2FWEF_GAC_Trade
FDI_MegaRegionalTradeAgreements_Report_2014.pdf&usg=AOvVaw2sFw8umoIfUE
DR50GSgW4w> accessed on 20/05/20
11 Mavel S and M. Mathieu, Emergence of Mega-Regional Trade Agreements and the
Imperative for African Economies to Strategically Enhance Trade-Related South-South

Cooperation. A paper selected for presentation at the 19 th Annual Conference on Global
Economic Analysis, Washington D.C., 15-17 June 2016.
<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja
&uact=8&ved=2ahUKEwiUm4Ops6zhAhUIkxQKHTZMCWwQFjABegQIARAB&url
=https%3A%2F%2Ffanyv88.com%3A443%2Fhttps%2Fwww.gtap.agecon.purdue.edu%2Fresources%2Fres_display.asp%
3FRecordID%3D4886&usg=AOvVaw0g2_9-IDC5l8FX3o-hpymi>accessed on 20/05/20
133
The slow progress in the WTO negotiation rounds, more specifically the Doha
rounds has been a catalyst to the increased number of MRTA’s.12 Currently, due
to the stalled multilateral negotiations, MRTA’s provide an optimal alternative
for states to pursue trade liberalisation in the specific fields of interest and to
establish rules to deal with the emerging issues.13
The number of limited membership makes this expedient thus, making it

difficult to have a stalemate since all members have almost the same interests to
protect. To put this into context, Simon Mevel in his scholarly article posited:14
“Due to the slow progress in various WTO multilateral agreements and

conferences, more specifically, the Doha rounds, states resorted to other
avenues to ensure that their commercial interests are met. This gave rise to a
proliferation of regional trade agreements.”
However, it was noted during the Nairobi Ministerial Declaration from the
Tenth Ministerial Conference of the WTO held on the 15-18 December, in
Nairobi, Kenya, that, “…the need to ensure that regional trade agreements
remain complementary to, not a substitute for, the multilateral trading
system.”15
12 Brock. R. Williams, “Bilateral and Regional Trade Agreements: Issues for Congress.”
(May 17, 2018) article can be found at <https://fas.org/sgp/crs/row/R45198.pdf>
13 Ibid No. 11
14 Simon Mevel, Trade and Sustainable Development News and Analysis on Africa,
“Mega-Regional Trade Agreements: Threat or Opportunity for the Future of Africa Trade” (Vol
5, issue 3 April 2016).
15 Ibid No.14 Paragraph 28.
134
2. Analyzing the impact of mega-regional trade agreements on treaty policy

and law.
Since the early 2000s, regional trade agreements (RTAs) allowed under WTO
rules have flourished. 16 Interestingly, this development has taken place in the
context of minimal progress in multilateral trade negotiations, thereby
suggesting strong interest from many countries to consider regional markets as
an important avenue for expanding trade.17
The emergence of mega-regional trade agreements (MRTAs), which gather not

just neighbouring countries and account for large shares of world GDP and
population, attests to this trend.18 This tread, however, (of growth Mega
regional trade agreements) has affected treaty law and policy.
Below are some of the effects associated with mega-regional trade agreements
on treaty law and policy:
a) Existence of mega-regional trade agreements is a threat to the multilateral

system.
These new MRTAs have costs and benefits. However, MRTAs pose a
potential new threat to the multilateral system. In essence, they may lender
multilateral trade agreements ineffective. For example, they pose a threat or
may lender multilateral trade treaties like the Agreement establishing World
Trade Organization otiose.19
However, there are direct steps that can be undertaken to minimize such
concerns. First, the return to plurilateral and critical mass agreements is a
way to bring some of the MRTAs new rules and issues into the system.
Second, reforms to the WTO’s dispute settlement procedures is needed to
17 Ibid No.16
18 Ibid No.16
19 Chad P. Bown, Mega-Regional Trade Agreements and the Future of the WTO (Part of
Discussion Paper Series on Global and Regional Governance September 2016)

135
further strengthen and sustain what is perhaps its most prominent function.
Importantly, the United States, the EU, and the other countries should
support the relevance of the multilateral system despite the allure and
trappings of the mega-regional agreements.20
b) Mega regional trade agreements can result in overlapping trade agreements.

This means that the obligations for parties under these MRTAs overlap with
those of other treaties especially multilateral trade agreements. The
emergence of MRTAs is likely to complicate the trading environment, as
some countries may be covered by overlapping obligations under RTAs.21
For example, the TPP overlaps with the North American Free Trade
Agreement (NAFTA), which involves the US, Mexico, and Canada.
TPP also overlaps with the Japan-Mexico RTA. Once overlapping RTAs
enter into force, firms and/or organizations are faced with multiple RTA
schemes when trading with the member countries.22 For example, if the TPP
enters into force (even among 11 countries), exporters in Japan will be able
to choose tariff schemes from among the TPP, the Japan-Mexico RTA, and
most favoured nation (MFN) schemes (i.e. non-use of a preferential scheme)
when trading with Mexico.
Hence, one can say that the emergence of mega-regional trade agreements
is likely to complicate the trading environment, as the ‘noodle bowl’ of
overlapping trade agreements will continue to get bigger.23
20 Ibid No.19
21 Kazunobu Hayakawa, Shujiro Urata, Taiyo Yoshimi, Designing mega-regional trade
agreements, accessed on 20/05/20
22 Kazunobu Hayakawa, Shujiro Urata, Taiyo Yoshimi, Designing mega-regional trade
agreements, accessed on 20/05/20

23 Ibid No.22
136
Sopranzetti S. 24points out that the existence of overlapping trade agreements

increases the costs of negotiation of treaties. Maur25, on the other hand,
argues mega-regional trade agreements have contributed to new
impediments to trade, which require more sophisticated trade facilitation
measures because border formalities become more complex, especially
when it comes to discriminating between preferential and non-preferential
trade.
Hence, one can state that the impact of mega-regional trade agreements on treaty
law and policy is that they increase overlapping of treaty obligations as
provided by various treaties and which subsequently increases the cost of
negotiations of treaties.
c) Mega regional trade agreements (MRTA’s) have eroded the basic principles
in international trade as enshrined in the WTO system such as the principle
of the most favoured nation.26 The most favoured nation principle is a
bedrock principle of the WTO that ought to be protected.
The most favoured nation principle requires a country to provide any

concessions, privileges, or immunities granted to one nation in a trade
agreement to all other World Trade Organization member countries.
Although its name implies favouritism toward another nation, it denotes the
equal treatment of all countries.27
24 Sopranzetti S. (2017). Overlapping free trade agreements and international trade: A

network approach. World Econ. 2017; 00:1–18.< https://doi.org/10.1111/twec.12599>
25 Maur.J.C (2008), Regionalism and Trade Facilitation: A primer. World Bank
Development Research Group.

26 Magdalena Słok-Wódkowska, “From most-favoured to least favoured nations – how
RTAs influenced the WTO MFN-based trade?” (University of Warsaw, Ph.D thesis,
Law).
27<https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm> accessed on
20/05/20
137
However, ostensibly most regional and MRTA’s derogate from this

principle. Magdalena28 observes that “with the recent growth of importance of
RTA, especially with so-called mega-regionals such as Trans-Pacific Partnership
(TPP) and Transatlantic Trade and Investment Partnership (TTIP), there is a clear
shift in the significance of the old WTO most favoured nation.”
The most favoured nation principle is the main pillar of international trade
from which stems economic benefits. Thus, if this main principle loses value
as a consequence of the formation of MRTA’s many countries will be placed
in a disadvantaged position especially the least developed countries
(LDC’s).
d) Mega regional trade agreements (MRTA’s) have the effect of rendering

WTO system otiose. Perhaps an important principle to hold sacrosanct when
it comes to international relations is that encapsulated in the Vienna
Convention on the law of treaties, Article 26. This is the principle of pacta
sunt servanda.29 Succinctly, this principle provides that; the treaties ratified
by states binds the states and they should perform the obligations
thereunder in good faith. The fallback employed by many states is usually
that of sovereignty.
Although it is conceded that the WTO itself recognizes the need of states to
conclude regional agreements, this should not be used to render the WTO
system otiose but should rather be complementary to the WTO system. The
derogation from the already existing WTO provisions essentially renders
the system nugatory.
28 Magdalena Słok-Wódkowska, “From most-favoured to least favoured nations – how

RTAs influenced the WTO MFN-based trade?” (University of Warsaw, Ph.D thesis,
Law).
29 Article 26 of the United Nations, Vienna Convention on the Law of Treaties, 23 May
1969, United Nations, Treaty Series, available at:

< https://www.refworld.org/docid/3ae6b3a10.html> accessed on 20/05/20
138
e) Mega regional trade agreements although, at heart do have the objective of

liberalization of trade central, which is almost in tandem as the objectives
pursued by the WTO agreements, they concomitantly have adverse effects.
The negative impact posed by MRTA’s on developing countries and the
least developed countries is a manifestation of these adverse effects.
This is precisely because the developing countries and the least developed
countries most significantly rely on the principles established by multilateral
treaties,30 to address inequalities that they face in world market trade. For
example, the most favoured nation principle, which requires equal
treatment of all countries.31
The MRTA’s erode such principles that precisely seek to protect the
developing countries and the least developed countries. In the end, the
liberalization intended by MRTA’s end up causing various adverse effects.
The developing countries and the least developed countries then have no
option but to enter into regional trade agreements to address these adverse
effects. For example; The Agreement Establishing the African Continental
Free Trade Agreement (AfCFTA) a regional trade agreement seeking
liberalization of trade in Africa.32
f) Mega regional trade agreements lead to the proliferation of regional trade

agreements and the creation of policies in other regions as a response to their
existence. In the context of the emergence of mega-regional trade
agreements such as TTIP, TPP, and RCEP, has necessitated the creation of
various regional trade agreements. Various regions have entered into
regional trade agreements. For example, the Africa region has established a
30 For example; Agreement establishing the World Trade Organization a multilateral

treaty.
31<https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm> accessed on
20/05/20
32 The Agreement Establishing the African Continental Free Trade Agreement (AfCFTA)
entered into force on 30/05/2019 and among other things seeks to promote economic
growth in Africa through liberalization of trade.
139
trade agreement namely; African Continental Free Trade Agreement

(AfCFTA). The agreement establishing the African Continental Free Trade
Agreement (AfCFTA) entered into force on 30th May 2019, which consist of
African Countries including Kenya.33
This agreement is not only intended to help African economies to mitigate

trade losses caused by the formation of major trade blocs, but also enhance
trade policy coherence within the continent.34
This is an ambitious and inclusive continental-wide trade policy to reform

and align multiple existing trade regimes across Africa while addressing the
issue of overlapping memberships among the African Regional Economic
Communities (RECs).35
At a time when African countries are engaged in reciprocal albeit

asymmetrical trade deals with external partners, such as the Economic
Partnership Agreements (EPAs) with the European Union, the CFTA should
ensure that any African country does not disadvantage its continental
counterparts over external partners in terms of market access. 36
2. Modes of dispute resolution mechanisms adopted mega-regional trade

agreements
A glimpse at the dispute resolution mechanisms adopted by mega-regional
trade agreements illustrates that they highly adopt alternative dispute
33<https://www.tralac.org/resources/our-resources/6730-continental-free-trade-
area-cfta.html>accessed on 20/05/20
34Simon Mevel, Trade and Sustainable Development News and Analysis on Africa,
35 Ibid No.34
140
resolution mechanisms.37 These can be termed as ‘gentler arts of reconciliation

and accommodation'38
In essence, mega-regional trade agreements advocate for alternative dispute

resolution mechanisms and are complemented by other modes of dispute
resolution mechanisms like panels. Below is a succinct analysis of dispute
settlement mechanisms under the three main mega-regional agreements:
a) The Trans-Pacific Partnership (TPP) Agreement

The Trans-Pacific Partnership (TPP) agreement negotiating parties included;
Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru,
Singapore, the United States, and Vietnam. The Trans-Pacific Partnership (TPP)
agreement was signed by its 12 members in February 2016. Through the TPP,
the participating countries sought to liberalize trade and investment and
establish new rules and disciplines in the region beyond what existed in the
World Trade Organization.39
The Preamble of the agreement succinctly captures the purpose of the

agreement as; a comprehensive regional agreement that promotes economic
integration to liberalize trade and investment, bring economic growth and social
benefits, create new opportunities for workers and businesses, contribute to
raising living standards, benefit consumers, reduce poverty and promote
sustainable growth.40
Chapter 28 of the Trans-Pacific Partnership (TPP) agreement, provides for

dispute settlement. The Dispute Settlement chapter governs disputes between
37 Analyzing the salient provision on dispute resolution in mega-regional trade

agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and
Investment Partnership (TTIP) show that they adopt alternative dispute resolution
mechanisms.
38 Derek C. Bok, A flawed system of law practice and training (http://heinonline.org),
page 583 accessed on 20/05/20

39 Ian F. Fergusson, The Trans Pacific Partnership (TPP): In Brief
40 Trans-Pacific Partnership (TPP) Agreement
141
governments. It is unrelated to the Investor-State dispute settlement (ISDS)

mechanism, which applies exclusively to commitments in the investment
chapter and relates to disputes between private parties and governments.41
The dispute settlement mechanisms generally apply across the TPP Agreement,
including to obligations under the Labor and Environment chapters (chapter 19
and 20 respectively), as well as newer disciplines related to cross-border data
flows and state-owned enterprises.
The Dispute Settlement chapter guarantees the right of the public in each TPP
country to follow proceedings, by ensuring that submissions made in a dispute
will be made publicly available, hearings will be open to the public, and final
decisions by panels will be made publicly available. Further, non-governmental
entities will have the right to request making written submissions to panels
during disputes.42
i) Use of alternative dispute resolution mechanisms

Chapter 28 of TPP commits the TPP Parties to make every attempt to resolve
disputes through cooperation and consultation and encourages the use of alternative
dispute resolution mechanisms where the Parties believe that it would be helpful
to resolve a dispute.
The chapter encourages the use of arbitration and other alternative dispute
resolution, especially for private commercial disputes. Under the Dispute
Settlement chapter, the first formal step is to hold consultations between the
relevant Parties, with a view to early resolution of the issue. 43
ii) Dispute settlement panel

If consultations between parties fail, the dispute can proceed with a party
requesting the establishment a dispute settlement panel tasked with
determining whether a Party has failed to comply with its obligations under the
41< https://ustr.gov/sites/default/files/TPP-Chapter-Summary-Dispute-
Settlement.pdf >accessed on 20/05/20
42 Ibid No.41
43 Chapter 28 TPP
142
Agreement. Specified timeframes are set to ensure an efficient system. A panel

may be requested within 60 days after the date of receipt of a request for
consultations or 30 days after the date of receipt of a request for perishable
goods.44
Panels are composed of three objective international trade and subject matter
experts. Timeframes for selection of arbitrators are established, including
procedures to ensure that the panel can be composed even if a party fails to
appoint an arbitrator within a set period.45
Clear rules of procedure to guide the functioning of panels and, in particular,

ensure the transparency aspects noted above. Besides, panelists are subject to a
code of conduct agreed to by TPP Parties to ensure the integrity of the dispute
settlement mechanism.46
Panels are required to present an initial report to the disputing Parties within
150 days after the last panelist is appointed or 120 days in cases of urgency. That
report will be confidential to allow the disputing parties to a dispute review and
submit any written comments to the panel. The panel then issues its final report
within 30 days of the presentation of the initial report.47 The disputing Parties
will then be required to release the final report publicly within 15 days
thereafter, subject to the protection of any confidential information.48
Implementation of the Final Report by the dispute settlement panel

To maximize compliance with the obligations agreed to, the Dispute Settlement
chapter allows for the use of trade retaliation (suspension of benefits or payment
44 < https://ustr.gov/sites/default/files/TPP-Chapter-Summary-Dispute-
45 Ibid No. 44

47 Chapter 28 TPP
48 Chapter 28 TPP
143
of a monetary assessment) if a party that has been found not to have abided by
its obligations fails to fix the problem identified by the panel. 49
However, before that may happen, a party that is found to be in violation can
negotiate or arbitrate a reasonable period in which to fix the problem. While the
Parties recognize the importance of prompt compliance with panel
determinations, nothing in the Agreement can require parties to change a law
or regulation.50
Limitation
It is imperative however to note that no TPP Party can provide for a private right
of action under its domestic law against any other TPP Party for failure to carry
out the obligations in the TPP Agreement.
b) Transatlantic Trade and Investment Partnership (TTIP) Agreement

The Transatlantic Trade and Investment Partnership (TTIP) is a comprehensive
trade deal between the European Union (EU) and the United States to promote
trade and economic growth.51 TTIP aims to enhance market access through the
elimination of barriers to trade and investment in goods, services, and
agriculture between the European Union (EU) and the United States.52
The Transatlantic Trade and Investment Partnership (TTIP) is still under
negotiation hence the agreement has not yet set out a dispute settlement system.
However, in the negotiation both the United States and European Union
propose that; the TTIP dispute settlement system would be based on the WTO's

51<https://www.investopedia.com/terms/t/transatlantic-trade-and-investment-
partnership-ttip.asp>
52 Vivian C. Jones and Shayerah Ilias Akhtar, Transatlantic Trade and Investment
Partnership (TTIP) Negotiations

144
successful dispute settlement system and would feature important innovations,

such as53:
i) Enabling the EU and US to decide in advance which arbitrators are

eligible to sit on panels, rather than choosing them on a case-by-case
basis; this would increase mutual trust in the arbitrators and their
rulings;
ii) Ensuring even greater transparency by holding hearings in public;
allowing interested parties, such as non-governmental organizations, to
give their views in writing;
iii) Publishing all views submitted to the panel of arbitrators.
An analysis of dispute settlement System under WTO an established

multilateral system
The WTO’s dispute settlement system is an established system of resolving
disputes between member states.54 The emerging mega-regional agreements
borrow heavily from WTO’s dispute settlement system. Its vital characteristics
like having procedures for mediation, conciliation, good offices, arbitration,
consultation and panel procedures make it an ideal dispute settlement system.55
The WTO’s dispute settlement system has as its foundation the rules,
procedures and practices developed under the General Agreement on Tariffs
and Trade (GATT) 1947.56 However, it improves upon the previous system in
several ways, including by being more accessible. This is shown by the increased
participation of developing countries.57
The dispute settlement system follows specific and detailed timetables for
completing the examination of a case. This first takes place by a group of three
53Directorate-General for Trade of the European Commission; The Transatlantic Trade

and Investment Partnership (TTIP) Towards an EU–US trade deal.
54<https://www.everycrsreport.com/reports/RS20088.html.>accessed on 20/05/20
55Dispute Settlement Understanding (DSU) which is Annex II of Agreement establishing
the World Trade Organization (WTO)

56<https://www.wto.org/english/thewto_e/20y_e/dispute_brochure20y_e.pdf>
57 WTO, Resolving disputes among WTO members.
145
panelists who are specially selected for the case. Their findings are published in
a report which may be appealed by the members concerned. Appeals are
considered by the WTO’s Appellate Body, which consists of seven members
elected for a four-year term.58
The rules and procedures of the WTO’s dispute settlement system are set out in
the Dispute the “Understanding on Rules and Procedures Governing the
Settlement of Disputes” or Dispute Settlement Understanding (DSU) which is
Annex II of Agreement establishing the World Trade Organisation (WTO),
which is administered by the Dispute Settlement Body (DSB), consisting of
representatives of all WTO members. When lodging a complaint, WTO
members are required to specify which WTO agreements are allegedly being
violated. (Consider Annex I to IV of WTO agreement)
The “Understanding on Rules and Procedures Governing the Settlement of

Disputes” or Dispute Settlement Understanding (DSU) agreement provides the
common rules and procedures for the settlement of disputes related to the WTO
Agreements. It aims to strengthen dispute settlement procedures by prohibiting
unilateral measures, establishing dispute settlement panels whose reports are
automatically adopted, setting time frames for dispute settlement, establishing
the Appellate Body, etc.59
The WTO dispute settlement mechanism also contains provisions for special or
extra procedures under agreements such as Articles XXII and XXIII of GATS
(General Agreement on Trade in Services) as well as the procedures and rules
of the Appellate Body. The mechanism covers the procedures for mediation,
conciliation, good offices and arbitration, and the core part of those procedures
includes “consultation” and “panel procedures” and a series of other
procedures relevant to them.
58 WTO, Resolving disputes among WTO members.

59 Overview of WTO agreements Chapter two
146
4. Conclusion
Mega regional trade agreements are likely to cause a ripple internationally that
will be felt tremendously. This is not just for the efficacious value they hold
especially in the liberalisation of trade, but also inversely in the erosion of the
multilateral system.
The multilateral system involves a vast number of members with divergent

ideas and interests, thus, compromise is usually vital. However, this is very
unlikely when it comes to Mega regional trade agreements, not to discard as
being impossible, as members usually are pushed to join based on the pursuance
of various interests.
MRTA’s are gainful for countries especially for the greater appeal they possess
when it comes to the availability of a market-ready to assimilate the products
from different member states. MRTA’s effectively create an optimal atmosphere
for the conduct of trade. This essentially creates dynamism in the market as
innovation is bolstered, more especially due to the permeation of products in
the market forcing producers from other countries to take an initiative to
produce better products, thus, enhancing healthy competition. It would not thus
be wrong to say that Mega regional trade agreements are the epitome of
liberalisation.
However, while they do possess very fundamental aspects central to trade,

Mega regional trade agreements should ensure that the WTO system is the
guiding platform. Mega regional trade agreements should not derogate the
WTO system but rather ensure that the policies within such regions are
integrated in such a manner to complement and ensure the progression of the
multilateral system under the WTO.
Article 30 of the Vienna Convention on the Law of treaties 1969 which provides for
the application of successive treaties relating to the same subject matter ought
not to be derogated from by members of various Mega regional trade
agreements.
147
Mega regional trade agreements, highly adopt alternative dispute resolution

mechanisms as the preferred modes of dispute resolution mechanisms. Further
panel procedures are a prevalent mode of dispute resolution adopted by mega-
regional agreements.
148
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150
An Overview of Negotiating Peace Agreements in (2020) 8(2) Alternative Dispute Resolution
East Africa: Henry K. Murigi
An Overview of Negotiating Peace Agreements in East Africa
By: Henry K. Murigi
Abstract
Negotiations are in the list of alternative dispute resolution approaches and produce
negotiated agreements when used in the context of conflict. Negotiated agreements are
constructed through diverse processes. They, however, face both structural challenges
arising from the nature of negotiations processes and cultural challenges meaning they
are context specific. In this paper, we seek to highlight both challenges. States in East
Africa have undergone varied types of conflicts ranging from resource related, political,
and ethnic among others. Each of the East African States in the region has recently
experienced conflict but has successfully negotiated their way out albeit with serious
challenges. The paper seeks to analyze the process, approaches, theories, actors and
outcomes of negotiations as a model of conflict resolution. This paper will consider the
attempts that have been made to use negotiation in conflict resolution in Kenya,
Burundi, Uganda, Rwanda and Tanzania.
1. Introduction
Negotiation has been traditionally defined as a discussion between two or more
parties aimed at resolving incompatible goals. It is one of the approaches to
dealing with conflict Dean G. Pruit & Peter J. Carnevale (1997). International
negotiation defined widely may include a process by which states and other
actors in the international arena exchange proposals in an attempt to agree
about a point of conflict and manage their future relationship Bercovitch &
Jackson, 1997: 25-26. It is a continuous set of related activities involving actors,
decisions and situations. A highly flexible form of joint, voluntary, non- binding
decision making, negotiation encompasses a wide spectrum of behavior that
ranges from formal discussions in a multilateral forum such as the UN, to
informal conversations at an embassy cocktail party. It need not even involve
verbalized communications. Instead, it might be tacit, as in a series of moves
and counter-moves. Furthermore, depending on the wishes of the disputants, it
can be conducted formally or informally, in secret or in the open, by heads of

PhD International Relations Student at USIU-A, MA Peace and Conflict Management,
Post-Graduate Dip in Law from Kenya School of Law, LLB, Advocate of the High Court
of Kenya.
151
state or by low-level officials, with closed or open-ended agendas, under firm

deadlines or less firm deadlines, and using hard bargaining or problem-solving
strategies.
2. Conflict Resolution through Negotiations

To begin with we consider the structural aspects of negotiations and the
challenges reposed in the structure of negotiations as a conflict resolution
approach. The preference for the negotiation option in the settlement of violent
international disputes is one that has taken place against a backdrop marked by
a growing preference for international negotiation as the principal means for
dealing with international disputes on a wide range of issues. This is partly due
to a stronger understanding of the processes of interest based negotiations, a
method of structuring negotiations toward a ‘win-win’ solution in which both
parties reach a satisfactory agreement on issues critical to each (Cohen et al.
1991).
Some scholars have located one of the main challenges to negotiation processes
to be rooted in communication Curle, A. (1996). The challenges on international
negotiation agreements in conflict settings can be classified into major
approaches those that stress the importance of communications on one hand
and dialogue as trust-building activities that help change the perceptions of
warring parties on the other hand. These two concepts assist in promoting
cooperative solutions and those that view the negotiation process as a risk
management process directed at changing the preferences of the parties and
their strategic ability to commit to negotiated agreements. The main idea of
negotiations is compromise which is most often hard to achieve with ease. These
challenges are well demonstrated in the following East African cases.
2.1 Ripeness of Conflict

One of the main challenges of negotiated agreements in East Africa is the
misreading of the ripeness of the moment for an agreement. It is only when a
conflict is ripe for settlement that negotiations can flourish. This does not mean
that warring parties, third party interveners or other peace making actors do
nothing until a conflict ripe for negotiation, resolution or settlement. That is why
many conflict resolution attempts are made, but only a few succeed. The idea is
152
that the parties must have been greatly affected by the conflict for them to realize
that they cannot achieve their aims by continued fighting, and that it is costly to
continue fighting. It can be argued that one of the challenges to negotiated
agreement is that the stalemate did not hurt enough, but again there is no clear
evidence as to how long a stalemate has to last or how much it has to hurt before
it triggers successful negotiations (Cairns, 1997). It is therefore important to
distinguish, between ripeness for negotiations to start and ripeness for
negotiations to succeed. The two are mutually exclusive and play a great role in
the success of the agreement. Correct reading of ripeness is one of the main
challenges to negotiations.
3. Understanding Negotiation
Here, we discuss in brief the stages and dynamics of negotiations and how they
feed into the conceptual challenges of the negotiation process. We also consider
that sometimes the parties may or may not choose negotiation as a conflict
resolution model to their own disadvantage in spite of the opportunities it offers
for a negotiated settlement. Lastly, we consider the arguments by critics about
negotiated agreements.
3.1 Stages and Dynamics of Negotiation - Rwanda

It is critical to understand the stages and dynamics of any process as when this
is not correctly understood it may pose a great challenge to the effectiveness of
its output. In negotiation one of the main output is a negotiated agreement
which as product is as good as the process producing it. Although it can be
argued that a process may be flawed but produce an excellent agreement since
it is in the spirit of the negotiating teams to reach an agreement, the process is
just as important.
To begin with, the stages of negotiations as suggested by Druckman, et al (1999)

are classified into four categories. In understanding the Rwanda case, this paper
seeks to demonstrate that these stages were not adequately utilized. First, the
actual negotiation process begins by nonstick sounding which includes
establishing rapport for the warring groups. This may take the format of
entertaining and establishing trust from variation of the cultures. One of the
challenges is that sometimes negotiations do not include key stakeholders and
153
also there are issues dealing with power play between the antagonists. In
Rwanda the negotiated response to the genocide was aimed to ensure that the
entire country was behind the need to resolve the conflict.
Second, the parties then exchange their background information and express
their needs and preferences. At this stage, the parties explain their initial
positions and the differences become apparent. The genocide in Rwanda was a
serious challenge that shocked the conscience of the world. Some have however
argued that the approach taken by the President Kagame’s regime was a
pacification of the problem and it remains ticking time bomb for a far worse
crisis. This might be a stretched argument that when properly scrutinized could
reveal absence of proper factual basis. To this end, although the Gacaca courts
were a product of the negotiations, they may not have gone to the root of the
information needed for a permanent peace in Rwanda. Third, parties seek to
convince the other using persuasive strategies with a view that parties modify
their position for accommodation of other parties. The tactics used to persuade
may include direct/honest acts, bluffing, threats, and misrepresentations with
a view to gaining concessions at the end. Lastly, agreement is reached by a
conclusion and accord is reached. This is the culmination of the process leading
to the agreement the ultimate handshake turned into a formal written
document.
There are several aspects that are at play during the negotiations that require
the teams to put themselves in the other party’s shoes. This requires that parties
understand the other parties perspectives. Negotiators may use hard, soft and
principled approaches to attempting to resolve conflicts. Roy Lweicki et al
(1997) argue that in making a choice on negotiation strategy one must consider
the outcome that is crucial to their course. In Rwanda it was considered that the
substantive outcome was to ensure that they deal with the entire conflict toward
a resolution. It was also realized that there was need for justice to be achieved
for the victims which was balanced with the fact that the parties would ensure
societal engagement. Roy Lweicki et al (1997) suggest that relational outcomes
seek to restore the relationship between the warring parties.
154
Since it was impossible to avoid the relational reality in Rwanda post genocide,
maintaining the relational and substantive outcomes was, as a strategy, worked
in the context of lack of a better alternative to a negotiated settlement (BATNA).
One of the challenges for negotiation is that the worst alternative to a negotiated
settlement (WATNA) is always appealing to some of the parties. Competitive
approaches in negotiation may work where there is a substantial goal as the
bottom line but not when it is a relational outcome. These antecedent factors
that influenced the context of the negotiation including the nature of dispute
which comprises of intensity, complexity and issues related to the dispute
Richard Jackson (2000). Also the nature of parties and their relationship
influences the context within which the relationship of parties was at play in
Rwanda.
4. Challenge of Conceptualization in Kenya

Many scholars have come up with different typologies of conflict. Mwagiru
(2005) argues that there are simple and complex conflicts. Simple conflicts are
as a result of difference of opinion while complex conflicts entail numerous
deaths, large scale displacements of people, mass famine, failing economic,
political, and social institutions. Mwagiru adds that there are short-lived
conflicts like the case Kenya’s 2007 post-election violence. There have been
numerous challenges in Kenya leading to overt conflict right from
independence. This history underscores the dynamics of conflicts in Kenya since
most of the issues surrounding the conflicts have not been ultimately resolved.
Put differently, the root causes of the conflicts in Kenya have never been
addressed. This paper does not seek to explore that concept and all previous
conflict situations. It seeks to analyze recent events that have led to conflict and
how negotiations have been utilized albeit covertly.
4.1 Choice of Negotiation over Others – Kenya (Handshake)

Power strategies are critical and Roy Lweicki et al (1997) suggest that to limit
power games, tactics such as persuasion as opposed to threats, exchange as
opposed to competition, legitimacy as opposed to opportunism, friendliness,
praise and reinforcement of commitments, consultation, and inspirational
appeals should be adopted. After President Uhuru Kenyatta won the 2017
election, the leading contender the former Prime Minister Hon Raila Odinga and
155
he met behind closed doors and negotiated on what is now celebrated

countrywide and referred to as the handshake. The handshake of 9 th March,
2018 received mixed reactions since it caught most Kenyans by surprise. The
output of the negotiation was an agreement in form of the initiative dubbed
Building Bridges Initiative (BBI) consisting of prominent Kenyans appointed by
the President and Raila Odinga. This was a clear case of a strategic maneuver,
power games and dynamics that require investigation and study not merely
because of the importance it has but to enhance the debate on negotiated
agreements.
Power dynamics ought to be correctly anticipated as it might well be that the

persons who purport to represent a community, state or group may not have
the power to do so and as such real power is in the hands of another (other)
party (parties) who may not be present in the negotiation. In the handshake, the
President had legitimate power and Raila Odinga had, sworn himself as the
people’s president, and a threatened economic boycott (whether a bluff or not
is another issue) was in the offing. There were allegations arrest and charges for
various supporters for committing treason. This was an opportunity for uniting
the country which was the President’s agenda.
Several factors inform the choice of negotiation over other approaches to conflict
resolution. First, the interests in the negotiation inform this decision a great deal.
To get to a place of mutual interest in a negotiation is somewhat elusive but it
might be a determinant to the negotiation process choice. In the Kenyan case, it
can be argued that the mutual interest was stability of the country. No other
forum had potential to frame this ideal. The Supreme Court had done its part,
the legislators had also done their part, and there was a dilemma on the way
forward for the Country.
Second, norms especially social norms have a huge impact on the choice. Norms
shape the arguments and outcomes of negotiations. Under this issue, there is
need to ensure that norms are applied fairly to encourage efforts that would
achieve equal outcomes. The legal framework for resolving any dispute on the
presidential election provided for in the law in particular the Supreme Court
has the exclusive jurisdiction to resolve this disputes.
156
Third, the relationships which may have a positive or negative impact on the
negotiation process. This may include the nature and origin of the relationship.
The President and Raila Odinga have a shared history and common identity as
children of founding fathers of the Republic.
Fourth, the group dynamics and networks are critical in the choice. This boils
down to communication channels and power plays within the group. This is
where the challenges begin to emerge over the decision to negotiate privately.
The decision making process within the group may delay or expedite the choice
of negotiation. In the case of the handshake, the president did not negotiate in
his capacity as party leader of Jubilee party but as the President of the Republic.
This was one of the major advantages for him but a big disadvantage to the
Jubilee party. This disadvantage has led to the perceived split within the ranks
of the political divide.
4.2 Resource based Negotiations - Tanzania

Most of the conflicts in Tanzania are about resources such as water arising from
pastoralist related activities. They sometimes present themselves as ethnic
related conflicts according to Kuney (1994). He argues that in Tanzania,
compared to other countries, the magnitude of the conflict is relatively small.
He argues that one of the most prominent conflict takes a tribal perspective and
is between the Masaai and WaArusha. However, at the center of the dispute or
conflict is the issue of land ownership, land economics and commercial use of
land as a factor of production. Recently, there were reports that the conflict
between the Masaai community in Kenya and Tanzania had conflict over
grazing land. This conflict can escalate to unmanageable levels if not correctly
diagnosed and managed through negotiations.
It is therefore easy to generalize the conflict and not really understand the root
cause as argued by Doucey (2011). All human beings have basic needs. Part of
these needs are physical, like the need for food, water or shelter, but essential
needs go beyond these few elements because they cover the psychological
sphere. “Needs” theorists, John Burton (1990), argues that needs are universal
and nonnegotiable and, therefore, in the context of conflict should be primarily
addressed as a basis for negotiating peace settlements.
157
4.3 Uganda Migingo Row

Uganda on the other hand, has had a history of violent conflicts especially prior
to the regime of President Museveni. After he ascended into power there has
largely been structural violence which relates to his Machiavenian style of
staying in power. However, this paper shall consider the Migingo row which
was settled by a negotiated agreement between Kenya and Uganda. Shaka
(2013) argues that there was a rumbling unease on Migingo Island after Kenyan
policemen were sent to the Island to assess and examine the complaints of
unfriendly conduct of the Uganda Police against Kenyans in 2013. In response,
Uganda deployed military force to the island leading to apparent conflict. This
appeared to be another setting that would present a cross border conflict since
some of the Kenyan fishermen were being treated unfairly and arrested by the
Ugandan government (Shaka 2013).
Wekesa (2010) questioned why Migingo row had not been resolved and
continued to surround the relations between Kenya and Uganda. It had been
argued that the Kenyan side had taken a diplomatic posture (soft power) as a
negotiation antique by considering the row as a non-issue. The Ugandans on the
other hand deployed their military at will (hard power) since they considered
their sovereignty to be under siege. This was especially so when Kenya
deployed administration police to the Island and Uganda reacted by sending
them away. At the 10th ordinary summit of the East Africa Heads of State
meeting, a negotiated agreement by way of a resolution was passed to the effect
that the Uganda and Kenya Government resolve the Migingo row leading to
formation of a task force. In the agreement, the boundary survey was formed
and the framework agreed to be guided by the provisions of the British order in
Council of 1926, the Kenyan Constitution 1963, and the Ugandan Constitution
1995.
Baligidde (2012) argues that it is critical to examine how a country like Uganda
could survive as a state among super powers. To understand Uganda for
example he suggests that the Foreign Affairs Minister was a brother-in-law to
the President and is part of the inner circle with the potential of influencing
decisions. Baligidde further contends that Uganda’s foreign policy utilized in
the negotiations was influenced by a minority and not the view of the populace.
158
He posits that for a decision maker to be successful in the desire to retain power
there must be a balance in foreign policy and maximization of the local/national
support of the regime.
5. Actors in Conflict Resolution

The critical issues to interrogate when analyzing the role of actors include:
interests, goals, positions, capabilities, potential and relationships. (Ghali, 1993)
argues that interests are the underlying motivations of the actors while goals are
the strategies that actors use to pursue their interests. He adds that positions are
the solutions presented by actors on a given context, irrespective of the interests
and goals of others while capacities are the actors’ potential to affect the context,
positively or negatively. Potential can be defined in terms of resources, access,
social networks and constituencies while relationships are the interactions
between actors at various levels, and their perception of these interactions
(Ghali, 1993).
Bloomfield and Moulton (1997) suggests that some approaches distinguish

actors according to the level at which they operate such as grassroots, middle
level, and top level. In any case, it is important to consider the relationships
between actors at various levels and how they affect the conflict dynamics. They
argue that particular attention should be paid to spoilers, specific groups with
an interest in the maintenance of the negative status quo. If not properly dealt
with, they may become an obstacle to the conflict resolution process. It is
therefore important that actors are assessed in relation to their capacity,
legitimacy, the likelihood of their engagement, and the possible roles they can
adopt before being allowed on board.
For Burundi we consider the challenges to negotiations by the East African

Community (regional body) as an actor as well as the local traditional
mechanisms called the bashingatahe. The East African Community (EAC) is
regional intergovernmental organization comprised of six (6) States in the Africa
Greats Lake region in Eastern Africa. The organization was founded in 1967.
However, there was a momentary collapse of the organization in 1977, and
pursuant to renewed and continuous efforts of the Presidents of Kenya, Uganda
and Tanzania, it was revived in 2000. Burundi and Rwanda later joined the
159
federation after it became apparent that there was need to foster regional
cooperation.
According to Daniel P. Sullivan (2005), Burundi has been ravaged by a history

violent outbreaks, often consisting of Hutu rebel attacks followed reaction of the
Tutsi military forces (1965, 1972, 1988, and 1993). Such outbreak took place in
the 1972 genocide, an important and reference point for Burundians in which
between 2,000 and 200,000 Hutu were killed, while other Hutu’s fled the
country. Another outbreak of violence took place in 1988, fuelled largely by
rumours showing tendencies of a 'new 1972', which led to the killing of several
hundred Tutsi by Hutu in response the killing of as many as 20,000 Hutu by the
Tutsi.
Daniel P. Sullivan (2005) argues that the failure of a power-sharing (negotiated

agreement) attempt at peace in Burundi led to the killing of hundreds of
thousands of Burundians and created room for the tensions that led to the
genocide in Rwanda where 800,000 people lost their lives. Schraml (2014) argues
that the mainstream (constructivist) theorizing about ethnicity should be
expanded in order to take essentialist aspects that are present in the notions of
"potential ethnics" into account. By focusing on the notions of "potential
ethnics", that is, in this case Burundians, one avoids the oversimplification that
still persists in the debate about essentialist and constructivist approaches to
ethnicity. In that work he demonstrates that between September 2007 and May
2008 Burundians did not conceive of ethnic categories as either constructivist or
essentialist, but that constructivist and essentialist notions exist next to each
other and are strongly intertwined in the different lines of reasoning. Attempts
to view Burundi as a classic case for ethnicity is one of the reasons why the
negotiations agreements have not worked in Burundi.
There has been a great push by scholars to have African solutions to African
problems. Okello, S. (2016), argues that there should be approaches that adopts
African Solutions for Peace and Security (AfSol), try Africa first, and do it
yourself ideas. This is applicable to the EAC as well. Munene (2015) argues that
without external interference each EAC’s state has tried to become viable and
acceptable to its people and have concentrated on peace, meaning law and order
160
at the expense of maintaining generic peace. The efforts by the community have
thus failed to address the issues in Burundi which remains under crisis even
today.
5.1 The Bashingantahe Analysed

Any intervention that is not approached from bottom up will ultimately fail in
Burundi. One such institution is the traditional dispute resolutions that adopted
negotiations as a means of dispute resolution. The monarchical the institution
of bashingantahe which was similar to the Gacaca in Rwanda. Bashingatahe was
formal traditional way of resolving community disputes under the monarchy in
Burundi. The have been several attempts at negotiations with a view to revive
the institutions in pursuit of the fulfilment of the Arusha Accord. In considering
this institution, it has been argued by Vandeginst S. (2008) that the current
preferred means of seeking a lasting solution to conflict is regional and
international mediation, and Burundi has had recourse to such an approach.
However, the wrongs committed in a particular country are best dealt with by
those who are familiar with their root causes and the parties involved those, in
other words, who have suffered directly and have issued pleas for help to
political leaders who are not always able to provide answers to the challenges
at hand which would be reached by way of an agreement. He argues that
political transitions contained in negotiated agreements can sometimes appear
like a no man’s land where all kinds of evil practices go on behind the scenes,
with crimes and a prevailing culture of impunity only serving to increase the
number of victims. This, in turn, is why macro-political efforts should always
be accompanied by initiatives that operate close to the people, on a human scale
that enables the resolution of conflicts at the grass-roots level.
Vandeginst S. (2008) further argues that in Burundi transitional justice including

negotiated agreements can serve as a complementary element to existing
judicial structures that have either broken down or been rendered ineffective by
the conflict and the painful experiences of many. As a traditional institution for
managing conflict the institution of Bashingantahe can act as a safeguard
guaranteeing community harmony and reconciliation. One of the major
challenges that remains unaddressed mainly involves a tendency to trivialize
the institution and the development of sound collaboration between the
161
authorities and the Bashingantahe. Other difficulties such as the incorporation of

young people into the institution, and the investiture of women in their
individual capacities, independently of their husbands, as well as the role they
can play in the present context of a country recovering from crisis have not been
included in the negotiated agreement. These are significant challenges, but they
should be tackled sensitively, without unduly disrupting an already fragile
Burundian society. Vandeginst S. (2008) agreeably suggests that culture does
not change overnight. Mindful of this, once it is back on its feet the institution
of Bashingantahe can play its full social and political regulatory role in the
maintenance of peace and social cohesion and as a moral and cultural reference
point. Additionally, it can play a significant role in the process of reconciliation
in a society which has torn itself apart in the course of recent years, but is today
committed to the path of reconciliation and reconstruction.
6. Way Forward
This paper has highlighted several challenges and the attempts that have been
made to overcome them with some being problematic while others simple in
arriving at a negotiated agreement. There appears to be an emerging consensus
on some of the approaches that parties and negotiators must be aware of when
engaging each other to ensure that there is a win-win negotiated agreement.
This approaches apply to both structural and cultural challenges and calls for
alertness to the needs of each other. These two ideas call for a cooperative view
to the negotiation process as a conflict resolution process directed at changing
the predilections of the parties and their calculated aptitude to commit to
negotiated agreements. Here are some of the proposed approaches and way
forward, though not exhaustive or exclusive, should be adopted by East African
States in arriving at negotiated agreements to future disagreements. First, both
parties should ensure that they have done a background into their opponent
before embarking on the negotiations. This calls for deep research which is
critical to understanding the root cause of the dispute or conflict as well the
idiosyncrasies of the other party. This may require seeking professional
assistance from those well equipped with the technical knowhow to give advice
on the best approach to negotiations. The results from the research would
ultimately become a good basis for engaging in negotiations.
162
Second, every process is often times as good as the players involved. Setting
acceptable ground rules is critical to the negotiation. In so doing parties are able
to ensure that trust is attained to the extent that the negotiations become
meaningful. Third, identifying and establishing extra-mural mutual trust is
critical. This occurs when parties meet with an attempt to diffuse the tension
raised from the issues that have generated negative energy, produced heated
exchanges and escalated the dispute to unmanageable levels. This calls for
ensuring that the atmosphere in which the negotiations are taking place is seen
to benefit both parties including getting a neutral grounds where the
discussions would happen as well as setting the right atmosphere for resolution
of a dispute. Ordinarily this is the negotiators duty but when parties are in
control of the process it would be important to have this as a cardinal rule for
setting up a face-face meeting. Fourth, the most important approach is one that
ensures that cultural differences are acknowledged, appreciated and respected.
It would be full hardy to insist on being right due to a single perspective to an
issue. Understanding cultural differences does not mean that one is converted
to the other sides view point, instead it means one has a richer perspective to
the issue at hand. This calls for active listening and genuine desire to
understating the other side’s view point which often helps in understanding the
conflict/dispute and the other party better. As stated earlier this are a few
suggested way forward as approaches that might aid defeating the challenges
highlighted in this paper. They are not exhaustive or conclusive.
7. Conclusion
In Kenya, there have been several negotiated agreements but the most
prominent was the national accord settling the violent conflict post-election
violence in 2007/8. Recently there was the handshake agreement. Burundi, on
the other hand, has undergone a series of agreements due to the violent conflicts
that have rocked the country since independence. Rwanda, on the other hand,
recovered from the genocide and the peace agreement settled the post conflict
reconstruction. Tanzania and Uganda have also had negotiated agreements and
for purposes of this paper, the focus has been on Masaai for Tanzania and
Migingo for Uganda. However, there have been several challenges to the
effectiveness of the negotiations that will be the subject of the study. This paper
has highlighted the concept of negotiation as a conflict resolution mechanism
163
and the challenges facing the agreements reached in the countries. It is not that
the challenges are unsurmountable, it is that they require a deeper
understanding of the importance of negotiations. The paper has also
highlighted some ways to approach negotiations with a view to overcome the
challenges identified.
164
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Effective Dispute Settlement as a Catalyst for (2020) 8(2) Alternative Dispute Resolution
Infrastructure Development in the Construction
and Energy Industry: Eng. Bwalya Lumbwe
Effective Dispute Settlement as a Catalyst for Infrastructure

Development in the Construction and Energy Industry1
By: Eng. Bwalya Lumbwe
1. Introduction
The construction industry covers a wide range of different types of projects,
from offices, factories and warehouses, shopping malls, hotels and homes to
major infrastructure projects that involve more complex civil engineering works
such as the construction of harbours, railroads, mines, highways and bridges, 2
including tunnels. Added to this list are airports, rural roads, dams, waterways,
irrigation, water supply and sewerage works and digital, Information and
Communication Technology (ICT) networks3. Other construction projects
involve specialist engineering works such as shipbuilding; bespoke plant and
machinery such as turbines, generators and aircraft engines4. The works that
support energy projects such as upstream oil and gas projects or renewables like
wind, wave, solar and nuclear plants5 are in reality a subset of the construction
industry and can be referred to as part of the energy industry. Included in the
energy category is the harnessing of water to produce electricity through hydro-
power plants and the attendant power distribution infrastructure.

Civil Engineer, Adjudicator, Arbitrator, Dispute Avoidance / Adjudication Board
Member FCIArb, FBIArb, FCIOB, FEIZ, R.Eng, MASCE, CCA, MConsEng(Z),
B.Eng(Civil), MSc(Construction), LLM(Construction Law and Arbitration), Certificate
in Oil and Gas Contract Law Chartered Construction Manager, Certified Construction
Auditor Member Dispute Resolution Board Foundation, Member Dispute Board
Foundation, FIDIC National List of Adjudicators- Zambia
1The paper is based on a masterclass that the author taught at the Lagos Court of
Arbitration on the 17th September 2019
2 Stavros Brekoulakis and David Brynmor Thomas (eds), Global Arbitration Review: The
Guide to Construction Arbitration (3rd edn, Law Business Research Ltd 2019) Introduction
1-3
3 Internet, phone, mobile payment services included
4 (n2)
5 Ibid
168
Infrastructure, by one conventional definition, is the basic systems and

services, such as transport and power supplies that a country or
organization uses in order to work effectively.6 The construction
industry, therefore, is an enabler of infrastructure development
including energy infrastructure.
Category-wise, infrastructure can be grouped as follows:
a. Resource-based infrastructure- e.g. water, irrigation, power and

energy supply
b. Physical infrastructure-e.g. roads, transport, rails, airport, seaports,
habours, ICT, sewerage / wastewater
c. Institutional or other infrastructure-e.g. schools, hospitals,
universities, colleges, offices, security structures, housing and
residential developments. 7
Infrastructure delivery is by the state through public procurement processes8 or

the private sector, though typically the state takes the lead in most countries for
both resource-based and physical infrastructure.9 However, concession10 based
6 Cambridge online dictionary

<https://dictionary.cambridge.org/dictionary/english/infrastructure>accessed
30/02/2019
7 Skyways, Expanding Africa’s Agriculture Infrastructure Needs (Urs Honegger, Airlink,
Magazine by Panorama Media Corp [Pty] ltd, Feb 2020) 50-51

8 Public procurement is a process in which governments through entities under their
control (‘procurement entities’) acquire goods, works and services to accomplish many
of their public duties. See Geo Quinot, Sue Arrowsmith (eds), Public Procurement
Regulations in Africa (Cambridge University Press 2013) Introduction starting at page 1
9 This is true for Africa. See the Infrastructure Consortium for Africa, Infrastructure
Financing Trends in Africa (2018)

10Defined as ‘instruments for the construction, financing and management of
infrastructure and services of public interest’. Refer to Philip Dunham and José Manuel
García Represa, Construction Arbitration and Concession Contracts, in Stavros Brekoulakis
and David Brynmor Thomas, (eds), Global Arbitration Review: The Guide to Construction
Arbitration (3rd edn, Law Business Research Ltd 2019) Chapter 26
169
infrastructure development, including Private Public Partnerships (PPPs) 11

which is applicable across all the categories is increasingly common.12
In terms of economic contribution, the construction industry is a major

contributor to economic growth worldwide. In the United Kingdom it has been
estimated that every £1 investment in construction out-put generates £2.84 in
total economic activity13. This statistic emphasizes the importance of the
construction industry and by extension infrastructure development in a
country’s economic endeavors. Infrastructure works or projects by their nature
tend to have large monetary values and as such should in general result in a
proportionately large economic contribution. Infrastructure development lies at
the nexus of economic growth, productive investment, job creation, and poverty
reduction.14
11 According to the World Bank, ‘there is no one widely accepted definition of public-
private partnerships (PPP).’ However, ‘the PPP Knowledge Lab defines a PPP as "a
long-term contract between a private party and a government entity, for providing a
public asset or service, in which the private party bears significant risk and management
responsibility, and remuneration is linked to performance". ‘PPPs typically do not
include service contracts or turnkey construction contracts, which are categorized as
public procurement projects, or the privatization of utilities where there is a limited
ongoing role for the public sector’. See < https://ppp.worldbank.org/public-private-
partnership/overview/what-are-public-private-partnerships> accessed 30/02/2019
12 Philip Dunham and José Manuel García Represa, Construction Arbitration and
Concession in Stavros Brekoulakis and David Brynmor Thomas (eds), Global Arbitration
Review: The Guide to Construction Arbitration (3rd edn, Law Business Research Ltd 2019)
Chapter 26, 309
13 Report by L.E.K. Consulting commissioned by the UK Contractors Group in
partnership with the CBI published 0ctober 2009; Stavros Brekoulakis and David
Brynmor Thomas (eds), Global Arbitration Review: The Guide to Construction Arbitration
(3rd edn, Law Business Research Ltd 2019) introduction 1-3
14 Infrastructure Finance
<https://www.worldbank.org/en/topic/financialsector/brief/infrastructure-
finance> accessed 10/02/2020
170
2. Infrastructure Construction Industry and Disputes

According to Brekoulakis and Thomas,15 complex construction infrastructure
projects are rarely completed without encountering risks that lead to changes to
the time and cost required for their execution16 and to quality as well. In
addition, this is true not only for the complex projects, but also for the non-
complex projects for other reasons other than complexity of the project that also
affect project time, cost and quality. These reasons may include non-payment or
late settlement of amounts due to a contractor or poor supervision. The two
authors further state that, the changes to quality, time and cost in turn give
rise to disputes, ‘the majority of which and possibly the vast majority are
submitted to alternative dispute resolution(‘ADR’)’ and eventually to
arbitration.17 In practice the ADR processes common in construction are tiered
starting with adjudication or dispute board processes and then eventually
arbitration.18
The nature of typical infrastructure works is such that they carry considerably
more risk than any other typical commercial transaction, both in terms of the
amount of risk allocated under them and the complexity of that risk. The
typically long durations lead to risks such as unexpected ground and climate
conditions, fluctuation in the price of materials and in the value of currency,
political risks, for example, governmental interventions and legal risks such as
amendments in law or failure to secure legal permits and licences.19
These risks are further amplified in the energy sector which includes the nuclear
power sector with its own peculiarities and risks aside from those found on any
Guide to Construction Arbitration (3rd edn, Law Business Research Ltd 2019) introduction
1-
16 Known by the industry term as the triple constraints- time, cost and quality as they
are in competition with each other in project or works delivery

17 (n15)
18 Bwalya Lumbwe, The African Arbitration Association is Here, Now What? (Alternative
Dispute Resolution, Vol 7, Issue 2, 2019) 35

19 Stavros Brekoulakis and David Brynmor Thomas, Editors, Global Arbitration Review:
The Guide to Construction Arbitration (Law Business Research Ltd. 3rd edn,2019)
Introduction 1-3
171
conventional project.20 For example, in conventional power projects, owners

and suppliers juggle the competing constraints of time, cost and quality, with
priorities driven by the commercial objectives as reflected in the underlying
construction contract.21
For a nuclear project, nuclear safety overseen by a local nuclear regulator is

superimposed over these constraints. ‘Quality is non-negotiable, limiting the
parties’ ability to compromise on time and cost. Every aspect of the project must
comply with the relevant nuclear safety requirements, irrespective of how long
or how costly it is to achieve compliance.’22 This overriding requirement
generates risk streams, that often are an issue in any construction dispute in the
nuclear sector.
Furthermore, disputes in the energy sector present a range of challenges for

stakeholders in the industry, which can be particularly acute given their
inherent complexity and the financial and frequently, political consequences of
delay and disruption in production. Such complexity is often compounded by
the highly regulated environment in which these projects are developed.23
The international nature of infrastructure construction sometimes means that

the state is a party to a contract with contractors, subcontractors and suppliers
will often come from a number of different counties and nationalities. Since the
state is sovereign within its own territory, there are often concerns that a
contractor or investor in, for example, a concession or PPP or a turnkey project
may not be able to obtain adequate relief against harm it suffers as there is a
perceived risk that a state will favour its own interests and those of its nationals
20 Jane Davies Evans, Construction Arbitrations in the Nuclear Sector, in Stavros

Brekoulakis and David Brynmor Thomas, Eds, Global Arbitration Review: The Guide to
Construction Arbitration (3rd edn, Law Business Research Ltd 2019) Chapter 24, 293
21 (n 20) 290
22 Ibid
23 Scott Stiegler and James L. Loftis, Energy Sector Construction Disputes, in Stavros
Brekoulakis and David Brynmor Thomas (eds), Global Arbitration Review: The Guide to
Construction Arbitration (3rd edn, Law Business Research Ltd 2019) Chapter 25, 301
172
over those of foreign parties.24 Relief and protection for such contractors and
investors may be found in the form of investment treaties, entered into between
states for the purpose of promoting and protecting foreign investment.25
The sum total of the above is that infrastructure construction works have a
reputation for disputes and conflicts resulting from the various risks and more
so for energy projects than typical construction project such as offices, roads,
railways etc.
The Global Construction Dispute Report 201926 (Arcadis Report) is produced

annually and tracks construction disputes. The report covers North America,
UK, Continental Europe and the Middle East only, however it is likely that most
indicators and conclusions will be similar for Africa, Asia and South America,
parts of the world not reported on. The report states that the global average
dispute value in 2018, was US $33m and the global average length of the dispute
was 17 months.27 In the Middle East these figures were US$ 56.7m and 20
months respectively.
The International Chamber of Commerce28 (‘ICC’), ICC Dispute Resolution 2018

Statistics29 reveals that ‘In Construction/engineering and energy disputes
generate the largest number of ICC cases and, as in previous years, account for
24 Tony Dymond, Gavin Chesney and Laith Najjar, Investment Treaty Arbitration in the
Construction Sector in Stavros Brekoulakis and David Brynmor Thomas (eds), Global
Arbitration Review: The Guide to Construction Arbitration (3rd edn, Law Business Research
Ltd 2019) Chapter 23, 273
25 (n24)
26 Though the report is dated 2019, it is based on 2018 data, see page 4
27 The value of a dispute is the additional entitlement to that included in the contract,
for the additional work or event which is being claimed. The length of a dispute is the
period between when it becomes formalized under the contract and the time of
settlement or the conclusion of the hearing.
28 For details see < https://iccwbo.org/about-us/who-we-are/> accessed 21/05/2020
29<http://files-eu.clickdimensions.com/iccwboorg-
avxnt/files/web_icc_disputeresolution2018statistics.pdf?m=11.6.2019%2011:46:22&_cl
dee=YXJiaXRyYXRvcnphbWJpYUBnbWFpbC5jb20%3d&recipientid=contact550c78218
455ea11a811000d3abaad31727ce89f5f9e483ea0fbcfbb319aacf8&esid=4326d233-f853-
4ae2-883b-ec2e0972afd5> accessed 21/05/2020
173
approximately 40% of the 2018 new caseload. A new record has been set in 2018
with the number of construction and engineering cases now reaching 224 new
cases (i.e. 27% of the caseload in 2018).’
With regard to mediation, the ICC Dispute Resolution Bulletin, 2018, Issue 2,
report states that ‘energy disputes were the most frequent, accounting for
almost a third of all cases, followed by disputes relating to telecommunication
and construction. In 2017, the value of disputes ranged from US$ 50,000 to just
under US$ 500 million, thus confirming the suitability of mediation for larger
value disputes.’30
Under the ICC Dispute Resolution 2018 Statistics,31 ‘the disputes covered a wide
range of business sectors. Construction and engineering disputes were the most
frequent, accounting for almost 35% of cases, followed by disputes relating to
energy and telecommunication. In 2018, the value of disputes ranged from US$
250,000 to US$ 860 million, thus confirming the suitability of mediation for a
wide range of disputes, including high-value disputes. The costs of proceedings
in which mediators were appointed (covering ICC administrative expenses and
the fees and expenses of the neutral) were US$ 18,500 on average.’
As in other areas of the ICC dispute resolution, demand for experts from the
construction sector was highest, followed by energy and telecommunications.32
The London Court of International Arbitration33 (LCIA), 2018 Annual Casework
Report which covers arbitration only, reports that the caseload for construction
and infrastructure stood at 10%, while energy and resources were 19%.34
30 (n29)16
31<http://files-eu.clickdimensions.com/iccwboorg-
avxnt/files/web_icc_disputeresolution2018statistics.pdf?m=11.6.2019%2011:46:22&_cl
dee=YXJiaXRyYXRvcnphbWJpYUBnbWFpbC5jb20%3d&recipientid=contact550c78218
455ea11a811000d3abaad31727ce89f5f9e483ea0fbcfbb319aacf8&esid=4326d233-f853-
4ae2-883b-ec2e0972afd5> accessed 21/05/2020
32 ICC Dispute Resolution Bulletin, 2018, Issue 2, 65
33 For details see https://www.lcia.org/News/2018-annual-casework-report.aspx
34 LCIA 2018 Annual Casework Report 3
174
The differences between the two leading arbitral institutions may be in the
parties preferred choice of institution and the definition placed on each industry
sector.
With regard to disputes under investment treaties probably the most visible
body dealing with such disputes is the International Centre for the Settlement
of Investment Disputes(‘ICSID’) whose records show that disputes in the
construction sector have continuously represented 7–8 per cent of the total
number of international investment arbitration cases registered by that
institution. As an example in 2018, 56 of ICSID pending cases out of a total of
706 were construction disputes.35 On the other hand the United Nations
Conference on Trade and Development (UNCTAD) statistics also indicate that
the number and range of investment disputes in the construction sector is
growing, with 69 pending cases in 2016 rising to 96 pending cases in 2018, and
more new cases being registered in the construction sector than in any other
sector.36
Hence it is reasonable to conclude that infrastructure construction works

generate a sizable chunk of disputes worldwide.
3. Causes of Disputes
According to the Arcadis Report the leading causes of construction disputes
worldwide, are, in order of rank:
a. parties failing to understand and/or comply with contractual
obligations.
b. errors and/or omissions in the contract document; and
c. failure to properly administer the contract.37
Reasons (a) and (c) are suggestive of professional training failure, while reason
(b) may be caused by both training as well as result from the nature of the
35<https://icsid.worldbank.org/en/Documents/resources/ICSID%20Web%20Stats
%202019-1(English).pdf> accessed 5/01/2020

36<https://investmentpolicy.unctad.org/investment-dispute-settlement/advanced-
search>Accessed 5/01/2020
37 Arcadis Report 10
175
construction industry, as some things may be impossible to foresee or quantify

e.g. ground conditions. Additional to this may be the political risks which may
be inherent in changes in government which then changes existing policies or
legislation which subsequently affects the nature and operation of the
infrastructure works.38
On the other hand, the International Arbitration Survey: Driving Efficiency in

International Construction Disputes (‘the Queen Mary Report’)39 asked
Respondents to a survey to identify, from a list of 14 possible options, the
factors which caused international construction disputes. Respondents
were permitted to select one or more causes out of the 14. The three main
causes of disputes, in the respondents' experience, were late performance
(68%) followed by poor contract management (63 %), with poor contract
drafting as a third cause at 61%.40
With regard to poor performance in the Queen Mary Report, the reasons can
be a result of all three of the Arcadis’s report leading causes which are: parties
failing to understand and/or comply with contractual obligations; errors
and/or omissions in the contract document; and failure to properly
administer the contract.
The poor contract management which is the second common cause of

international construction disputes under the Queen Mary findings,
though worded differently, is the same as the failure to properly
administer the contract, the third cause under the Arcadis report.
Poor contract drafting is the third most common cause under the Queen Mary
Report but the second reason under the Arcadis Report termed as errors
and/or omissions in the contract document.
38 Stavros Brekoulakis and David Brynmor Thomas, (eds), Global Arbitration Review: The
Guide to Construction Arbitration (3rd edn, Law Business Research Ltd 2019) Introduction
2-3
39 Produced by Pinsent Masons and Queen Mary University of London, November 2019
40 Queen Mary Report 7
176
An additional reason for causes of disputes that is rarely mentioned is that the
process of construction procurement involves a number of different specialists
with widely different skillsets who contribute to the works at different times,
quite often working for different organisations. This arrangement leads to
problems that stand in the way of effective team building that is key in
successful infrastructure project implementation.41
This situation can quite often lead to conflicts at different levels, because each
participant has their own aims and objects. The traditional contract structures
rarely encourages team building as an aim amongst the project team members.
Confrontation with each other rather than harmony is quite often an
expectation, though contracts are beginning to expressly provide for procedures
to discuss and resolve emerging problems that crop up as the project proceeds.42
Another issue to note is that personalities play an important role in resolving or
the creation of disputes.
In the distant past and in some industries even today, such as shipbuilding, the
product that one purchases is designed by its producer or builder. Hence, the
responsibility for the design lies with the fabricator or builder or constructor.
This is the design and build method which has successfully been in use for a
long time. In modern times, though, most infrastructure is provided by an
employer designing the project or engaging a professional designer, which
design is then constructed by a contractor. This separation of design from the
construction has been the source of many problems43 and encourages the
emergence of disputes.
4. Effect of Disputes
Disputes add direct costs to works, however, there are other hidden costs such
as damage to reputations and commercial relationships, time spent by
executives and other personnel on the dispute and lost opportunities.44
41 Will Hughes, Ronan Champion, John Murdoch, Construction Contracts; Law and
Management (5th Edn, Routledge 2015) par 2.1
42 Ibid, par 2.1.5
43 Murray and Langford 2003
44 Cyril Chern, Chern on Dispute Boards (3rd edn, Informa Law 2015) 5
177
Additionally, disputes sometimes lead to delayed project completion or vice

versa, meaning that the benefits of the infrastructure accrue much later to the
public aside from the added indirect and direct costs which includes the
expenditure resulting from legal costs originating out of contract disputes and
which represents an enormous amount globally each year.45
The direct cost of the disputes is an additional cost to the original or revised cost
of projects. The impact of increased costs on a project, other than a direct
increase in cost, may result in cost cutting measures such as adopting lower
quality specifications and the reduction of the final output. The extra cost is
money that could be deployed on another infrastructure project or other state
social needs, while lower quality specification may mean more maintenance
costs in the future and the reduction in output may mean a future completion
of a project at a much higher cost.
In addition, as time and costs are very often critical in infrastructure projects the
late delivery of a power station or road can disrupt the project financing used to
fund it whether this is from the national treasury or from donor or private
financing.46
The World Bank states that infrastructure improves lives by connecting people
to opportunity and that access to basic infrastructure services is critical for
creating economic opportunities and bringing social services to the poor. 47
Examples are the provision of:
 Rural roads and safe transport for access to health and education
facilities; and.
45 Ibid
Guide to Construction Arbitration (Law Business Research Ltd. 3rd edn,2019) Introduction
2-3
47Infrastructure<https://www.worldbank.org/en/topic/infrastructure/overview>
accessed 10/02/2020
178
 The electrification of clinics, schools and households in rural areas to

improve digital connectivity.48
Therefore, delays to implementation and additional costs resulting from

disputes negatively impact the delivery of social services and the economic well-
being of the populace of states.
Prof. Peter Hansford, former Chief Construction Adviser for the UK

Government, recently commented in the context of infrastructure megaprojects,
that these are vital to economies across the world but all too frequently, they fail
to satisfy their objectives in material respects, sometimes with very serious
social and economic consequences.49
5. Popular Methods of Dispute Resolution
The most popular methods for resolving disputes worldwide, in order of

preference as reported in the Arcadis Report are:50
a. Party to Party negotiation

b. Mediation
c. Adjudication
The report reveals that parties engaging in formal, contract mandated dispute
avoidance, mitigation and resolution techniques are much more successful at
containing disputes. Among the methods in use are risk management, dispute
review boards and Mediation.
48 Ibid
49 Study Probes Why Megaprojects underperform
<https://www.newcivilengineer.com/latest/study-probes-why-megaprojects-
underperform-14-02-2020/> accessed 1/02/2020
50 The Arcadis Report 11
179
It is no surprise that the ad-hoc and standing dispute board techniques are not in
the top three list above. This may be because Africa and Asia regions, by far the
biggest users of the technique,51 are not included in the Arcadis Report.52
The dispute board technique may provide parties with an option to seek an
opinion from the board on party differences. The opinion rendered serves as an
incentive to settlement of the difference or the discontinuation of the matter. The
board may also be actively involved in ‘real time’ dispute avoidance.53
However, the Arcadis findings as to the most popular methods of dispute

resolution is in contrast to the findings in the Queen Mary Report though it must
be noted that the findings are limited to international projects or works only.
The survey shows that arbitration is perceived as the best available process for
resolving disputes arising in international construction projects with 71% of
respondents identifying it as the dispute resolution processes most used to
resolve international construction disputes in their experience. Respondents
had the choice of selecting one or more other options.54 This is followed by
negotiation or the intervention of senior representatives at 34%, mediation-
32%, dispute boards-22%, expert determination-17%, statutory adjudication -
17% and standing dispute boards 14%.Investor-state arbitration was at 13%.55.
The Queen Mary Report does not state if the results were undertaken as part of
tiered system of dispute resolution.
Going by the Arcadis Report, the most important activities that helped to avoid
disputes were listed as:56
51 Geoff Smith, Leo Grutters, Update on the DRBF Survey, Dispute Resolution Board
Foundation DRBF 18th Annual International Conference, Tokyo, Japan, May 2018.
Paper can be found at < http://www.drb.org/publications-data/library/> accessed
10/09/2019
Dispute Resolution, Vol 7, Issue 2, 2019) 35

53 Ibid
54 Queen Mary Report, Executive Summary 5
55 Queen Mary Report, Executive Summary 8
56 Acardis Report 11
180
a. Contract mandated early resolution forums such as mediation, dispute

review boards and others;
b. Owner/ contractor willingness to compromise; and
c. Contractor transparency of cost data in support of claimed damages.
As unresolved claims are very likely to lead to disputes, Arcadis reports that the
most effective claims avoidance technique employed were:57
a. Risk Management.
b. Contract and specification reviews; and
c. Constructability reviews.
6. Dispute Avoidance
What the above findings in the Arcadis Report strongly suggests, is that a
combination of methods will contribute to the avoidance, reduction or the
elimination of disputes such as the deployment of active claim avoidance
techniques and the of use contract mandated dispute resolution forums. These
techniques and methods are, therefore, an aid in the effective dispute settlement
in the infrastructure construction projects.
Risk Management is well established in other industries like oil and gas, which
aims to promote successful project delivery and claims avoidance through the
identification, assessment and the finding of suitable responses to
uncertainties.58 The result is the maximization of dispute avoidance of disputes
through the application of risk management.
For the year 2018, globally, Arcadis reports a drop in the average value of
disputes in the construction and engineering industries, due to the deployment
of early dispute avoidance techniques59 which include Dispute Review Boards
or Dispute Avoidance and Adjudication Boards.
57Acardis Report 11
58 Ibid 6
59 Ibid 2
181
Therefore, the most effective dispute settlement technique is the total avoidance
of disputes. However, this is an impossible vision given the nature of
infrastructure construction. The next best option is to deploy techniques that
reduce the number of disputes by actively working towards dispute prevention.
This may be through such contractual techniques as early warning by either
party, of matters that will increase the cost of the works, interfere with timing
and impair the effectiveness and delivery of the contract combined with risk
reduction meetings that can be called by either party.60
When disputes do occur, it is essential to employ techniques that effectively

resolve the dispute quickly, at low cost and amicably, noting that some methods
may not necessarily be the quickest and most cost effective.
Disputes increase project costs and therefore reduce the benefits that accrue to
the public in that the extra cost could be utilized for some other infrastructure
development among other disruptive effects. Hence a reduction of projects costs
and time to completion resulting from disputes will serve as catalyst to spur
more investment in infrastructure.
It also seems logical, that effective dispute settlement should begin with the
adoption of contracts that by their set up will avoid and/or reduce disputes and
the adoption of contract conditions that encourage team building. What better
effective dispute settlement can there be, than the avoidance and reduction of
disputes.
7. The Role of Enforcement and the Court Systems

Any agreement or decision made by negotiation, agreement or decision of a
neutral in construction adjudication, dispute board or arbitration or litigation
must be capable of being enforced. Ideally all agreements and decisions should
voluntarily be honored but that is not always so. Therefore, some form of
60As in the New Engineering Contract Term Service Contract cl16.2 which is also found
in the other form like the construction version FIDIC in the 2017 forms have a not so
detailed clause but should produce the same results if used properly-cl 3.8 in the Red
Book.
182
mechanism needs to be in place particularly were international capital is being

sought and because infrastructure development quite often attracts
international players in the form of investors, design engineers and contractors
and others who wish to be assured that there is an effective dispute settlement
mechanism in their contracts and that enforcement, if need be, is not an issue.
Similar enforceability in mediation, adjudication and dispute boards will be

welcome by most users. With regards to mediation, there are efforts towards
this such as under the Singapore Mediation Convention signed by 46 states on
the 7th August 2019. 61 The fact that in the energy sector, ICC are of the firm
view that mediation is well suited to this sector for all for larger sized energy
projects, should encourage the more signatories to the convention and its
eventual application.62
Where decisions by neutrals are permitted to be ‘appealed’ or subjected to

setting aside proceedings or enforcement etc. through a court system, it will be
helpful if the courts fast track such procedures63 as the time taken in the court
systems will add to the cost of disputes. The creation of specialist courts to deal
with issues originating out of disputes will go a long way to promoting the
effectiveness of any dispute settlement methods agreed by the parties.64
8. Dispute Resolution Applications

Dispute resolution is quite often tiered,65 more so in infrastructure, in the sense
that, a contract will have several levels of dispute resolution methods available.
This, for example, will start with negotiations, followed by determination by a
Dispute Resolution, Vol 7, Issue 2,2019) 35
62 ICC Dispute Resolution Bulletin, 2018, Issue 2, 13
63 The Kenya judiciary is working on fast tracking cases connected to arbitration. See
speech by the Chief Justice of Kenya given as keynote at the East African International
Arbitration Conference, 29th August 2019, Nairobi, Kenya
64 e.g. The Technology and Construction Court of England and Wales
65 Jane Jenkins, International Construction Arbitration Law (2nd edn, Wolters Kluwer 2014)
para 3.02
183
person acting as a Project Manager,66 then on to adjudication or a dispute board

and finally arbitration as the final tier.67
These intermediate methods are in many respects quite successful, in reducing

referrals to arbitration, while settling disputes in very short time periods and at
much lower costs. For example, in the UK since the inception of statutory
construction adjudication,68 well over 90% of decisions reached are accepted or
form the basis for a negotiated settlement and, in either event do not lead to
further proceedings.69 There is no reason why the same success cannot be
achieved on an international scale, though a means of international enforcement
may be helpful.
Dispute boards are equally successful with a study in 2017 showing that of 512
Decisions, 480 or 94% were accepted by the parties, hence no further action was
required with only 6% referred to arbitration, of which only 1.36% of the total
were later overturned.70
Dispute boards and other forms of ADR offer parties a chance to avoid
expensive follow-on dispute resolution procedures like arbitration and
litigation. Infrastructure development particularly, where funding is external by
international agencies such as the World Bank and other development agencies
come with the use of internationally accepted conditions of contract which
incorporate tiered dispute settlement procedures.71
9. Conclusion
Effective dispute settlement can quite easily be a catalyst for infrastructure
development, but this must start with the deployment of techniques that avoid
disputes in the first place, the use of contracts that encourage team building
66 Who under infrastructure project will be the Engineer or a person designated as such
67 Ibid
68 Under the Housing Grants, Construction and Regeneration Act 1996
69 John Uff, Construction Law (11th edn, Sweet and Maxwell 2013) 67
Dispute Resolution, Vol 7, Issue 2,2019) 35

71 Ibid
184
together with the training and enhancement of contract administration and

interpretation training for those involved in contract execution and
administration. This particularly so as contracts become more and more
prescriptive.72
Where disputes do occur the use of dispute settlement techniques, decisions

should easily be enforced whether those decisions are interim like adjudication
or dispute boards before final resolution in arbitration or litigation. The
acceptance of interim decisions requires practitioners that are highly trained
and skilled in contract administration and interpretation. Good watertight
decisions are more likely to be acceptable by both the losing and the winning
party.
Where enforcement and court systems are required to resolve issues resulting
from dispute settlement there must be effective and quick mechanisms in place
to achieve this. The result of this is that when states, project funders, investors
and parties to infrastructure development know that countries have effective
dispute avoidance and settlement techniques more money is likely to be
available for infrastructure development. The ‘investment’ in effective dispute
settlement techniques should therefore act as catalyst for infrastructure
development.
72 FIDIC 2017 Suite or the NEC suite of contracts

185
Constitutional Limits to Party Autonomy in (2020) 8(2) Alternative Dispute Resolution
arbitration in Kenya: Eric Thige Muchiri
Constitutional Limits to Party Autonomy in arbitration in Kenya
By: Eric Thige Muchiri
1. Introduction
Party autonomy is a fundamental feature of arbitration. The principle provides
that parties are free to agree on the applicable law, and the procedure to be
followed during their arbitration. However, the principle is not absolute.
Statutes, public policy, and practices all delimit party autonomy in a way or the
other.
This paper reviews the limits set by the Constitution of Kenya (Constitution) on
party autonomy especially in light of the supremacy of the Constitution.
Further, the horizontal applicability of constitutional rights, national principles
and values, are also reviewed to establish their impact on the principle of party
autonomy. The paper concludes with suggested recommendations to bring the
principle of party autonomy in line with the Constitution.
2. Party autonomy
Party autonomy has been described as one of the “golden pillars” upon which
arbitration is built. Abdulhay defines it as the “freedom of the parties to
construct their contractual relationship in the way they see fit.”1 Lew states that
the very nature of arbitration requires consent of each party to an arbitration to
happen.2 He further states that there can be no arbitration between parties which
have not agreed to arbitrate their disputes.3 It is this autonomy of the parties to
agree on their dispute’s resolution which leads to an arbitration agreement; such
an agreement is the primary source of jurisdiction of the arbitral tribunal.

Partner at Muri Mwaniki Thige & Kageni LLP Advocates. Email address:
[email protected]
1 Abdulhay, S., Corruption in International Trade and Commercial Arbitration, (London:

United Kingdom: Kluwer Law International,2004) 159.
2 J Lew, Comparative International Arbitration (Kluwer Law International 2003) 129-153.
3 Ibid. This argument appears to lose effect in cases of court-annexed arbitrations in
which courts order parties to submit to arbitrations. Also, in statutory arbitrations there
is nothing much for the parties to agree as the applicable statute usually enjoins the
parties to arbitrate rather than take the dispute to court.
186
Therefore, whatever terms the parties agree on, modify, vary or leave out ought
to be upheld by the arbitrator.
The principle of party autonomy finds legislative foundation at Article 19(1) of

the UNCITRAL Model Law on International Commercial Arbitration 1985 as
amended in 2006 (Model Law).4 The section provides:
Subject to the provisions of this Law, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the
proceedings.
In Kenya, the Arbitration Act 1995 is the main Act that regulates arbitration
practice in Kenya. Section 20 (1) of the Arbitration Act 1995 is almost similarly-
worded to the aforementioned Article 19 (1). It states,
Subject to the provisions of this Act, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in the conduct of the
proceedings.5
Indeed, under the Arbitration Act 1995 parties are also free to agree on the
appointment of arbitrators6; challenge procedure7; place of arbitration8; and the
language to be used in the arbitration.9 The principle of party autonomy is
further ring-fenced by section 10 of the Arbitration Act, 1995 that provides that
no court is to intervene in matters governed by the Act, except as provided by
the Act. The Court of Appeal in Kenya in the case of Nyutu Agrovet Ltd Vs Airtel
4 The United Nations Commission of International Trade Law (UNCITRAL) is

subsidiary of the United Nations tasked with improving the legal framework for
international trade and modernizing the law of international trade. The full text of the
Model Law can be found at
<https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-
86998_Ebook.pdf> as accessed on 5th November 2018.
5 See also section 1 (b) of the Arbitration Act 1996 (UK).
6 Section 12 (2) of the Arbitration Act, 1995, Government Printer, Nairobi.
7 Ibid, section 14 (1).
187
Networks Limited (2015) eKLR had this to say about party autonomy, and the
safeguard that is the stated Section 10:
“The rationale behind the limited intervention of courts in arbitral proceedings

and awards lies in what is referred to as the principle of party autonomy. At the
heart of that principle is the proposition that it is for the parties to choose how
best to resolve a dispute between them. Where the parties therefore have
consciously opted to resolve their dispute through arbitration, intervention by
the courts in the dispute is the exception rather than the rule.”
The principle of party autonomy is not absolute. There are limitations to the
principle which means that not all that parties agree to is enforceable. Also, such
limitations mean that national courts can intervene in the dispute despite the
parties’ initial agreement. One of the fundamental limitations on party
autonomy is found at Article 18 of the Model Law which provides that,
The parties shall be treated with equality and each party shall be given
a full opportunity of presenting his case.
This provision enunciates the requirements for equal treatment and natural
justice. Article 18 is non-derogable.10 Thus, for example if the parties were to
agree that only the claimant would be heard, such an agreement would run
afoul Article 18.11
In Kenya, Article 18 of the Model Law finds its place at Section 19 of the
Arbitration Act 1995. Section 19 reads,
The parties shall be treated with equality and each party shall subject to
section 20 (which provides for party autonomy as seen above) be given
a fair and reasonable opportunity to present his case.
10 Holtzmann and Neuhaus, "A Guide to the UNCITRAL Model Law on International
Commercial Arbitration:Legislative History and Commentary" (Kluwer Law International
1995) at 583.
11 Ibid.
188
It would appear from a plain reading of Section 19, that equal treatment is the
only principle that is fundamental and non-derogable. On the other hand, the
principles of natural justice appear to be made subject to party autonomy as
stipulated under Section 20. This view is fortified by other provisions in the
Arbitration Act 1995 that allow for parties to diverge from the principles of
natural justice. By way of illustration, parties can agree that an arbitral award
shall not state the reasons upon which it is based.12 Such an agreement appears
to be contrary to the principle of natural justice that parties are entitled to know
the reasons for a decision. Also, parties can agree that an expert witness shall
not be cross-examined which appears to be at cross-heads with the requirement
for cross-examination of witnesses.13
Nevertheless, parties ought to consider these requirements for equal treatment

and natural justice as they are agreeing on their arbitration clause. Otherwise, it
appears their exercise of party autonomy is likely to be disregarded.
Validity of the arbitration agreement itself is also another limitation to party

autonomy. Such validity is gauged by the law governing the contract in which
the arbitration agreement is embedded even though the arbitration clause can
be severed from the main contract and be subjected to a different set of laws. 14
An arbitration agreement being a contract requires an intention to create legal
relations; an offer acceptance; competencies and legal capacities of the parties to
contract; and exchange of consideration.15 Further, the Arbitration Act 1995
requires the arbitration agreement to be in writing.16
The doctrine of privity of contract also serves to limit party autonomy. The
doctrine provides that a contract allocates rights and imposes obligations only
to the parties to the contract leaving out third parties. Therefore, only the parties
12 Section 32 (3) (a) of the Arbitration Act 1995.

13 Ibid, Section 27 (2).
14 Michael Pryles, “Limits to Party Autonomy in Arbitral Procedure”, (2007) 24 Journal
of International Arbitration, Issue 3, at pages 327–339.

15 Invalidity of the arbitration agreement due to lack of any of such requirements would
render the award subject to setting aside by the High Court under Section 35 (2) of the
Arbitration Act 1995.
16 Section 4 of the Arbitration Act 1995.
189
to an arbitration agreement can rely on it to solve their disputes; third parties

cannot. It is also to be seen that if an arbitration were to decide on the rights of
third parties in their absence, it would be a fundamental breach of their right to
be heard. Further, such third parties would not have consented (exercised their
party autonomy) to the arbitration thereby robbing such proceedings of
legitimacy.
Amendment of institutional rules can be another limitation to party autonomy.

Pryles gives the example of parties who agree to arbitrate under the
International Chamber of Commerce (ICC) Rules but go further to agree that the
resultant award would not be subject to scrutiny by the ICC Court.17 He is of the
view that scrutiny of the awards by the ICC Court is an essential feature of an
ICC arbitration and it is likely that an arbitration agreement ousting such
scrutiny would be inapplicable.
Further, public policy also limits party autonomy. Awards that run contrary to
public policy are not recognizable or enforceable. The Model Law as well as the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
1958 (New York Convention 1958) lists violation of public policy as one of the
grounds for setting aside an arbitral award. What constitutes public policy
varies from one country to the other. In Kenya, public policy has been stated to
be a “broad concept incapable of precise definition”. The High Court in Christ
for All Nations v Apollo Insurance Co. Ltd [2002] 2 E.A 366, held as follows
regarding public policy,
“An award can be set aside…as being inconsistent with the public policy of
Kenya if it is shown that it was either (a) inconsistent with the Constitution or
any other law of Kenya whether written or unwritten, or (b) inimical to the
national interest of Kenya, or (c) contrary to justice and morality.”
Therefore, if the parties were to disregard the provisions of the Constitution

while formulating their arbitration agreement, it is likely that that agreement as
well as an arbitration award based on such agreement would be invalid for
17 Michael Pryles, op. cit. 3.

190
being contrary to public policy. It is to these limits set by the Constitution that
the paper now turns.
3. The Constitution of Kenya

Kenya has a written constitution which was promulgated in August 2010. The
Constitution repealed the previous constitution that with various amendments
had been in place since 1963. The new Constitution introduced a fresh
dispensation in Kenya including an expanded Bill of Rights; a new devolved
governance structure; an enlarged judiciary with its independence anchored;
and principles of governance and national values.
3.1 Supremacy of the Constitution

The Constitution is the supreme law of the land with all the other laws, organs,
and practices subject to it. Article 2 (1) of the Constitution enunciates its
supremacy as follows,
This Constitution is the supreme law of the Republic and binds all
persons and all State organs at both levels of government.
Arbitration involves exercise of judicial authority. Under the Constitution,

judicial authority is derived from the people and vests in, and is exercisable by,
the courts and tribunals established by or under the Constitution.18 The fact that
the people are seen as the source of judicial authority fortifies and ‘justifies’ the
supremacy of the constitution.19 Further, it is a constitutional principle that
while exercising judicial authority, courts and tribunals are to be guided by the
principle that alternative forms of dispute resolution including arbitration shall
be promoted.20
Due to this supremacy, the Constitution binds arbitrators as they determine a

dispute, and also the parties to an arbitration agreement. Then, it follows that
18 Article 159 (1) of the Constitution of Kenya, Government Printer, Nairobi, Kenya.
19 Kariuki Muigua, ‘Constitutional Supremacy over Arbitration in Kenya’ (2015) 3(2)
Alternative Dispute Resolution
<http://www.kmco.co.ke/attachments/article/120/Constitutional%20Supremacy%2
0over%20Arbitration%20in%20Kenya_03_dec.pdf> accessed 1 November 2018.
20 Article 159 (2) (c) of the Constitution.
191
parties cannot exercise their party autonomy and derogate from the provisions
of the Constitution.
3.2 Bill of Rights

Chapter 4 of the Constitution provides for the Bill of Rights that has elaborate
provisions on political as well as economic and social rights. The rights and
fundamental freedoms in the Bill of Rights are not granted by the State but
rather inhere in each individual.21 The rights and freedoms apply not only
against the State but also between private individuals. This is because the
Constitution states that the Bill of Rights applies to all law and binds all State
organs and all persons.22 This vertical and horizontal application of the
provisions of the Constitution has been upheld by the Supreme Court of Kenya
in the case of Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited
& 2 Others, [2012] eKLR:
At the outset, it is important to note that a Constitution is not necessarily

subject to the same principles against retroactivity as ordinary
legislation. A Constitution looks forward and backward, vertically and
horizontally, as it seeks to re-engineer the social order, in quest of its
legitimate object of rendering political goods.23
Some rights and fundamental freedoms in the Bill of Rights impact on the
principle of party autonomy.
21 Article 19 (3) (a) of the Constitution.

22 Article 20 (1) of the Constitution.
23 At Paragraph 62. See also Kiarie Mwaura ‘Horizontality and the Bill of Rights: Defining
Parameters of corporate complicity in human rights violations’ in Wayne Visser and

Nick Tolhurst (eds), The World Guide to CSR: A Country-by-Country Analysis of Corporate
Sustainability and Responsibility, (Greenleaf Publishing 2010).
See also the decisions of the Court of Appeal in Baobab Beach Resort and Spa Limited v
Duncan Muriuki Kaguuru & another [2017] eKLR available at <https://bit.ly/2SYgjhA>
and the High Court in Rose Wangui Mambo and 2 Others vs Limuru Country Club and 17
others [2014] eKLR available at < https://bit.ly/2QrtHsR> as accessed 3 November 2018.
192
3.2.1 Access to justice

Access to justice is one of the rights enshrined in the Constitution. Article 48
provides that the State should ensure access to justice for all persons and, if any
fee is required, it should be reasonable and should not impede access to justice.
This constitutional right of access to justice encapsulates the principle of natural
justice that ‘justice should not only be done, but should manifestly and
undoubtedly be seen to be done’.24 Thus, if an arbitral tribunal does not uphold
the principles of natural justice any award therefrom is likely to be set aside.
However, as stated above the Arbitration Act 1995 allows parties to an

arbitration agreement to agree on which principles of natural justice to guide
their agreement. Some principles, such as the right to cross-examine expert
witnesses can be discarded by agreement of the parties.
A further aspect of the right of access to justice appears when a court sets aside
an arbitral award but gives no direction on how the underlying dispute is to be
determined. The setting aside of an award does not necessarily resolve the
merits of the dispute. For example, if an arbitral award is set aside for being
contrary to public policy should the court refer the matter back to the arbitrator,
down its tools, or take up the matter and make a decision thereof? A court is
severely handicapped by the Arbitration Act 1995 from taking up a matter that
was the preserve of an arbitrator. This is so due to the provisions on non-
intervention by the court in arbitration matters, and deference to the principle
of party autonomy.
A court that downs its tools - by setting aside an arbitral award without any
directions on how the underlying dispute should be resolved - would appear to
be unsupportive of the parties’ rights of access to justice, and also the
constitutional rights to a fair hearing.25 In such a scenario, the following question
arises: if the award by arbitral tribunal is bad in law, and the court agrees, to
where should the disputants turn to so as to have their dispute resolved? The
situation is made worse if the limitation period within which to restart the
24 Per Lord Hewart in R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All
ER Rep 233). See also Kariuki Muigua, op. cit. at page 16.
25 See section 3.2.2 below.
193
arbitration process (which is usually 6 years) is over. This was the situation that
arose before the High Court in the case of Cape Holdings Limited v Synergy
Industrial Credit Limited [2016] eKLR. The court found the arbitral award to be in
violation of public policy but gave no directions as to how the underlying
dispute should be resolved.26 If the decision is not reversed on appeal, it would
have effectively left the parties without a remedy for their underlying dispute.27
The Arbitration Act 1995 provides a leeway for the court to refer the matter back
to the arbitrator to resume proceedings or take any action that would eliminate
the grounds for setting aside the arbitral award.28 Still, this power is only
exercisable where one of the parties has made such an application as setting
aside proceedings are on-going. Once the court renders its decision, it becomes
functus officio and it is doubtful whether it can refer the matter back to the
arbitration tribunal for its further dealing. It is arguable but in order to uphold
the constitutional rights of fair hearing and access to justice, it would appear to
be the most practicable way to refer the matter back to the arbitrator despite the
court being functus officio. This is just so as to have the underlying dispute
resolved. This was the route taken by the High Court in Evangelical Mission for
Africa & another v Kimani Gachuhi & another [2015] eKLR in which the Court set
aside an arbitral award for being in violation of public policy and ordered the
parties for a second time.29
Limitation of liability clauses in contract have been found to be unconstitutional

impediments to the right of access to justice. In Laiser Communications Limited &
5 others v Safaricom Limited [2016] eKLR a contract had a clause that limited the
liability of the respondent whether arising from a tort, contract or otherwise to
Kshs.100, 000.00. Laiser Communications Ltd filed a suit against the Safaricom
26 The decision was set aside by the Supreme Court in Synergy Industrial Credit Ltd vs.
Cape Holdings Limited Civil Appeal No. 81 of 2016 and referred back to the Court of
Appeal for determination.
27 Kamau Karori & Ken Melly “Attitude of Kenyan Courts Towards Arbitration” in
E.Onyema (ed), Rethinking the Role of African National Courts in Arbitration, (Kluwer Law
International B.V., 2018) available at https://bit.ly/2NXk3AY as accessed on 1st October
2018;
28 Section 35(4) of the Arbitration Act 1995.
29 The decision is also subject to an appeal to the Court of Appeal of Kenya.
194
Ltd claiming a sum of more than KShs.100, 000.00. Safaricom Ltd successfully
managed to stay the suit at the High Court and refer the same to arbitration.
Laiser Communications Ltd appealed. In allowing the appeal, the Court of
Appeal among other reasons held that the limitation of liability clause was a
serious impediment to the right to access justice as afforded to Laiser
Communications Ltd. This was because they were claiming more money than
was allowed in the contract, and as such Safaricom Ltd would have had an
“undue influence and an unfair bargaining power”. Thus, the Court refused to
refer the matter to arbitration as it would have led to an injustice.
The decision is questionable as to why the court did not leave the issues of
limitation of liability, and right of access to justice to the determination of the
arbitrator. Also, it is questionable whether in the same agreement a limitation of
liability clause can invalidate an arbitration clause despite the law allowing for
the latter to be severed from the main contract.30
3.2.2 Right to a fair hearing

Article 50 (1) of the Constitution provides that every person has the right to have
any dispute that can be resolved by the application of law decided in a fair and
public hearing before a court or, if appropriate, another independent and
impartial tribunal or body. The Supreme Court of Kenya has interpreted this to
mean that every person has the constitutional “right to judicial resolution of [a]
conflict”.31
The right to a fair hearing calls for independence and impartiality of the arbitral
tribunal. Further it requires an individual to be “informed of the case against
her/him; the individual being given an opportunity to present her/his side of
the story or challenge the case against her/him; and the individual having the
30Section 17(1) of the Arbitration Act 1995. See the decision of the Court of Appeal on
the principle of separability in Kenya Anti-Corruption Commission & another v Nedermar
Technology BV. Limited [2017] eKLR in which the court correctly held that an arbitration
clause can be severed from the rest of the agreement.
31 Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR at paragraph 25.
195
benefit of a public hearing before a court or other independent and impartial

body.”32
A court that leaves the parties to an arbitration agreement without a remedy to

their underlying conflict, or a way to resolve it, would appear to violate the
parties’ constitutional rights to a fair hearing.33 The principle of equal treatment
of the parties to an arbitration as captured by Section 19 of the Arbitration Act
1995 also appears to be secured under the constitutional right to a fair hearing.34
Any arbitration agreement that would stem the equal treatment of the parties to
an arbitration would be liable to be set aside.35
3.2.3 Right to privacy

Privacy and confidentiality of arbitration proceedings and materials generated
therefrom is one of the features of arbitration. This right is not absolute and has
been chipped at by the Constitution. Article 31 of the Constitution provides that
every person has a right to privacy including among others the right to
information relating to their family or private affairs not unnecessarily required
or revealed; or the privacy of their communications infringed.
The impact of the Constitution on the right of privacy and arbitration played
out in the High Court in the case of Senator Johnstone Muthama v Tanathi Water
Services Board & 2 others [2014] eKLR, the High Court took the view that
32 Per the Court of Appeal in Judicial Service Commission v Gladys Boss Shollei & another
[2014] eKLR.
33 Supra note 26.
34 Article 27 of the Constitution also provides for equality before the law, as well as equal
protection and equal benefit of the law.

35 Even though the right to equal treatment of the parties is not expressly mentioned in
the judgment, this appears to have been the rationale of the Court of Appeal decision in
Laiser Communications Limited & 5 others v Safaricom Limited [2016] eKLR. In the words of
the court at the last paragraph of the decision, “[a]n arbitral clause that is oppressive or
repugnant to justice is one that disadvantages one side. It is clear that the respondent
herein would have the upper hand; it would amount to undue influence and an unfair
bargaining power on the respondent’s part. The arbitration clauses would therefore lead
to an injustice.” Nevertheless, this does not respond to the criticism as to failure to
uphold the independence of the arbitration clause, and failure to sever it from the rest
of the contract.
196
arbitrations should be open to the public just like litigations, especially where
the dispute involves a public entity. In the court’s view, such public hearing
furthers the value of transparency as is required under Article 10 of the
Constitution.36 This view was rejected by another High Court in Centurion
Engineers & Builders Ltd. v Kenya Bureau of Standards [2014] eKLR in which the
court was categorical that “although arbitration hearings should be conducted
in suitable rooms therefore, they certainly are not open to the public, are
confidential to the parties and the Evidence Act (Cap 80, Laws of Kenya) does
not apply.”37
Therefore, in as much as parties can agree to the people to allow into their
arbitration there is jurisprudence that the Court can still allow the proceedings
to be open to the public. This is especially so where one of the entities is a public
entity which entities are bound by the constitutional principles of transparency
and accountability. Further, there exists the constitutional right of access to
information held by the State which may be the basis of an application to get
copies of the awards in which the State is a party.
3.2.4 Right to fair administrative action

Article 47 (1) of the Constitution provides that every person has the right to
administrative action that is expeditious, efficient, lawful, reasonable and
procedurally fair. The Fair Administrative Action Act 2015 was enacted to give
effect to this constitutional right. At section 2, the Act defines administrative
action to include the powers, functions and duties exercised by authorities or
quasi-judicial tribunals; or any act or decision of any person that affects the legal
rights or interests of any person to whom such action relates. An arbitral
tribunal falls into either category: it is a quasi-judicial tribunal, and its decision
also affects the rights of the parties to whom the arbitration relates.
36 Senator Johnstone Muthama v Tanathi Water Services Board & 2 others [2014] eKLR at
paragraphs 13 and 18.
37 See also the decision of the High Court in Open Joint Stock Company Zarubezhstroy
Technology v Gibb Africa Limited [2017] eKLR in which the court decided that Article 50
(1) of the Constitution is not applicable to arbitral tribunals.
197
Thus, an arbitrator has to conduct the arbitration in an expeditious, efficient,

lawful, reasonable and procedurally fair manner. The parties have to be treated
equally. Further, unless the parties otherwise agree, an arbitral tribunal has to
give reasons for its award. Deviation from this would lead to the award being
set aside not only for being against the Arbitration Act 1995, the Constitution
but also as against the Fair Administrative Action Act 2015.
3.2.5 National Values and Principles of Governance

Article 10 (1) of the Constitution provides for national values and principles of
governance that bind all persons as they apply or interpret the Constitution or
any law. Article 10 (2) lists the values and principles which include the rule of
law; good governance; integrity; transparency and accountability. These values
and principles bind all persons which includes arbitrators as well as the parties
to an arbitration agreement.
The issue of transparency and accountability is a sticky issue especially in

arbitration agreements involving the State or its departments.38 As seen above,
there is jurisprudence in favour of opening up arbitrations involving State
entities to the general public; all this is in furtherance of transparency and
accountability.39
Non-transparency is ‘viewed with suspicion’ and may allow arbitrators to

disregard the law and run on a frolic of their own; this is dangerous given the
uphill task of appealing against an arbitrator’s award.40 Transparency and
38 See generally Aloo Obura L., and Wesonga E. Kadima, ‘What is there to hide? Privacy
and Confidentiality versus Transparency: Government Arbitrations in light of the
Constitution of Kenya 2010’ (2015) 3(2) Alternative Dispute Resolution at 2
<http://www.ciarbkenya.org/assets/journal-volume-3-issue-2.pdf> accessed on 5th
November 2018.
39 Senator Johnstone Muthama v Tanathi Water Services Board & 2 others [2014] eKLR.
40 Lord Neuberger, ‘Arbitration and the Rule of Law’ (Chartered Institute of Arbitrators
Centenary Celebration, Hong Kong, 20 March 2015) at paragraph 23 <

https://www.supremecourt.uk/docs/speech-150320.pdf> accessed 1 November 2018.
198
accountability satiate the public’s interest in knowing how governance is being

carried out and to hold their leaders accountable. Thus, deference is to be had
to these values and principles while parties are drafting their arbitration
agreement especially where one of the parties is a State entity.
4. Conclusion
The Constitution has expanded the Bill of Rights and re-asserts its supremacy
over all the other laws, and binds all persons. It is applicable not only vertically
as between the State and the persons but also horizontally as between private
persons. Party autonomy allows parties to choose how their disputes shall be
settled in arbitration. Such a choice is to be upheld by the courts. This holds the
parties to their respective bargains achieved in exercise of their freedom to
contract.
Any arbitration agreement, as well as an award, that goes against the

Constitution is likely to be set aside for being against public policy. There is no
clear definition of the term ‘public policy’ but unconstitutional agreements or
awards are viewed as being against such policy. The extensive list of
constitutional rights and fundamental freedoms, as well as the national values
and principles of governance, have considerably reshaped the contours of party
autonomy. Parties are not just to agree on the commercial aspects of their
agreements without a keen look at the provisions of their arbitration clause.
Also, arbitrators are not only to rely on the parties’ arbitration agreement and
terms of reference in making their decisions; they have to be alive to the
provisions of the Constitution lest they conduct the arbitration in a manner
which, or give an award which, violates the Constitution.
Lastly, the Arbitration Act 1995 needs to be reviewed to bring it into accord with
the Constitution. The Act has not had a substantive review since 2010 following
the promulgation of the Constitution. The issues of transparency and
accountability in arbitrations involving public entities need to be resolved by
the Act instead of relying on jurisprudence which is not uniform at the moment.
199
References
Statutes
The Arbitration Act 1995, Government Printer, Nairobi, Kenya.
The Arbitration Act 1996 (UK)
The Constitution of Kenya 2010 Government Printer, Nairobi, Kenya.
The Fair Administrative Action Act, 2015 Government Printer, Nairobi, Kenya.
Treaties
Convention on the Recognition and Enforcement of Foreign Arbitral Awards
1958 (New York Convention 1958).
Model Laws
UNCITRAL Model Law on International Commercial Arbitration.
Books
Abdulhay, S., Corruption in International Trade and Commercial Arbitration,
(London: United Kingdom: Kluwer Law International,2004) 159.
Holtzmann and Neuhaus, "A Guide to the UNCITRAL Model Law on International
Commercial Arbitration:Legislative History and Commentary" (Kluwer Law
International 1995) at 583.
J Lew, Comparative International Arbitration (Kluwer Law International 2003) 129-
153.
Book Chapters
Kamau Karori & Ken Melly “Attitude of Kenyan Courts Towards Arbitration”
in E.Onyema (ed), Rethinking the Role of African National Courts in Arbitration,
(Kluwer Law International B.V., 2018) available at https://bit.ly/2NXk3AY as
accessed on 1st October 2018;
200
Kiarie Mwaura ‘Horizontality and the Bill of Rights: Defining Parameters of

corporate complicity in human rights violations’ in Wayne Visser and Nick
Tolhurst (eds), The World Guide to CSR: A Country-by-Country Analysis of
Corporate Sustainability and Responsibility, (Greenleaf Publishing 2010).
Articles
Aloo Obura L., and Wesonga E. Kadima, ‘What is there to hide? Privacy and
Confidentiality versus Transparency: Government Arbitrations in light of the
Constitution of Kenya 2010’ (2015) 3(2) Alternative Dispute Resolution at 2
<http://www.ciarbkenya.org/assets/journal-volume-3-issue-2.pdf> accessed
on 5th November 2018.
Kariuki Muigua, ‘Constitutional Supremacy over Arbitration in Kenya’ (2015)

3(2) Alternative Dispute Resolution
<http://www.kmco.co.ke/attachments/article/120/Constitutional%20Supre
macy%20over%20Arbitration%20in%20Kenya_03_dec.pdf> accessed 1
November 2018.
Michael Pryles, “Limits to Party Autonomy in Arbitral Procedure”, (2007)

24 Journal of International Arbitration, Issue 3, at pages 327–339.
Speeches
Lord Neuberger, ‘Arbitration and the Rule of Law’ (Chartered Institute of
Arbitrators Centenary Celebration, Hong Kong, 20 March 2015) <
https://www.supremecourt.uk/docs/speech-150320.pdf> accessed 1
November 2018.
Cases
Baobab Beach Resort and Spa Limited v Duncan Muriuki Kaguuru & another [2017]
eKLR.
Cape Holdings Limited v Synergy Industrial Credit Limited [2016] eKLR.
Centurion Engineers & Builders Ltd. v Kenya Bureau of Standards [2014] eKLR.
201
Christ for All Nations v Apollo Insurance Co. Ltd [2002] 2 E.A 366.
Evangelical Mission for Africa & another v Kimani Gachuhi & another [2015] eKLR.
Open Joint Stock Company Zarubezhstroy Technology v Gibb Africa Limited [2017]
eKLR.
Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR.
Judicial Service Commission v Gladys Boss Shollei & another [2014] eKLR.
Kenya Anti-Corruption Commission & another v Nedermar Technology BV. Limited

[2017] eKLR.
Laiser Communications Limited & 5 others v Safaricom Limited [2016] eKLR.
Nyutu Agrovet Ltd Vs Airtel Networks Limited (2015) eKLR.
R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233).
Rose Wangui Mambo and 2 Others vs Limuru Country Club and 17 others [2014]
eKLR.
Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others,
[2012] eKLR.
Senator Johnstone Muthama v Tanathi Water Services Board & 2 others [2014] eKLR.
Synergy Industrial Credit Ltd vs. Cape Holdings Limited Civil Appeal No. 81 of
2016.
202
Claims, Conflicts & Disputes in Construction (2020) 8(2) Alternative Dispute Resolution
Industry – Where is the Engineer?
Eng. Odhiambo Aluoch
Claims, Conflicts & Disputes in Construction Industry – Where is the

Engineer?
By: Eng. Odhiambo Aluoch
Abstract
Construction industry is a one commercial venture operating in a very complex
environment and requires people of diverse knowledge and a wide range of expertise each
with highly competing interest and must be properly managed in order to deliver project
objectives. The management of the claims, conflicts and disputes are of great interest to
every participant in the field of construction for no one will ever rejoice and celebrate a
failed venture and wasted resources arising from self-interest. From the project inception
to the project closure, team composition and the complexity of the environment in which
the industry operates conflict are at times in evitable. Proper management of the same
is a win-win for every party. Project management process and different parameters has
been discussed and put into perspective in this paper. Areas of conflict and potential
disputes with the respective bearers have also been put into context for the readers. In
this paper the role of an engineer has been examined as an expert witness and as an
advisor to the client in the management of disputes in the industry and the writer has
concluded by giving his opinion on the best way disputes can be better handled by an
engineer than a legal expert in the industry.
1.0 Introduction
Constraints in the implementation of a project appears when the project
objectives are not achieved. Construction industry is a complex endeavor and
operates in very competitive and diverse environmental conditions of which
participants are also of different views, talents and levels of knowledge of the
construction process. In this complex environment, participants from various
professions, each has its own goals and each expects to make the most of its own
benefits. In the industry, differences in perceptions among the participants of
the projects make conflicts inevitable. If conflicts are not well managed, they
could quickly turn into disputes which can hinder the successfully completion
of the construction project. Thus, it is of importance especially to the engineer

PEng, MIEK, MCIArb, Bsc Civil Engineering, University of Nairobi, Msc Structural
Engineering (Student) University of Nairobi. Email [email protected]
203
to be aware of the causes of disputes in order to complete the construction

project in the desired time, budget and quality. There is confusion among
construction professionals about the differences between conflict and dispute1.
Conflict and dispute are two distinct notations. Conflict exists wherever there is
incompatibility of interest2. Conflict can be managed, possibly to the extent of
preventing a dispute resulting from the conflict. On the other hand, disputes are
one of the main factors which prevent the successfully completion of the
construction project. Disputes are associated with distinct justiciable issues that
require resolution.
Nowadays, the substantially increasing volume of claims are the result of the
rising complexity of the projects, the price structure of the construction industry
and the legal approach taken by a lot of owners and contractors2. There are
several researches that show the order of magnitude of the effects from
construction claims on cost and time of the projects. In the past two decades,
serious disputes concerning construction contracts have become increasingly
common in construction projects. It is common practice for designers/ the
engineers, contractors and owners to negotiate small and uncomplicated
disputes, but larger and more complex ones frequently hinder the project
through involvement with lengthy legal issues.
Typically, if the parties cannot reach a resolution themselves, expensive, time-

consuming legal procedures begin, which severely affects all the participants.
Disputes are a reality in every construction project. Without the means to
address them, minor issues can fester and grow, with crippling consequences
for project participants. The rising cost, delay and risk of litigation in
construction disputes has prompted the construction industry to look for new
and more efficient ways to resolve these disputes outside the courts. It has been
found that when resolution occurs sooner rather than later and when this
resolution is relatively confrontational, there is a much better chance that
1 Acharya, N. K., Lee, Y. D., and Im, H. M. (2006). Conflicting factors in construction
projects: Korean perspective. Eng. Construct. Architect. Manage, 13(6), 543–566.
2 Fenn, P, Lowe, D., and Speck, C.(1997), Conflict and dispute in construction – Contract
Management Economics, Journal of Management in Engineering, ASCE, 18 (1:20)
204
litigation can be avoided. Waiting until the end of a project to address a dispute
inevitably makes it harder and more expensive to resolve. Parties involved in a
construction dispute, or indeed any commercial dispute, generally prefer to
retain control over the outcome and maintain a working business relationship.
1.1 Project management

Project management is defined as planning, organizing, directing, controlling of
project resources, to achieve short-term goals that have been determined3.
Objective of the project is composed of elements of cost, quality, and time
expanded:
1. The cost of the project must be completed at a cost that does not exceed the
budget.
2. Quality, product or output of the project must meet the required specifications
and criteria.
3. The time, the project must be done in accordance with the period and the end
date specified.
2.0 Conflict, Claim and Dispute
2.1 Conflict
It would look as if that the word ‘conflict’ is infrequently used in the
construction industry. This is most probably due to the controversial nature of
the word. The word ‘conflict’ and the idea of conflict is still central to many of
the academic publications and critiques on disputes and the resolution of
disputes. It is simply “a serious disagreement and agreement about something
important” conflict is inevitable in any society and mostly that conflict can be
viewed as either positive or negative.
2.2 Claim
Claim is defined as “a request for compensation for damages incurred by any
party to a contract”. During the execution of a project, several issues arise that
3 Suharto, I2001, Project Management, Erlangga, Jakarta.
205
cannot be resolved among project participants. Such issues typically involve

contractor requesting for either time extension or reimbursement of an
additional cost, or sometimes both. Such requests by the contractor are referred
to as ‘‘claim’’. If the owner accedes to the claim of contractor and grants him
extension of time or reimbursement of additional cost, or both, the issue is
sorted out. However, if the owner does not agree to the claim put out by
contractor and there are differences in the interpretations, the issue takes the
form of a dispute
2.3 Dispute
It is “any contract question or controversy that must be settled beyond the job
site management”
2.3.1 Types of construction claims

Contractual Claim: Contractual claims are the claims that fall within the specific
clauses of the contract. In well-accepted standard contracts, there are a lot of
provisions which entitle both the contractors and the employers to claim for the
appropriate compensation such as ground or geotechnical conditions,
valuation, variations, late issue of information, adverse weather condition and
delay in inspecting finished work.
Extra-contractual Claim: This type of claims has no specific grounds within

contract but results from breach of contract that may be expressed or implied,
i.e. the extra work incurred as a result of defective material supplied by the
client.
Ex-Gratia Claim: Ex-gratia claims are the claims that there is no ground existing
in the contract or the law, but the contractor believes that he has the rights on
the moral grounds, e.g. additional costs incurred as a result of rapidly increased
prices.
Extension of Time Claim: Each construction contract clearly stipulates the date (or
period) for the contractor to complete work. The purpose of specifying a date of
completion is to facilitate claims for damages by the Employer for any delays
206
created by the contractor in performing their work. The date for completing the
project will be specified, either in the tender documents, or otherwise agreed to
by the contractor, before the contract is awarded. In the case of no specific date
for completion being mentioned in the contract, the law implies that the
contractor must complete work within a reasonable time.
2.3.2 Disputes in construction industry

Given the uncertainties involved in a construction project and the magnitude of
funds involved, it is only natural to have disagreement between parties, but
these need to be resolved. While most of such day-to-day differences are
resolved in an amicable manner, without having to resort to a more formal
mechanism, the parties at times agree to disagree and seek redress through
independent intervention. Although, in principle, the discussion falls under the
preview of construction law, effort has been made to discuss some of the aspects
related to disputes and dispute resolution with as little legalese as possible.
Technically, a dispute implies assertion of a claim by one party and repudiation
thereof by another.
2.3.3 Project implementation organization

Organization is indispensable for the smooth implementation of the project at
the planning and implementation of the project4. Organization is a facility that
allows people to work together effectively to achieve a purpose that is more
clear and focused. In the implementation of a project there are elements of
implementation and each has the duty and authority in accordance with his
position. Organizational structures in a project explain the relationship of duty,
responsibilities and authority of individuals and groups. In the implementation
of the project, there are several elements in the project, namely owner,
consultants and contractors. Working relations elements of the project parties
are as follows:5
4Dipohusodo. (1995), Project Management, Kanasius, Yogyakarta.

5Leung, M., Ng, S. T., and Cheung, S. O. (2002). Improving satisfaction through conflict
stimulation and resolution in value management in construction projects. J. Manage.
Eng.2(68).
207
1. The owner and the consultant is a contractual relationship in the form of

an agreement.
2. The owner and the contractor is a contractual relationship in the form of
an agreement.
3. The working relationship between the consultant and contractor is
functional relationships in performing their duties and responsibilities
of each has been stated in the implementation of the document.
2.3.4 Causes of Conflicts and Disputes

As much as conflicts are always viewed as negative some positive thoughts can
be deduced from the conflicts:
i) Conflict can provide information and new ideas that ultimately improve
the quality of decision-making.
ii) Conflict can force the parties involved to think and reconsider
alternative views to their problems.
iii) Conflict can lead to problems that had been buried become the open and
enable the leadership or the management assist in finding the best
solution for the project.
iv) Conflict can teach existence mutual understanding and respect for other
opinions.
Conflicts can be interpreted as a disagreement between two or more members

of organizations or groups within the organization that arise because they have
to use scarce resources jointly, or carry out activities together, or have the status,
goals, values, and perceptions is different.6 Leung et al (2005) partially verified
the positive impacts of conflict on construction projects by respectively using
case study and questionnaire survey to testify the relationship between
distinctive conflict types and participants’ satisfaction7. They found that a
suitable level of conflict—especially task conflict—can indeed improve
6Ranupandoyo, H, and Husnan, S.(1994), Manajemen Personalia, BPEE, Yogyakarta.

7 Leung, M., Liu, A. M. M., and Ng, S. T. (2005). Is there a relationship between
construction conflicts and participants’ satisfaction? Eng. Construct. Architect. Manage.,
12(2), 149–167.
208
participants’ satisfaction up to a certain point at which diminishing begins.

Conflict impacts appear to diverge when observing different indicators (i.e.,
objective or subjective) of organization effectiveness, however, it is thus
concluded that participants’ satisfaction (a subjective criterion) cannot be
directly generalized to describe objective performance criteria such as cost,
schedule, and project quality.89
2.3.5 Factors of conflict in construction projects

Since disputes are inevitable in the construction industry, it is important to be
aware of the causes of disputes in order to complete the construction project in
the desired time, budget and quality.
Construction project divergent interest, on one hand the contractor's attention

is in the completion of the project in accordance with specified schedule and
attempt to make financial gain, while on the other hand the owner needs
excellent facilities at economical prices. The purpose of each party seems
contradictory in achieving their goals, such circumstances could lead to conflict.
The causes of the conflict can be caused by owner, consultants, contractors,
contracts and specifications, human resources, and project conditions.10
The complexity of the work, limited time, the amount of resources used, and
many things that affect the process of the construction.9 If these constraints are
not addressed immediately then it can result in losses and will lead to conflict.
Factors of conflicts at the implementation stage occurs when stated in the
contract and are not implemented in the field. Factors that cause conflicts in
construction projects based on previous research can be summarized as follows:
8 Jehn, K. A., and Bendersky, C. (2003). Intragroup conflict in organizations: A

contingency perspective on the conflict-outcome relationship. Res. Organ. Behav., 25,
187–242.
9 Maloney, W. F. (1990). Framework for analysis of performance. J. Constr. Eng. Manage.
3(399), 399–415.
10 Susila, H. (2012). Causes of Conflict in the Implementation of Project Construction,
Journal of Engineering and Architecture, Faculty of Engineering, University of Surakarta

Tunas Development, 11(15).
209
Category of Causes of dispute

dispute
Owner Failure of respond to issues in a timely manner.
Lack of communication among the team members.
The mechanism is not clear in providing information.
Poor management, control and coordination.
Variations initiated by the owner.
Change of scope.
Late giving of possession to the site.
Unrealistic expectations.
Payment delays
Consultant Failure to determine responsibility in accordance with

the contract and adequate risk allocation
Cost estimation error
Delayed in providing information
Design quality, errors and specifications
Incomplete pictures, details and specifications.
Calculation of incorrect work progress
Lack of experience in the consultants.
Poor contractor management, supervision, and
coordination skills.
Failure of plan and implementation of change of
work.
Lack of understanding of the existing agreement in
the contract.
Contracts, Employment contracts and complete lack of

Specifications construction documents.
and other The lack of clarity of document the distribution of
environmental workflow.
factors. There is a confusion of terms in the contract
documents.
210
The big difference in understanding of contracts in

foreign languages within the same contract.
Site and weather conditions.
Unforeseen changes.
Legal and economic factors.
Fragmented structure of the sector.
Adversarial / controversial culture.
Lack of communication.
Lack of team spirit.
Contractor Delays in work progress
Time extensions
Financial failure of the contractor
Technical inadequacy of the contractor
Tendering
Quality of works
2.3.6 Conflict management

Conflict management involves addressing or solving the problem of conflicts 11.
This usually takes several methods and approaches:
1. Withdrawal/Avoidance, techniques for resolving conflict in a way to

delay or avoid situations of potential conflict would occur. Avoid or
delay the settlement of the conflict in order to do a better preparation, or
expect to be completed by others.
2. Smooth/Accommodative. conflicts are resolved with an emphasis to the
area of the level of agreement.
3. Compromise/Reconciliation, techniques for resolving of conflict by
seeking solutions that provide a level of satisfaction to all parties to
temporarily or partially resolve the conflict. This approach is also called
the "give and take".
Ock, J. H. and Han, S. H.(2003). Lesson Learned Forms Rigid Conflict Resolution in an
11
Organization: Construction Conflict Case Study, Journal of Management in Engineering,

April 2003.
211
4. Forced/Directive approach. Techniques for resolving conflict based on

the dominance of one party without regard to the other party. Usually
based on the authority and power that the parties resolve the conflict.
Also known as the win-lose approach.
5. Collaborative/Problem Solving techniques used for resolving conflict by
combining multiple the views and from several different perspectives.
Requires behavior of co-operative and open dialogue to get a consensus
or a shared commitment. 12
Regard to the conflict as a problem to be solved rather than a war to be won, in

order to achieve satisfaction along with maintaining relationships and interests.
The constitution of Kenya article 159(2), states that …In exercising judicial
authority the courts and the tribunal shall be guided by the following principles: c)
alternative forms of dispute resolutions including reconciliation, mediation arbitration
and traditional dispute resolution mechanism shall be promoted subject to clause 3.13
Standard form of contracts Fidic clause 20 has elaborate dispute resolution
mechanism.
The success of projects
The success of a project is measure based on the following parameters 11.

1. Aspect of costs
a. In accordance with the contract documents and agreements;
b. The project owner agrees and make payment until the work is completed;
c. No progress billing owed; and
d. Obtain the positive benefits, including benefits for the company.
2. Aspect of quality
a. In accordance with the technical specifications of the contract documents and
agreements;
b. The project owner agreed and accept the project unconditionally;
c. No penalty or complain about the quality of work of the project;
12 Project Management Institute (2013). A guide to Project Management Body of

knowledge (PMBOK-Guide)
13 The Constitution of Kenya 2010
212
d. Occupational health and safety implemented properly;

e. All parties related to the implementation are satisfied; and
f. Getting a certificate of completion.
3. Aspect of time
a. Project completed on time, or according to the work schedule in the contract
documents;
b. The project owner agreed and accepts the completion of part or all of the
works;
c. No complaints about the implementation progress related to completion of
the work.
2.4 Methods of Dispute settlement in construction industry

Human conflicts are inevitable. Disputes are equally inevitable. It is difficult to
imagine a human society without conflict of interests. Disputes must be
resolved at minimum possible cost both in terms of money and time, so that
more time and resources are spared for constructive pursuits. For resolution of
disputes there is a legal system in every human society. Every injured person is
supposed to go to courts for his redress. All the legal systems are trying to attain
the legal ideal and whatever there is a wrong there must be a remedy so that
nobody shall have to take law into his own hands. Courts have become over
crowded with litigants where the litigants have to face so much loss of time and
money that at long last when a relief is obtained; it may not be worth the cost.
213
Methods of Dispute Resolution
Procedure of claim and dispute settlement according to FIDIC.

1) Dispute Resolution Board (DRB/DAB): As is well known, the procedure for
the settlement of disputes in Clause 20 of the FIDIC the New Red Book provides
214
that disputes must be submitted initially to the Engineer for decision before they
may be referred to arbitration.14 The limitations of this procedure are also well
known. As the Engineer is hired and paid by, and administers the contract on
behalf of, the Employer, he is not independent of the parties and cannot
reasonably be expected to be always impartial in the settlement of disputes as
discussed above. The significance of the new procedure for resolving disputes
before arbitration which FIDIC proposes is that it provides for a decision maker
who is completely independent of the parties and who should be able always to
act impartially. Under this new alternative, instead of having disputes
submitted to the Engineer for settlement before arbitration, they would be
submitted to the Board. Where this alternative procedure is adopted, the
Engineer would no longer have any involvement in deciding disputes under
Clause 20. If a dispute of any kind whatsoever arises between the Employer and
the Contractor in connection with, or arising out of, the Contract or the
execution of the Works, including any dispute as to any opinion, instruction,
determination, certificate or valuation of the Engineer, the dispute shall initially
be referred in writing to the Dispute Adjudication Board or Dispute Review
Board (the "Board") for its decision. Such reference shall state that it is made
under this Sub-Clause. Unless the member or members of the Board have been
previously mutually agreed upon by the parties and named in the Contract, the
parties shall, within 28 days of the Commencement date, jointly ensure the
appointment of the Board. The Board shall comprise suitably qualified persons
as members, the number of members being either one or three as stated in the
Appendix to Tender.
2) Arbitration: Arbitration is perhaps the most commonly used mechanism for

settlement of technical disputes in a construction project. It is a quasi-judicial
process to the extent that legal protocol is largely observed, and it is important
that the arbitrator, who basically acts as a judge, understands legal procedures.
In Kenya, the Arbitration Act, 1995 as amended, provides the legal framework
for the arbitration process. In principle, collection and interpretation of
FIDIC Conditions of Contract for Construction for Building and Engineering Works
14
Designed by the Employer, First Edition 1999
215
evidence, examination and cross-examination of witnesses, etc., are some

examples of essentially legal matters, which an arbitrator needs to have a sound
understanding of. However, a basic belief in principles of natural justice and a
practical approach are a hallmark of a successful arbitrator. He should be able
to guide and provide a direction to the proceedings, which could be quite tough,
especially when the parties to the dispute are represented by professional
lawyers. In fact, the law has now added a new dimension to the arbitration
process by empowering the arbitrators to conciliate and help the parties in
arriving at a fair compromise or an equitable settlement of the case before him.
As far as the number of arbitrators is concerned, much like the judicial system,
technical disputes can also be resolved by single arbitrators, or a panel of several
arbitrators, and though the parties are free to determine the number of
arbitrators, it should be ensured that the number is odd, so that a situation of a
“tie” in an award is preempted.
3) Other Alternate Dispute Resolution Methods: Arbitration does provide a

better way for settlement of the disputes compared to the litigation, however,
there are other alternate dispute resolution methods like mediation,
conciliation, negotiations, etc used in the construction industry. These methods
of resolution of dispute are by basically mutual agreement and no judgment it
passed. If the parties are not satisfied, then they can go in for Arbitration or
litigation as the case may be. As already mentioned no understanding between
the parties can be so perfect so as to avoid disputes. However, with the changing
scenario the parties involved have realized that it in their best interests for
settling the claims in the earlier stage itself. This is one of the major reasons for
increasing popularity of the ADR methods. They have opened up a new avenue
for economic and fast settlement of disputes outside the judicial system. The
ADR methods include:
a) Negotiation: Negotiation is the process by which one or more parties come

to a mutually beneficial agreement. This is a quick, economic and efficient
method as the parties settle the claim by direct communication. It is a sort of
approach in which each party tells the other one, what it can give to the other
party and what does it expects in return. All negotiators share one common goal
216
of having both parties coming out better than what they started. This requires a
great deal of mutual trust, confidence and belief that problems can be sorted out
through mutual discussions and meetings.
b) Conciliation: Conciliation is a process of persuading parties to reach

agreement, and is plainly not arbitration; nor is the chairman of conciliation
boards an arbitrator.
c) Adjudication: Like arbitration, adjudication is a process of resolving disputes

between parties by the decision of a neutral third party but is intended to
provide a quick determination which will bind the parties only until the dispute
is finally determined by legal proceedings, by arbitration or agreement.
d) Mediation: Mediation is a method of seeking passive help of a third party to

resolving the dispute. Essentially, the parties sit down for negotiation. However,
they do so in presence of a mediator. The mediator tries to give the discussion a
meaningful and positive turn. He however intervenes only when necessary. The
role of the mediator is basically to clarify the issues involved. He has to do the
following things:
i) Clarify the issues which are to be discussed.

ii) Keep the subsequent discussion and negotiation on track.
iii) Helping the parties to come to a decision such that the parties are in a
win-win situation as far as possible.
iv) Cool down the tempers which are bound to go up in the course of the
discussion.
Even though the process seems quiet informal on the surface it is a very effective
method, the process has proved itself in settling various disputes and time and
again proved itself efficient method of dispute resolution and claim settlement.
e) Expert determination: Expert determination is a process by which an issue or

dispute is referred to a third party jointly appointed by the parties for
determination under the contract. The expert investigates and reports on the
relevant facts and matters within his/her expertise. It is particularly appropriate
217
for a discrete matter of technical nature or short points of law. An expert is not
an arbitrator. He does not enjoy immunity from suit in the way that such
immunity is enjoyed by arbitrators and judges. The determination of an expert
is a final and binding decision. The grounds for a challenge of an expert's
decision are very limited. In this kind of dispute resolution involving technical
issues, the person who decides the dispute ideally should be an engineer or an
expert. Unless of course the dispute is of a legal nature, in which case a lawyer
or judge may be more appropriate.
3.0 The Engineer in Dispute

Having looked at how the construction industry and project management is
structured, the parties in the industry and their competing interest we will now
have a look at the engineers’ role at a closer range.
Since its establishment, FIDIC compiled and published the first edition to the
third edition of Red Book in 1957, 1969 and 1977. In terms of the design of
dispute resolution mechanism, the role of engineer was highly focused, that is,
the disputing party should first submit the dispute to the engineer, who will
make a decision within a certain period of time after receiving the submission
this as explained in the above flow chart. If either party is not satisfied with the
award or the engineer fails to give the award or his verdict within the prescribed
period, either party to the contract may start the arbitration procedure to resolve
the dispute according to the arbitration agreement articles in the contract. At
this stage, the settlement of disputes in FIDIC is relatively simple and
monotonous, and the choice of contract parties to resolve dispute is restricted.
A source of continuing criticism of its Red Book emerged concerning the duality
in the traditional role of the engineer as the employer's agent and as an
independent third party holding the balance fairly between the employer and
the contractor. The role of the engineer under the new Red Book is critically
examined in the light of relevant case law, expert commentaries and feedback
from two multidisciplinary workshops with international participation. The
examination identified three major changes: (1) a duty to act impartially has
been replaced by a duty to make fair determination of certain matters; (2) it is
open to parties to allow greater control of the engineer by the employer by
stating in the appropriate part of the contract powers the engineer must not
218
exercise without the employer's approval; (3) there is provision for a Dispute
Adjudication Board (DAB) to which disputes may be referred. Although the
duality has not been eliminated completely, the contract is structured in such
away its flexible enough to support those who wish to contract on the basis of
the engineer acting solely as the agent of the employer or in contractor.
3.1 Engineers' involvement in the contractual process

In this section will give the understanding and perspective that an engineer
would consider as an advisor and as an expert witness in the construction
industry. The section will be concluded with the role of an engineer in
construction dispute avoidance and dispute resolution process. The role of the
engineer can be examined in two stages, namely pre-contract award and post-
contract award.15
Pre-contract. During the pre-contract stage, the client's engineers will prepare
statements of requirements or functional specifications. These requirements or
specifications become part of the bid document which goes to the bidders. The
contractor's engineers will then review and put together a technical proposal
with a method statement as part of the bid submission. Any qualifications
should be made clear in the submission. Sometimes bidders submit alternative
methods that are claimed to be better, quicker and cheaper to build at times
termed as counter offer.
After the tender is submitted, the client's engineers will study the bid
submission. Usually, technical submissions and commercial or financial
submissions are assessed separately. Technical proposals will be assessed to see
the compliance with the technical requirements, the suitability of the method
statements and the viability of the delivery programme. Track records for
delivering similar work will also be considered. Meetings will be held to clarify
15 The deficiency of dispute settlement mechanism seen in Chinese construction field from FIDIC.
Available from:
https://www.researchgate.net/publication/329652640_The_deficiency_of_dispute_se
ttlement_mechanism_seen_in_Chinese_construction_field_from_FIDIC [accessed Dec
31 2019].
219
any uncertainties in the submissions. Assuming the proposal is also

commercially acceptable, a decision is made to go ahead with the contract. This
decision leads to contract award which must be well advised by the engineer
As is often the case, minutes of these technical clarification meetings are referred
to in the contract and form part of the contract documents. In writing these
minutes, any agreement on acceptance or rejection of any qualifications must be
clearly stated. One pitfall that can occur is that it may be the intentions of the
parties to include only certain specific points raised at a meeting to be
contractually bound. By including the entire set of the minutes, undesirable
items are inevitably included into the contract as well. Instead of referring to the
entire set of meeting minutes, it is advisable to write special provisions in the
contract to reflect any agreement on specific points which has been agreed up
on.
Post-contract. When the contract is awarded, there will be the usual process of
having a 'kick-off or site handover' meeting to set out any procedural
requirements, such as establishing the lines of communication, revisiting the
programme and clarifying any documentation submission requirements. Then
it will be a matter of monitoring the process and performing the work. There
will be many opportunities for interaction between the engineers of both parties
as well as other members of the team such as the commercial personnel,
procurement manager and his/her expeditors. Even though there is a contract
in place, any discussion could be interpreted as an ad hoc agreement on specific
points, altering the rights that are defined in the original contracts. Furthermore,
statements made by the client's engineers can be interpreted as instructions,
which may trigger a variation. Care needs to be taken in these instances.
3.2 The Engineer - Expert Witness

Being an Expert witness or an Engineer acting as an expert witness is not a
profession in itself. It is a dual role where a practicing professional acts as an
expert in court of law, arbitration or any other form of ADR. Very often
engineers are asked to give evidence in court or at an arbitration hearing as an
expert. There is a lot of ground that could be covered on this topic which this
220
writing may not exhaust and it is important for an engineer to understand his
or her duties as an expert witness. In essence, the need for expert witnesses is
the result of tribunals requiring assistance. The tribunals need assistance to
make a decision on a particular issue or issues, which requires specialist
knowledge beyond the knowledge of the tribunal.
The Civil Procedure Rule (CPR) defines an expert witness as an expert who has
been instructed to give or prepare evidence for the purpose of court
proceedings. The CPR definition draws a distinction between experts who are
instructed with a view to actually giving evidence, be it in court or by means of
a written report, and those who are simply instructed to advise a party or a
potential party to proceedings.16
a. Expert evidence should be, and be seen to be, the independent product
of the expert uninfluenced as to form or content by the exigencies of
litigation.
b. An expert should provide independent assistance to the court by way of
objective unbiased opinion in relation to matters within his expertise.
c. An expert witness should never assume the role of the advocate.
d. An expert witness should state the facts upon which his opinion is based;
he should not omit to consider material facts which could detract from
his concluded opinion.
e. An expert must make it clear when a particular question falls outside his
expertise.
f. If the opinion of experts is not properly researched because it is
considered that insufficient data are available, then this must be stated
with an indication that the opinion is no more than a provisional one. In
cases where an expert witness who has prepared a report could not
assert that the report contained the whole truth and nothing but the truth
without qualification, that qualification should be stated in the report.
g. If after the exchange of reports, an expert witness changes his view on a
material matter having read the other side's expert's report or for any
16 Laws of Kenya, Civil Procedure Rule 2010
221
other reason, such change of view should be communicated (through the

party's representatives) to the other side without delay and, when
appropriate, to the court.
h. Where expert evidence refers to photographs, plans, calculations,
analyses, measurements, survey reports or other similar documents,
these must be provided to the opposite party at the same time as
exchange of reports.
3.3 The Engineer - Expert Advisor

Engineers are usually appointed to give an initial opinion on a claim and to
determine:
• The factual evidence, evaluation of all the documentation, evidences and

the type of case that may be pursued with such kind of evidence
available.
• The technical issues strengths and weaknesses of the client’s case.
• The basis of technical arguments which may be included in a claim
submission.
• Any measures to mitigate loss, if weaknesses are present in the client’s
claim,
• Promote settlement, if possible, prior to any arbitration or litigation
process.
• The advice must be balanced and independent as the Expert Advisor
may be required to act as an Expert Witness.
3.4 The Engineer in Dispute Avoidance

The best way to resolve disputes is always to avoid their occurrence in the first
place. A number of suggestions have been presented in this paper for
consideration by practitioners.
(a) Clear and concise drafting of specifications/scope of work. The importance
of having a written contract in place has been illustrated in previous cases.17
M. Osama Jannadia, Sadi Assaf, A. A. Bubshait, Allam Naji, “Contractual Methods for
17
Dispute Avoidance and Resolution (DAR),” International Journal of Project

Management, 18 (2000), pp. 41-49
222
Everything is reduced to a contract document in writing. There is no

substitution for the clear and concise drafting of the contract document. At the
very least, the contract document should maintain consistency. It is not
uncommon to find that the design review cycle specified in the technical part
differs from that defined in the main body of the contractual terms. This creates
contradiction and ambiguity, which can be avoided by careful and concise
contract drafting. It is quite common for parties to enter into a risk and reward
contractual arrangement; however, the conditions for achieving rewards must
be clearly defined. For example, the exact meaning of weight savings could
breed dispute. The contract needs to make it clear how the weight is measured,
what is included in the measurement and whether the weight means dry or wet
and what are the units of measurements.
(b) Effective construction project management plan. When a contract is

awarded, a project team including the engineer has to be assembled in a very
short timescale. Personnel from various backgrounds are brought together. A
plan based on the company's previous experience needs to be in place to manage
the project.
(c) Adhere to project procedure. There is little point in having a project

management plan if procedures are not followed. The plan should contain the
means to ensure compliance. A well-structured procedure is particularly
important in large-scale projects in which team members are drawn from
multidiscipline and backgrounds, and members may also be changed during
the course of the project.
(d) Be familiar with the contract documentation. The engineer must ensure that
the rights and obligations of all parties concerned are defined in the contract. As
project progresses, the contract becomes the single source of reference from
which parties can work out their liabilities and benefits. Knowing the
contractual responsibilities will avoid unnecessary arguments and promote the
smooth running of a project.
223
(e) Understand the implications of the day-to-day communication. A project

inevitably requires communication between various team members from
different companies, contractors and subcontractors. A statement made to a
supplier may be interpreted as changes that have cost and time implications.
Engineers must be kept alert when making statements as representative of a
party.
(f) Keep good contemporaneous records and engineering reports. When things
go wrong, individuals will put forward their own version of events to suit their
arguments. Mere allegations without substantiation carry no weight in any
subsequent resolution of disputes. File notes, diaries, internal memoranda or
email messages that were created at the time are suitable evidence in support of
individuals' claims and counterclaims.
4.0 Conclusion
The strategy of conflict resolution on the project is by respond to problems in a
timely manner, creating good communication among project teams, creating a
clear mechanism, creating management and good supervision. The conflicts are
resolved in an appropriate manner to minimize contagion to the efforts of the
achievement of the project target. The current dominant theory is the
interactionism view that believes that conflict can be constructive in
organizations under certain circumstances.18
Engineers are, and indeed should be, involved in every stage of a construction
project of whichever nature. They have every opportunity to assist in dispute
avoidance and dispute resolution process by way of being more aware of the
contractual relationship between various parties and the project procedure. To
achieve that, there should not be any need for any major further education or
training for the engineers. If a dispute does, however, occur, engineers have a
vital role to play in the dispute resolution process. They can be factual witnesses
to set out the chain of events that happened, expert witnesses to assist the court
18Robbins, S. P., and Judge, T. A. (2009). Organizational behavior, 13th Ed., Pearson
Education, Prentice Hall, NJ.
224
or tribunal in understanding the technical issues, and they are also well placed
to judge the rights and wrongs of the parties given their technical backgrounds
in understanding the day-to-day running of a project. As a result of the fore
going the following in my opinion can be drawn.
1. Disputes between the parties to the construction projects are of great

concern to all the parties in the industry.
2. An effective claim management process is essential to ensure that any
contractual claims arising are dealt with in a way that is fair to each
involved party.
3. Better training in the area of contract management, contract
administration and dispute resolution to the professionals especially the
engineers can be said to be of a great help for better understanding of
the contracts in the construction industry.
4. The requirement of contractor involvement during the design process
can improve constructability and reduce the probability of design
changes to minimize conflicts and disputes.
5. The evolution of dispute resolution processes has led to the
development of a range of alternative dispute resolution opportunities
to be exploited and embraced by the disputants within the industry.
6. Both ADR and DRB are the most efficient methods of solving the
disputes in the construction industry because they give less time to give
award and also the procedures filled by them are in the interest of both
parties.
7. Whereas the decisions through court cases are more time consuming as
well as money consuming. For amicable and earlier solution of claims
ADR and DRB are the best.
225
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Engineering, April 2003.
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knowledge (PMBOK-Guide)
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Works Designed by the Employer, First Edition 1999
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of Project Management, 18 (2000), pp. 41-49
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Practicability of Neutrality of Mediators: (2020) 8(2) Alternative Dispute Resolution
Demystifying the Interplay between Mediator
Neutrality and Power Imbalances:
Julius Nyota & Bernard Nthiga
Practicability of Neutrality of Mediators: Demystifying the Interplay

between Mediator Neutrality and Power Imbalances
By: Julius Nyota & Bernard Nthiga
Abstract
One of the fundamental principles of mediation is neutrality with many definitions

depicting the mediator as a neutral party who intervenes in a dispute between parties.
Many definitions assert that the neutrality and impartiality of the third party are critical
elements legitimizing the practice of mediation. Indeed, many people are drawn to
meditation on the promise of perceived neutrality. However, there are difficulties
shrouding the concept of neutrality with many scholars terming it as one of the most
misleading myths and pervasive notion. This paper argues that the ideal concept of
neutrality as seen in the theoretical sense cannot be realized in practice especially where
the mediator has to deal with power imbalances between the disputants. Whereas there
is increasing application of mediation in resolution of disputes, most of the myths and
misconceptions on the process should be deconstructed if the parties are to resolve their
disputes effectively without causing a miscarriage of justice.
1. Background
Mediation is among the oldest dispute resolution mechanisms and can be traced
to ancient era.1 It mainly comprises two aspects namely mediation in the
political sense and mediation in the legal sense.2 Mediation in the legal process
that is formal and looks forward not to resolution and restoration of
relationships but to a settlement as we are going to reveal. Court annexed
mediation falls in this category of mediation. The court-annexed mediation

The authors herein are holders of LLB from University of Nairobi and are involved in
research in the areas of their specialisation. The email for the corresponding author is
[email protected] or [email protected].
1 Kariuki Muigua, Resolving conflicts through mediation in Kenya. (Greenwood

Publishers, Nairobi 2012) P1
2 Ibid p. 6
228
entails referring parties in litigation to mediation and eventually moving back

to court for the ratification of the settlement.3 In this regard the autonomy of the
parties is compromised in the choice of mediator and owning the process.
However, the concept of neutrality of the mediator is used to counter balance
the idea of judicial neutrality.
Mediation in the political sense is what this paper focuses on. It is the true
mediation that brings forth a resolution.4 Arguably, it can best be defined as:
“….a method of conflict management in which conflicting parties gather to seek
solution to their problems, accompanied by a mediator who facilitates
discussions sand the flow of information, aiding in the process of reaching
agreements.” 5 When a family conflict ensues between individuals or a
particular group of people, the council of elders, relatives or friends acts as
neutral parties (mediators) to help the disputants come to a mutually
compromised agreement.6 It looks at the root cause of the problem and focuses
greatly on the individual interests of the parties.7 This ensures that the bruised
relationship between the disputants is restored to health, and harmony
returned. This is mediation in the political process that grants parties exclusive
autonomy over the choice of the mediator, the process of mediation and the
ultimate outcome of mediation.
1.1 Introduction
Pursuant to the above definition, mediation in the political sense manifest the
true attributes of mediation including, voluntariness and autonomy of the
parties. In this research the word mediation will be used in reference to
mediation in the political sense.
3 Ibid p. 75
4 Ibid p. 39
5 Jacob Bercovitch, “Mediation success or failure: A search for the elusive criteria”
(Cordozo journal of conflict resolution vol. 7. 289) P 290

6 Taylor,Alison. "Concepts of neutrality in family mediation: Contexts, ethics, influence,
and transformative process." Mediation Quarterly 14.3 (1997): 215-236. The articles focus
on family disputes involving a husband and wife
7 Svensson, Isak. "Bargaining, bias and peace brokers: How rebels commit to peace."
Journal of Peace Research 44.2 (2007): 177-194.

229
Neutrality is a very important principle in the mediation with the definitions

asserting that a mediator is a neutral intervener in the parties’ dispute. Many
definitions asserts the neutral and impartial third party as key elements
legitimizing the practice of mediation. Indeed, many people are drawn to
mediation on the promise of perceived neutrality. However, the concept of
neutrality is fraught with difficulty with some writers referring to neutrality as
the most pervasive and misleading myth about mediation. Some argue that it is
neither attainable nor desirable. Some commentators have argued that it is not
sufficient to simply claim mediators’ neutrality as the mediator have significant
amount of power in mediation and there is evidence suggesting that they do not
exercise it entirely in a neutral way depending on the outcome and content.8 It
is imperative that the proponents of mediation are ready to acknowledge that it
is a reflection of misconception of the theory and practice to claim that the
mediator is neutral. It is on this ground that the many myths about mediation
process need to be dispelled if the parties are to access justice through mediation
as an increasingly dispute resolution process.
The problem is that while the theory on the concept of neutrality acknowledges
the difficulties, these theoretical conceptions have not adequately impacted the
practice of mediation. On the contrary, most mediators continue to claim that
they are neutral and some go to an extent of claiming to be able to do things that
fly on the face of the neutral persona.
Ideally, parties to mediation control the process. However experience has

demonstrated that the success of mediation is significantly determined by the
quality of the mediator.9 In view of the aforesaid a dilemma arises as to how
neutral mediators shall influence the outcome in mediation without
compromising the autonomy of the parties. This research seeks to unfold that
dilemma. It aims at establishing a practical interplay of neutrality principle and
the power imbalances between the parties.
8 Zamir, Ronit. "The disempowering relationship between mediator neutrality and

judicial impartiality: Toward a new mediation ethic." Pepp. Disp. Resol. LJ 11 (2010): 467.
9 Freddie Strasser and Paul Randolf, Mediation: A psychological insight into conflict
resolution (Continuum international publishing group London 2004)

230
Like arbitrators and judges, mediators are not super human. As Kariuki Muigua
contends, they cannot be absolutely neutral.10 Similarly, the disputants are
expected to produce solutions to their issues. Usually, disputants seek
mediation after meeting a deadlock in their negotiations thus the need to engage
a neutral third party.11 Unlike arbitrators, there seems to lack substantive
legislation to guide mediators. There is need therefore to establish a criteria for
guiding mediators in mediation. This paper will examine the practical meaning
of mediator neutrality as well as power imbalance between the parties. Further,
it seeks to establish principles that would guide mediators in discharging their
delicate mandate of striking a balance between their neutrality in relations to
addressing the power imbalance between the disputants’ in order to achieve
successful mediation.
2. Meaning of Mediator Neutrality

A key attribute of mediation is the concept of neutrality of the mediator24. There
is no single definition of neutrality because different authors view it differently.
Evans Rock for instance defines neutrality as impartiality or absence of biase25.
As per this view; neutrality, impartiality or lack of bias are synonymous. On the
other hand, Trachte contends that neutrality refers to the concept that mediators
do not stand to achieve personal gain from a mediation settlement; whereas
impartiality implies mediators do not have preconceive bias on how the conflict
should be resolved26. Further, the ordinary English meaning of neutrality and
impartiality entails not supporting one person or group than the other27. This
research has established that the words neutrality and impartiality are not
technical words thus do not need a special interpretation. The ordinary meaning
suffices the rationale of neutrality principal is that a mediator should not take
sides. After examining the meaning of concept of mediator neutrality, a question
that arises is whether a person can be absolutely neutral.
Op cit Muigua P3
10
11Kariuki Muigua. Settling disputes through arbitration in Kenya. (Gleenwood
Publishers, Nairobi 2017) P. 19
231
2.1 Mediators' neutrality in the theoretical and practical sense

Theoretically, neutrality is a concept which has different elements of meanings
and understanding. In the broad sense, it is seen by many as lack of interest in
the outcome of any dispute resolution, to others, it is lack of bias on any of the
parties while others associate it with lack of prior knowledge on the dispute. 12
In this regard, under the broader sense of neutrality, the mediator is presumed
not to make any judgment on the parties and the dispute at hand and the idea
that they will be fair and open-minded. However, it is important to
acknowledge that this theoretical sense of neutrality is not real as in practical
sense not all mediators are neutral in all aspects. The theoretical aspects of
neutrality reflect on the relatively measured and reasonable approach to the
concept of neutrality.13 In this regard, it is important this concept is
distinguished from impartiality. Whereas neutrality is mainly used to describe
the mediator's aspect of lacking interest in the outcome of mediation,
impartiality, on the other hand, refers to the fairness and objectivity to the
parties through the entire mediation process. It is possible for the mediator to
be objective and fair through the entire mediation process without being
neutral.in practice, there is need to look at neutrality as multidimensional, and
all dimensions may not be present in all the instances.
Based on the semantic differences between the neutrality and impartiality, it is

possible to justify some of the mediator's actions or interventions throughout
the mediation process which may contradict the principle of neutrality but are
within the realm of impartiality. However, the idea of addressing the power
imbalances between the parties contracts the notion of impartiality. This raises
questions of how neutrality in theoretical and practical sense work. Further,
there are questions on what mediators believe to be mediation and what they
explain to the parties as mediation. In practice, a mediator is supposed to start
in the opening remarks by stating their roles as neutral and impartial facilitators.
12 Kishore, Shyam. "The evolving concepts of neutrality and impartiality in mediation."

Commonwealth Law Bulletin 32.2 (2006): 221-225.
13 Bogdanoski, Tony. "The "Neutral" Mediator's Perennial Dilemma: to Intervene or Not
to Intervene'(2009)." The Queensland University of Technology Law and Justice Journal 9: 26-
39.
232
Even in the most experienced and developed jurisdictions, it is not advisable for
the mediator to discuss with the parties the reality of neutrality.
14Notwithstanding the theoretical distinctions, there are no requirements that
the mediator should explain the myth of neutrality or distinguish the principle
of neutrality and impartiality. This is not the direction that a party should take
in trying to portray their neutrality nor should they try to explain the neutrality
dimension applicable in the particular case.15
Despite there being much literature on neutrality many mediators continue to

assert their neutrality and impartiality. In literature, there are well considered
and resonate approach to neutrality, and what it can mean to the parties in
mediation, practically this concept is never explored nor explained. This is the
issue is so serious that continuing to assert the issue of mediators neutrality even
in the introductory statements amounts to a misrepresentation of what the
mediator can provide to the parties. In this regard, there is need to explore
effusive ways of on which the mediator can explain the reality of their role to
the parties.
2.2 The interplay between mediator neutrality and power imbalances

Advancing the ideology that the mediators are neutral and impartial and can
address the power imbalances entrenches further misrepresentation. This is
because the only way a mediator can be able to address the power imbalances
is by preceding the neutrality and impartiality aspect so that they can in a
transparent manner intervene for the benefit of the party at the power
disadvantage.16 The claims about redressing the power imbalances in mediation
should acknowledge that if the mediator has to intervene to help the party at
14Evan M. Rock, Mindfulness Meditation, The Culture of Awareness, Mediator Neutrality and
the Possibility of Justice (Cardozo Journal of Conflict Resolution Vol.6:347)
15 Exon, Susan Nauss. "The Effects that Mediator Styles Impose on Neutrality and
Impartiality Requirements of Mediation‖(2007-2008)." USF L Rev 42: 577.
16Mulcahy, Linda. "The possibilities and desirability of mediator neutrality-towards an

ethic of partiality?." Social & Legal Studies 10.4 (2001): 505-527.
233
the power disadvantage then effectively, they cannot be seen to be having an

open mind on the way they treat the parties.
In both theory and practice, there is debate whether the mediator is obligated to
take steps either to increase the powers of the weaker party or to reduce the
powers of the stronger party. The main issue, in this case, is how the power
imbalances can be addressed and its implications on the claims of neutrality and
impartiality. This has been a troubling question to many mediators as they try
to juxtapose on the two fundamental issues which are that having an open mind
when dealing with parties with unequal bargaining power will disadvantage
the weaker party and that intervening in the mediation process for the benefit
of the weaker party undermines the principle of neutrality.
On the claims about addressing the power imbalances between the parties in
the mediation process, several points have been put across. First, the mediators
should not make any presumption about the existing power relations, and in
exploring the ability to resolve the disparity, they should encourage the parties
to share knowledge. Further the mediator should use the parties desire to reach
an amicable solution to compensate for the parties with low negotiation skills ,
interrupt in case of intimidating negotiation patterns, create an accommodative
environment for language differences where they exist and respect the needs of
the weaker party to ensure that settlement is not reached of fear or retaliation.17
Finally, the mediator is supposed to conduct the process in the context the offers
support and information to the parties and that which does not rush to settle. In
these points, neutrality is only recognized where the mediator is supposed to
intervene on behalf of the party with poor negotiation skills.18 This intervention
as envisages should take the form of helping the party to identify their concerns
and help in developing options as well as reflecting on their consequences.
17 Jacobs, Scott. "Maintaining neutrality in dispute mediation: Managing disagreement

while managing not to disagree." Journal of pragmatics 34.10-11 (2002): 1403-1426.
18 Rock, Evan M. "Mindfulness mediation, the cultivation of awareness, mediator
neutrality, and the possibility of justice." Cardozo J. Conflict Resol. 6 (2004): 347.
234
However, the mediator must provide the help required in the context of serving
and being perceived as a neutral and impartial third party to the dispute. In this
regard, it may be important to explain to the parties that the mediator is not
taking a position but just trying to create an equitable negotiation environment
to reach a reasonable settlement to be honored by all the partiers. 19 However,
the reality of this is in doubt given that the mediator is not in the position to
ensure all the relevant information is disclosed unlike a lawyer in the
adversarial system who can seek the order from the court for the production of
all the relevant documents. Further in situations where the power imbalances
led to issues like domestic violence, it is not easy for the mediator to intervene
and help the victim without the perpetrator feeling that they are taking a
position.20 It is likely that the perpetrator will question the neutrality of the
mediator or even disrupt the whole process which they feel is working against
them. This demonstrates in reality how it is difficult for the mediator to address
the power imbalances while appearing impartial and neutral.
The mediator's ability to address the power imbalances can also be seen to be
premised on the mediation process and the role of a mediator. The structure of
the mediation process allows the mediator to address the power imbalances
between the parties by controlling the process, determining the course of
negotiation and reaching of the final settlement.21 The mediator's neutrality and
impartiality should not be construed as the lack of power as their power is
derived from the control they have over the entire process. This power enables
the mediator to address the power imbalances, and it impacts on the concept of
mediator neutrality.
19 Field, Rachael. "Neutrality and power: Myths and reality." ADR Bulletin 3, no. 1 (2000):
16-19.
20 Cobb, Sara, and Janet Rifkin. "Neutrality as a discursive practice: The construction and
transformation of narratives in community mediation." Studies in law, politics, and society

11 (1991): 69-91.
21 Astor Hillary, Mediator Neutrality: Making Sense of Theory and Practice. Available at
http://journals.safepub.com Accessed on 28th May 2020.

235
3. Implications of the intersection of claims about neutrality and mediators'

abilities to redress power imbalances
The failure to acknowledge the intersection of these issues has serious
repercussions on the parties who are using mediation to resolve their disputes.
Consequently, with the use of mediation increasing and gaining constitutional
recognition, the parties affected are likely to increase. 22What is of particular
concern is that if it cannot openly be said of what mediation can offer the parties
regarding the third party's neutrality and what a mediator can and what they
cannot do to address the power imbalances, then the whole process is being
misrepresented.23 Engaging in this type of misrepresentation provides a fertile
ground for injustices and inequitable outcomes. Further failure to describe the
process honestly and accurately is likely to lead to a scenario where the weaker
parties are ambushed with agreements that reflects the wishes of, the stronger
parties.
There is need to describe mediation to the parties in a right and accurate way.
The mediators need to change the way they promote mediation and perhaps
contemplate on the complete reassessment of the concept of neutrality. For the
sake of those on power disadvantage, there is need to ensure that the promises
made to them on neutrality reflect the reality.24 Alternatively, there is need to
abandon the rhetoric about the mediator's ability to address the power
imbalances while remaining neutral. It is only in situations where the party at
the power disadvantage are given full and adequate information about the
disadvantages they may face as a result of power imbalances and the possible
consequences of the disadvantages on the equitability of the outcomes, can
mediation be said to offer just result to the power disadvantaged.25 In
22 Katsoris, Melissa. "Does Nationality Influence Neutrality? The Ethical Standards and
Expectations of International Mediators." Fordham Int'l LJ 39 (2015): 695.
23 Nicholson, Alastair. "Mediation in the Family Court of Australia." Family Court Review
32, no. 2 (1994): 138-148

24 Douglas, Kathy, and Rachael M. Field. "Therapeutic jurisprudence: Providing some
answers to the neutrality dilemma in court-connected mediation." Transforming Legal

Processes in Court and Beyond (2007): 67-84.
25 Rifkin, Janet, Jonathan Millen, and Sara Cobb. "Toward a new discourse for mediation:
A critique of neutrality." Mediation Quarterly 9.2 (1991): 151-164.

236
preparation for the mediation process, parties should not be given false
promises that the power imbalances can be redressed or that the mediator can
be neutral.
Mediators need to undertake two exercises in order to be effective. First, they

need to be conscious of their unconscious influences of likes, biases, prejudices
and aspirations. Secondly, they need to be focused on the parties’ expectation
that mediators should not show preference to any party. We earlier discussed
the meaning on neutrality. This research, avers that neutrality should be
understood to mean lack of bias or showing preference to any party as well as
avoiding personal interests in the settlement. Mediators should always be
conscious that they are not party to the dispute. They are an umpire to assist the
disputants settle their issues41. This is achievable. The consciousness of their
mission allows mediators to give parties an opportunity to take the lead in
finding solutions for their dispute.
In so far as mediators do not impose themselves or their views to the parties

therefore, party autonomy is promoted. This marks the interplay between the
two principals. The moment mediators realize that they are biased or have a
sense of preference to any party plus start developing a sense of personal gain
from the settlement, neutrality becomes compromised. When neutrality is
compromised mediators fail to uphold the dignity of the parties inversely
injuring the parties’ autonomy.
4. Recommendations
This paper has argued that it is not possible for the mediator to address the
power imbalances between the parties while remaining neutral. Many
definitions asserts the neutral and impartial third party as key elements
legitimizing the practice of mediation. The concept of neutrality of the mediator
is used to counter balance the idea of judicial neutrality hence it must be
safeguarded
237
The first intervention is dealing decisively with the gatekeepers. The resistance
by the power advantages party in the mediation is a major threat to the
neutrality of the mediator. The powerful party has all the advantage and the
failure to resolve the dispute is not a problem to them. This calls for measures
to engage, challenge and disarm them.
The other intervention is locating and understanding the subjects. Different

parties and different subjects of the disputes requires different approaches.
There is need to understand the particularities of these groups which is will help
to address the causes, manifestations and consequences of power imbalances.
This approach engages the parties and, maps the relationships of the power
imbalances among them and the manifestations of lack of partiality on the
mediator. It also requires engagement of other structures that generate power
imbalances such as religion and culture.
Finally, there is need to counter the knowledge hegemonies on the mediators

neutrality. There is need to invest time to allow parties to tell their stories and
experience separately which will help the mediator to frame appropriate
responses.
5. Conclusion
There is increasing use of mediation especially in family disputes where power
imbalances are evident. To ensure that the parties get justice in such
circumstances, we cannot simply rely on the mediator's neutrality and their
innate ability to address the power imbalances. There is need to assess the
practice of mediation and allow it to be informed by the theoretical
understanding which is more clear. In theory, mediation is more honest on the
reality of the mediator's neutrality than it is the case in practice. However, if
mediation is to be informed by the theory, then the mediators need to be honest
on the level of neutrality they can offer. More specifically if the mediator claims
any level of neutrality, then they should avoid giving false hope that they can
appropriately address the power imbalances. Otherwise, if the mediators still
wish to work in the context where power imbalances, exist, then they should
drop the aspirations of neutrality.
238
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Mediators’ Conduct." (2011).
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or Not to Intervene'(2009)." The Queensland University of Technology Law and
Justice Journal 9: 26-39.
Cobb, Sara, and Janet Rifkin. "Neutrality as a discursive practice: The

construction and transformation of narratives in community mediation." Studies
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some answers to the neutrality dilemma in court-connected mediation."
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Impartiality Requirements of Mediation‖(2007-2008)." USF L Rev 42: 577.
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(2002): 1403-1426.
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Publishers, Nairobi 2012)
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(2015): 695.
Kishore, Shyam. "The evolving concepts of neutrality and impartiality in

mediation." Commonwealth Law Bulletin 32.2 (2006): 221-225.
Mulcahy, Linda. "The possibilities and desirability of mediator neutrality-

towards an ethic of partiality?." Social & Legal Studies 10.4 (2001): 505-527.
Nicholson, Alastair. "Mediation in the Family Court of Australia." Family Court

Review 32, no. 2 (1994): 138-148.
Rifkin, Janet, Jonathan Millen, and Sara Cobb. "Toward a new discourse for
mediation: A critique of neutrality." Mediation Quarterly 9.2 (1991): 151-164.
Svensson, Isak. "Bargaining, bias and peace brokers: How rebels commit to
peace." Journal of Peace Research 44.2 (2007): 177-194.
Taylor, Alison. "Concepts of neutrality in family mediation: Contexts, ethics,

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241
Towards Resolution of the Trophy Hunting Conflict: (2020) 8(2) Alternative Dispute Resolution
Leslie Olonyi
Towards Resolution of the Trophy Hunting Conflict
By: Leslie Olonyi
Abstract
There is a sharp lack of consensus in the wildlife conservation arena concerning the
ethics and usefulness of trophy hunting in the African continent. The emergent scenario
generally pits conservation organizations, nature enthusiasts and anti-trophy hunting
African governments on one side against pro-trophy hunting African governments and
trophy hunting clubs on the other side. The debate about trophy hunting was reignited
in December of 2019 after Botswana lifted its ban on trophy hunting only for an elephant
that had been collared for research purposes to be shot during a trophy hunt. This paper
intends to analyse the trophy hunting conflict between the above-mentioned stakeholders
which also regularly plays out in international conferences while also considering the
place or opportunity for environment conflict resolution to inform consensus.
International environmental law is based on the realisation that the environment must
be protected as an international public good and in the general interest of humanity. As
a result, a number of international environmental agreements have incorporated ADR
mechanisms as part of the dispute resolution process.
1. Introduction
Scientists from diverse disciplines are in agreement that there has been a rapid
acceleration in the extinction rate of species and that direct and indirect impact
of human activity on the Earth’s natural systems is primarily to blame. Some
scientists assert that we are either entering, or in the midst of the sixth great
mass extinction while geologists have even proposed a new epoch in the
geologic time scale referred to as the “Anthropocene” which is characterised by
humans altering Earth´s natural systems.1 One of the anthropogenic human
actions has been both legal and illegal wildlife trade in wildlife species. These
two forms of trade pose risks to humans and their environment for the reason
that they both involve movement of species from native to non-native zones.

MCIArb, LLM; [email protected]
1Bruce Smith & Melinda Zeder, ‘The onset of the Anthropocene.’ (2013) Vol 4,
Anthropocene pp. 8-13.
242
Leslie Olonyi
Nevertheless, the risks associated with illegal wildlife trade are more
substantial. They extend well beyond the direct impacts that are easily
perceptible, identifiable or quantifiable. Some of the identifiable risks include;
loss of biodiversity, risk to public health as is clearly demonstrated by the
devastating effects of the ongoing COVID 19 pandemic which is believed to be
a zoonotic disease caused by illegal wildlife trade, loss of livelihoods, invasive
species and organized crime.
Unsustainable development has emerged as a significant threat to conservation

and protection of the environment. There is mounting dissatisfaction, especially
in the developing world, at the traditional adversarial approaches to resolving
environmental conflicts. A multiplicity of reasons are behind this wariness and
they include: judicial systems that are beholden to the executive which is the
very arm of government that initiates unsustainable projects, weak
environmental laws and lack of enforcement capacity or infrastructure of
environmental laws and environment related court decrees. A more
overarching reason for dissatisfaction with adversarial approaches to resolving
of environmental conflicts is that Alternative Dispute Resolution (ADR)
mechanisms of environmental disputes are more suited to ascertaining the truth
or the most reasonable solution which is in the best interest of the environment
and by extension humanity.
International environmental law is based on the realisation that the

environment must be protected as an international public good and in the
general interest of humanity.2 With that in mind, a number of international
environmental agreements have incorporated ADR mechanisms as part of the
dispute resolution process. For instance; the Revised African Convention on the
Conservation of Nature and Natural Resources3, Convention on Biological
Biodiversity4, the Vienna Convention for the Protection of the Ozone Layer5, the
2 Francesco Francioni, ‘The private sector and the challenge of implementation in

Harnessing Foreign Investment to Promote Environmental Protection, Incentives and
Safeguards,’ in Pierre-Marie Dupuy and Jorge E. Viñuales (eds) (2013) at pp. 30-31
3 Revised African Convention on the Conservation of Nature and Natural Resources, art
XXX.
4 Convention on Biological Diversity, art 27
5 The Vienna Convention for the Protection of the Ozone Layer, art 11
243
Leslie Olonyi
Antarctic Treaty6, the Convention for the Protection of the Natural Resources
and Environment of the South Pacific Region7, the United Nations Framework
Convention on Climate Change8, the Convention on International Trade in
Endangered Species of Wild Fauna and Flora9 and the United Nations
Convention on the Law of the Sea 10 all include ADR mechanisms either as
mandatory steps or options for dispute resolution. ADR methods like
arbitration or mediation can serve as the bridge between objectives and
outcomes of environmental as well as climate change agreements and also as
enforcement mechanisms. For example, the landmark South China sea
arbitration11 settled a dispute that contained significant environmental
components thus demonstrating the growing importance of ADR in resolving
environmental disputes. In the above matter, the Permanent Court of
Arbitration ruled that China engaged in environmentally harmful fishing
practices12 and also violated environmental protection provisions.13
In 2015, the killing of Cecil the Lion in Zimbabwe’s Hwange National Park by a
trophy hunter reignited the deep-seated debate on trophy hunting in the African
continent. Multiple iterations of conferences under international environmental
agreements such as the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES) have revealed a fundamental lack of
consensus concerning the ethics, acceptability and usefulness of trophy hunting
in conservation. Thus far, decisions that enable trophy hunting have been met
with significant pushback, including the decision at CITES to increase South
6 The Antarctic Treaty, art XI

7Convention for the Protection of the Natural Resources and Environment of the South
Pacific Region, art 26
8 United Nations Framework Convention on Climate Change, art 14
9 Convention on International Trade in Endangered Species of Wild Fauna and Flora,
art XVIII.
10United Nations Convention on the Law of the Sea, Part XI. Section 5
11 The South China Sea Arbitration (The Republic of Philippines v. The People's Republic
of China) 2013-19. Available at <https://pcacases.com/web/sendAttach/2086>

12 The South China Sea Arbitration, PCA 2013-19 Pp 397. Available at
<https://pcacases.com/web/sendAttach/2086>
13 Ibid Pp 475 - 476
244
Leslie Olonyi
Africa’s black rhino trophy hunting quota14and Botswana’s unilateral lifting of

an elephant hunting moratorium.15 These actions not only reveal the extent of
the conflict between the pro- and anti-trophy hunting sides, but also call into
question the effectiveness of existing conflict management channels if any.
This paper attempts to analyse the trophy hunting disagreement under the
CITES framework between the pro- and anti-trophy hunting parties by applying
insights from conflict resolution literature namely, the Dynamics of Conflict
Resolution by Bernard Mayer. The paper applies the conflict analysis principles
espoused in the above book which a conflict intervener such as a mediator,
negotiator or facilitator would require to better understand the conflict. The
objectives are to establish clear definitions surrounding the issue; identify the
major issues at hand; identify stakeholders and the key sources of conflicts
between the parties.
2. Definitions
Before delving into the conflict resolution analysis, it is crucial to first define the
conceptual context within which trophy hunting exists. Conservation may be
broadly defined as actions that directly enhance the chances of habitats, species
and entire ecosystems persisting in the wild.16 This also includes conservation
of geodiversity, which is the variety of geological, geomorphological and soil
features. Hunting is the active pursuit and harvest of wild animals. For the
purposes of this paper, the definition of a wild animal is an animal that is legally
defined and protected as wild by law. The motivation behind hunting is used to
distinguish the groups of persons who engage in hunting. These groups are:
14 Damian Carrington, ‘South Africa gets go-ahead to increase black rhino trophy
hunting.’ (The Guardian, 19 Aug 2019)
<https://www.theguardian.com/environment/2019/aug/19/south-africa-gets-go-
ahead-to-increase-black-rhino-trophy-hunting#maincontent>.
15 Krista Mahr, ‘Why Botswana Is Lifting Its Ban on Elephant Trophy Hunting.’ (NPR,
28 September 2019)
<https://www.npr.org/sections/goatsandsoda/2019/09/28/763994654/why-
botswana-is-lifting-its-ban-on-elephant-trophy-hunting>.
16 Kapos, V., A. Manica, R., Aveling, P., et al., ‘Defining and measuring success in
conservation.’ in N. LeaderWilliams, W.M. Adams & R.J. Smith (eds) Trade-Offs in

Conservation: Deciding What to Save. (Wiley-Blackwell, 2010) pp. 73–93
245
Leslie Olonyi
(i) Subsistence hunters who hunt to survive by obtaining food for

immediate family use. Such hunting is carried out mostly by rural
communities. By-products like animal hides are used by the family.
(ii) Commercial hunters who seek to acquire animal products like venison
or trophies to sell for profit.
(iii) Recreational hunters who hunt for sport or as a ‘leisure’ activity. This
category can be subdivided further into:
a) Sport hunters who are usually motivated by the experience of the

hunt or the chase.17
b) Trophy hunters, in comparison, are motivated by the kill, the glory,
or the trophy.18
(iv) Retaliatory hunting occurs in situations where an animal has repeatedly

destroyed property, mostly livestock, or killed members of the public.
This sort of hunting is rare but might become more common with
increasing incidences of human-wildlife conflict as populations grow.
Hunting that takes place illegally is referred to as poaching.19 Culling, another

term widely used in ecology and wildlife management, is occasionally
associated with hunting but is entirely different. Culling is a method where
wildlife populations classified as overabundant are reduced by killing. Though
controversial among some animal enthusiasts, culling is scientifically well
established and sensitive to animal welfare.
17 Peterson, M. N., ’An approach for demonstrating the social legitimacy of hunting.’
(2004) Wildlife Society Bulletin, 32, 310 - 321.
18 Ibid
19 Taking a wild resource out of season or taking through an illegal means, usually
involves the killing or trapping of endangered, rare or protected species.

246
Leslie Olonyi
3. Major Sources of Conflict
(a) Conservation Ethics

Anti-trophy hunting groups and countries aver that animals have an intrinsic
value and are sentient beings that ought to be treated humanely.20 These groups
also argue that wild animals, despite playing a key role in ensuring ecological
balance on earth, are a species just like man and have an equal right to exist on
earth and not to be used as objects to satisfy blood lust. Pro-trophy hunting
groups on the other hand believe that they are conserving the endangered
species by paying for expensive hunts to kill a small number of animals which
will not affect the overall population while the funds are reinvested in
conservation efforts.21 Anti-trophy hunting groups and countries retort that
there is no evidence or tangible impact of any such reinvestment of funds and
that photographic safaris provide a more sustainable source of funds.22
(b) Wildlife Crime

Anti-trophy hunting groups and countries view widespread trophy hunting as
providing an opportunity for poachers to kill wildlife and launder the trophies
including wildlife products like ivory or rhino horn. Parties holding this opinion
argue that such illegally obtained trophies generally find their way into the
lucrative illegal wildlife trade markets. Poaching has had devastating effects on
wildlife populations across Africa with iconic species like elephants, lions,
leopards and Rhino bearing the brunt.23 Groups and countries in support of
trophy hunting respond that well-regulated trophy hunting will have checks
and balances to prevent such laundering through methods like issuing of export
20 Jeffrey Flocken, ‘Trophy hunting: 'Killing animals to save them is not conservation'
(CNN, 4 Jan 2018) <https://www.cnn.com/2015/05/19/opinions/trophy-hunting-
not-conservation-flocken/index.html>
21 Adam Cruise, ‘The Effects of Trophy Hunting on Five of Africa's Iconic Wild Animal
Populations in Six Countries – Analysis’ (Conservation Action Trust, Jan 2016)

<https://conservationaction.co.za/resources/rcports/effects-trophy-hunting-
fiveafricas-iconic-wild-animal-populations-six-countries-analysis>
22 John R. Platt, ‘Elephants Are Worth 76 Times More Alive Than Dead: Report, Sci. AM.
(Oct. 8, 2014),’ <https://blogs.scientificamerican.com/extinction-

countdown/elephants-are-worth-76-times-more-alive-than-dead-report/>
23 Jani Actman, ‘Poaching animals, explained’ (National Geographic, 12 Feb 2019)
<https://www.nationalgeographic.com/animals/reference/poaching-animals/>
247
Leslie Olonyi
and import permits of trophies. However, such permitting processes have been
prone to abuse.24
4. Stakeholders Analysis
(a) States
Wildlife are located within State territories and each State has its unique wildlife
management strategies and practices. International cooperation is however
required where protection and conservation of wildlife involves migratory
species that regularly cross-national boundaries of range states. Some States
support trophy hunting of wildlife for varying reasons, others are vehemently
opposed to it while some remain neutral or shift stances depending on their
national interests. Countries can also be further classified as those that are range
states25 for the iconic species that are the subject matter of this paper and those
that are non-range states. This helps in clarifying and highlighting the
underlying nuances of positions held by these countries. The CITES member
states analysis in table I below zeroes in on trophy hunting positions adopted by
countries on one of the most iconic and on demand species by trophy hunters,
the African Elephant (Loxodonta Africana.)
24 Willow Outhwaite, ‘Addressing corruption in CITES documentation processes’

(TRAFFIC, March 2020) < https://rmportal.net/biodiversityconservation-
gateway/projects/current-global-projects/targeting-natural-resource-corruption-
tnrc/tnrc-resources/addressing-corruption-in-cites-documentation-processes>
25 Convention on the Conservation of Migratory Species of Wild Animals, Article I (1)
(h) any State that exercises jurisdiction over any part of the range of a migratory species.
<https://www.cms.int/en/convention-text>
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Leslie Olonyi
Table I
Pro-Trophy Anti-Trophy Hunting Neutral
Hunting
Zambia, South Benin, Burundi, Cameroon, Central Tanzania,
Africa, Zimbabwe, African Republic, Chad, Comoros, Mozambique,
Botswana, Equatorial Guinea, Eritrea, Angola,
Namibia Ethiopia, Gabon, Gambia, Ghana, Cameroon,
Destination Guinea, Guinea-Bissau, Ivory Burkina Faso
States26 Coast, Kenya, Liberia, Mali,
USA, EU, China, Mauritania, Niger, Nigeria,
Canada, Mexico, Republic of the Congo, Rwanda,
Argentina, New Senegal, Sierra Leone, Somali,
Zealand27 Sudan, South Sudan, Togo,
Uganda28
i) Pro-Trophy Hunting Countries

Position: Trophy hunting and commercial trade in hides and leather goods is a
sustainable use of wildlife species. Hunting of wildlife from the national
population quotas does not threaten the survival of the species since the national
populations are secure. Trophy hunting confers a value on wildlife as a
renewable resource and, when properly controlled, actively encourages
conservation.
Interests: The primary interest of these nations is generation of revenue from

licensing costly trophy hunts to wealthy hunters mostly from North America,
Europe and more recently China. Such governments claim that they intend to
plough back revenue derived from trophy hunting into development projects
26 Countries where most trophies are exported to and have the bulk of trophy hunting
groups.
27 The Humane Society International, ‘Trophy Hunting by the Numbers’
<https://www.hsi.org/wp-
content/uploads/assets/pdfs/report_trophy_hunting_by_the.pdf> Pp 4. See also
World Atlas, ‘Where do Hunting Trophies Come From?’
<https://www.worldatlas.com/articles/top-countries-of-origin-for-hunted-trophy-
imports-to-the-us.html>
28 The African Elephant Coalition <https://www.africanelephantcoalition.org/>
249
Leslie Olonyi
for communities living in wildlife rich areas and into wildlife conservation and
anti-poaching programs.
ii) Anti-Trophy Hunting Countries

Position: Countries against trophy hunting of wildlife, especially endangered
or threatened species assert that wildlife, have an intrinsic value and are part of
their national heritage. The practice of hunting for fun is cruel, unsustainable
and should be outlawed. They further state that any trade in trophies of
endangered species should be abolished.
Interests: These countries prioritize conservation of the population of wildlife

species especially the endangered species within their territories. They are also
cognizant of the fact that trophy hunting may enable instances of wildlife
specimen laundering which will encourage poaching. Poached wildlife trophies
or specimens may be passed off and sold as products obtained under licensed
trophy hunting. Permitting trophy hunting is seen as the first steps towards a
resumption of trade in items like Ivory that fuelled the poaching nightmare in
the continent.
(b) Trophy Hunting Groups

Position: Trophy hunting is a conservation tool like any other and if well-
regulated helps to conserve wildlife for posterity.
Interests: Groups supportive of trophy hunting want to secure rights to be
allowed to enjoy the exhilaration of trophy hunting and to transport their
trophies back to their countries to add to their collection. Trophy hunting
groups also contend that trophy hunting places an economic value on wildlife
which is an incentive for local communities to conserve the species. A few
groups known for conservation activities like the World Wildlife Fund (WWF)
do controversially support regulated trophy hunting.29
29WWF and trophy hunting

<https://wwf.panda.org/our_work/wildlife/species_news/wwf_and_trophy_hunti
ng/>
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Leslie Olonyi
(c) Anti-trophy hunting groups and Conservation Groups

Position: Majority of conservation-oriented groups are vehemently opposed to
trophy hunting and aim to see all trophy hunting activities abolished because
animals are sentient beings and for conservation of the environment as a whole.
Interests: These groups want to put a stop to the accelerated extinction of
species and the global plummeting of wildlife populations. They believe that
hunting wildlife for fun is detrimental to wildlife conservation and perpetuates
untold suffering on wildlife which should instead be conserved for the
enjoyment of present and future generations.
5. Analysis of the Issue Wheel of Conflict

Understanding and locating the source of the conflict helps in creating a
roadmap to navigate through the conflict towards resolution and addressing the
needs of the conflicting parties.30 This helps to create approaches that are more
deliberate and targeted at the specific sources of conflict. The two sources of
conflict that are most apparent are;
(a) History
The conflict and controversy that surrounds trophy hunting has been in
existence for almost a century. The issue has in recent decades come to the fore
due to rapid degradation, biodiversity extinction and accelerated climate
change. The interdependence of States economically and environmentally is
clear to all and now more pronounced than ever due to globalization as well as
the indiscriminate effects of climate change across all nations. It is now close to
impossible to control climate change or preserve biological diversity without
international cooperation.
Trophy hunting was the preserve of colonial masters. It has been opined that
1848 is the year that popular fascination with African game hunting captured
the imagination of the British public. An Englishman named Roualeyn Gordon-
Cumming sparked this captivation when he returned to England from Southern
Africa with various stuffed trophies of exotic animals that he had hunted in
30Bernard Mayer, The Dynamics of Conflict Resolution: A Practitioner’s Guide. (Jossey-Bass,

2000) Pp 8
251
Leslie Olonyi
expeditions.31 He was fondly referred to with titles such as ‘Pioneer or Father

of South African Sport’, and ‘the lion hunter of Central Africa, in the prime of
manhood.’32. With the advent of colonization proper, more Europeans engaged
in trophy hunting as Africa opened up to the rest of the world. Africans were
initially not allowed to engage in the hunt but were forced to work as scouts and
porters of the loot.
Such a background when taken together with the dehumanization that

accompanied colonization and consequent struggle for independence has
played a part in influencing countries that reject trophy hunting as a colonial
relic perpetrated against their natural heritage. Countries which support trophy
hunting look past this history associated with trophy hunting to tap into the
purported economic gains that they associate with it. To help resolve the
conflict, a conflict intervener such as a mediator or facilitator should understand
this historical context and beware that some parties to the conflict regard it as
part of their fight for identity.33
(b) Values
People usually believe that their values are rooted in virtues34 thus making it
difficult to convince them to change or compromise what they perceive to be
virtue based. As a result, value-based conflicts can be difficult to resolve. In this
instance, there is a stark conflict of values between the parties with one group
declaring that their position is of an ethical and moral stance. This group
proclaims that wild animals are sentient beings that must not be hunted for fun
and human activity is already depleting the earth off its animal species. The pro-
trophy hunting group is more interested in the yet to be substantiated economic
gains brought about by trophy hunting and counter that funds obtained are
31 Roualeyn Gordon-Cumming, ‘Five Years of a Hunter’s Life in the Far Interior of South
Africa. With Anecdotes of the Chase and Notices of the Native Tribes,’ New edition
(1855), 2: 381
32 David B. Espey, ‘Imperialism and the Image of the White Hunter,’ Research Studies
46. (March 1978) Pp: 13.

33 Bernard Mayer, The Dynamics of Conflict Resolution: A Practitioner’s Guide. (Jossey-Bass,
2000) Pp 13
34 Gertrude Himmelfarb, The De-Moralization of Society: From Victorian Virtues to Modern
Values. (Vintage Books, 1996) Prologue.

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Leslie Olonyi
ploughed back into conservation activities.35 The key to a breakthrough will be

where the parties in conflict are able to find a level on which they share values.36
Bridging the divide through reinforcement of shared values could proves to be
particularly suitable.37
6. Nature of Conflict
The conflict plays out in conferences38, scientific arenas, political arenas, online,
media, social media and on the streets as various anti-trophy hunting groups
resort to demonstrations or mass action39 in an attempt to sensitize the public
and at the same time force governments to pay closer attention. Conflict about
trophy hunting occurs along all three dimensions of conflict namely cognitive,
emotional and behavioural which all need to be addressed if the conflict is to be
resolved.40 The conflict is clearly not a linear conflict41 but is composed of varied
dynamics in these different dimensions.
(a) Cognitive (perception) dimension

There is incompatibility in the needs of the parties involved. One group views
trophy hunting as a legitimate means of providing revenue to further
conservation of endangered species and develop local communities. The anti-
trophy hunting group terms trophy hunting as incompatible with conservation,
a guise to indulge in blood thirst and contribute towards extinction especially
of endangered species that instead need maximum protection. They also assert
35 David Smith, ‘Trophy Hunting May be the Key to Saving Endangered Big Game’
(Wide Open Spaces, 8 May 2017) <https://www.wideopenspaces.com/trophy-
hunting-may-key-saving-endangered-big-game-pics/>
2000) Pp 12
37 Bernard Mayer, The Dynamics of Conflict. (Jossey-Bass, 2012) Pp. 269.
38 Humane Society International, ‘Demand EU Action at CITES to End Cruel Trade in

Wild-Caught Elephants’ (22 Aug, 2019) <https://www.hsi.org/news-media/stars-
letter-eu-cites-wild-caught-elephants/>.
39 Davis Harper, ‘The Global March for Elephants and Rhinos, Putting an end to wildlife
trade’ ( Sierra Club 3 Oct, 2017) <https://www.sierraclub.org/sierra/global-march-for-
elephants-and-rhinos>
2000) Pp 4
41 Ibid Pp 7
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Leslie Olonyi
that other forms of tourism can supply much needed revenue to local
communities. Within this dimension of conflict, the perspective held by anti-
trophy hunting countries is that wildlife is part of their heritage, not up for
misuse by colonial powers while pro trophy hunting countries see wildlife as
an economic resource to be exploited. Cognitive resolution is often the most
challenging to attain especially where the parties are deeply attached to their
values and perceptions about a conflict. Resolution usually occurs when the
parties believe that the main issues have been addressed.
(b) Emotional (feeling) dimension

The parties to this conflict have often expressed their emotions in different ways
and that will make it harder for a conflict intervener to read and plan for the
mood of the parties. Activists and trophy hunter groups usually do not hold
back their feelings, country representatives act diplomatically and conceal their
emotions while conservation groups behaviour may often depend on the
culture of the organization they represent. Emotional resolution will be
achieved when the parties to the conflict tone down and experience less intense
to zero outrage, anger, disgust, animosity and other similar emotions that are
associated with the conflict.
(c) Behavioural (action) dimensions

Both parties in this conflict have engaged in often hostile conflict behaviour to
express their dissatisfaction, disagreement or to attempt to get their needs met.
Extreme anti-trophy hunting activists have gone to the extent of issuing death
threats and stalking trophy hunters.42 On the other hand, a trophy hunter who
hunted a giraffe provocatively stated that the giraffe was delicious, and that she
will not stop trophy hunting escapades after receiving hostile attention from
anti-trophy hunting activists.43 Giraffes species as a whole are listed as
vulnerable species after their numbers declined by 40 percent in the last 30 years
42 Michael Hollan, ‘Hunter says she gets death threats for pics with dead animals,
despite using meat to feed family’ (Fox News, 18 November 2019)
<https://www.foxnews.com/great-outdoors/hunter-mom-death-threats-factory-
farming>
43 Ines Novacic ‘ “He was delicious": Trophy hunters defend killing iconic animals’ (CBS
News, 7 June, 2019) <https://www.cbsnews.com/news/trophy-hunting-killing-or-

conservation-cbsn-originals/>
254
Leslie Olonyi
to approximately 68,000 in the wild. These remaining herds are fragmented and
face a multitude of threats, from habitat loss to poaching. Some of the giraffe
subspecies like the Kordofan giraffe are down by 90% to about 1400
individuals44and the Nubian giraffe in Kenya reduced by 98% to 455
individuals.45. The two subspecies are listed as critically endangered meaning
that they face an extremely high risk of extinction in the wild. Countries portray
this conflict behaviour at the CITES conferences of parties where they lobby
hard to outdo each other at the plenary session where voting on important
issues takes place or sponsor resolutions against the known position of the
opponent country. A first step towards behavioural resolution would entail a
discontinuation of provocative, threatening and other related conflict
behaviour. Once this first step is achieved, both parties will have to commit to
actively and positively move the process forward.46
7. Recommendations
Majority of the legally binding international resolutions regarding trophy
hunting over the past few decades have relied on the platform provided by
CITES. With the modality of a triennial multilateral Conference of the Parties
(COP), CITES has indeed been able to achieve great international cooperation
over a range of conservation issues, however, there is more progress to be made.
To assist in tackling the broad issues that the trophy hunting debate has exposed
in the CITES COP processes, national-level decision-making processes should
allow for broader facilitated stakeholder participation as countries prepare their
country positions and country proposals for submission to the CITES conference
of parties. Facilitation is an alternative dispute resolution procedure in which
the facilitator helps the parties design and follow a meeting agenda and assists
parties to communicate more effectively throughout the process. The facilitator
has no authority to make or recommend a decision and is neutral thus allowing
44 IUCN Red List, Kordofan Giraffe

<https://www.iucnredlist.org/species/88420742/88420817>
45 IUCN Red List, Nubian Giraffe
< https://www.iucnredlist.org/species/88420707/88420710>
46 Ellen Kandell, ‘Cognitive, Emotional and Behavioral Resolution of Conflict.’
(Alternative Resolutions, 2 June 2014)

< https://www.alternativeresolutions.net/2014/06/02/june-2014-newsletter/>
255
Leslie Olonyi
the stakeholders, who represent the public, to ventilate their opinions. In most
cases, citizens of many countries are usually not aware of what their
government positions are especially on controversial issues like trophy hunting
quotas that are discussed and voted on at the CITES conference of parties.
Glaring discrepancies between known national public sentiments and the
pattern of eventual votes cast by national delegates are not uncommon. The gulf
in sentiments between the public and the government usually comes to fore
after the fact when no form of recourse is available. For example, at the CoP 18
in Geneva, the United States was among the 18 countries that opposed a
proposal to prohibit the capture and export of wild African elephant calves to
zoos.47 This vote occurred despite the public outburst among Americans earlier
that year, when 35 elephants calves were torn from their mothers in the wild in
Zimbabwe for export to Chinese zoos. A facilitated public participation process
would allow for diversity in points of view to enrich the country positions and
inform the decision-making process.48 Significant impacts and contentious
issues are not concealed or glossed over when a public participation is carried
out by a neutral facilitator as opposed to a public participation process without
a neutral facilitator. The benefits of good decision making can be expected by
all stakeholders through a facilitated public participation process, which would
also act as a system of early conflict identification and resolution while the
policy making process is still upstream. Facilitated public participation, for
instance through workshops or public meetings helps improve the transparency
and accountability of decision-making and increases public and stakeholder
confidence in decisions made.49 The onus is on the national CITES scientific
authorities and national CITES management authorities to coordinate and
ensure maximum stakeholder participation and adoption of alternative dispute
resolution methods to arrive at holistic decisions.
47 Al Jazeera 'Momentous' Near-total ban on trade in wild elephants for zoos’ (Al
Jazeera, 27 Aug 2019 <https://www.aljazeera.com/news/2019/08/total-ban-trade-
wild-elephants-zoos-190827185509924.html
48 UNEP EIA Training Resource Manual: Public Involvement (2 nd Edn, 2002) Pp 164.
<https://unep.ch/etu/publications/EIA_2ed/EIA_E_top3_body.PDF>
49 James L. Creighton, The Public Participation Handbook: Making Better Decisions Through
Citizen Involvement. (Jossey-Bass 2005) Pp 22.

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Leslie Olonyi
Negotiation and facilitation among state parties on controversial issues prior to

the conference or before voting by delegates, should be encouraged. Negotiation
is a method of alternative dispute resolution where parties to a dispute meet to
solve a problem or to find a strategy to address an issue that affects them. 50
Negotiation deals with a non-linear process due to the expected sequence of
developmental breakthroughs as well as delays or set-backs over the period of
resolving the dispute. Member states may choose to integrate negotiation is an
alternative dispute resolution process or strategy for building consensus with
other member states or accredited delegates prior to the conference of parties or
at any time before actual voting on resolutions and decisions during the
conference. Principled negotiation51, a method of negotiation where issues are
decided on their merits rather than only through a haggling process could be
adopted for disputes brought about by such multilateral environmental policy
making processes. In principled negotiations, parties agree to mutual gains
whenever possible. However, where the interests conflict the negotiators
pursues a position that the result be based on an objective or fair criterion,
independent of the will of either party. In principled negotiations the focus is
on the interests of the parties as opposed to positions and parties are encouraged
to innovate options for mutual gain.
Hybrid alternative dispute resolution processes which combine the advantages

of different ADR methods, whilst attempting to minimize or eliminate potential
disadvantages can also be applied to this dispute. For instance, a conflict
intervener may start by neutral facilitation of discussions and may also switch
to conciliation. Under conciliation, the intervener plays a direct role in the
resolution of a dispute and even advises the parties or offers proposals and
solutions.
8. Conclusion
CITES deals with environmental issues that affect all humanity and thus
decisions made should not be competition based, hostile or power based where
individual states stick obstinately to prior determined positions but should be
50 Howard Raiffa, The Art and Science of Negotiation. (Harvard University Press, 1982)
51 Roger Fisher, William Ury, Bruce Patton., Getting to Yes. (Penguin, 1991) Pp xviii.
257
Leslie Olonyi
focused at preserving species and habitats that provide essential ecological

services which enable humanity to survive. Such a holistic approach will reduce
acrimony, speed up settlement of environmental disputes and help build
consensus and goodwill between parties with the common goal being to protect
and conserve the environment.
258
Call for Submissions
Alternative Dispute Resolution is a peer-reviewed/refereed publication of the

Chartered Institute of Arbitrators, Kenya, engineered and devoted to provide a
platform and window for relevant and timely issues related to Alternative
Dispute Resolution mechanisms to our ever growing readership.
Alternative Dispute Resolution welcomes and encourages submission of articles

focusing on general, economic and political issues affecting alternative dispute
resolution as the preferred dispute resolution settlement mechanisms.
Articles should be sent as a word document, to the editor

([email protected]/ c.c.: [email protected]) and a copy to the editorial
group ([email protected]). Articles should ideally be around 3,500 –
5,000 words although special articles of up to a maximum of 7,500 words could
be considered.
Articles should be sent to the editor to reach him not later than Wednesday 6th
February, 2021. Articles received after this date may not be considered for the
next issue.
Other guidelines for contributors are listed at the end of each publication. The
Editor Board receives and considers each article but does not guarantee
publication.
259
Guidelines for Submissions
The Editorial Board welcomes and encourages submission of articles within the
following acceptable framework.
Each submission: -
- should be written in English
- should conform to international standards and must be one’s original
writing
- should ideally be between 3,500 and 5,000 words although in special cases
certain articles with not more than 7,500 words could be considered
- should include the author’(s) name and contacts details
- should include footnotes numbered
- must be relevant and accurate
- should be on current issues and developments.
260
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ALTERNATIVE DISPUTE RESOLUTION

Volume 8 Issue 2 2020

For Marketing opportunities contact: [email protected]

© Chartered Institute of Arbitrators, Kenya

KENYA BRANCH COMMITTEE

Hon. Treasurer: Ms. Jacqueline Waihenya, FCIArb

Mr. Calvin Nyachoti, FCIArb (Chartered Arbitrator) Immediate Past Chairman -

This Journal should be cited as (2020) 8(2) Alternative Dispute Resolution

Welcome to the, Alternative Dispute Resolution Journal Vol. 8 No. 2, 2020, a

In order to ensure the highest quality of scholarly standards and credibility of

CIArb (Kenya) is grateful to the Publisher, contributing authors, Editorial Team,

Dr. Kariuki Muigua, Ph.D; FCIArb (Chartered Arbitrator) (Accredited Mediator)

Content Author Page

Enhancing the Court Annexed Mediation Environment in Kenya. Kariuki Muigua 20

Bangalore Principles on Judicial Conduct: A Framework Lady Justice Monica K. Mugenyi 41

ISDS Reforms: The Forum Menu Paul Ngotho 54

Current Problems of the Investor-State Dispute Settlement W. A. Mutubwa 86

An Uncertain Future: The Relationship Between Arbitral Tribunals Kethi Kilonzo 99

Enforcement of Multi-Tiered Dispute Resolution Clauses Hazron Maira 110

An Overview of Negotiating Peace Agreements in East Africa Henry Murigi 151

Practicability of Neutrality of Mediators: Demystifying the Julius Nyota & 228

Towards Resolution of the Trophy Hunting Conflict Leslie Olonyi 242

The Art & Science of Virtual Proceedings: Shifting The Paradigm in

By: Jacqueline Waihenya*

* Fellow of the Chartered Institute of Arbitrators (FCIArb); Chartered Mediator –

2National Council on the Administration of Justice – Measures Implemented by the Justice

focus on mediation and arbitration proceedings and where appropriate

The new paradigm however requires us to consider online hearings and

2.1 Meaning of Virtual Proceedings

2.1.1 Online Dispute Resolution (ODR)

5 Practice Directions on Electronic Case Management 2020 – Kenya Gazette No.2357 of

2020) Available at https://www.judiciary.uk/wp-content/uploads/2020/03/Remote-

Dispute Resolution Hearings as well. Available at

Arbitration Blog Available at

2.2 Technology in Tribunals and Courts

10 United Nations Commission on International Trade Law - Technical Notes on Online

2.3 Arbitration, Technology and the Law

12 Sections 4(3) and 9 – Kenyan Arbitration Act, 1995

2.4 Institutional recognition of Virtual Proceedings

2.4.1 The Chartered Institute of Arbitrators (CIArb)

16 Section 1(b) – English Arbitration Act, 1996

2.4.2 International Chamber of Commerce International Court of Arbitration

resolution-services/arbitration/rules-of-arbitration/ Last accessed on May 2020

which can be activated if the parties agree or if the arbitral tribunal so

2.4.3 The Seoul Protocol on Video Conference in International Arbitration

25ICC Guidance Note Ibid Supra No.22

Video conferencing venue, security, participants, documents and technical

“There may be circumstances when a witness is unable to attend at the

2020) KCAB - Available at

There is however a growing critical mass that views the unfortunate

3.1 Legal Concerns

morally to condone a breach of a contract Between two parties and it

3.1.3 The enforceability of the award is a critical issue to be considered and at

3.2 Cyber-protocols & Logistical Requirements

3.2.1 Cyber-protocols consider the technical and logistical requirements that

3.2.2 Technical requirements are however varied with a number of

inspection and discovery process. The Seoul Protocol provides thus at

The Parties may agree on utilizing a shared virtual document

3.2.5 Identification of Participants, taking Evidence & Witness Credibility is