Arbitration

Arbitration is a private, binding form of dispute resolution in which the parties submit their dispute to one or more arbitrators who render a binding decision (an "award") that is enforceable in the courts. In Kenya, arbitration is governed by the Arbitration Act, 1995 (as amended in 2009), which is based on the UNCITRAL Model Law, and the proceedings are conducted under the rules of an arbitral institution (such as the Nairobi Centre for International Arbitration, the ICC, or the LCIA) or under ad hoc rules agreed by the parties. Kenya is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which means that arbitral awards made in Kenya are enforceable in over 170 countries, and foreign awards are enforceable in Kenya.

This area covers the full range of domestic and international arbitration. Advocates act as counsel for parties in arbitrations arising from commercial contracts, construction disputes, investment treaty claims, insurance disputes, and technology disputes. The work spans every stage of the arbitral process — from the constitution of the tribunal to the enforcement of the award.

The process begins with the constitution of the tribunal. Advocates advise on the selection of the arbitrator, the challenge of arbitrators (where there are concerns about independence or impartiality), and the procedure for the appointment of the arbitrator where the parties cannot agree. Advocates prepare the terms of reference (where the institutional rules require them) and the procedural orders that will govern the conduct of the arbitration.

Advocates handle the pleadings — the statement of claim, the statement of defence, the counterclaim, and the reply. Advocates prepare the documentary evidence, the witness statements, and the expert reports. Advocates manage the disclosure of documents (which in arbitration is typically more limited than in court litigation) and the exchange of evidence. Advocates conduct the oral hearing — examining witnesses, cross-examining the opposing party's witnesses, and presenting oral arguments to the tribunal.

The work also covers the management of expert evidence in arbitration — including the appointment of party-appointed experts and tribunal-appointed experts, the preparation of expert reports, the conduct of hot-tubbing (concurrent expert evidence), and the cross-examination of experts. Advocates work with technical experts in fields such as engineering, construction, accounting, valuation, and industry-specific disciplines.

Advocates handle interim measures — applications to the tribunal (or to the court in support of the arbitration) for measures such as the preservation of assets, the preservation of evidence, and security for the claim. Trial work also involves emergency arbitrator proceedings, which are available under many institutional rules for situations where urgent interim relief is needed before the tribunal is constituted.

Advocates handle the enforcement and challenge of arbitral awards. Advocates enforce awards in Kenya under the Arbitration Act, and they enforce foreign awards under the New York Convention. Advocates also act in proceedings to set aside awards under section 35 of the Arbitration Act — on the limited grounds of lack of jurisdiction, procedural irregularity, public policy, and incapacity. The work also covers the distinction between setting aside proceedings (which are brought in the seat of the arbitration) and enforcement proceedings (which are brought where the assets are located), and they advise on the strategic implications of each.