Demystifying Nairobi Centre for International Arbitration (NCIA)
January 10, 2022
NCIA Board Pays a Courtesy Call to the Honourable Chief Justice
July 20, 2022
The Law Society of Kenya Council elected to office in March 2022 paid the Centre a courtesy call upon the invitation by the Registrar, the objective of the meeting was for LSK and NCIA to discuss specific areas of collaboration to promote the use of Alternative Dispute Resolution countrywide. During the meeting, the President of the LSK, Mr. Eric Theuri, and the Chairperson of the NCIA, Ms. Jackie Oyuyo Githinji highlighted different partnership opportunities between LSK and the Centre with specific timelines that should be targeted to implement the activities.
They both recognized that arbitration and mediation formed part of a growing market which currently has untapped potential and was in no way encroaching the traditional markets for legal practitioners. They noted that ADR compliments litigation and is not a competitor as has been assumed especially in the counties away from the capital city. During the meeting, LSK Council members requested the Centre to come up with a curricular for capacity building for interested parties and mentorship between new and experienced practitioners. They also noted the existence of what they considered to be unqualified ADR practitioners in the market hence the need for greater quality assurance to 1 | P a g e ensure that those practicing ADR have verifiable qualifications and competences through quality assurance and practitioner accreditation. During the meeting, the President of the Law Society of Kenya Mr. Eric Theuri identified three areas that need to be considered for collaboration with the Centre. The first one he observed was collaboration on ADR Training Curriculum. The President stated that in addition to regular CPD trainings, master seminars for specialized and expanding fields such as international investment should be developed. He stressed the need for having training that is sensitive to market demands and capable of generating revenue for practitioners. The second area was the development and maintenance of quality standards in mediation and arbitration. The President noted the need to have a common framework and ethos that govern activities in certain areas of ADR such as arbitration. The President's third area of focus was panel listing and was keen to know more about the criteria used in interviewing, choosing, and appointing members to the Centre’s panel. In response to the his observations and requests, the NCIA Board Chairperson Ms. Jackline Oyuyo noted that ADR training had been given four slots on the LSK CPD Calendar and NCIA would supply technical assistance in this respect noting that these sessions are insufficient because they often consist of one-day lectures that provide little time for members to learn useful ADR skills. Moving forward, she noted that the Centre will provide subject-specific trainings on topics that may be the subject of disputes, such as ADR and corporate governance, further noting that ADR as a stand-alone topic for training was not appealing.
While updating the meeting on the status of the national ADR policy, the Chairperson observed that the Attorney-Office General (OAG) had formed a committee to develop a national ADR strategy. The Committee had so far submitted a report to the Attorney General, who had submitted a memo to the Cabinet and was due for debate and approval by parliament. In this regard, the Chairperson requested LSK’s support in drafting and creating sound legislation. She requested the council to rally the LSK fraternity to support the policy to enable its passing by Parliament. The bill is expected to address topics that have dominated debates such as the regulation of ADR practitioners' conduct, the creation of a national ADR council, mediator and arbitrator credentials, and areas for judicial involvement. On panel listing, the Chairperson explained the process for empanelment for both domestic and international mediation panels and international arbitration panels. She noted that for those interested in becoming panelists, the procedure for joining any of these panels is available on the NCIA website. She further observed that the applicant's experience and training are the most crucial factors to evaluate throughout the recruiting process. The candidate is also required to submit supporting documentation demonstrating that they have been nominated by various organizations and have already presided over arbitration or mediation proceedings. She added that If the Board is not satisfied with an application, it may be deferred with the applicant encouraged to get additional experience and reapply when an opportunity arises. If the application is successful, it is submitted to the NCIA full Board for further review and approval. On the uptake of ADR by Country Branches, the LSK Council requested the Centre to consider expanding outreach services of ADR to upcountry branches. On this the Registrar agreed with the council that the national branches are critical to achieving NCIA's mandate of spreading ADR mechanisms throughout the country.
A unique action point was set for this area to bridge the gap between old and new practitioners. On the NCIA’s training curriculum the council requested to understand the key differentiator between what the Centre was offering in comparison to what other ADR trainers were offering. To this, the Centre’s Chairperson Ms. Oyuyo explained that NCIA's programs are market-responsive and government-backed which provides quality assurance of the services offered. The meeting concluded on a promising note, with the LSK Council and the NCIA Board committing to work together to position Kenya as a competitive and attractive hub for ADR. An action plan was drawn up, containing the following activities and timelines. • It was agreed that the two organizations will undertake a joint survey on ADR uptake and attitudes between July and October 2022 • That the CPD Committee of LSK and the Business Development Committee of NCIA will collaborate to develop a concept for ADR in two specific areas namely Professional development and Revenue generation (June to July 2022) • That NCIA will be given a slot during the LSK Conference to sensitize participants / members on ADR (July 2022) • That LSK will be called upon to collaborate and lobby for the adoption of the national ADR policy once the policy is tabled in Parliament • That a joint mentorship program between LSK an NCIA for upcoming ADR practitioners be established (July to September 2022) • That the panel list of accredited NCIA neutrals will be shared with the Law Society of Kenya • That decentralization of ADR to upcountry branches and offices and county awareness initiatives will be conducted in collaboration between the two institutions • That legal diplomacy will be pursued by incorporating the NCIA Model Arbitration and Mediation clause into agreements especially as an entry strategy into the DRC market • That the Centre will provide hearing and training facilities for LSK members and that. • A resource portal for ADR case law and decisions will be established for easier access of information by LSK membership