The Centre awarded the Arbitral Institution of the Year Award, 2022
November 10, 2022
December 20, 2022

The Centre on 6th December 2022 launched its 2nd ADR Journal and its corporate newsletter at the Sarova Panafric Hotel. In her opening remarks, Director Aisha Abdalla informed invited guests that the Journal was part of the Centre’s contribution to ADR knowledge and research, informing them that the first issue was launched in February 2021. She observed that the NCIA Corporate newsletter was the first to be issued and it will provide regular updates to stakeholders on the activities of Centre every 6 months. The Manager Business Development Ms. Millicent Shitakha while providing an overview of the corporate newsletter informed guests that the Centre had been documenting its events traditionally through public reports, photography, staff newsletter, podcasts, and the website among many other platforms. She added that the Centre was expanding its platforms to include the corporate newsletter, with the goal of building greater awareness of the Centre’s initiatives and activities, thus providing readers and stakeholders a better understanding of the Centre.

 To broaden the database, she informed the guests that they could subscribe and access the newsletter though the Centre’s website. To better understand the authors views in the publications submitted, there was a journal review panel that was moderated by Mr. Brian Muindi who is also a member of NCIA Journal Board He set the ball rolling by observing that AfCFTA dispute resolution mechanism does not provide opportunity for individual investors to bring disputes to the tribunal hence the mechanism provides for state-to-state settlement.

In her contribution, Ms. Pressy Akinyi concurred and noted that in her article, she critiques Africa Continental Free Trade Area (AfCFTA) Dispute settlement and specifically its protocol dispute settlement because it provides for state-to-state dispute settlement and conflict resolution and therefore it leaves the investors state dispute settlement out, which she observed is consistent with the current dispute settlement crisis being experienced in Africa. Mr. Ibrahim Kiptoo who co- authored the article International Investment Protection and the Right of the State to Intervene or regulate. (Investment Treaty Arbitration in the Energy Sector in Kenya: Contemporary Legal Issues and a Critique of the WalAM Energy LLC-Versus-Kenya Arbitration Case (ICSD Case No. ARB/15/7)) with Dr. Muigua noted that the Kenyan constitution provides the right to clean, sustainable and affordable energy and that Kenya had seen an influx in renewable energy with the last 10 years experiencing growth in the number of independent power producers coming to prospect on renewable energy generation in the country. He noted that his article sought to address the rights of the investor vis-à-vis the rights and obligation of the state that is obligated to assure Kenyans access to renewable and sustainable energy. At the heart of the article is interrogating conflicting interest between a private investor and the state’s right to regulate and ensure compliance against which the license is granted.

Dr. Muigua while making his contribution noted that the question of Viability of Arbitration in management of climate change related disputes in Kenya arises because many arbitrators have taken the position that they have nothing to do with climate change, have nothing to do with debates on climate change, which according to him, they refer to them as being academic. The paper he noted explores whether they are academic, or Arbitrators or Arbitration can deal with those disputes, adding that climate change brings with it water scarcity, crop failure, insecurity etc. noting that climate change gets covered in projects contracts.

Mr. Peter Mwangi Muriithi while commenting on his article titled Critiquing the place of International Arbitration in Regional Courts in Africa noted the similarities and differences between the East African Court of Justice and the COMESA courts, going into detail on the kind of disputes the courts handle, and calling for harmonization of the two institutions. He noted that the article explores the term ‘International Arbitration’ observing that there was no one word definition of the term but gave guideline on what can be termed as international arbitration. The last article to be reviewed was by Dr. Muigua titled Evolving Alternative Dispute Resolution Practice: Investing in Digital Dispute Resolution in Kenya, where he discussed three key developments namely online mediation, online commercial arbitration, and block chain arbitration. Dr. Muiga noted that the article had been written in 2018 at a time when he was trying to persuade arbitrators and practitioners to adopt digital platforms. He noted that despite reservation at the time by practitioners, most of the proposals have already been put into effect. He noted that the article looks at the evolution of technology which he observed that it was fast requiring the need to look at the rules, investment in digital technology. He noted that practitioners had caught up with ODR (Online Dispute Resolution) adding that it has been quite viable, especially in the advent of Covid 19. The paper makes recommendations to embrace and invest in digital dispute resolution platforms while taking all practitioners on board. This includes recommendations for e-literacy, data privacy concerns, enhancing legal and institutional frameworks, and investing in affordable digital technology. The moderator ended the session and encouraged participants to make an effort to read the articles and informed them of the call for articles for the 3rd NCIA journal, noting that there were many areas to be explored and themes to be discussed. He urged the Centre to find ways to address some of the challenges presented by authors as it continues with executing its mandate of promoting ADR as a referred dispute resolution mechanism.