The Kenya chapter of the International Chamber of Commerce (ICC-Kenya) on 23rd September hosted the second International Conference on Arbitration and Alternative Dispute Resolution (ADR) in Nairobi. The conference discussed emerging trends in ADR and arbitration in Africa while providing a learning platform for policy makers, arbitration practitioners and private sector players.
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According to ICC-Kenya, the nascent industry is shaping for take-off, driven by the surge in international trade and investments in the region. This is on the back of increased business innovation, government spending on infrastructure projects, and the opening of new markets and industries that have sprung unprecedented legal and corporate challenges. There growing uptake of ADR and arbitration, in place of litigation that is seen to be more costly.
“In addition to sensitizing the private sector on ADR, its opportunities and advantages, this year’s conference also sets the stage for Kenyan ADR and arbitration practitioners to engage directly with the International Court of Arbitration and progress towards their professionalization in international ADR practice”, said Aleem Visram Chairperson, ICC-Kenya, Commission on ADR and Arbitration.
ICC-Kenya, he added, was pushing to grow the number of local practitioners through training and capacity building around emergent sectors such blockchain driven online trade characterized by greenfield opportunities and cutting across multiple jurisdictions among other areas. Examples include digital or smart contracts executed automatically without human interventions, traded digital assets such as cryptocurrencies and non-fungible assets (NFTS), among other technologies.
Ms Diamana Diawara, Director, Arbitration and ADR for Africa at ICC, said all aspects of the ICC dispute resolution system have been growing in Africa over the past two years with arbitration and mediation cases growing by 13% and 166% respectively, between 2020 and 2021.
“As it keeps growing in Africa, ICC Arbitration will continue to make sure to include African practitioners into its internal organs and the resolution of disputes it administers,” she said. “In 2020, African States represented 40% of African parties involved in ICC arbitrations. In 2021 the figure rose to 50% and since 2022 we have deployed a series of training to provide a robust legal platform for users while consolidating the ADR client base in the continent.”
Other emerging issues discussed included independence and partiality of ADR practitioners, touching on issues of integrity and self-regulation as well as professionalization and development of the African ADR market to stem the flight of ADR cases generated from Africa, to western capitals.
Co-opting of local ADR experts in international ADR bodies continues to enrich the ADR space in Kenya
“We need to be careful not to be an exporter of disputes that can be adequately dealt with locally by ensuring we systematically introduce standards to manage instances of rogue practitioners. We also need to be aware of the aspect of third-party funding as far as compensation and recoveries are instituted to ensure ADR adapts locally and remains relevant as an option”, said Prof Githu Muigai, Senior Partner at Mohammed Muigai LLP and also a Chartered Arbitrator.
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Prof Githu Muigai said the interest from young lawyers seeking to specialize in ADR has increased participation of regional institutions and academia in ADR as well as improved support of local ADR mechanisms by the Kenyan judiciary. The co-opting of local ADR experts in international ADR bodies continues to enrich the ADR space in Kenya.
Ms Ndanga Kamau, a Kenyan, is the vice president of the International Court of Arbitration. “We are developing an industry database of arbitrators in a standards setting process that will guide future arbitration in the country and Africa while also easing international access to local arbitrators through the International Chamber of Commerce”, said Patrick Obath, Chairperson, ICC-Kenya.
ICC Kenya in collaboration with the Chartered Institute of Arbitrators (CIArb Kenya), and the Nairobi Centre for International Arbitration (NCIA) is developing programs to sensitize the private sector on alternative dispute resolution through the Kenya Private Sector Alliance (KEPSA).
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