Arbitration (Amendment) Bill
1. Defining Core Terms in Arbitration
Participants emphasized the importance of including a clear definition of emergency arbitration within the Bill. While the amendments expanded the meaning of an “award” to include emergency arbitration, the absence of a proper definition could lead to confusion and disputes. Clarifying such terms is essential to ensuring predictability and fairness in arbitral proceedings.
2. Jurisdiction of the Arbitral Court vs High Court
One of the most debated proposals was the shift of jurisdiction from the High Court to a proposed Arbitral Court. While this was seen as an effort to reduce court intervention, concerns were raised about the court’s limited geographic scope, potential backlogs, and its ability to address constitutional matters. There was also uncertainty around the qualifications of Arbitral Court members, prompting calls for clearer criteria.
3. Party Autonomy and the Role of the NCIA
There was notable pushback against provisions that mandate the referral of certain matters directly to the Nairobi Centre for International Arbitration (NCIA). Stakeholders argued that this undermines party autonomy and could create perceptions of bias, particularly in cases involving foreign investors and Kenyan state bodies.
4. Representation in the Arbitration Council
Participants highlighted that the proposed Council under the Bill includes only the Architectural Association of Kenya (AAK) from the built environment sector. It was recommended that representation be broadened to include engineers, quantity surveyors, and other professionals critical to arbitration in the construction industry.
5. Fast-Track Arbitration
The proposed Section 28A introducing Fast Track Arbitration was welcomed as a step toward efficiency, but its limitation to domestic arbitration and the strict 2-month deadline for conclusion were flagged. Stakeholders recommended extending the applicability to international cases and allowing more flexible timelines, especially for complex disputes.
6. Appeals and Special Leave
The introduction of the requirement for “special reasons” to appeal High Court decisions to the Court of Appeal raised red flags due to its vagueness. Participants urged for clearer definitions and suggested preserving access to the Supreme Court in exceptional cases—citing the Nyutu Agrovet case as precedent.
7. Third-Party Funding
Allowing third-party funding in international arbitration through the proposed Section 39A was praised. However, stakeholders advocated for its inclusion in domestic arbitration as well. Furthermore, the undefined reference to “public policy” as a ground to limit funding was criticized, with calls for a clear, statutory definition to avoid future legal ambiguities.
Construction Payments Adjudication & Dispute Resolution Bill
1. Qualifications of the Chairperson
The Dispute Resolution Bill proposes that the chairperson must be qualified to serve as a High Court judge. Many participants felt this was too restrictive and suggested instead requiring significant arbitration experience (e.g., 15+ years), which would better reflect practical expertise rather than judicial credentials alone.
2. Governance and Institutional Independence
A major concern was the perceived closeness between the NCIA and the proposed Council under the Bill. Participants felt that this relationship may compromise institutional independence and called for clear governance structures that preserve objectivity and integrity in dispute resolution.
