Event Details
📅 Date: 24th April 2026
⏰ Time: 2:00 PM – 5:00 PM
📍 Location: Ciarb Kenya Secretariat
The global shift toward sustainable development is rapidly transforming how infrastructure projects are structured, delivered, and enforced. Environmental, Social, and Governance (ESG) commitments—once considered optional—are now embedded as binding obligations across sectors such as energy, transport, water, telecommunications, and urban development.
These obligations go beyond general principles. They now appear in the form of carbon reduction targets, sustainability reporting requirements, green certifications, and compliance with internationally recognized frameworks such as the IFC Performance Standards and the Equator Principles.
The Evolving Landscape of ESG in Infrastructure
Over the past decade, ESG integration has accelerated significantly. This shift is largely driven by investor expectations, regulatory requirements, and financing conditions imposed by institutions such as the World Bank Group and the African Development Bank. As a result, contractors and project companies must maintain ESG compliance throughout the lifecycle of a project.
At the same time, domestic legal frameworks are increasingly aligning with ESG principles. This creates a complex compliance environment where contractual obligations and regulatory requirements overlap—raising new and challenging questions for arbitrators.
ESG and the Changing Nature of Arbitration
Disputes arising from ESG-driven contracts often extend beyond traditional legal analysis. Arbitrators are now required to engage with technical, environmental, and regulatory considerations when determining issues such as breach, causation, and quantum.
This evolution calls for a more nuanced and multidisciplinary approach to dispute resolution.
Key Areas of Focus
1. Interpreting ESG Obligations
ESG clauses can vary widely—from clearly defined contractual obligations to broader commitments tied to external frameworks. Arbitrators must determine whether such obligations constitute strict duties or “best endeavours” commitments, and how ambiguity should be resolved.
2. Establishing Breach
Assessing breach often requires reference to evolving external standards, such as environmental benchmarks or certification requirements. The role of third-party verifications and the allocation of evidentiary burdens become critical in these cases.
3. Causation and Responsibility
ESG failures are rarely caused by a single factor. Delays, regulatory changes, contractor performance, and external conditions may all contribute. Arbitrators must carefully assess causation and apportion responsibility in complex, multi-party disputes.
4. Valuing ESG-Related Losses
Quantifying ESG-related losses introduces new challenges. Claims may involve reputational harm, loss of green financing, regulatory penalties, or carbon credit losses—requiring innovative approaches to valuation within established legal principles.
Why This Matters
As ESG continues to shape the future of infrastructure development, arbitration practitioners must adapt. Understanding how ESG obligations influence contract performance and dispute resolution is no longer optional—it is essential.
This discussion brings together experienced practitioners to explore how arbitration can effectively respond to the growing complexity of ESG-driven disputes.
Panelists:
- Eng. Daniel Sacho Cherono, FCIArb
- Ms. Bellinda Akoth Akello, MCIArb
- Eng. Howard Ashihundu M’mayi, MCIArb
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