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Arbitral proceedings

Starting an arbitration proceeding
What is needed to commence arbitration?

Section 22 of the Arbitration Act allows for the will of the parties to prevail. Thus, in practice, the terms of the arbitration agreement or clause come into play, with the first step being the appointment of an arbitrator. Where there is no consensus, an arbitration commences on the date that the respondent receives a request to refer the matter to arbitration.

Limitation periods
Are there any limitation periods for the commencement of arbitration?

No. If any limitation periods apply, they will be contained in the arbitration agreement or clause. 

Procedural rules
Are there any procedural rules that arbitrators must follow?

The act does not require arbitrators to follow a specific set of procedural rules. The parties and the arbitrator can agree the rules to use, and the arbitration clause or agreement may impose a set of procedural rules. However, where the parties cannot agree on the rules, under Section 20 of the act the arbitrator becomes the master of procedure. The following sections of the Arbitration Act set out the procedure that must be followed in the absence of agreement to the contrary by the parties:

  • Section 24 – submission of the statement of claim and defence;
  • Section 25 – hearings and written representation;
  • Section 26 – default of a party, failure to comply and peremptory orders; and
  • Section 27 – tribunal-appointed experts.

Parties are also free to adopt the rules of any institution as they see fit, or even to create their own. Finally, Order 46 of the Civil Procedure Rules sets out rules that must be complied with where a reference is conducted under the court’s guidance.

Dissenting arbitrators
Are dissenting opinions permitted under the law of your jurisdiction?

Yes, dissenting opinions are permitted.

Judicial assistance
Can local courts intervene in proceedings?

According to Section 10, national courts may intervene in arbitral proceedings only as prescribed by the Arbitration Act. The scope of intervention by courts is severely limited by the act.

Can the local courts assist in choosing arbitrators?

Yes, but only if called on to do so by a party to the arbitral proceedings under Section 12 of the act.

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?

Under Section 28 of the act, the courts may issue a summons to require a third party to attend the tribunal. However, the act does not give the courts the power to compel parties to arbitrate – this would be contrary to the consensual nature of arbitration. In the event that a respondent fails to participate in an arbitration after it has submitted to its jurisdiction, the tribunal can issue peremptory orders and its powers of persuasion to get the respondent to participate. If this fails, the tribunal can proceed with the hearing and render an award.

Third parties
In what instances can third parties be bound by an arbitration agreement or award?

National law is silent on this point and prevailing practice makes no allowance for the joinder of third parties. However, recent Court of Appeal jurisprudence has brought uncertainty to the issue of joining unrelated parties. This has raised concerns for practitioners as if the issue returns to the same court, the correct principles may be applied.

Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?

The act imposes neither a default language nor venue for arbitrations. In the absence of an agreement between the parties, the tribunal can rule on the language and venue to be used. 

Gathering evidence
How is evidence obtained by the tribunal?

The tribunal can gather evidence through submission of pertinent documentation by the parties through either:

  • the statements of case procedure, whereby documents are annexed to pleadings; or
  • full discovery and disclosure procedures.

The production of documents can be compelled either by the tribunal directly or through court assistance. The tribunal can also make site visits to gather further evidence.

What kinds of evidence are acceptable?

There are no limits to the kinds of evidence that are acceptable, bearing in mind that where parties are unable to agree on the limits, if any, it is for the tribunal to decide. Section 23(3) states that a tribunal has “the power to determine the admissibility, relevance, materiality and weight of any evidence and to determine at what point an argument or submission in respect of any matter has been fairly and adequately put or made” where the parties have failed to agree. The Evidence Act does not apply to arbitrations, although parties may agree to its application.

Confidentiality
Is confidentiality ensured?

Arbitral proceedings are confidential in Kenya and this is maintained to the highest possible standard.   

Can information in arbitral proceedings be disclosed in subsequent proceedings?

No – arbitral proceedings remain confidential unless the parties agree otherwise. 

Ethical codes
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

Counsel are bound by the Advocates Act in terms of representing parties within the realm of arbitration. Further, benchmark practices are imposed by, among other things, the Chartered Institute Code of Professional Conduct and Ethics and the International Bar Association Code on Representation of Parties in International Arbitration.

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