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Arbitration agreements

Validity
What are the validity requirements for an arbitration agreement?

To be valid, an arbitration agreement must meet the requirements set out in Section 4 of the Arbitration Act 1995 (as amended in 2010) – that is, it must be in writing and may form a separate agreement or be included as a clause within a contract. It may be incorporated by reference to another document, may be contained in an exchange of letters, telex, telegram, facsimile, email or other means of telecommunications which provide a record of the agreement, or may be an exchange of pleadings where there is no contravention of the existence of an arbitration agreement.

Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?

The national courts’ attitude has become increasingly positive over the last seven to eight years. Arbitration agreements are enforced through the courts. Awards are filed under a miscellaneous application for consideration by the Commercial Division of the High Court.

Consolidation
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

The consolidation of separate arbitral proceedings is supported in Kenya, but only with the parties’ consent.

Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

The substantive law of the contract is to be determined by the parties during the negotiations. If the parties fail to do so, Section 29(3-5) of the act sets out guidelines for how an arbitrator should determine the substantive law of the contract.  

Separability
Are there any provisions on the separability of arbitration agreements?

The doctrine of separability is well rooted in Kenyan law and has been codified in Section 17 of the act.

Multiparty agreements
Are multiparty agreements recognised?

Yes, multiparty agreements are recognised in Kenya. 

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