Frequently Asked Questions About Arbitration
Alternative Dispute Resolution (ADR) refers to the various methods used to settle or resolve disputes privately or out of court and without violence. Negotiation, mediation, adjudication, expert determination and arbitration are examples of ADR procedures.
Generally, criminal matters and declaration of divorce etc are resolved through courts and not privately through ADR.
The parties in dispute discuss the problem themselves, with or without representatives, in an attempt to finding a solution. The outcome is usually a legally binding agreement.
The parties in dispute involve a third party, called a mediator, to act as a facilitator. The mediator doe not take the responsibility of providing a solution.
The parties agree to refer the dispute to an expert, whose decision is final and binding. The expert chosen uses his or her own expertise and is not normally bound to take or consider evidence from the parties.
This ADR procedure is most commonly used in construction projects, where a delay of even a few days could be very costly. It involves a neutral third party who must give a decision within a very short period of time. The process is not very thorough due to the time constraints but the parties are required to comply with the adjudicator’s decision unless it is reversed in arbitration or court.
This is a court-like process in which a neutral tribunal, usually of one or three members, resolve a dispute by hearing the parties and issuing an award, which is final and legally binding.
The ruling of an Arbitrator is called an “Award”, not a “ruling” or “judgement”.
Disputes arising from contracts, partnership, employment, land, construction, sale of goods, sale of land, negligence, disputes between partners/directors in a company, landlords and tenants, disputes in membership organisations like sports clubs, political parties, professional societies, neighbourhood associations, and religious groups, etc are suitable for resolution by arbitration.
Yes, it is. It is also final. There are very limited avenues of challenging it. Courts enforce arbitration awards as if they were court decisions.
Anyone can become an arbitrator. However, one requires professional training in order to effectvely handle complex or particularly contentious disputes.
No. Some architects, quantity surveyors and valuers are professionally trained as arbitrators. Many arbitrators are lawyers, but not all lawyers are professionally qualified as arbitrators.
A professional arbitrator has adequate training in law to handle a wide range of disputes. However, if he is faced with a difficult legal or technical issue he or she is allowed to seek the opinion of an expert in the subject field. A lawyer has the same option when faced with a technical matter.
Some contracts require the parties to negotiate, attempt mediation or otherwise attempt to settle the dispute prior to arbitration. Such requirements are referred to as “conditions precedent”.
This is a provision that all or specified types of disputes between the parties shall be solved through arbitration. It could be either a clause in the main contract or a separate document altogether.
Ideally, the parties in dispute should appoint the arbitrator jointly but it is usually difficult for them to agree on anything once a dispute has arisen. Therefore, the arbitrator is usually appointed by the authority (eg a professional body or trade association) named in the agreement or by court.
Professional Arbitrators undergo rigorous training on arbitration law, how to handle various situations and how to prepare procedural directions and write awards to a professional standard.
Yes, but note that the arbitrator or adjudicator will not help you on how you should process your case. A party which lacks the skills and/or time to represent itself is advised to engage a competent representative.
If your opponent has an advocate, then you should consider engaging a competent representative unless you have a very good knowledge of the facts, the process and the law.
Whatever the case, if the arbitrator or adjudicator suggests that you should consider taking legal advice, then you better get it in a hurry. He or she probably knows something you don’t.
What should I do if I am representing myself and the advocate representing my opponent uses difficult words or latin phrases that I do not understand?
Don’t be intimidated. Ask the arbitrator to request the advocate to translate the latin phrases to English or to whatever language the arbitration is being conducted in. The same applies if anyone, even the arbitrator, uses a word or phrase that you do not understand.
Relax. Your advocate can be friendly and courteous to the other party or to its represenative without compromising your position. Representatives deliberately cultivate friendliness for ease of communication and for smooth deliberations without crossing professional boundaries.
You must dismiss your representative if you have reason to believe that he has been compromised but you should inform him and the arbitrator of the change immediately.
What about if the Arbitrator is someone I know well or he/she is known to my friends or relatives, could I send word to him?
Never. Such contact would be irregular and would, at the very least, annoy the Arbitrator. You should avoid any contact with the arbitrator directly or by proxy in the absence of the other party.
The arbitrator will understand if you ignore him should you meet at the supermarket, bus stop, place of worship or wedding. He or she should be offended if you invited him for lunch or sent a Christmas gift to him.
You should address the arbitrator as “Honourable Arbitrator”, “Mr Arbitrator”, “Madam Arbitrator”, “Mr Otieno”, “Miss Ali”, “Hon. Tribunal” or Hon. Tribunal Members”, etc.
Titles like “Your Honour” or “Your Lord” are improper and should be avoided even if the arbitrator is a former judge but especially so if the other members of the arbitral tribunal are not former judges.
The phrase “learned friend” is reserved for use by one Advocate of the High Court addressing another and must not be used by a non-advocate even when addressing a lawyer friend.
An Advocate of the High Court may refer to a non-lawyer representative as “my friend” vice versa. The same phrase is appropriate between non-lawyer representatives.
A party, advocate or party representative or witness are not required to stand or bow when talking to an arbitrator or when entering or leaving the arbitration room.
No. The arbitrator adopts a simple procedure in consultation with the parties.
The parties normally share the arbitrator’s fees on 50:50 basis. However, at the end of the process the winning party usually gets a refund of the fees it paid to the arbitrator (and other costs) from the losing party.
In Kenya they are time-based depending on the Arbitrator’s experience in the primary profession and in arbitration, sums in dispute, complexity of the case, etc. Professional arbitrators are expensive because they are usually senior consultants in their primary professions and have undergone expensive further training to become arbitrators. Some arbitral institutions charges as a percentage of the sums in dispute.
An arbitrator must be a person of high integrity. He or she is required to be neutral and fair (i.e impartial and independent) throughout the process.
Courts can order the replacement of a corrupt or unethical arbitrator or set aside his award. Professional arbitration bodies take the appropriate disciplinary action against such a person.
No. He is not required to settle for the middle ground, either extreme or any predetermined position. He makes a decision based purely on the merits of the case.
No. Chiefs, other government officers and elected officials render invaluable service to the community by resolving various disputes out of court but their role is not to be mistaken for arbitration under the Arbitration Act as they are not operationally independent.
Yes. Many contracts between companies/individuals and the Government have Arbitration Clauses. In such cases the government is a party to arbitration like any other entity.
Does a party have to attend the Preliminary Meeting or other meetings if it is legally or otherwise represented?
No. However, it is good practice for all the parties to be present in order to facilitate any necessary consultations with their representatives and to “get a feel of things”.
The Chartered Institute of Arbitrators (Kenya Branch) of tel: 0722200496 and email [email protected] maintains a list of professionally qualified arbitrators in Kenya.
If a contract (eg a lease or employment) that has an Arbitration Clause has expired, are the parties still go for arbitration?
Yes. An Arbitration Clause is treated as a separate contract, which survives the expiry or termination of the main contract. Indeed, courts have in some specific circumstances ruled that an Arbitration Clause in a contract which has not been signed by the parties is binding.
Yes. Courts encourage parties to resolve their disputes privately and as amicably as possible. They would normally put a court case on hold to facilitate mediation or arbitration if requested by both sides.
A judge could, under the Civil Procedure Rules, refer parties to mediation or arbitration even without the consent of the parties