A Critique of the Contribution of International Commercial Arbitration Toward the Realization of the Right of Access to Justice in Kenya

Abstract

This study critically analyses the contribution of international commercial arbitration toward the realisation of the right of access to justice in Kenya. It highlights the gains made in the Constitution of Kenya of 2010 in relation to the right of access to justice, alongside the developments of international commercial arbitration in Kenya. The overarching objective is to determine whether international commercial arbitration has made an impact on efforts to expand the rights of consumers of dispute resolution services, in attaining justice. A comparative study of international commercial resolution solutions and access to justice in Singapore, the arbitration hub in the Asia-Pacific Region, offers responses to the question whether international commercial arbitration has a contribution toward the realisation of the right of access to justice. The approach taken in the establishment of the Singapore International Commercial Court as an alternative to international commercial arbitration reinforces the question whether the focus in Kenya should be strengthening the court system or pursuing arbitration, in the overarching goal of realising the right of access to justice. Chapter one presents a background to the study. Chapter two contains a literature review on the core issues arising in this study on international commercial arbitration, international commercial courts and access to justice. Chapter three analyses the legal framework for international commercial arbitration in relation to access to justice in Kenya, evaluating the current provisions and identifying areas of concern. Chapter four elaborates the discussion on international commercial courts in Singapore and similar international commercial courts in other countries, analysing the frameworks in light of the legal framework for access to justice in international commercial dispute resolution in Kenya. Chapter five carries the conclusions of the findings in the study, and offers recommendations on how the access to justice may be improved in Kenya.