| dc.description.abstract | In any legal relationship, domestic or international, disputes are bound to occur. When such
disputes occur in trade they should be settled as expeditiously, flexibly and confidentially as
possible so that the economy does not stall. An example of such a dispute settlement mechanism
is arbitration.
Arbitration is based on an arbitration agreement. An arbitration agreement excludes the
jurisdiction of courts in settling disputes it contemplates. Consequently the courts should not
seize jurisdiction over disputes contemplated by an arbitration agreement unless in instances set
out in law. Section 10 of the Kenyan Arbitration Act, 1995 (as amended) has expressly provided
for this. However, section 6 of the same Act goes against the principle of non-interference by
courts in arbitration by mandating courts to uphold technicalities. Upholding technicalities has
had the effect that disputes meant to be resolved by arbitration have found themselves in the
courts. The net effect has been delays, inconveniences and publicity.
This research is conducted with the principle of party autonomy in mind. The researcher argues
that freedom to contract should be upheld at all times. The researcher further argues that section
6 of the Kenyan Act not only goes against the intention of section 10 of the Kenyan Act but also
it is against the overall purpose of the Kenyan Act, the Constitution of Kenya, the principle of
freedom of contract and other laws. The researcher in advancing this argument is aided by the
following theories: positivism; natural school of thought; and freedom of contract theory.
The law in the United Kingdom, the Arbitration Act, 1996, and the practice is analysed as a
comparative study. This comparative study aids in the recommendations made by the researcher
The researcher recommends reform of section 6 of the Kenyan Act to conform with Article 8 of
the Model Arbitration Law and section 9 of the UK Act.
This research will aid the Kenya Law Reform Commission, the Honourable Attorney General
and subsequently the National Assembly in giving investors a law that conforms to international
best standards. | en_US |
