Arbitration law and practice in Kenya as compared to the UK and US with specific focus on anti-suit injunctions and arbitrability of disputes

Abstract

The growth of trade in Kenya has resulted in a rise in arbitration practice to resolve commercial disputes. To this end, through comparative research of the US and UK arbitration laws, this research examines the state of arbitration law and practice in Kenya, with specific focus on the arbitrability of disputes and arbitration anti-suit injunctions.

The research is conducted in two stages. The first stage involves employing secondary research which identifies the common and differing approaches in these different legal systems. This led to the finding that in the UK and US there is a rising trend to allow the arbitration of disputes which were traditionally non-arbitrable. It also led to the finding that unlike the UK and US courts, the Kenyan courts have not yet issued an arbitration injunction to restrain a party from commencing or continuing with court proceedings in breach of an arbitration agreement.

The second stage involved employing empirical legal research using a survey questionnaire as the tool for research to test whether key stakeholders in arbitration in Kenya would welcome an expansion of the scope of arbitrable disputes and an arbitration anti-suit injunction remedy. The survey questionnaire was modelled around the Queen Mary Survey 20151 and was completed by 144 respondents all based in Nairobi, Kenya, the majority of whom are working in the legal field. The findings are that in Kenya, arbitration anti-suit injunctions would be well received and that there is no appetite for extending the scope of arbitrabile disputes. Notably, the survey results also incorporate valuable insights as to Kenya arbitration practices, for instance, the most valuable characteristics of an arbitrator and the arbitration process overall.

Taking into account the benefits of hosting arbitration, one of the main beneficiaries of this research is the newly established Nairobi Centre of International Arbitration (NCIA hereafter). Other beneficiaries include; lawyers, judges, arbitrators, academics, policy-makers, institutional staff as well as any other user of arbitration in Kenya including international lawyers and international parties considering Kenya as an arbitration seat.

Date of Award	Oct 2020
Original language	English
Awarding Institution	Coventry University
Supervisor	Neil Renwick (Supervisor), Margaret Liu (Supervisor) & Umut Turksen (Supervisor)