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Party Representation | Panel of Arbitrators | Public Access | Fair Hearing | Types of Disputes

Public Access of Arbitration Proceedings

Article 50(1) of the Constitution of Kenya, 2010 provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and PUBLIC hearing before a court or, if appropriate, another independent and impartial tribunal. Article 50(8) provides that this Article does not prevent the exclusion of the press or other members of the public from proceedings if the exclusion is necessary, in a free and democratic society, to protect witnesses and vulnerable persons, morality, public order or national security. Consequently, in arbitrations instituted pursuant to Article 50(1), and which are not subject to Article 50(8), the default mode is to provide public access to all such arbitrations, including documents filed by the parties, the live hearings and the arbitration awards. This enables the arbitration process to be accountable to the public, who have delegated their judicial authority to the independent and impartial arbitral tribunal.

Additionally, Article 165(6) of the Constitution of Kenya, 2010 provides that the High Court has supervisory jurisdiction over subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court. Article 165(7) provides that for the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice. Arbitration tribunals are therefore subject to the supervisory jurisdiction of the High Court, and it is through this supervisory jurisdiction that the sovereign people of Kenya exercise their oversight over arbitration tribunals as independent and impartial tribunals granted judicial authority by the said sovereign people of Kenya.

Arbitrations administered by Aluochier Dispute Resolution are therefore fully under the supervisory jurisdiction of the High Court, with the High Court ensuring that the said arbitrations are carried out lawfully and fairly pursuant to powers donated under the Constitution of Kenya, 2010.

The provision in Article 50(1) of the Constitution of Kenya, 2010, recognizing the right to have any dispute decided in a fair and public hearing before a court or another independent and impartial tribunal or body, has important implications for arbitrations and the arbitration community, including:

1. Transparency and Public Access:

• Impact: The provision emphasizes transparency in dispute resolution by allowing public access to arbitral proceedings.

• Implication: Parties involved in arbitrations need to be aware that their proceedings may be subject to a level of public scrutiny, and arbitrators may need to conduct proceedings with transparency in mind.

2. Increased Accountability:

• Impact: The right to a fair and public hearing enhances accountability in the arbitration process.

• Implication: Arbitrators and parties may need to be more diligent in adhering to procedural rules and ethical standards, as there is potential public oversight.

3. Challenges to Confidentiality:

• Impact: Public access may pose challenges to maintaining the confidentiality often associated with arbitration.

• Implication: Parties and arbitrators may need to carefully consider and address confidentiality concerns, especially in sensitive or commercial disputes.

4. Public Perception and Trust:

• Impact: Public access can influence the perception of the arbitration process and build trust in the system.

• Implication: The arbitration community may need to focus on maintaining the integrity of the process to ensure that public perception remains positive.

5. Education and Awareness:

• Impact: The provision encourages education and awareness about arbitration within the general public.

• Implication: There may be a need for increased public education on the benefits and limitations of arbitration to foster a better understanding of the process.

6. Adaptation of Arbitration Rules:

• Impact: Arbitral institutions may need to adapt their rules to accommodate the public access requirements.

• Implication: Rules governing arbitrations may need to address issues related to public access, transparency, and confidentiality to align with constitutional provisions.

7. Role of Arbitrators:

• Impact: Arbitrators may need to navigate the balance between the right to a fair and public hearing and the parties' expectations of confidentiality.

• Implication: Arbitrators need to be mindful of the constitutional right while respecting legitimate expectations of privacy and confidentiality in certain cases.

8. Legal Framework for Public Access:

• Impact: There may be a need for a legal framework or guidelines on how public access to arbitrations should be facilitated.

• Implication: Legislators or authorities may need to consider developing rules or guidance to ensure that public access is regulated in a manner that balances transparency with the need for confidentiality.

9. International Comparisons:

• Impact: The provision aligns with a global trend toward transparency in dispute resolution.

• Implication: The Kenyan arbitration community may look to international practices and standards to inform how public access is managed in other jurisdictions.

In summary, the inclusion of a right to a fair and public hearing in the Kenyan Constitution has the potential to influence how arbitrations are conducted, emphasizing transparency, accountability, and public awareness. The arbitration community in Kenya may need to adapt its practices and rules to align with these constitutional principles while addressing the challenges associated with maintaining the confidentiality traditionally associated with arbitration.

Public Exclusion

The circumstances under which it is deemed necessary to exclude the press or other members of the public from dispute resolution proceedings, as outlined in Article 50(8) of the Constitution of Kenya, 2010, involve considerations related to the protection of witnesses and vulnerable persons, morality, public order, and national security. More specifically:

1. Protecting Witnesses and Vulnerable Persons:

• Circumstances:

  • Witness Safety: When the presence of the media or the public may pose a threat to the safety of witnesses, especially in cases involving intimidation or potential harm.

  • Vulnerable Witnesses: In situations where the individuals involved, such as victims or vulnerable persons, may suffer undue distress or harm if their identities or sensitive information are disclosed publicly.

2. Morality:

• Circumstances:

  • Sensitive or Private Matters: When dispute resolution proceedings involve matters of a highly personal or sensitive nature that, if disclosed publicly, could be considered immoral or offensive.

  • Protecting Privacy: To safeguard the privacy of individuals involved in the proceedings, particularly when their reputation or personal matters are at stake.

3. Public Order:

• Circumstances:

  • Potential for Disturbance: If the presence of the media or the public is likely to cause a disturbance or disruption to the proceedings, jeopardizing the orderly conduct of the dispute resolution process.

  • Preventing Unrest: In situations where the disclosure of certain information may incite public unrest or disorder.

4. National Security:

• Circumstances:

  • Sensitive Information: When the dispute resolution proceedings involve information critical to national security, the disclosure of which could jeopardize the safety and security of the state.

  • Terrorism or Subversion Cases: In cases related to terrorism, subversion, or other activities that pose a threat to the national security of the country.

General Considerations:

• Balancing Test: Courts or authorities responsible for managing dispute resolution proceedings will likely conduct a balancing test to weigh the potential harm or risks against the principles of transparency and openness.

• Case-by-Case Basis: Exclusion decisions are often made on a case-by-case basis, considering the specific circumstances of each dispute.

• Procedural Safeguards: In cases where exclusion is deemed necessary, procedural safeguards should be in place to ensure that the rights of the parties involved are protected.

It's important to note that the determination of whether to exclude the press or the public from dispute resolution proceedings is a complex decision that requires careful consideration of the specific facts and circumstances of each case. The overriding principle is to strike a balance between the constitutional right to a fair and public hearing and the legitimate interests that may warrant exclusion in specific situations.