A Critique of Court Intervention in Arbitration

Abstract

This thesis seeks to analyze whether courts’ intervention in arbitration denies parties their intention to specifically have their matter resolved through arbitration. The study has clarified the legal issue that has been controversial in recent years but has not been solved, the parties’ right to appeal the determination on annulment of an award to the Court of Appeal. Court intervention in arbitration whether international or domestic is inevitable. However, in Kenya, in most cases, the court's role has only served to inhibit the effectiveness of arbitration proceedings. There are sections in the Act that have left arbitration much open to court interference which in turn defeats the essence of arbitration as a private and expeditious mode of dispute resolution. Consequently, section 35 of Arbitration Act creates an ambiguity because it does not pronounce itself on the question as to whether there is finality on any resultant decision by the High Court out of an appeal preferred to it. What this does is undermine the spirit of arbitration and arbitral awards. When considering applications that are permitted under the Act such as setting aside or confirmation of awards, courts must also look into the parties’ autonomy. The study argues that section 35 of the Arbitration Act does not provide for the right of appeal. Consequently, there is a need for further inquiry on whether exercising appeals of arbitral awards to the Court of Appeal violates the autonomy of concerned parties as per the arbitration agreement. Thus, the study provides legislative and policy recommendation so as to clarify the correct position that should be adopted in with regards to appeals made under the Arbitration Act, emphasis being on section 35.