Revisiting the Doctrine of Judicial Non-interference in Commercial Arbitration: is It a Love and Hate Affair Between the Courts and the Arbitral Process?

Abstract

ABSTRACT The Kenyan Constitution provides for alternative dispute resolution which can be undertaken to adjudicate disputes outside the courts of law and arbitration has been recognised as one of them. For quite some time, there has been a new form of dispute and this dispute encompasses arbitration and the courts. Proponents siding with the arbitral process opine, that the way the arbitration process is set up, it does not need any interference whilst, on the other hand, proponents of the court system bolster up that arbitration as it is, should be under constant check by the courts for purposes of fair administration of justice. Whereas the courts are obligated to support arbitration, they tend to interfere with the process of arbitration and as a result, the dispute(s) that are supposed to be addressed by the arbitral process expeditiously. It should be taken into consideration that the doctrine of judicial non-interference plays a critical role in protecting the arbitral system and as an upshot, there have been sort of wrangles between the process and the courts where the courts have made pronouncements that are against the process and later on render decisions that are in support of the arbitral process. The above form of uncertainty of jurisprudence has rendered the arbitration process exposed to interference from the courts and as such the researcher in this paper has brought out the line which has to be drawn and not be crossed by the judicial courts when it comes to arbitral proceedings. The study works towards going over with a fine-tooth comb the doctrine with the intent of using the Kenyan jurisdiction as a case study. This research will bring out the involvement of the courts in the arbitral undertaking and at what point they stop. The study will seek to find out whether the national court`s role in arbitration is effective in arbitral dispute resolution or is a tool for frustrating the arbitration process. The problem focused on in this study, is that there is a form of collusion between the arbitral process and the courts thus escalating the dispute instead of solving it. The researcher in this study has noted that the judicial courts do play a role and this role is mainly to support the arbitration process and this role can only be undertaken if the courts have been invited to do so. The study in its 5 Chapters has elucidated arguments, findings together with conclusions that will provide a way forward as to how the doctrine of judicial interference is helpful in the resolution of disputes and administration of justice as well.