A critique of section 6 of the arbitration act

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.