George Oraro SC Ranked ‘Star Individual’ Top Dispute Resolution Lawyer in Kenya

Posted on February 17th, 2020

17th February, 2020

Chambers Global Guide which ranks the most outstanding law firms and top lawyers across the world has released its 2020 rankings.

We are delighted to announce that our Senior Partner, George Oraro SC has surpassed the Band 1 ranking receiving the prestigious ‘Star Individual’ accolade in Dispute Resolution. The accolade is awarded to lawyers with exceptional recommendations in their field and George is the only lawyer ranked in this category in Kenya. Acclaimed by sources as "a man of integrity and humility", and regarded as being "wise, patient, extremely brilliant in all respects and very client-focused”, Chambers Global noted that multiple interviewees affirm his stature as a "litigation powerhouse" and "one of the best lawyers Kenya has ever produced."  George whose practice cuts across the full spectrum of contentious mandates and arbitration has also been ranked Band 1 among leading Arbitrators in Kenya. George has decades of experience which have seen him feature in some of Kenya's most eminent cases.

Chambers Global has also highly ranked other lawyers from the firm. Chacha Odera, Managing Partner, was ranked Band 1 in both Dispute Resolution and Employment practice areas. Chacha was commended for his expertise in land, employment and constitutional disputes with market commentators highlighting that he has a "very sharp mind," and other sources saying he is “a man full of wisdom; courteous, respectful, hard-working and a team player.”

Our Employment & Labour law Partner, Georgina Ogalo-Omondi, continues to excel in the Employment practice area. Georgina received praise from the interviewees for being “ambitious, very hard-working and a team player," also adding that “she is fearless.

Moving up the ranking, our Partners Noella Lubano and Jacob Ochieng were also ranked in Dispute Resolution and Corporate/M&A respectively. Chambers Global commended Noella for her in-depth understanding of financial and commercial disputes, covering banking, insolvency and asset tracing mandates. Noella was lauded for having a “very determined” approach and “outstanding client handling skills.” Jacob Ochieng is well regarded in the Corporate & Commercial space and his peers noted that he “is commercially astute and always looks out for his clients in any transaction.

In general, the firm continues to maintain its position as a market leader. Ranked Band 1, our Dispute Resolution team was lauded for routinely appearing in high quantum and sensitive matters and its representation of regional and international clients in complex cases. The firm was also well ranked in Employment and Banking & Finance categories.

Chacha Odera, Managing Partner, commented on the awards saying “It is such a great honour for me and the firm to receive such commendable rankings. I congratulate everyone in the firm for their unrelenting efforts. Our clients, thank you for your valuable feedback, unwavering support and trust over the years.” These accolades reinforce the firm’s leading position in the region and its standing globally.

Chambers Global rankings are based on extensive research and one-on-one client interviews. The Guide assesses the quality and magnitude of cases or transactions handled by each firm, technical ability, professional conduct, client service, commercial awareness/astuteness and commitment to providing solutions to clients, among other qualities.

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Profile

Established 43 years ago by George Oraro SC (one of Kenya’s top litigators), Oraro & Company Advocates is a top-tier, full-service Kenyan law firm providing specialist legal services both locally and regionally with a focus on Arbitration, Banking & Finance, Conveyancing & Real Estate, Corporate & Commercial, Dispute Resolution, Employment & Labour, Infrastructure, Projects & PPP, Restructuring & Insolvency and Tax.

Oraro & Company Advocates prides itself in its deeply rooted client relationships by steadily providing quality legal services through its partner-led approach and continues to distinguish itself as an African law firm offering legal services drawing from local knowledge and global perspectives.

Kipkirui Kosgei

Head of Business Development

T: +254 709 250 000/709 250 735

E: gkosgei@oraro.co.ke

Asset Tracing & Recoveries

Posted on November 7th, 2019

Our Asset Tracing & Recoveries practice area is a recognised leader in advising both contentious and noncontentious complex tracing and recovery of assets and in restructuring & insolvencies. The practice area is led by a team of Partners with specialist know-how and deep experience in offering strategies for obtaining effective and time-critical legal remedies to secure and recover assets, including freezing injunctions, disclosure orders and protection of assets. 

With a good reputation in handling complex banking disputes, debt recovery and asset tracing, the practice area has represented clients in various courts in the land including the High Court, Court of Appeal and the Supreme Court. Our Asset Tracing & Recoveries practice closely with a broad range of stakeholders including banks, financial intermediaries, distressed companies, creditors, private equity sponsors, and governments. As a full service law firm, the practice area is able to call upon lawyers from a wide range of related specialist areas including tax, employment and labour, banking & finance and restructuring & insolvency.


Experience

Our recent experience includes:

  • Acting for the monetary authority of Kenya in the recovery of funds in the “Goldenberg” related cases, in excess of USD 1 billion.
  • Representing a Kenya government corporation as lead counsel. We obtained a mareva injunction/freezing order, which is currently in force to preserve the subject matter of the suit. This is a recovery action as well as the tracing of assets worth USD 70 million from individuals and companies alleged to have defrauded a commercial Bank in Kenya, leading up to its receivership.
  • Representing an accused person for actions done while executing duties when acting as a senior official in the Government of Kenya (GoK). The accused was charged with abuse of office and conspiring to defraud the GoK. The saga has come to be known as the Anglo-leasing saga.
  • Advising an Insurance Company on its potential claim of approximately KES 1.1 billion for impaired assets against three insolvent companies, where it invested in notes and commercial paper.
  • Acting for a Kenyan Insurance Company in a domestic arbitration seeking the recovery of approximately USD 770,000 being outstanding premiums claimed by the Insurer against the Judiciary of Kenya under a Group Medical Insurance Cover.

Recent Insights

Recent Decision Underscores Need for Court Sanction in The Carrying Out of Commission’s Mandate


Related Services

Banking & Finance, Corporate & Commercial, Dispute Resolution

For more information about our Asset Tracing & Recoveries practice, please contact George Oraro SC (Founding Partner) or Noella Lubano (Partner).  Alternatively, click here to download our Asset Tracing & Recoveries.

Key Contacts
George Oraro SC
Founding Partner

 

 

E: goraro@oraro.co.ke

East Africa International Arbitration Conference – 2019

Posted on July 17th, 2019

Oraro & Company Advocates is proud to sponsor the 7th edition of the East Africa International Arbitration Conference. The event will take place at the Radisson Blu Hotel from the 29th – 30th of August 2019.  The conference’s theme is ‘Government Contracting and Investment Disputes: Lessons for States and Investors‘. It will explore the full spectrum of government contracting from procurement and PPPs (public private partnerships), tender disputes, dispute mitigation in government contracts, investment arbitration and arbitrating with governments in African centres.

Chacha Odera, Managing Partner, and Noella Lubano, Partner, will be among the key speakers at the conference.

In attendance will be Legal Practitioners, Arbitrators, Magistrates, International Investors, Academicians, In-house Counsel and Government Representatives.  For more information about the event follow the link here

Kosgei Kipkirui

Head of Business Development

T: +254 709 250 000/735

E: gkosgei@oraro.co.ke

LCIA African User’s Council Symposium

Posted on July 16th, 2019

Oraro & Company Advocates participated in The London Court of International Arbitration (LCIA) symposium held on 23-24 May 2019 at the Villa Rosa Kempinski Hotel - Nairobi.

Our very own Managing Partner, Chacha Odera, and Noella Lubano, Partner were among the East African panellist speakers. Also, in attendance was Geoffrey Muchiri, a Partner in the Dispute Resolution practice area. The Symposium covered a variety of issues related to the current and future practice of international commercial arbitration and ADR in Africa.

Kosgei Kipkirui

Head of Business Development

T: +254 709 250 000/735

E: gkosgei@oraro.co.ke

AfAA 1st Annual Arbitration Conference

Posted on July 16th, 2019

Our very own Noella Lubano, Partner, participated in the inaugural  edition of the Annual International Arbitration Conference, organised by the African Arbitration Association (AfAA). The conference was themed “The Coming of Age of International Arbitration in Africa.” and was hosted in Kigali, Rwanda at the Kigali International Convention Centre from 3-4 April 2019. The conference discussed Africa’s achievements in international arbitration to date and looked at considerations on what more can be done to increase the participation of Africans in international arbitration.

Noella has extensive experience in arbitration, commercial litigation, employment, banking and is well-regarded for asset tracing, insolvency matters and international arbitration. For more information about AFFA click here.

Kosgei Kipkirui

Head of Business Development

T: +254 709 250 000/735

E: gkosgei@oraro.co.ke

‘Add to Cart’: The Role of Alternative Dispute Resolution in Online Commerce

Posted on May 31st, 2019

By Noella Lubano | Jill Barasa | Eva Mukami

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Simply put, e-commerce refers to the sale or purchase of goods and services conducted over computer networks by methods specifically designed for the purposes of receiving and placing orders. The spectrum of goods and services sold online is wide, encompassing goods and services delivered physically, as well as intangible digital goods such as music, films, books, software and services such as online banking.

The United Nations Conference in Trade and Development (UNCTAD) reported that as of 2017, e-commerce accounted for six percent (6%) of all purchases made in Kenya. A natural consequence of electronic trading is implications under intellectual property laws or tort such as negligence and defamation. Electronic trading may also raise issues on privacy and data protection. Majority of online transactions were in the form of business-to-consumer or consumer-to-consumer transactions as opposed to business-to-business transactions, raising the question on the need for an effective dispute resolution mechanism. Albeit a relatively emerging area, online dispute resolution (ODR) may be one of the suitable dispute resolution mechanisms for online transactions.

Several definitions have been formulated to describe ODR, for example, the American Bar Association defines ODR as follows:
ODR uses alternative dispute resolution process to resolve a claim or dispute. ODR can be used for disputes arising from online, e-commerce transactions, or disputes arsing from an issue not involving the internet called an “offline” dispute. It is an alternative to the traditional legal process which usually involves a court judge and possibly a jury.

Authors Kah-Wei Chong and Len Kardon in the publication E-Commerce: An Introduction describe ODR in the following manner:- “ODR uses the internet as a more efficient medium for parties to resolve their disputes through a variety of methods similar to traditional ADR. It brings parties online to participate in a dialogue about resolving their disputes.

It is clear that the term ODR is used to describe the process by which a dispute is resolved on an online platform such as the internet by means of arbitration, mediation or negotiation, all of which are alternatives to litigation or court processes.

Some of the means employed in ODR include, video conferencing, emailing, fax, virtual meetings in chat rooms, teleconferences etc. Parties may upload their written claim, evidential documents and written submissions, respond to questions from the arbitrator on email and receive the arbitrator’s decision on email.
With traditional arbitration increasingly incorporating modern technology into its proceedings, the distinction between online arbitration and traditional arbitration is becoming less clear. It is therefore imperative that legal practitioners and jurists continuously keep themselves abreast and familiarise themselves with technological developments to avoid falling on the wayside.

Why does ODR Matter?
In The World is Flat by Thomas L Friedman, the author argues that the advancement of the internet and computers has equalised the playing field in commerce. This is because a vendor located in different part of the world can sell his products to a consumer located in another part of the world without the two (2) ever physically meeting.

Indeed, it is impossible to deny the rapid rise in the number of commercial transactions that happen on an online platform. This has been further enhanced by the rise in use of the mobile phones that have internet connectivity capabilities. It is now no longer necessary to physically walk into a shop or meet a vendor before one can purchase an item. Many of the day-to-day commercial functions that we undertake are now a “click” or a “swipe” away. Only recently, it was announced that Tesla, the largest electric car dealer in the world had taken the decision to close most of its stores and shift to online–only sales.

It is inevitable that the increase in online commercial transactions would result in an increase in disputes on the same, thereby informing the need for a quick, efficient and cost effective dispute resolution mechanism that is suited for online transactions.

Most online purchases involve parties located in different parts of the world and are unlikely to involve large or significant sums of money. As a result, the traditional means of dispute resolution which primarily involve courtroom litigation may in the case of an online purchase dispute be inconvenient, impractical, time consuming and prohibitive.

Of concern therefore, is whether consumers of online purchases are sufficiently protected from injury and have an efficient, effective and cost efficient means of seeking redress for such injury.

Related to this issue is whether there is a need for the formulation of a legal framework for ODR. As things stand, there is no law in Kenya that governs or addresses ODR nor is there any indication of an intention by Parliament to pass laws to regulate ODR.

This second question must be considered against the divergent regulatory approaches of the United Kingdom and the United States with the former preferring to pro-actively regulate ODRs while the latter prefers a self regulatory approach which leaves the task of regulation to private actors involved or participating in ODR.

These issues are all part of and should be looked at as part of a broader discussion on the Constitutional right to access to justice and consumer protection guaranteed under Articles 48 and 46 respectively of the Constitution of Kenya.

How Does ODR Work in Practice?
The Virtual Magistrate Project (the VMAG) launched in the US in 1996 was one of the first ODR initiatives. The VMAG served as an arbitrator for online disputes submitted to it and all proceedings would be done by email and decisions transmitted within days.

However, this initiative collapsed because several complaints were not within its jurisdiction, a lack of awareness of the service, failure by parties to participate and the inability of the VMAG to enforce its decisions.

Another significant ODR initiative is the Internet Corporation for Assigned Names and Numbers (ICANN) which resolves disputes regarding domain names. As commercialisation of the internet grew, domain name registry services identified potential issues surrounding the jurisdictional nature of trademarks and their involvement in potential litigation.

At the time of registering a domain name, parties agree to be bound by the ICANN dispute resolution mechanism. What makes ICANN effective is once an arbitrator decides that a domain name should be transferred or cancelled, the decision is binding on the domain name provider who will effect the change as determined by the arbitrator. The decision is however not binding on the parties and may be referred to court. Also, the domain name is instantly suspended on the submission of a complaint. The entire process is concluded using online procedures within about two (2) months. So far ICANN has resolved over five thousand (5,000) domain name disputes.

Other ODRs are Square Trade which has partnered with among the largest online businesses such as eBay, and PayPal among others and has resolved over two hundred thousand (200,000) disputes to date. Also worth mentioning is CyberSettle which was established in 1998 uses a three-round blind bidding system to settle monetary disputes particularly insurance related and workers compensation disputes. CyberSettle is a software technology that automatically compares the ranked bids to determine if the parties have arrived at a settlement. So far it has assisted in settling claims worth approximately USD 500,000 (KES 50 Million).

Advantages of ODR
The following are some of the advantages of ODR that make a compelling case for its adoption as a formally recognised dispute resolution mechanism in Kenya:

  • It is cost effective as it eliminates the necessity of expenses associated with printing paper, travel, accommodation, hiring meeting rooms among others
  • It is less time consuming as most claims are completed online
  • It is less confrontational because of the removal of the physical presence of an opponent also, given that everything is done on
    email, it allows parties to reflect on their positions before articulating them without time pressure
  • The internet provides a “neutral” forum for resolution of the dispute and denies either part a “home court advantage”
  • It facilitates record keeping as the entire dispute resolution process is committed to writing which is transmitted electronically

Disadvantages of ODR

  • The impersonal nature of ODR means that the subtleties of non-verbal communication are lost and the lack of face-to-face
    interactions deprives mediators and arbitrators an opportunity to evaluate the credibility of parties and witnesses
  • Inadequate security and confidentiality as the internet is susceptible to hacking thereby compromising the security of confidential documents
  • Inability of a party to verify or confirm the authenticity of the communications received and whether they originate from the
    other party and not a third party that has impersonated any of the parties to the dispute
  • Online arbitration agreements may face validity problems on account or their failure to meet the “writing” requirement under
    various domestic laws which may give rise to problems in the enforcement of an award arising from an online arbitration
    agreement
  • ODR also presumes that parties and their counsels have unlimited access to the internet, email and other technologies involved in ODR and may also fail to appreciate that parties may not be sophisticated enough to effectively use the ODR technologies
  • ODR is only suited for a very limited class of disputes such as e-commerce disputes and domain disputes, in most cases, the size of a claim arising from an online transaction will not correspond with the cost of possible litigation proceedings

Way Forward for ODR in Kenya
It has been said that when law and technology converge, change is inevitable. It is therefore doubtful that Kenya will have a choice in the matter other than to adapt to the changing faces of dispute resolution. Rather than wait for private actors to shape and develop ODR, there may be merit in a pro-active approach that is continuously and actively working to formulate regulatory legislation which has the objective of protecting online consumers and promoting their right to access to justice which are both Constitutional guarantees.

Kenya will need to develop a regulatory framework for ODR before this initiative is overtaken by more complex online dispute resolution initiatives such as smart contracts and block chain arbitrations among others.

Worth Your While?: Cost Effectiveness of International Arbitration

Posted on December 12th, 2018

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Arbitration as a preferred method of dispute resolution has gained popularity in the recent past because it is considered to be flexible, allows for party autonomy and confidentiality, and more importantly, saves time and money in comparison to litigation. There is however, increased concern and discussion around the costs of international commercial arbitrations and the length of time within which disputes are resolved.

It has been particularly noted that arbitral proceedings are increasingly exhibiting the negative aspects associated with litigation such as high costs, delay and inefficiency. The question of cost effectiveness and efficiency in international commercial arbitration is one that cannot be over emphasised.

Parkinson’s law states that work expands to fill the time available for its completion. This adage is especially true where the person executing the task is remunerated on an hourly basis as is customary in most if not all international arbitrations. In the context of an international arbitration, this means that the lengthier the proceedings, the higher the costs.

Fortunately, arbitration as a dispute resolution mechanism is designed to allow parties to control the costs and the procedure or process within which this can be done. Party autonomy in arbitration means that parties are the masters of the arbitration process and they can determine and agree on virtually all the steps taken from the commencement to the conclusion of the arbitral proceedings. If utilised effectively, party autonomy can be a powerful tool for controlling the costs and avoiding delays in arbitral proceedings.

In this article, we discuss various factors that parties to arbitral proceedings must consider if they wish to have the dispute resolved in a cost effective, expeditious and efficient way.

The general costs associated with international arbitration mainly include the arbitrators’ fees and expenses, legal or other costs of the parties such as witness expenses, investigation fees, expert witnesses and the fees and expenses of the arbitral institution concerned. Interestingly an analysis of the breakdown of general arbitration costs done by Louis Flannery of Stephenson Harwood reveals that administrative costs (fees of the administering institution) amount to two percent (2%) of the total cost, the arbitrator’s fees and expenses amount to sixteen percent (16%) of the total cost, while legal counsels’ costs for legal representation amount to eighty-two percent (82%) of the total cost.

What this data shows is that greater focus should be on bringing down the costs for legal representation. In this article, we identify various stages of an arbitration at which costs may be controlled.

a) Administering Bodies and Institutional Rules

From the outset, the parties should decide between an institutional (or administered) arbitration versus an ad hoc (non-administered) arbitration. There are numerous institutions that provide assistance in running the arbitration in exchange for a fee. These institutions assist in the administrative aspects of the arbitration such as organising hearings, handling communication between the parties and the arbitrators, and handling payments. However, they do not decide on the merits of the dispute - this is left entirely to the arbitral tribunal. An ad hoc arbitration on the other hand, places the burden of running the proceedings on the parties and the arbitrators. However, parties may choose a set of arbitration rules designed to aid in ad hoc arbitrations such as those developed by the United Nations Commission on International Trade Law (UNCITRAL).

An institutional arbitration may particularly be beneficial to parties without arbitration experience as it will provide guidance and avoid time consuming discussions between the parties on preliminary issues that are incidental to the main dispute.

Examples of leading international arbitration institutions include; the International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), the American Arbitration Association (AAA), the International Centre for Settlement of Investment Disputes (ICSID), China International Economic and Trade Arbitration Commission (CIETAC), and the World Intellectual Property Organisation (WIPO). However, some of these institutions are specific to certain types of disputes, for example, ICSID only caters to legal disputes arising out of an investment between a state party to the ICSID convention and a national of another state party to the ICSID convention.

It should be noted however, that fee structures differ depending on the institution, with some institutions charging on the basis of the amount in dispute and others charging on a flat hourly rate basis. The decision to use or not to use an administering body and institutional rules or institutional rules will have an impact on the costs of the arbitrations and parties are encouraged to compare costs of the various institutions beforehand.

b) Drafting the Arbitration Agreement

A well drafted arbitration agreement or clause will avoid preliminary arguments such as whether the dispute is subject to arbitration. Disputes as to the meaning or scope of the arbitration agreement clause are ordinarily determined first and tend to substantially add to the length and cost of the arbitration. Parties should as far as possible, avoid attempting to limit the scope of disputes that are subject to the arbitration unless special circumstances require it. This is because, even when drafted carefully, exclusions may provide an opportunity for preliminary arguments to be raised regarding the jurisdiction of the arbitral tribunal to hear and determine the dispute.

A good arbitration agreement or clause should be clear and should specify the number of arbitrators, the arbitration institution and rules if any, the seat of the arbitration, having regard to practical considerations such as neutrality, availability of hearing facilities, proximity to witnesses and evidence. While the seat of the arbitration does not determine the governing law of the contract and the merits, it determines the law that governs certain procedural aspects of the arbitration. Where parties choose institutional arbitration, ideally, the rules adopted should coincide with the institutional rules. It is also advisable that the parties use the model clause recommended by the institution as a starting point for drafting the arbitration agreement as this would have been tried and tested.

c) Choice of Counsel

Given the significant costs and expenses of international arbitrations, it would be foolhardy for a party to declare a dispute and initiate arbitration proceedings without first carrying out a cost benefit analysis. A lawyer with experience in international arbitration and is familiar with the fee structure and workings of the various administering bodies would be in a position to provide a legal opinion on the merits of the dispute which can then assist a party to take a commercial view on the matter.

Ultimately, the parties should set a realistic budget for the arbitration at the initiation of the arbitration and cross-check with their legal counsel on whether the funds set aside will suffice. Parties may also require that their counsel seek their approval before exceeding a set limit.

The choice of legal counsel is therefore vital if a party is to keep the costs and length of the arbitration down. Parties are encouraged to select lawyers with a reputation for efficiency and availability. Selected lawyers should also have specific arbitration expertise as opposed to litigation. In fact, there is nothing to prevent a party from interviewing or pre-screening potential legal counsels and requiring that they confirm their “availability for an efficient and reasonably expeditious schedule.”

d) Terms of Reference and Case Conferences

The terms of reference and case management conferences have been hailed as the kernel of cost effectiveness in international arbitration. Both are very useful tools for managing arbitrations in order to ensure the fast and efficient progress of arbitral proceedings as they set out framework of the arbitration from the beginning to the end.

The terms of reference are drawn and signed by mutual consent of the parties and include information relating to the parties and arbitrators, a summary of the pleas and defences of the parties, the claims, the dispute in question, and the procedural provisions which shall be applied. More importantly it may be used to compel the parties to provide case summaries in order to narrow down the issues and empowers the arbitral tribunal to decide procedural issues while dispensing with physical meetings as much as possible and using conference calls.

At this stage, parties may also consider whether it is necessary to join other parties or consolidate disputes with a view to avoiding a multiplicity of suits thereby cutting down costs and enhancing efficiency.

e) Evidence Production, the Hearing and the Award

The production of numerous unnecessary documents that are not material to the matters in dispute can spike the costs of arbitration and cause significant delays in the expeditious resolution of the dispute. It is therefore imperative that parties produce only those documents that are material to the dispute rather than all documents that are relevant to the dispute. For example, there is no need to produce documents in respect of non-controversial facts. Parties should also agree on an organised system of producing and identifying the documents and as far as possible avoid duplication and adopt a coherent system of numbering. As a general rule all documents should be submitted in electronic form and should be considered authentic unless their authenticity is challenged. As a preliminary matter, parties should consider whether it is entirely necessary to have an oral hearing, and whether the dispute can be determined on the basis of the documents produced by the parties. This can significantly cut down the on the costs of witnesses, accommodation, travel expenses, hiring a venue among others. It also greatly reduces the length of the arbitration.

The existence of a hearing agenda, a fixed timetable and time keeper as well as regular “housekeeping” sessions throughout the hearing aid in saving time. Other considerations include, whether the location of the hearing is convenient for all parties, whether the number of witnesses may be limited, whether consecutive hearing dates can be scheduled to avoid back and forth travel and minimise travel costs and conducting a pre-hearing conference in order to discuss logistics of the hearing; At the end of the hearing, parties should seriously consider whether closing submissions are necessary, and if they are, they should elect to have either oral or written submissions but not both. It will also save time and costs for the arbitral tribunal to specify the questions that they wish to be addressed in the closing submissions.

The arbitral tribunal must use its best efforts to submit the draft award to the administering institution as quickly as possible and within the timeline set by the administering institution if any and must ensure that time has been reserved in their diaries after the hearing for deliberation on the dispute. It may be prudent to select an administering institution that scrutinizes and reviews the award before it is issued as it avoids further litigation that may be initiated in local courts as grounds for setting aside the award.

Conclusion

Whereas there are a wide range of tools and devices that are available in arbitrations to ensure that the arbitration is conducted in a cost effective and efficient manner, the ultimate decision depends on the various stakeholders involved in international arbitration that are key in monitoring and determining the ultimate cost and length of the arbitration. These are, the parties to the arbitration (or in-house counsel), external counsel, the administering institution and the arbitral tribunal, all of whom have a role to play in assessing the objectives and merits of the arbitration, drafting the arbitration agreement, engaging in pre-arbitration negotiations, setting a budget for the arbitration, selecting the arbitral tribunal, determining the procedure and procedural rules applicable to the arbitration among other matters. Arbitration may indeed be cheaper than litigation. However, in the realm of international institutional arbitration, the cost effectiveness of the arbitral process requires conscious effort from the various stakeholders.

Anti-Money Laundering: Enhanced Customer Due Diligence

Posted on October 23rd, 2018

By Noella Lubano | Geoffrey Muchiri

Overview

The Proceeds of Crime and Anti-Money Laundering Act, 2009  (POCAMLA) provides for the offence of money laundering and introduces measures for combating the offence. One such measure is that financial institutions, estate agencies and designated non-financial businesses or professions such as casinos and dealers of metals and stones (collectively, the reporting agencies) are under duty to verify customer identity and to undertake customer due diligence on existing customers or clients. Parliament has now raised the bar of this duty.

Enhanced Customer Due Diligence 

Through the Finance Act, 2018, the reporting agencies shall  apply enhanced customer due diligence on business relationships and transactions with any person or company originating from countries identified by the Financial Action Task Force (FATF) as high risk of money laundering.

Further, the reporting agencies shall apply appropriate counter measures, proportionate to the risk profile of the countries subject to FATF or as advised by the Cabinet Secretary for Finance. These countermeasures include:

  • limiting or terminating business relationships or financial transactions with persons or companies, legal arrangements, or financial institutions located in high risk countries;
  • prohibiting reliance on third parties located in the high risk countries to conduct customer due diligence;
  • applying enhanced due diligence measures on correspondent banking relationships with financial institutions located in the high risk countries;
  • when considering the establishment of subsidiaries, branches or representative offices of financial institutions from high risk countries, reporting institutions shall take into account whether the financial institution is domiciled in a high risk country; and
  • submit a report listing customers and legal arrangements, originating from high risk countries to the Financial Reporting Center on an annual basis.

Conclusion

POCAMLA demonstrates the government’s commitment to enforce measures in sealing the gaps in the legislation with the increase of innovative financial startups and money remittance systems. The increased compliance procedures, due diligence requirements and counter measures will ensure both compliance with the law and maintain growth of the Kenyan economy.


Should you require further information on the POCAMLA, 2017 please contactNoella Lubano or Geoffrey Muchiri

Natural Resource (Benefit Sharing Bill) 2014

Posted on September 12th, 2018

The Natural Resources(Benefit Sharing) Bill, 2014. The Bill's objective is, among many other things, is to establish a system of benefit sharing in resource exploitation between resource exploiters, the national government, county governments and local communities; to establish the Natural Resources Benefits Sharing Authority. The bill is expected to streamline natural resource sharing between the two levels of government with specific emphasis on trickling benefits back to the communities in areas with abundant resources.

Background to the legislation

There have been numerous discoveries of various mineral resources in Kenya, such as Oil. So far, the exploitation of these minerals has been effected with very little or no benefit to the local communities. There is also increased need for Kenya to explore mineral deposits ranging from traces of oil and natural gases, coal to deposits of rare earth minerals, large aquifer of water, and coal among other minerals. This Bill is coming at an opportune moment. The Bill proposes that the exploration firms signs benefit sharing agreements with counties which will remove such projects from the realm of social responsibility and make them legally enforceable and also includes non legal benefits. This will essentially help communities living around the mining site to keep the firms legally accountable to the provisions in the agreements signed.

Principal objectives of the legislation

To establish a system of benefit sharing in resource exploitation between resource exploiters, the national government, county governments and local communities and to establish the Natural Resources Benefits Sharing Authority(NRBSA).

Related Practice areas

Oraro & Company Advocates participates in the East Africa International Arbitration Conference

Posted on September 10th, 2018

October 6, 2017

We are proud to have recently participated in the 5th edition of the East Africa International Arbitration Conference (EAIAC). The event was held in Kigali Rwanda on the 28th – 29th September, 2017. Among the guest speakers was one of our partners Noella C. Lubano who made a presentation on exploring the damages landscape (East Africa case studies). Also representing our firm was Georgina Ogalo-Omondi (Partner) who was in attendance. The EAIAC aimed to look at the economic implications of international arbitration, opportunities and Challenges. The conference was themed, “Linkages between International arbitration and Africa’s Economy.” For more about EAIAC click here.

Kipkirui Kosgei

Head of Business Development

T: +254 709 250 000/709 250 735

E: gkosgei@oraro.co.ke

About Us

Oraro & Company Advocates is a full-service market-leading African law firm established in 1977 with a strong focus on dispute resolution and corporate & commercial law. With a dedicated team of 10 partners, 4 senior associates, 10 associates, 1 lawyer and 36 support staff, the Firm has been consistently ranked by leading legal directories such as Chambers Global, IFLR 1000 and Legal 500 as a top-tier firm in Kenya.

Oraro & Company Advocates is an affiliate member of AB & David Africa.

Contact Us

Oraro & Company Advocates
ACK Garden Annex, 6th Floor, 1st Ngong Avenue
P. O. Box 51236 - 00200, Nairobi, Kenya.
T: +254 709 250 000
E: legal@oraro.co.ke | W: www.oraro.co.ke

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