This Act may be cited as the Nairobi Centre for International Arbitration Act, 2013.
In this Act, unless the context otherwise requires—
means the Board of Directors constituted under section 6;
means the Attorney-General;
means the Nairobi Centre for International Arbitration established under section 4;
means the chairperson of the Board appointed under section 6;
means the Arbitral Court established under section 21;
means the General Fund established by section 17;
means the chief executive officer of the Centre appointed under section 9; and
means the rules made under section 25.
Despite subsection (1), until after the first election under the Constitution, references in this Act to the expressions "Cabinet Secretary" and "Principal Secretary" shall be construed to mean "Minister" and "Permanent Secretary", respectively.
Where there is any conflict or inconsistency between this Act and the provisions of any other Act in matters relating to the purpose of this Act, this Act shall prevail.
There is established a centre to be known as the Nairobi Centre for International Arbitration.
The Centre shall be a body corporate with perpetual succession and a common seal and shall in its corporate name, be capable of —
suing and being sued;
taking, purchasing or otherwise acquiring, holding, charging, leasing or disposing of moveable or immovable property;
borrowing money;
doing or performing all such other acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate.
The headquarters of the Centre shall be in Nairobi.
The functions of the Centre shall be to—
promote, facilitate and encourage the conduct of international commercial arbitration in accordance with this Act;
administer domestic and international arbitrations as well as alternative dispute resolution techniques under its auspices;
ensure that arbitration is reserved as the dispute resolution process of choice;
develop rules encompassing conciliation and mediation processes;
organize international conferences, seminars and training programs for arbitrators and scholars;
coordinate and facilitate, in collaboration with other lead agencies and non-State actors, the formulation of national policies, laws and plans of action on alternative dispute resolution and facilitate their implementation, enforcement, continuous review, monitoring and evaluation;
maintain proactive co-operation with other regional and international institutions in areas relevant to achieving the Centre’s objectives;
in collaboration with other public and private agencies, facilitate, conduct, promote and coordinate research and dissemination of findings on data on arbitration and serve as repository of such data;
establish a comprehensive library specializing in arbitration and alternative dispute resolution;
provide ad hoc arbitration by facilitating the parties with necessary technical and administrative assistance at the behest of the parties;
provide advice and assistance for the enforcement and translation of arbitral awards;
provide procedural and technical advice to disputants;
provide training and accreditation for mediators and arbitrators;
educate the public on arbitration as well as other alternative dispute resolution mechanisms;
enter into strategic agreements with other regional and international bodies for purposes of securing technical assistance to enable the Centre to achieve its objectives;
provide facilities for hearing, transcription and other technological services;
hold, manage and apply the Fund in accordance with the provisions of this Act; and
perform such other functions as may be conferred on it by this Act or any other written law.
The Centre shall be administered by a Board of Directors which shall consist of—
a non-executive chairperson appointed by the President on the recommendation of the Cabinet Secretary from amongst the members appointed under paragraph (e);
the Attorney-General or his representative;
the Principal Secretary in the ministry for the time being responsible for matters relating to finance or his representative;
the Chief Registrar of the High Court or his representative;
three members, not being public officers, nominated by domestic arbitration bodies within the East African region, appointed by the Cabinet Secretary;
one person each nominated by the following bodies respectively —
the Kenya National Chamber of Commerce and Industry;
the Law Society of Kenya;
the Kenya Association of manufacturers, and
Chartered Institute of Arbitrators Kenya Branch; and
the Registrar.
All the appointments in subsection (1)(e) shall reflect a regional balance. [Act No. 18 of 2018, Sch.]
The conduct and regulation of the business and affairs of the Board shall be as provided in the Schedule.
Except as provided in the Schedule, the Board may regulate its own procedure.
The Board shall pay its members such remuneration, fees or allowances as it may determine in consultation with the Cabinet Secretary.
There shall be a Registrar of the Centre who shall be competitively recruited and appointed by the Centre and whose terms and conditions of service shall be determined by the Centre in the instrument of appointment or otherwise in writing from time to time.
No person shall qualify for appointment under this section unless such person—
has at least a degree from a recognized institution in the field of either law, finance, arbitration, economics, or insurance; and
has at least ten years’ experience in the relevant field of practice.
The Registrar shall be the chief executive officer of the Centre and responsible for the day-to-day management of the Centre and shall be the Secretary to the Board.
The Registrar shall hold office for four years and shall be eligible for reappointment for one further term of four years. [Act No. 18 of 2018, Sch.]
In relation to the proceedings before the Court, the Registrar shall act in accordance with the instructions of the Court and shall, in particular, be responsible for—
the establishment and maintenance of the Register;
the acceptance, transmission, service and custody of documents in accordance with the Rules;
the enforcement of decisions of the Court;
certifying that any order, direction or decision is an order, direction or decision of the Court;
causing to be kept records of the proceedings and minutes of the meetings of the Court and such other records as the Court may direct; and
undertaking any other duties, in relation to proceedings before the Court, assigned by the Court for the benefit of the Court.
The Board may appoint such officers and other staff as are necessary for the proper discharge of its functions under this Act, upon such terms and conditions of service as it may determine and on advice of the Salaries and Remuneration Commission.
The Board may, by resolution either generally or in any particular case, delegate to any committee or to any member, officer, employee or agent of the Centre, the exercise of any of the powers or the performance of any of the functions or duties of the Board under this Act or under any other written law.
The Centre may, by instrument under its common seal, appoint a person, whether in Kenya or in a place outside Kenya, to be its attorney and the person so appointed may, subject to the terms stipulated in the instrument, do any act or execute any power or function which he is authorized by the instrument to do or execute.
The Centre may, in or outside Kenya, appoint any agent as it considers necessary or expedient, to perform any act on behalf of the Centre.
No act or omission by any member of the Board or by any officer, employee, agent or servant of the Centre shall, if the act or omission was done bona fide for the purposes of executing a function, power or duty under the Act render such member, officer, employee, agent or servant personally liable to any action, claim or demand whatsoever.
The provisions of subsection (1) shall not relieve the Centre of the liability to pay compensation to any person for any injury to him, his property or to any of his interests caused by the exercise of any power conferred by this Act or by failure, whether wholly or partially, of any works.
The common seal of the Centre shall be kept in such custody as the Board may direct and shall not be used except on the order of the Board.
The affixing of the common seal of the Centre shall be authenticated by the signature of the chairperson and the Registrar and any document not required by law to be made under seal and all decisions of the Board may be authenticated by the signatures of both the chairperson and the Registrar.
Notwithstanding the provisions of subsection (2) the Board shall, in the absence of either the chairperson or the Registrar in a particular matter, nominate one member to authenticate the seal on behalf of either the chairperson or the Registrar.
The common seal of the Centre when affixed to a document and duly authenticated shall be judicially and officially noticed and unless and until the contrary is proved, any necessary order or authorization by the Board under this section shall be presumed to have been duly given.
No director, officer, employee or agent of the Centre or any person who for any reason has access to any record, document, material or information relating to the business and affairs of the Centre which he has acquired in the performance of his duties or the exercise of his functions, shall divulge, publish, or otherwise disclose, to any person such document, material or information unless the disclosure is required—
under any law;
for the performance of his duties or the exercise of his functions under this Act; or
when lawfully required to do so by a court of law.
This section shall not apply to any document, material or information which at the time of the disclosure is, or has already been made, lawfully available to the public from any source.
No person who has any document, material or information which to his knowledge has been disclosed in contravention of subsection (1) shall in any manner whatsoever disclose the same to any other person.
Any person who contravenes subsection (1) or (3) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand shillings or to imprisonment for a term not exceeding three years or to both.
The funds of the Centre shall comprise of—
such sums as may be granted to the Centre by the Cabinet Secretary pursuant to subsection (2);
all monies from any other source provided for or donated or lent to the Centre including contributions, gifts or grants from or by way of testamentary bequest by any person; and
such fees, monies or assets as may accrue to or vest in the Centre in the course of the exercise of its powers or the performance of its functions under this Act or under any written law.
There shall be made to the Centre, out of monies provided by Parliament for that purpose, grants towards the expenditure incurred by the Centre in the exercise of its powers or the performance of its functions under this Act.
The receipts, earnings or accruals of the Fund and its balances at the close of each financial year shall not be paid into the Consolidated Fund, but retained for the purposes of the Fund.
There is established a Fund of the Centre to be known as the General Fund.
The Fund shall vest in the Centre and shall be administered by the Board.
The Fund shall consist of—
all monies received as subventions, grants or donations to the Fund;
such sums as may be appropriated by Parliament for that purpose;
monies earned or arising from any investment of the Fund;
foreign aid and assistance from bilateral and multilateral agencies;
all other sums which may in any manner become lawfully payable to, received by or vested in the Centre relating to any matter incidental to its duties and functions under this Act.
The Fund shall be used for meeting the capital and current expenditure relating to—
educating the public on arbitration as well as on other alternative dispute resolution mechanisms;
provision of procedural and technical advice to disputants;
training for mediators and arbitrators;
research, documentation and dissemination of data on arbitration; and
any other matter incidental to the functions of the Centre.
The financial year of the Centre shall be the period of twelve months ending on the thirtieth June in each year.
At least three months before the commencement of each financial year, the Board shall cause to be prepared estimates of the revenue and expenditure of the Centre for that year.
The annual estimates shall make provision for all estimated expenditure of the Centre for the financial year and in particular, the estimates shall provide for—
the payment of the salaries, allowances and other charges in respect of members and staff of the Centre;
the payment of pensions, gratuities and other charges in respect of staff of the Centre;
the proper maintenance of the buildings and grounds of the Centre;
the maintenance, repair and replacement of the equipment and other property of the Centre; and
the creation of such reserve funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Centre may deem appropriate.
The annual estimates of the Centre shall be approved by the Board before the commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for tabling in the National Assembly.
The Board shall cause to be kept all proper books and records of accounts of the income, expenditure and assets of the Centre.
Within a period of three months from the end of each financial year, the Board shall submit to the Auditor-General or to an auditor appointed under this section, the accounts of the Centre together with—
a statement of the income and expenditure of the Centre during that year; and
a balance sheet of the Centre on the last day of that year.
The accounts of the Centre shall be audited and reported upon in accordance with the Public Audit Act, 2003 (No. 12 of 2003).
There is hereby established a Court to be known as the Arbitral Court.
The Court shall consist of—
a President;
a Deputy President;
not more than fifteen other members all of whom shall be leading international arbitrators; and
the Registrar.
All the members of the Court under subsection (2)(c) shall be appointed competitively by the Board for a period of five years but shall be eligible for re-appointment for one further term of five years.
The President and his deputy shall be appointed by the Board and shall —
hold office for a term five years;
be eligible for re-appointment for one further term of five years;
serve on a part-time basis.
The President shall have supervisory powers over the Court and shall be answerable to the Board.
The Second Schedule shall apply in respect of the conduct of the affairs of the Arbitral Court. [Act No. 18 of 2018, Sch.]
The Court shall hear and determine all disputes referred to it in accordance with this Act, the rules or any other written law.
A decision of the Court in respect of a matter referred to it shall be final. [Act No. 18 of 2018, Sch.]
Deleted by Act No. 18 of 2018, Sch.
Nothing in this Act shall be construed as precluding the Court from adopting and implementing, on its own motion or at the request of the parties, any other appropriate means of dispute resolution. [Act No. 18 of 2018, Sch.]
The Board may make rules for—
the dispute resolution techniques and processes to be administered by the Court;
the matters reserved for the Court in the Act or any other law;
the general procedure of the Court; and
any other matter to give effect to this Act.
[Act No. 18 of 2018, Sch.]
This Act shall bind the Government.