by: Emmanuel Wetang’ula, Dennis C. Mungai, Patrick Nguri & Thandie Wanjiru
Introduction
The institution of arbitration stands at a critical crossroads in Kenya’s evolving legal landscape. As an alternative dispute resolution mechanism increasingly favoured for its expedition, party autonomy and confidentiality, arbitration simultaneously faces a fundamental paradox that threatens to undermine its jurisprudential maturity.[1] The veil of confidentiality that shrouds arbitral proceedings and their resultant awards, while undoubtedly a cornerstone attraction for commercial entities, inadvertently creates a vacuum of legal precedent that stifles the coherent development of arbitral jurisprudence. This article interrogates the delicate equilibrium between preserving the sacrosanct confidentiality of arbitral proceedings and the compelling public interest in fostering a transparent, predictable and robust body of arbitral law.
The publication of arbitral awards presents not merely academic interest but rather constitutes a matter of profound significance for the evolution of Kenya’s alternative dispute resolution framework. Unlike court judgments which, through their systematic publication, contribute to the tapestry of common law development, arbitral decisions remain largely sequestered from public scrutiny, creating islands of jurisprudence disconnected from the mainland of legal thought. This isolation manifests in troubling inconsistencies, stunted doctrinal development, and diminished quality control mechanisms within arbitral practice.
This article advances the proposition that a carefully calibrated approach to publishing arbitral awards, one that employs sophisticated redaction methodologies, obtains informed consent, and implements rigorous post-publication oversight, can harmonize the seemingly antithetical demands of confidentiality and transparency. Through comparative analysis with court judgments and empirical assessment of international best practices, this discourse illuminates a pathway toward responsible publication that enhances arbitral legitimacy while safeguarding commercial sensitivities.
Publishing Arbitral Awards
Whereas Court Judgements are available to the public, arbitral awards remain largely inaccessible. Decisions of the courts in Law reports contribute to the development of jurisprudence, an aspect that is foreign in Arbitration.[2] The inaccessibility of arbitral awards creates a situation where decisions are made without contributing to the legal development of the country in the evolving field of Alternative Dispute Resolution. One of the advantages of publicizing arbitral awards, even in redacted form, is that it will enhance the reasoning of arbitral tribunals when making decisions.[3] The ripple benefit will be a feeling of consistency in arbitral outcomes.[4]
The secrecy of arbitral decisions poses the threat of having decisions that are biased due to a lack of quality control.[5] Such oversight serves as scrutiny which can help identify irregularities. In the long run, this ensures that arbitrators have sound reasoning when drafting awards and that, procedural technicalities are applied consistently.[6]
Additionally, the dispute resolution process could benefit from the publication of arbitral awards. Studies have demonstrated that published awards bring to light elements such as evidentiary challenges in arbitration, and systematic and procedural flaws that can be case studies for innovation.[7] These analyses make it easy to come up with solutions to address these challenges and enhance the experience of those who seek out arbitration as an Alternative Dispute Resolution Mechanism.
Confidentiality Safeguards in Modern Arbitration
Confidentiality is a fundamental factor for parties when considering arbitration. Modern Arbitration has developed measures to protect sensitive information that allow for the publication of Arbitral awards.[8] Such measures include informed consent by parties, redaction, and post-publication oversight.[9] Parties are encouraged to identify confidential information during submissions so that Arbitral tribunals ensure that sensitive information is not disclosed. As a precautionary measure, arbitral tribunals may consider the publication of two copies of arbitral awards, one being confidential in nature and the other as a retracted version that can be made public. Moreover, institutional frameworks can be developed to monitor compliance with post-publication measures to prevent unauthorized disclosures.
Comparative Analysis of Publication of Court Judgements and Arbitral Awards
Publication of Court judgements and rulings can be justification for the publication of arbitral awards. While citing confidentiality, we have more often than not witnessed scenarios where the most obscene facts of divorce cases are published in the Kenya Law Reports. A case in point is the W.M.M vs. B.M.K [2012] eKLR,[10] where the particulars of cruelty were laid out to the public despite the Petitioner being a public figure. This publication of this case established important jurisprudence on the revocation of marriages in Kenya and expanded the scope of the grounds to be considered when seeking the dissolution of marriage to include irretrievable differences. Nonetheless, while the doctrine of confidentiality remains a critical pillar in Arbitration, this illustration contrasts with the approach in Arbitration where sensitive details that are deemed confidential are redacted and remain undisclosed hence limiting the development of arbitral jurisprudence as a mechanism of Alternative Dispute Resolution.
Implementation of Responsible Publication of Arbitral Awards
The publication of arbitral awards may adopt a procedural approach to ensure the integrity of the arbitration process and safeguard the confidential information of parties to maintain the confidence of parties.[11] Before any arbitration process, parties and also the arbitral tribunal can be referred to mandatory workshops where they are taught about confidentiality.[12] Through such platforms, both parties and the arbitral tribunal can be exposed to redaction templates and digital submission systems with encryption security features.[13] Such workshops aim to ensure that confidential information is identified and protected from the onset.
Arbitral awards can also be published responsibly by putting in place software that can generate both the original arbitral award and a copy that contains the redacted award.[14] This way confidential information can effectively be omitted from the copy of an arbitral award that is to be published.
Moreover, just like any other project, monitoring and evaluation is essential. After the publication of redacted awards, a feedback system can be put in place to collect comments and views of the public.[15] In this platform, institutions that facilitate the training of arbitrators can be required to provide comprehensive comments to ensure that they contribute to the continuous professional development of arbitrators.[16] Of importance, regular transparency reports will go a long way to ensure accountability and continuous improvement that is progressive.
Conclusion
The publication of arbitral awards represents not merely a procedural adjustment but a fundamental recalibration of arbitral practice. The traditional binary opposition between confidentiality and transparency constitutes a false dichotomy that unnecessarily constrains the development of arbitration as a sophisticated dispute resolution mechanism. The evidence compels us to embrace a nuanced approach that acknowledges both the legitimate confidentiality interests of disputing parties and the compelling public interest in developing coherent arbitral jurisprudence.
The responsible publication of arbitral awards, implemented through careful redaction, informed consent protocols, and robust institutional oversight, offers a viable pathway to enhance the quality, consistency, and legitimacy of arbitration without compromising its essential character. The comparative analysis with court judgments illustrates that sensitivity and transparency need not be mutually exclusive, as evidenced by the publication of intimate details in divorce proceedings that ultimately contributed to significant jurisprudential advancements in family law.
The path forward requires courage, innovation, and principled commitment to both confidentiality and transparency as complementary rather than competing values. By embracing responsible publication practices, the arbitration community can pioneer a model that honors party autonomy while simultaneously contributing to the development of a robust, consistent, and intellectually rigorous body of arbitral law. This balanced approach will ultimately enhance access to justice and commercial certainty in a manner that fulfills the constitutional promise of effective alternative dispute resolution.
- https://arbitrationblog.practicallaw.com/author/practical-law-arbitration, ‘The Transparency Conundrum: Will the ICC’s New Pro-Publication Approach to Arbitral Awards Win over the Majority? (Part 1)’ (Arbitration Blog15 April 2019) <http://arbitrationblog.practicallaw.com/the-transparency-conundrum-will-the-iccs-new-pro-publication-approach-to-arbitral-awards-win-over-the-majority-part-1/> accessed 26 March 2025. ↑
- Muigua Kariuki, ‘Emerging Jurisprudence in the Law of Arbitration in Kenya: Challenges and Promises Kariuki Muigua*’ <http://kmco.co.ke/wp-content/uploads/2018/08/Emerging-Jurisprudence-in-the-Law-of-Arbitration-in-Kenya.pdf>. ↑
- Elina Zlatanska, ‘To Publish, or Not to Publish Arbitral Awards: That Is the Question…’ (Ssrn.comFebruary 2015) <https://ssrn.com/abstract=2558743> accessed 26 March 2025. ↑
- Ibid ↑
- William Park, ‘Arbitrator Bias’ (2015) <https://scholarship.law.bu.edu/cgi/viewcontent.cgi?article=1014&context=faculty_scholarship>. ↑
- Eugene Thong and Yvonne Guo, ‘Reasons and Reasoning in Arbitral Awards’ [2024] Arbitration International <https://academic.oup.com/arbitration/advance-article/doi/10.1093/arbint/aiae042/7929844?searchresult=1> accessed 26 March 2025. ↑
- Amit Moza and Virendra Kumar Paul, ‘Review of the Effectiveness of Arbitration’ (2017) 9 Journal of Legal Affairs and Dispute Resolution in Engineering and Construction. ↑
- Nobumichi Teramura and Leon Trakman, ‘Confidentiality and Privacy of Arbitration in the Digital Era: Pies in the Sky?’ [2024] Arbitration International. ↑
- Ibid ↑
- W.M. M v B.M.L [2012] eKLR ↑
- ‘Arbitral Jurisprudence in International Commercial Arbitration: The Case for a Systematic Publication of Arbitral Awards in 10 Questions… – Kluwer Arbitration Blog’ (Kluwer Arbitration Blog28 May 2009) <https://arbitrationblog.kluwerarbitration.com/2009/05/28/arbitral-jurisprudence-in-international-commercial-arbitration-the-case-for-a-systematic-publication-of-arbitral-awards-in-10-questions/> accessed 26 March 2025. ↑
- Ibid ↑
- Ibid ↑
- Jane Parsons, ‘Publish and Be Damned: Should We Embrace the Systematic Publication of Arbitral Awards?’ (Arbitration Blog27 February 2017) <http://arbitrationblog.practicallaw.com/publish-and-be-damned-should-we-embrace-the-systematic-publication-of-arbitral-awards/>. ↑
- ‘Arbitral Jurisprudence in International Commercial Arbitration: The Case for a Systematic Publication of Arbitral Awards in 10 Questions… – Kluwer Arbitration Blog’ (Kluwer Arbitration Blog28 May 2009) <https://arbitrationblog.kluwerarbitration.com/2009/05/28/arbitral-jurisprudence-in-international-commercial-arbitration-the-case-for-a-systematic-publication-of-arbitral-awards-in-10-questions/> accessed 26 March 2025. ↑
- Ibid ↑