James Nyiha features in the IR Global Disputes Virtual Series – Fairness & Impartiality: Are witnesses truly independent in your jurisdiction?

Foreword by Andrew Chilvers

Global commerce is by its nature a complex beast and it is inevitable that sometimes disputes arise between companies doing business across the world.

As more international deals are signed off – often in greater degrees of complexity than will have been done in the past – it has also led to a rise in the number of disputes that end in arbitration.

Indeed, international arbitration was the preferred method of dispute resolution for 97% of respondents in the 2018 International Arbitration Survey, conducted by the School of International Arbitration at the Queen Mary University of London, in association with White & Case LLP.

Moreover, 99% of respondents said they would recommend international arbitration to resolve cross-border disputes in the future – which shows the strength of the system across the world.

An important aspect of the arbitration process is the use of expert witnesses. There are few cases where an expert witness is not called on to give evidence on a range of technical, financial, legal and, on occasion, scientific issues to help the arbitration tribunal to understand the evidence on complex matters and help them form a decision.

Those involved in disputes must be aware of how expert – and also the fact – witnesses are used in different jurisdictions, as this can vary markedly between territories.

The independence of witnesses is a subject that crops up repeatedly – especially around who they serve, their effectiveness and how they are viewed by judges in arbitration tribunal panels.

Another factor that must be considered is the different rules between jurisdictions and the impact that can have on proceedings. Many jurisdictions have their own arbitration rules, and there are also the international ICC and IBA rules to consider, among others. Often, the litigant will try to steer proceedings to use their home rules – and if they are unfamiliar to the other party, they will need to engage experts in the local laws.

How important are cross-cultural issues regarding arbitration rules and witnesses in your jurisdiction?

It is a largely British system that is common law based: we approach things in the way that the courts do in London.

What happens is that you will have somebody from a legal system that, for example, relies on memorials and all the work he’s done before. And they don’t expect discovery and then they come to our system and find that we have issues of discovery. We go through it more like a litigation process. Then, of course, it is for the arbitrator to try and balance the two and see how to proceed.

How important is witness independence when attempting to solve complex, transnational disputes? What roles can practitioners play to test for independence?

Under Kenyan law, we have the Nairobi Centre for International Arbitration and under the rules of that centre international arbitration is free to agree on the procedure and the rules of procedure that will be used, so you don’t necessarily use local procedure. You can agree to local laws of evidence, visibility and relevance, although in this jurisdiction those very strict rules of evidence are not applicable.

The Nairobi Centre for International Arbitration has its own rules for arbitration modelled more or less according to IBA rules. This means that you can have an international arbitration going on in Kenya, but the substantive law is not Kenyan law, it is what the parties have agreed. If the parties can’t agree it will be Kenyan law that will be applicable.

Another aspect within the centre is that you can choose the seat of arbitration that you want – so you can be under the auspices of the Nairobi Centre for International Arbitration, but the seat is not in Nairobi. If there is no agreement of the seat, then the seat automatically becomes Nairobi. The issue then, of course, with all these freedoms is enforcement because you must use local Kenyan law to enforce any decision of the tribunal that comes out of the Centre.

Although IBA rules are not binding internationally, how important are they for arbitration rules in your jurisdiction?

Like in the Dominican Republic, IBA rules are generally not applied in Kenya unless parties have specifically stated that they want to apply them. Normally, in Kenya, we follow the Chartered Institute of Arbitrators rules or the Nairobi the Centre for International arbitration rules.

Here we model our rules according to the IBA rules, so we don’t need to use them as we have already copied them.