Nairobi Centre for International Arbitration Act

Section 1. Short title Section This Act may be cited as the Nairobi Centre for International Arbitration Act.

Section 2. Interpretation Section 2(1) In this Act, unless the context otherwise requires— "Board" means the Board of Directors constituted under section 6 ; "Cabinet Secretary" means the Attorney-General; "Centre" means the Nairobi Centre for International Arbitration established under section 4 ; "chairperson" means the chairperson of the Board appointed under section 6 ; "Court" means the Arbitral Court established under section 21 ; "Fund" means the General Fund established by section 17 ; "Registrar" means the chief executive officer of the Centre appointed under section 9 ; and "Rules" means the rules made under section 25 . Section 2(2) 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.

Section 3. Act to prevail Section 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.

Section 4. Establishment of the Centre Section 4(1) There is established a centre to be known as the Nairobi Centre for International Arbitration. Section 4(2)(a) suing and being sued; Section 4(2)(b) taking, purchasing or otherwise acquiring, holding, charging, leasing or disposing of moveable or immovable property; Section 4(2)(c) borrowing money; Section 4(2)(d) 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. Section 4(3) The headquarters of the Centre shall be in Nairobi.

Section 5. Functions of the Centre Section promote, facilitate and encourage the conduct of international commercial arbitration in accordance with this Act;

Section 6. Board of Directors Section 6(1)(a) a non-executive chairperson appointed by the President on the recommendation of the Cabinet Secretary from amongst the members appointed under paragraph (e); Section 6(1)(b) the Attorney-General or his representative; Section 6(1)(c) the Principal Secretary in the ministry for the time being responsible for matters relating to finance or his representative; Section 6(1)(d) the Chief Registrar of the Judiciary or his representative; Section 6(1)(e) three members, not being public officers, nominated by domestic arbitration bodies within the East African region, appointed by the Cabinet Secretary; Section 6(1)(f) the Kenya National Chamber of Commerce and Industry; Section 6(1)(f)(i) the Kenya National Chamber of Commerce and Industry; Section 6(1)(f)(ii) the Law Society of Kenya; Section 6(1)(f)(iii) the Kenya Association of manufacturers, and Section 6(1)(f)(iv) Chartered Institute of Arbitrators Kenya Branch; and Section 6(1)(g) the Registrar. Section 6(2) All the appointments in subsection (1)(e) shall reflect a regional balance. [Act No. 18 of 2018 , Sch.]

Section 7. Conduct of business and affairs of the Board Section 7(1) The conduct and regulation of the business and affairs of the Board shall be as provided in the Schedule. Section 7(2) Except as provided in the Schedule, the Board may regulate its own procedure.

Section 8. Remuneration of Board members Section The Board shall pay its members such remuneration, fees or allowances as it may determine in consultation with the Cabinet Secretary.

Section 9. Registrar Section 9(1) 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. Section 9(2)(a) has at least a degree from a recognized institution in the field of either law, finance, arbitration, economics, or insurance; and Section 9(2)(b) has at least ten years’ experience in the relevant field of practice. Section 9(3) 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. Section 9(4) 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.]

Section 10. Other functions of the Registrar Section the establishment and maintenance of the Register;

Section 11. Staff of the Board Section 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.

Section 12. Delegation by the Board Section 12(1) 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. Section 12(2) 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. Section 12(3) 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.

Section 13. Protection from personal liability Section 13(1) 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. Section 13(2) 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.

Section 14. Common seal Section 14(1) 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. Section 14(2) 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. Section 14(3) 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. Section 14(4) 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.

Section 15. Confidentiality Section 15(1)(a) under any law; Section 15(1)(b) for the performance of his duties or the exercise of his functions under this Act; or Section 15(1)(c) when lawfully required to do so by a court of law. Section 15(2) 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. Section 15(3) 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. Section 15(4) 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.

Section 16. Funds of the Centre Section 16(1)(a) such sums as may be granted to the Centre by the Cabinet Secretary pursuant to subsection (2); Section 16(1)(b) 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 Section 16(1)(c) 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. Section 16(2) 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. Section 16(3) 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.

Section 17. Establishment of the Fund Section 17(1) There is established a Fund of the Centre to be known as the General Fund. Section 17(2) The Fund shall vest in the Centre and shall be administered by the Board. Section 17(3)(a) all monies received as subventions, grants or donations to the Fund; Section 17(3)(b) such sums as may be appropriated by Parliament for that purpose; Section 17(3)(c) monies earned or arising from any investment of the Fund; Section 17(3)(d) foreign aid and assistance from bilateral and multilateral agencies; Section 17(3)(e) 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. Section 17(4)(a) educating the public on arbitration as well as on other alternative dispute resolution mechanisms; Section 17(4)(b) provision of procedural and technical advice to disputants; Section 17(4)(c) training for mediators and arbitrators; Section 17(4)(d) research, documentation and dissemination of data on arbitration; and Section 17(4)(e) any other matter incidental to the functions of the Centre.

Section 18. Financial year Section The financial year of the Centre shall be the period of twelve months ending on the thirtieth June in each year.

Section 19. Annual estimates Section 19(1) 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. Section 19(2)(a) the payment of the salaries, allowances and other charges in respect of members and staff of the Centre; Section 19(2)(b) the payment of pensions, gratuities and other charges in respect of staff of the Centre; Section 19(2)(c) the proper maintenance of the buildings and grounds of the Centre; Section 19(2)(d) the maintenance, repair and replacement of the equipment and other property of the Centre; and Section 19(2)(e) 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. Section 19(3) 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.

Section 20. Accounts and audit Section 20(1) The Board shall cause to be kept all proper books and records of accounts of the income, expenditure and assets of the Centre. Section 20(2)(a) a statement of the income and expenditure of the Centre during that year; and Section 20(2)(b) a balance sheet of the Centre on the last day of that year. Section 20(3) The accounts of the Centre shall be audited and reported upon in accordance with the Public Audit Act (Cap. 412B).

Section 21. Establishment of the Arbitral Court Section 21(1) There is hereby established a Court to be known as the Arbitral Court. Section 21(2)(a) a President; Section 21(2)(b) a Deputy President; Section 21(2)(c) not more than fifteen other members all of whom shall be leading international arbitrators; and Section 21(2)(d) the Registrar. Section 21(3) 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. Section 21(4)(a) hold office for a term five years; Section 21(4)(b) be eligible for re-appointment for one further term of five years; Section 21(4)(c) serve on a part-time basis. Section 21(5) The President shall have supervisory powers over the Court and shall be answerable to the Board. Section 21(6) The Second Schedule shall apply in respect of the conduct of the affairs of the Arbitral Court. [Act No. 18 of 2018 , Sch.]

Section 22. Jurisdiction of the Court Section 22(1) The Court shall hear and determine all disputes referred to it in accordance with this Act, the rules or any other written law. Section 22(2) A decision of the Court in respect of a matter referred to it shall be final. [Act No. 18 of 2018 , Sch.]

Section 23.[Deleted by ActNo. 18 of 2018, Sch.]

Section 24. Alternative dispute resolution Section 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.]

Section 25. Rules Section the dispute resolution techniques and processes to be administered by the Court;

Section 26. Government to be bound Section This Act shall bind the Government.