The Role of Public Law in Arbitration: Key Insights from the Debate

On October 4th, 2024, ALN Academy Director, Aisha Abdallah moderated a debate hosted by the Young Arbiters Society, University of Nairobi. The debate was themed “The Intrusion of Public Law into Arbitration: Balancing Private Autonomy with Public Interest in Dispute Resolution.” Distinguished guests like Prof. Githu Muigai SC and John Ohaga SC were present as speakers for opposing sides.

For those unfamiliar, arbitration is often seen as a private, contract-based process chosen by parties to resolve disputes without the lengthy, public, and sometimes unpredictable court procedures. However, as this debate highlighted, there are times when public law considerations come into play to ensure fairness and consistency within the broader legal framework.


public law is crucial to making arbitration effective, as it provides the necessary safeguards to ensure justice and enforceability

Professor Muigai underscored that public law is crucial to making arbitration effective, as it provides the necessary safeguards to ensure justice and enforceability. On the other hand, Mr. Ohaga argued that while certain public law safeguards are essential, we should avoid an unchecked expansion of public policy into arbitration. He cautioned that concepts foreign to the parties’ original contract should not be introduced under the banner of public interest, as this might disrupt the autonomy that arbitration is designed to uphold.

The young audience was lively, posing questions that revealed a keen interest in the future trajectory of arbitration in Kenya. The discussion left the audience reflecting on how to preserve arbitration’s core principles while ensuring that it aligns with the public interest.

This event not only highlighted the expertise of the distinguished guests but also left us pondering how Kenya’s legal framework will continue to evolve in balancing public law and private autonomy in arbitration. With such minds shaping the field, the future of arbitration in Kenya looks promising.

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