Category: Uncategorized

An allegation of judicial bias calls into question the concept of fair hearing, and the often-touted clarion call against perceptions of judicial bias is that “justice must not only be done but must also be seen to be done” – as per Lord Hewart, the then Chief Justice of England in Rex v Sussex Justices (1924) 1 KB 256.

Judicial recusal refers to the withdrawal of a judicial officer from ongoing proceedings, for reason of a conflict of interest, perceived bias or lack of impartiality. As an inherent rule, judicial officers are expected to be independent, impartial and beacons of integrity – with recusal offering a means of redress should questions arise as to the lack of the foregoing attributes in relation to a judicial officer.

The importance of recusal in fostering confidence and trust in the administration of justice was underscored by Warsame J (as he then was) in the case of Alliance Media Kenya Limited v Monier 2000 Limited & Njoroge Regeru (2007) KEHC 2518 (KLR) as follows: “In my understanding, the issue of disqualification is a very intricate and delicate one. It is intricate because the attack is made against a person who is supposed to be the pillar and fountain of justice…justice is deeply rooted in the public having confidence and trust in the determination of disputes before the Court. It is of paramount importance to ensure that the confidence of the public is not eroded by the refusal of Judges to disqualify themselves when an application has been made.”

When to Recuse Oneself?

A judicial officer should recuse himself in the event a conflict of interest arises in a matter in which he is acting. Under Regulation 20 (1) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020 (the Judicial Service Regulations) a Judge is obligated to use the best efforts to avoid being in situations where personal interests conflict or appear to conflict with his official duties.

Recusal is a matter of judicial discretion and judicial officers should recuse themselves whenever they feel they may not appear to be fair or where they feel their impartiality would be called into question. Regulation 21 of the Judicial Service Regulations, behoves a judicial officer to disqualify oneself in proceedings where his or her impartiality might reasonably be called into question, including but not limited to instances in which the judicial officer has a personal bias or prejudice concerning a party or his advocate or personal knowledge of facts in the proceedings before him. The Judicial Service Regulations are intended to ensure maintenance by judicial officers of integrity and independence of the judicial service.

A judicial officer may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned, including instances where the judicial officer:

1. i) is a party to the proceedings
2. ii) was, or is a material witness in the matter in controversy

iii) has personal knowledge of disputed evidentiary facts concerning the proceedings

1. iv) has actual bias or prejudice concerning a party
2. v) has a personal interest or is in a relationship with a person who has a personal interest in the outcome of the matter
3. vi) had previously acted as a counsel for a party in the same matter

vii) is precluded from hearing the matter on account of any other sufficient reason

viii)a member of the judicial officer’s family has economic or other interest in the outcome of the matter in question

The foregoing list is by no means exhaustive and the overriding principle is to ensure that the perception of fairness is at all times maintained as was stated by the Supreme Court in the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others (2013) eKLR as follows:

“…it is evident that the circumstances calling for recusal, for a Judge, are by no means cast in stone. Perception of fairness, of conviction, of moral authority to hear the matter, is the proper test of whether or not the non-participation of the judicial officer is called for. The object in view, in the recusal of a judicial officer, is that justice as between the parties be uncompromised; that the due process of law be realized, and be seen to have had its role; that the profile of the rule of law in the matter in question, be seen to have remained uncompromised.”

Objective Standard

Noting that bias may be easy to detect in others but difficult to detect in oneself – the standard to be applied when considering recusal is an objective rather than subjective one. As was stated by the Court in Sabatasso v Hogan 91 Conn. App. 808, 825 (2005): “The standard to be employed is an objective one, not the Judge’s subjective view as to whether he or she can be fair and impartial in hearing the case… Any conduct that would lead a reasonable person knowing all the circumstances to the conclusion that the Judge’s impartiality might reasonably be questioned is a basis for the Judge’s disqualification. Thus, an impropriety or the appearance of impropriety that would reasonably lead one to question the Judge’s impartiality in a given proceeding clearly falls within the scope of the general standard… The standard is not whether the Judge is impartial in fact. It is simply, whether another, not knowing whether or not the Judge is actually impartial, might reasonably question his impartiality, on the basis of all the circumstances.”

Doctrinal Exceptions

There may be circumstances in which judicial officers may be compelled to continue sitting, notwithstanding concerns on perceptions of bias or conflicts of interest. The “doctrine of necessity” has been used for a long time in common law jurisdictions to allow judges to sit in matters where the Court does not have an alternative competent person to adjudicate a matter before it, and thus quorum cannot be formed without him and no other competent Court can be constituted.

The “doctrine of the duty to sit” flows from the Constitution and common law. Since all judicial officers take an oath to serve and administer justice, it is implied that there is a duty to sit imposed upon them by the value and the principle of the rule of law. Judicial officers should thus resist the temptation to recuse themselves simply because it would be more convenient to do so. The doctrine requires judicial officers not to recuse themselves unless there are compelling reasons not to sit. The doctrine was discussed by the Supreme Court (Ibrahim, SCJ) in his Lordship’s concurring opinion in Gladys Boss Shollei v Judicial Service Commission (2018) eKLR stating that the doctrine safeguards a party’s right to be heard and determined before a Court of law: “Tied to the Constitutional argument above, is the doctrine of the duty of a Judge to sit. Though not profound in our jurisdiction, every Judge has a duty to sit, in a matter which he dushould sit. So that recusal should not be used to cripple a Judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every Judge takes an oath of office “to serve impartially; and to protect, administer and defend the Constitution.” It is a doctrine that recognizes that having taken the oath of office, a Judge is capable of rising above any prejudices, save for those rare cases when has to recuse himself. The doctrine also safeguards the parties’ right to have their cases heard and determined before a Court of law.”

Judicial officers must therefore take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. They should therefore not readily succumb to bullying or intimidation by a party to recuse themselves. In the case of Prayosha Ventures Limited vs NIC Bank Ltd & Others (2020) eKLR the Court (Omondi, J – as she then was) dismissed a recusal application and found thus:- “It is not lost to me that the issue of recusal was spontaneously announced once I declined to extend the orders, and there should be no pretence by Mr. Lagat that the Interested Party instructed him to apply for my recusal… I have no lien over the matter, and would be more than willing to have this matter taken over by another judicial officer, except that the manner in which the recusal is sought reeks of mala fides clothed with sharp practice, outright bullying and intimidation. That where a litigant does not call the tune and pay the piper, then the bias flag is waved all over. Indeed, for good measure, Dr Kiprono reminded this Court that his client would be considering presenting a complaint to the Judicial Service Commission over my conduct in this matter. If that was not intended to scare the daylights out of me, then I do not know why the name of my employer was being invoked at that point.”

Similarly, in Dobbs v Tridios Bank NV (2005) EWCA 468 the Court cautioned itself as follows with respect to the antics of a certain Mr. Dobbs: “… But it is important for a Judge to resist the temptation to recuse himself simply because it would be more comfortable to do so. The reason is this. If Judges were to recuse themselves whenever a litigant – whether it be a represented litigant or a litigant in person – criticised them (which sometimes happens not infrequently) we would soon reach the position in which litigants were able to select Judges to hear their cases simply by criticizing all the Judges that they did not want to hear their cases. It would be easy for a litigant to produce a situation in which a Judge felt obliged to recuse himself simply because he had been criticized – whether that criticism was justified or not. That would apply, not only to the individual Judge, but to all Judges in this court; if the criticism is indeed that there is no Judge of this court who can give Mr. Dobbs a fair hearing because he is criticizing the system generally. Mr. Dobbs’ appeal could never be heard.”

Conclusion

Judicial recusal is a fundamental principle that upholds the integrity and impartiality of the justice system. It ensures that judicial officers presiding over cases have no conflicts of interest and can deliver fair and unbiased decisions. It is essential for judicial officers to exercise their discretion judiciously when considering recusal, balancing the principles of fairness, independence, and the efficient administration of justice. Ultimately, the goal is to maintain the integrity of the judicial system and safeguard the fundamental right to a fair and impartial trial for all parties involved.

A long-held legal position on performance bonds in Kenya is that the terms of an underlying construction contract are irrelevant to a Court when deciding interdict proceedings arising from payments under an on-demand guarantee. The position is anchored upon the principle that liability under an on-demand guarantee is primary and payment by the guarantor is to be made in response to a demand, irrespective of any default under the principal contract.

Performance Bonds Defined

A performance bond is defined as a financial guarantee to one party in a contract against the failure of another party to meet its obligations. It is ordinarily issued by a bank or other financier, to ensure that a contractor fulfills its contractual obligations under a contract.

Important to performance bonds are the parties involved. The principal is the party who requests the surety to issue the bond and whose obligations are guaranteed. The obligee is the party who requires the principal to obtain the bond and who receives the benefit of the guarantee. The surety is the party who issues the bond that guarantees the obligations of the principal, such as a banking institution.

A performance bond is ordinarily triggered by the principal’s default in the performance of the bonded contract. At times, the contract specifies certain events which would constitute a “default”. More often than not however, a default is determined simply by the principal’s failure to meet a contractual obligation.

In this article, we consider a recent decision by the High Court of Kenya (Mongare J) in HCCCOMM No. E359 of 2022: Civicon Limited v Fuji Electric Co. Limited & 2 Others (the Suit) in which the Court dismissed two (2) applications seeking to restrain Equity Bank (Kenya) Limited (the Bank) from paying Fuji Electric Co. Limited (Fuji) the proceeds of a USD 2.3 million performance bond issued in Fuji’s favour (the Performance Bond).

Background to the Case

Sometime in 2018, Kenya Electricity Generating Company PLC (KenGen) and Marubeni Corporation (Marubeni) entered into a contract for the construction of a Geothermal Power Plant Project. Marubeni subcontracted its scope of works to Civicon Limited (Civicon) and Fuji who formed a consortium and entered into various agreements detailing their respective scope of works. It was also agreed by the parties that Civicon would provide and maintain with Fuji, the Performance Bond to secure its due performance under the contracts. Accordingly, Equity Bank issued the Performance Bond to Fuji in the sum of USD 2.3 million on behalf of Civicon.

In 2022, a dispute between the parties arose from Fuji’s decision to call up the said Performance Bond which Civicon alleged, inter alia, to have been done in breach of the relevant agreements signed by the parties. Civicon therefore filed a suit accompanied by an application in which it sought and obtained an interim order restraining the Bank from effecting any payment to Fuji arising out of the Performance Bond (the Status Quo Order).

The Stay Application

By a Notice of Motion application dated 30th September 2022 (the Stay Application), Fuji applied to stay the Suit and the proceedings filed by Civicon. The Stay Application was based on grounds that, they concerned a dispute regarding Fuji’s right to call up the Performance Bond, which was subject to an arbitration clause under the various agreements entered into between the parties. Fuji submitted that the parties expressly ousted the jurisdiction of the High Court in electing to resolve any dispute arising between them by way of arbitration.

Civicon opposed the Stay Application on grounds that the issue of calling up or not of the Performance Bond is not an arbitrable matter within the framework of the arbitration clause contained under the various agreements. Further, Civicon argued that the dispute in the matter involves the Bank which is not privy to the agreements whose arbitral clause Fuji purported to invoke.

The High Court Decision

By way of a Ruling delivered on 12th June 2023 (the Ruling) Hon. Lady Justice Mongare (the Judge) allowed Fuji’s Stay Application on grounds, amongst others, that it was expressly intended that all disputes between the parties, including a dispute concerning the Performance Bond, be resolved by way of arbitration. The Judge considered the fact that Civicon’s Suit and its application was hinged upon whether or not Fuji had a right to call up the Performance Bond on account of the various claims it had against Civicon and found that the Performance Bond was a creation of the agreements from which the arbitral clause emanated.

For the said reasons, the Judge stayed the proceedings in the Suit pending reference of the matters raised therein to arbitration and also set aside the Status Quo Order restraining the Bank from effecting any payment to Fuji arising out of the Performance Bond.

The Section 7 Application

Notwithstanding the stay order and the Ruling, Civicon proceeded to file another application before the High Court under section 7 of the Arbitration Act, 1995 (the Arbitration Act) in which it sought and was granted, an interim measure of protection restraining the Bank from effecting any payments arising out of the Performance Bond to Fuji, pending conclusion of the arbitration proceedings (the Section 7 Application).

Civicon anchored the Section 7 Application on grounds amongst others, that if the Bank were to honour the Performance Bond, the substratum of the arbitral proceedings would be eroded.

In response thereto, Fuji raised a preliminary jurisdictional issue that the Court, having stayed the proceedings and directed the parties to submit their dispute to arbitration, was now functus officio and could not make any further orders in the matter.

The Judge delivered a Ruling on the Section 7 Application on 15^th August 2023 (the Section 7 Ruling), the upshot of which was that the Court agreed with the arguments proffered by Fuji, specifically that the Court, having already rendered its decision in the matter, is now bereft of jurisdiction and could not make any further orders therein. Accordingly, the Judge dismissed the Section 7 Application and once again, vacated the interim Orders restraining the Bank from effecting any payment to Fuji arising out of the Performance Bond.

Upshot

The High Court’s decision sets an important precedent in two (2) respects. Firstly, where parties have expressly ousted the jurisdiction of the Court in deciding that any dispute arising between them be settled through arbitration, the Court is duty bound to uphold the arbitration agreement between them. This is notwithstanding the fact that the dispute arose from a decision to call up a performance bond in which the principal is not privy to. The fact that the Performance Bond was a creation of the agreement between the parties in which the arbitral clause emanated from is sufficient for the Court to hold parties to the terms of their agreement.

Secondly, a Court will be reluctant to grant interim measures of protection where it has already stayed the matter and referred the proceedings to arbitration. This principle is anchored upon the basis that the Court is functus officio i.e. it has already rendered its decision in the matter and therefore lacks the power or jurisdiction to make any further orders until the arbitration process is finalized.

The Sanctity of Performance Bonds

In rendering its decisions, the High Court has affirmed the sanctity and commercial importance of on-demand guarantees. The very nature of an on-demand-guarantee means that it is payable unconditionally upon demand. By agreeing to provide a bond which is payable on demand, a principal agrees that the bond may be called pending resolution of any dispute with the counterparty beneficiary. It therefore requires strict compliance and its enforcement is neither dependent nor affected by any underlying dispute between the parties.

As was aptly put by the High Court in Eli Holdings Ltd v Kenya Commercial Bank (2020) eKLR:

“A bank guarantee is an autonomous contract which requires strict compliance to its terms. The Bank has no obligation to question the performance or otherwise of the obligations of the parties in the underlying contract…As a general proposition, a demand guarantee is independent of the primary contract and will not be affected by a dispute between the parties to the underlying transaction.”

As Civicon has lodged an Appeal against the initial Ruling, it will be interesting to see what the Court of Appeal makes of the matter. For now, we align ourselves with Lord Denning in the case Edward Owen Engineering Ltd. v Barclays Bank International Ltd. and Another (1978) 1 All ER 976 where the learned Judge opined that:

“The performance bond given by the bank is a binding international obligation payable on demand. If an interim injunction were granted in a case of this sort it would affect the pattern of international trading. There is no reason why the bank should be involved in disputes between buyer and seller.”

Competition & Tariff Commission v. Ashram Investments (Private) Limited and Others (91 of 2024) 2024 ZWSC 91 (3 October 2024).

The recent Supreme Court judgment has sparked interest on the role and powers granted to the Competition Tariff Commission (CTC) under the Competition Act [Chapter 14:28] (the Act), particularly in merger approvals and penalty enforcement for non-compliance with notifiable merger rules. To prevent prejudicial monopolistic tendencies and promote public interest, courts have shown reluctance to interfere with CTC decisions, thereby discouraging disregard for the law and promoting competition.

BACKROUND

Innscor Africa Limited is a company that wholly owns Ashram Investments Limited. In 2013 Ashram wanted to acquire 59% shareholding in both Podutrade (Pvt) Limited and Profeeds (Pvt) Limited to which CTC did not approve. In 2015 the parties decided to go further with the merger under 49% shareholding and only notified the CTC about the merger (3 years 9 months later)  in February 2019 after their new legal practitioner had advised them to do so in December 2017. The biggest challenge with the merger being that Innscor has shares in National Foods. National Foods and Profeeds are the largest and second largest competitors in the stock feed market and Innscor also has shares in Irvine’s which is a major customer of both. The merger raised concerns over a monopoly being created in the stock feeds market and controversy as to what constitutes a merger contrary to public interest.

OBJECTIVE

This commentary highlights key points from the case law under review.

WHAT IS A MERGER IN ZIM LAW

Section 2 of the Act” defines a merger as the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer or other person whether that controlling interest is achieved as a result of the purchase or lease of the shares or assets, amalgamation or any other means, of a competitor, supplier, customer or other person;

DEGREE OF JUDICIAL OVERSIGHT

A reading of the Preamble and s5 of the Act show that the intention of the legislature was to create a specialised body that fosters competition, prevent restrictive practices, and regulate mergers and monopolies in Zimbabwe. The court recognised that CTC has all due responsibility to decide which practices are harmful or not to competition. This also means the decisions of CTC will not be lightly interfered with without fully taking into consideration the relevant laws which it has to comply with. The fear of the courts is that if every decision of the CTC can be lightly interfered with then it defeats reasons for its creation, encourage companies to disregard the law, form monopolies or indulge in unlawful conduct. Hence the role and decisions of the CTC are not only regulatory but penal and deterrent in nature thus encouraging lawful competition.

NOTIFIABLE MERGER: LEVEL OF SHARE HOLDING VS THRESHOLD SET BY THE MINISTER.

One of the Arguments raised by the Respondents in this case was that the reason for the failure to timeously notify CTC was due to the fact that a 49% shareholding is a threshold below 50%. However in Zimbabwe, under SI 126 of 2020 section 5, merging companies whose combined annual turnover in or from Zimbabwe or whose combined assets in Zimbabwe are valued at or more than ZW$ 10 000 000.00 have the prerequisite responsibility of notifying CTC of the merger within 30 days of conclusion of the merger agreement (s34A (1) (a) of the Act).This means a company can have a shareholding of 5% and still be required to notify CTC. It is not about the level of shareholding but whether one meets the threshold set which is something companies should be wary of.

MONOPOLY

A monopoly is a situation in which a single person exercises, or two or more persons with a substantial economic connection exercise, substantial market control over any commodity or service (s2 of the Act). The future of competition in the stock feed market is high as it has also been joined by players such as the Korea Programme for Innovation on Agriculture (KOPIA) forging deeper agriculture and trade cooperation in Zimbabwe. However, with competition also comes the desire for major players to remain in control which is not bad as it is the aim of every corporate, however, monopoly means it gets to the point where one player controls the economy with the option of providing goods at exorbitant prices or substandard goods.

CTC MERGER EVALUATION CRITERIA: EFFECT ON PUBLIC INTEREST.

TEST- WHAT IS THE REASONABLE LIKELIHOOD OF A MONOPOLY OCCURING: LONG-TERM EFFECTS.

Before the CTC approves of a notifiable merger, one of its critical considerations is the broad test in s32 (4) of the Act, ‘the likelihood of events’. Is there a likelihood that the merger will lessen among other things competition or will likely result in a monopoly situation. The likelihood of a monopoly also means the merger is contrary to public interest.

National Foods and Profeeds being the largest and second largest stock feed competitors was already befitting of the likelihood of a monopoly being formed. With the Influence of Innscor as stated by the court, Profeeds stock feeds shops went from 19 to 40 and Innscor’s share in the market had risen to 57% with the next biggest competitor at 11%. The fact that there are 20 other players in the market or the fact that there has been an increase in employment is not enough to rule off the likelihood of the merger being against public interest.

‘The Commission should not only look into the current effects of the merger or those of the near future.  It should consider these and also look into the likely effects of the merger in the long-term.  It should not adopt a simplistic approach to the assessment of the long-term effects of a merger but should be guided by the reasonable likelihood of such events occurring.’

This means initially the monopoly might look favorable by creating employment and programs like the training of farmers. However, ‘in the long run’ means when there is potential of a concentration in power then what the future holds for the stock feeds market and for the livestock industry as a whole is the likelihood of:

• An increase in prices which the consumer would be forced to adhere to as the industry will scarcely have any competition.
• The likelihood of substandard goods being produced at high prices.
• Small businesses struggling to compete and forced to close.
• Barriers to entry into the market
• Elimination of effective competition

Thus in Zimbabwe the most crucial take for a merger to be approved is not more about its economic benefit to the merging parties but whether it is in line with competition law and policy and its outlook in the long run. It is the discretion of the CTC on whether there is an existence of a monopoly in the long-run and whether it is prejudicial to competition.

PENALTY CLAUSE: S34A (4) INTERPRETATION OF PRECEDING FINANCIAL YEAR

The failure to notify CTC of a notifiable merger gives the CTC discretion to impose a penalty that may not exceed ten per centum of either or both of the merging parties’ annual turnover in Zimbabwe as reflected in the accounts of any party concerned for the preceding financial year.

The issue was whether the preceding year for the calculation of a penalty is the year preceding the notification of a merger or the year preceding the merger.

The Court did not explicitly address the issue however, the appeal succeeded in favour of CTC in its entirety with the question imposed being one of the grounds for appeal. Thus preceding financial year means the year preceding the imposition of the penalty.

FACTORS CONSIDERED IN THE EVALUATION OF A PENALTY.

According to section 34A (5) of the Act When determining an appropriate penalty, the Commission shall consider the following factors—

(a)        the nature, duration, gravity and extent of the contravention; and

(b)        any loss or damage suffered a s a result of the contravention; and

(c)        the behaviour of the parties concerned; and

(d)        the market circumstances in which the contravention took place; and

(e)        the level of profit derived from the contravention; and

(f)        the degree to which the parties have co-operated with the Commission ; and

(g)        whether the parties have previously been found in contravention of this Act.

Whether you fail to give notice within the stipulated time or you continue with the merger without approval all factors above will be considered as a whole and it is on all of these factors that determines whether CTC can impose a penalty or not.

CONCLUSION

The recent Supreme Court Judgment sheds light on merger regulation and competition law in Zimbabwe. The CTC has the  responsibility and discretion to approve  mergers based on its relevant laws and policy to which the courts will not lightly interfere with. Further, there is a broad criteria for the evaluation of mergers. For this reason it is recommended to consult with knowledgeable counsel when undertaking a merger and where parties are not clear seek an advisory opinion from the CTC before undertaking a merger.

Living in the digital age has seen a surge in the monetisation of data, especially in the platform economy, where personal data relating to human behaviour is especially valuable. Personal data now forms an integral part of business models particularly for businesses in zero price markets. As such, businesses compete to acquire and access as much personal data as possible so as to gain a competitive advantage over their rivals. The increased use of personal data brings the intersection of the laws relating to data protection and competition into sharper focus.

Regulatory Framework

Data Protection is regulated by the Data Protection Act, 2019 (the DPA). Sections 25, 26 and 32 of the DPA provide for the principles of data protection, the rights of a data subject as well as the conditions of consent for processing data. These sections mirror articles 5, 7 and 13 to 23 of the European Union General Data Protection Regulation (EU GDPR). These provisions work towards ensuring, inter alia, that personal data is “collected for explicit, specified and legitimate purposes and not further processed in a manner incompatible with those purposes”. They also accord a data subject the right “to object to the processing of all or part of their personal data and withdraw their consent at any time”. Notably, when assessing whether consent is given freely, the Office of the Data Protection Commissioner (the ODPC) takes into consideration, among other things, whether “provision of a service is conditional to consent being given”.

On the other hand, the Competition Act, 2010 (the Competition Act) regulates competition in the market, with the Competition Authority of Kenya (CAK) established as the regulator. Focal to this article are the restrictive trade practices prohibited by sections 21 to 24 of the Competition Act. Sections 23 and 24, in particular regulate dominant undertakings and prohibit conduct which amounts to an abuse of their dominance. These sections adopt the interpretation of Article 102 of the European Union Treaty on the Functioning of the European Union (TFEU).

Abuse of Dominance

In Hoffmann-La Roche & Co. AG v Commission of the European Communities (1979) I-00461, abuse of dominance was defined as the practice of an undertaking in a dominant position to influence the structure of the market, whose result is that of hindering com- petition, through methods that depart from those which condition normal competition.

The Competition Act and the TFEU have consolidated the fol- lowing trade practices that are deemed an abuse of dominance:

i) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;

ii) limiting or restricting production, market outlets or market access, investment, distribution, technical development or technological progress through predatory or other practices;

iii) applying dissimilar conditions to equivalent transactions with other trading parties;

iv) making the conclusion of contracts subject to acceptance by other parties of supplementary conditions which by their nature or according to commercial usage have no connection with the subject-matter of the contracts; and

v) abuse of an intellectual property right.

In Lietuvos geležinkeliai AB v Commission (2020) EU:C: 2023:12 the Court opined that “the list of abusive practices contained in Article 102 does not exhaust the methods of abusing a dominant position prohibited by EU law”. However, the abuses are largely classified as either exclusionary or exploitative in nature. Examples of exclusionary abuses are those in which a dominant undertaking enters into exclusive dealing agreements or offers conditional rebates, whereas examples of exploitative abuses include excessive pricing, price discrimination or unfair trading practices.

The Intersection

As mentioned above, the platform economy commercialises the use of personal data which brings about the interplay between data protection law and competition law. Data subjects who consent to the use of their data, are also consumers in the same respect. Whereas the ODPC is concerned with harmful privacy practices by platforms, the CAK looks out for restricted trade practices that harm the consumer or distort competition. Recently, these regulatory obligations have overlapped one another, as can be seen in the following cases:

Amazon Marketplace

Amazon plays dual roles on its platform: being a marketplace as well as an online retailer. Amazon provides a space for online retailers to sell their products while also selling its own-branded products, in competition with those online retailers. By virtue of its role as a marketplace, naturally, Amazon has access to the data of the retailers. Such data includes statistics on order and shipment numbers, the retailers’ turnover as well as their growth over the years. This data can show different strategies employed by sellers to achieve financial growth or otherwise.

Amazon is said to have used this data without the retailers’ (freely given) consent to gain a competitive advantage over the retailers as the data formed a basis for Amazon’s own business strategies. As such, in July 2019, the European Union Commission (EU Commission) launched investigations into Amazon’s conduct of using retailers’ non-public seller data. In 2022, the EU Commission is- sued a Statement of Objection. It held a preliminary view that Amazon abused its dominant position and circumvented the usual risks of competition exclusively as a result of its access to its competitors’ non-public data.

In this case however, the EU Commission did not make a final de- termination on whether the conduct was anti-competitive. Amazon offered commitments to stop using the retailers’ data prior to the completion of investigations, which the EU Commission accepted. Nevertheless, it is evident that the EU Commission is likely to deem the data breaches by Amazon as anti-competitive upon conclusion of the investigations.

Meta: Facebook Social Network

Meta Platforms, the company that houses social networks: Face- book, WhatsApp, Instagram and more recently Threads, has come under fire for data privacy breaches which have been deemed anti-competitive. Following several years of investigations, the Federal Cartel Office (FCO) in Germany found that Meta had made the use of Facebook accounts by German citizens conditional on Meta’s processing of their third-party data (which they term “off-Face- book data”). Thereafter, the FCO prohibited Meta from doing so and further ordered Meta to make it clear that the said personal data would neither be collected nor used without the consent of a Facebook user, nor will the use of the network be made conditional on consent.

Dissatisfied with this decision, Meta filed a case against the decision to the Düsseldorf Higher Regional Court. The Regional Court in turn raised concerns and saw it fit to stay further proceedings and refer a number of questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling. The crux of the matter was whether a national competition authority could find that the EU GDPR had been infringed, whilst investigating an undertaking’s abuse of dominance.

On 4th July 2023, the CJEU delivered its Judgment in Meta Plat- forms and Others v Bundeskartellamt (2023) EU:C:2023:537 and held inter alia as follows:

“It follows that, in the context of the examination of an abuse of a dominant position by an undertaking on a particular market, it may be necessary for the competition authority of the Member State concerned also to examine whether that undertaking’s conduct complies with rules other than those relating to competition law, such as the rules on the protection of personal data laid down by the GDPR.

…access to personal data and the fact that it is possible to process such data have become a significant parameter of competition between undertakings in the digital economy. Therefore, excluding the rules on the protection of personal data from the legal framework to be taken into consideration by the competition authorities when examining an abuse of a dominant position would disregard the reality of this economic development and would be liable to undermine the effectiveness of competition law within the European Union.”

Meta: Threads Social Network

July 2023 proved a busy month for Meta. Notwithstanding the unfavourable Judgment received in Meta v Bundeskartellamt, on 6th July, Meta launched a new social media network, Threads (the App) which has already received widespread scrutiny and criticism and is potentially under investigation by the US Federal Trade Commission (FTC). It is reported that sources within Meta have disclosed that they are delaying the App’s launch within the European Union due to “legal uncertainty”. This can be attributed especially to the recently released EU Digital Markets Act, which has seen Meta classified as a “gatekeeper” giving the tech giant addition- al regulatory obligations.

The App’s criticism is attached to privacy as well as antitrust concerns. To begin with, the App mandates that new users ought to have an Instagram account and users who intend to delete the App, would have their associated Instagram account deleted as well. This is an overt attempt at tying the App to Instagram, an abuse of dominance contrary to the Competition Act, TFEU and Antitrust laws globally.

With respect to privacy breaches, it has been observed that the App fails to seek users’ consent to track, collect and process sensitive personal data such as the users’ health conditions. The purpose of these activities is to sell that personal data to vendors, who would then advertise to the users medication related to their health issues. Meta has relied on legitimate interest as a reason for collecting the said sensitive personal data. However, it can be contended that explicit consent is a requirement prior to the processing of sensitive personal data, especially when the purpose for collecting the data is targeted advertising. Anything contrary to the foregoing may be deemed to be a privacy breach as well as an abuse of dominance.

The App, having been launched recently, is still under scrutiny by the global antitrust watchdogs and if the recent trend is anything to go by, sanctions from the said watchdogs would not come as a surprise.

Once the journey of life comes to its inevitable end, the task of laying one’s dearly departed to rest becomes an essential and sacred responsibility. The right to bury loved ones, grounded in a rich tapestry of cultural, religious, social and legal traditions, is a fundamental aspect of human dignity and compassion. It is a right that transcends borders, beliefs, and backgrounds, underscoring a shared value across humanity. In this article, we delve into the right to bury the deceased, exploring the legal dimensions through the precedent set by Courts in Kenya.

The Right to Bury

The right to bury is an inalienable right as human dignity demands as much – harking back to the great Greek playwright Sophocles’ play, Antigone, when in stark disobedience of Creon’s rules, Antigone insists on giving her brother, Polyneices, a decent burial, rather than have his corpse lie in the open, to be devoured by dogs and vultures. In Kenya, what has been the subject of numerous litigious proceedings is the priority given to the bearers of this inalienable right. At the heart of these type of proceedings has invariably been the spouses and kin of the deceased, each asserting their precedence over the other.

Most recently, the decision of the High Court at Nairobi (Ogola J) in Zipporah Masese Onderi v Joseph Ontweka & 3 Others (Civil Appeal No. E048 of 2023) reignited the controversy once more. Typically, the circumstances of the matter pitted the deceased’s widow, who was the Appellant, against the deceased’s brothers in a legal battle to determine the deceased’s final resting place.

In tipping the scales towards the widow, the Court held that the nuclear family of a deceased person has the priority right to bury their loved ones unless exceptional circumstances arise to render them undeserving of doing so.

Given that the likeness of the applicable customs, the Court’s decision in Zipporah Masese Onderi v Joseph Ontweka & 3 Others, was persuaded by an earlier decision rendered by the High Court in Nakuru (Maraga J – as he then was) in Oliver Bonareri Omoi & 5 Others v Joseph Baweti Orogo (2010) eKLR. The Court was once again forced to play umpire in a push-and-pull between the widower and children of the deceased and ultimately decided that the children had the priority right over the deceased’s estranged husband, who was the Respondent in the matter, to bury their late mother. In reaching its determination, the Court in Oliver Bonareri Omoi & 5 Others v Joseph Baweti Orogo was guided by the deceased’s final wishes and the nature of her relationship with her estranged husband, both of which extinguished his right as a widower to bury her.

Such has become the principle that has been pronounced by Kenyan Courts, thus putting to question the right of the kin to bury the deceased, who was also their loved one in equal measure. The precedent set by Kenyan Courts on this matter is that whereas the deceased’s

kin are indeed deserving of this right, it is however subject to an order of priority that was set out succinctly by the Court of Appeal in SAN v GW (2020) eKLR being: the spouse, children, parents and siblings of the deceased, in that order.

As demonstrated above it is pertinent to note, nonetheless, that the right to bury is not absolute. It may be extinguished by numerous factors among them being the deceased’s wishes which, though not legally binding, the Courts have refrained from overlooking, and a person’s conduct towards the deceased.

Generally, the Court has to consider all the circumstances of the case before rendering its decision on the right to bury. This was demonstrated in Samuel Onindo Wambi v COO & Another (2015) eKLR where the Court of Appeal found that although Luo customary law dictates that a wife should be buried in her husband’s home, the deceased was buried in Kakamega in line with her wishes given the ill treatment she had been subjected to by her husband’s family during and after the subsistence of their marriage.

Similarly, in SAN v GW while the Court of Appeal set out the order of priority with respect to the right to bury, it further clarified that this order of priority ought to be considered in light of the relationships maintained between the deceased and the persons claiming the right. In so doing, the Court held that while Luo customary law dictates that the first wife has the priority right to bury, the second wife’s right in this case superseded the first wife’s, given the strained relationship the first wife had with the deceased.

The Role of Customary Law

The loss of a loved one is an emotionally delicate matter that can easily lead to conflict among surviving family members. The catalyst in the ensuing conflict, at least as far as African societies are concerned, is usually the customs at play. More often than not, the surviving spouse tries to assert a position contrary to what the deceased’s customs provide for, leading to fierce opposition from the deceased’s kin.

Such was the case in the locus classicus case of Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another (1987) eKLR, concerning a burial dispute over renown lawyer S. M. Otieno, and is thus commonly referred to as the “S. M. Otieno case”. Here, the kin’s reverence for Luo customary law was met on the battlefield by the widow’s complete disdain for it. In making arguments that Luo customary law did not apply and that the deceased should not be buried in Nyalgunga, his ancestral home, his widow, Wamboi Otieno, stated that; their marriage was governed by the Marriage Act, (Cap. 150) Laws of Kenya and not customary law, that no dowry was paid by the deceased, and that in fact, none was demanded by her parents, and that since marrying her, the deceased had practised Christianity and the Luo customs and traditions were therefore irrelevant. It was her case that the deceased had expressed the wish to be buried either in Nairobi or Matasia and that only she, and her sons, had any say in how to dispose of the remains of the deceased.

After careful consideration of the facts brought before him, Bosire J (as he then was) ordered that the deceased be buried in his ancestral home. In his disposition, Justice Bosire found that Luo customary law applied and dictates that the deceased’s final place of rest is determined by his or her family members and that this custom does not exclude women from being involved in the decision making. Accordingly, both the widow and the deceased’s kin in this case had equal right to make that call. However, because they could not reach a consensus, the Court was guided by the deceased’s wishes which stipulated that he desired to be buried next to his father in his ancestral home.

The facts of the S. M. Otieno case are strikingly similar to those in Zipporah Masese Onderi v Joseph Onwteka & 3 Others, save for the fact that Kisii customary law applied to the latter and the deceased therein had not made clear pronouncements on where he wished to be buried. In further developing the principles underpinning the right to bury, the Court found that Kisii customary law and Article 45 of the Constitution mirror each other, in the sense that they are highly protective of the basic unit of the family, which is the nuclear family.

In the same breath, Kisii customary law demands that the widow/ widower of the deceased has the priority right to bury their spouse. Given that the deceased in this case had not made his burial wishes known clearly, the Court was guided not only by Kisii customary law but also the Constitution in reaching the determination that the deceased would be buried in his matrimonial home.

It may therefore be said that the role of customary law is akin to that of a tiebreaker where the loved ones of the deceased are at loggerheads, and there being no clear line of priority being drawn. In this regard, customary law plays a persuasive role, to be weighed against other equally applicable factors such as the deceased’s final wishes and the relationship of the kin to the deceased during the deceased’s lifetime.

The Takeaway

Ironically, an individual’s right to bury their loved ones is one that has to be balanced with the very same right borne by other loved ones of the very same deceased person. It is not an absolute right as it may be overridden by other factors such as the deceased’s final wishes.

As death is sometimes sudden and untimely, it is not always possible for pertinent discussions on final wishes to be held. In such instances, the Court will, where family members are torn, decide the final resting place of the deceased under the guidance of the customary law applicable to them.

At the end of the day, the loss of a loved one remains an intensely painful experience, affecting all who are touched by its melancholic embrace. Amidst the disputes and conflicting emotions that arise, it becomes clear that the ultimate goal should transcend the battles and strife. The paramount objective lies in ensuring that our dearly departed find solace in their final resting place. In the depths of grief, it is crucial to find common ground, and embrace compassion and empathy for one another.

Nominated Senator, Crystal Asige, tabled the Persons with Disabilities Bill, 2023 (the Bill) before the Kenyan Senate on 22nd March 2023. The Bill seeks to replace the Persons with Disabilities Act (Cap. 133) Laws of Kenya (the Act), which has been in place since 16th June 2004. The Bill also intends to restructure the National Council for Persons with Disabilities (NCPWD) and provide an institutional framework for the protection, promotion and monitoring of the rights of persons with disabilities (PWDs).

The Bill is premised on Article 54 of the Constitution, which imposes an obligation on the State to ensure that the rights of PWDs are respected and upheld. The Bill also addresses the evolving needs of PWDs, ensuring that they are fully integrated in society. The Bill demonstrates Kenya’s commitment to complying with the Convention on the Rights of Persons with Disabilities by improving the standards of living and day to day activities of PWDs residing in Kenya.

The Bill was passed by the Senate on 21st February 2024 and is currently before the National Assembly for consideration. This article seeks to highlight some salient provisions of the Bill.

Greater Appreciation of PWDs’ Rights

PWDs will have the right to employment and will not be disqualified or terminated based on their disability. The Bill supports this by mandating employers to reserve at least five percent (5%) of employment opportunities for PWDs. The Bill additionally proposes that employees with disabilities serve an additional five (5) years, beyond the normal retirement age prescribed by the government. This translates to a retirement age of sixty-five (65) years for such employees with disability, as opposed to the current sixty (60) years stipulated in the Act.

The issue of termination of employment was addressed in the case Lucy Chepkemoi v Sotik Tea Company Limited (2022) eKLR where the Court noted that disability is not inability. Therefore, disability alone does not in itself amount to lack of capacity to discharge one’s professional duties, to warrant termination of employment.

Secondly, PWDs have the right to protection in all risky situations including armed conflicts, humanitarian emergencies and natural disasters. All institutions are required to obtain data relating to PWDs and share the same with agencies responsible for disaster management. In risky situations, PWDs are to be prioritised by the responding agencies, in the appropriate intervention mechanisms e.g., evacuation etc.

Thirdly, all PWDs have the right to effective access to justice on an equal basis with others. This will be done by exempting them from paying Court fees and providing them with braille services and sign language interpreters when they attend Court. The Attorney General, in consultation with the Law Society of Kenya, will also be required to develop regulations that provide free legal services to PWDs in certain situations, including matters involving infringement of their rights and fundamental freedoms.

Lastly, every PWD has the right to obtain registration documents e.g., a disability card, national identity card, birth certificate, passport etc. These documents will serve as proof of identity when a PWD seeks education, health care services and employment opportunities.

Incentives for PWDs

The Bill provides various incentives to PWDs. Firstly, an employee with a disability can be wholly or partially exempted from paying income tax on employment income. This is after an application for exemption is approved by the Cabinet Secretary responsible for matters relating to finance (the Cabinet Secretary) . Previously, a PWD could only apply for a tax exemption after undergoing a vetting process to determine if the applicant had a disability. In Issue 18 of Legal & Kenyan published in October 2023, we featured an article in which we discussed whether the tax exemption process for PWDs was superfluous. The article concluded that the vetting process was indeed superfluous as it was an unnecessary obstacle to PWDs who are seeking tax exemptions, since PWDs in seeking the exemption, would have already undergone a mandatory medical examination in advance.

The issue of vetting for purposes of exemption was addressed in HKK v National Council for Persons with Disability & Another (2023) KEHC 2418 (KLR) where the NCPWD had declined to renew the exempt status of the petitioner, under the Persons with Disabilities (Income Tax Deductions and Exemptions) Order 2010 despite having furnished the NCPWD with the required documents including a medical report certifying her disability. Consequently, the Court observed among others, that the failure by the NCPWD to renew her exemption deprived her of equal protection under the law, dignity and respect contrary to Articles 27, 28 and 54 of the Constitution.

Secondly, the Bill exempts tools and equipment used by PWDs from import duty and value added tax. This is a good addition as it makes these accessories more affordable and accessible to PWDs.

Finally, PWDs will be afforded an equal opportunity to access financial credit, for example bank loans, mortgages etc. Access to financial credit reduces dependance on others as it allows PWDs to fund their education or business ventures thereby sustaining themselves.

Enhanced Penal Consequences for Offences

Notably, the Bill has significantly enhanced protection for PWDs by augmenting the penal framework relating to offences against them, both in terms of increasing the punishment of existing offences under the Act and introducing new offences which presently do not feature under the Act. An example is the offence of concealment of PWDs. Under the Act, the penalty is only a fine not exceeding KES. 20,000. However, the Bill has increased the fine tenfold to KES. 200,000 or up to one (1) year imprisonment, or both.

There are also new offences proposed under the Bill, such as performance of a procedure by a medical practitioner, resulting in the infertility of a PWD. This offence will attract a hefty fine of up to KES. 3,000,000 or up to four (4) years imprisonment, or both. Another example is the intentional denial of food or fluids to a PWD by a person exercising care or responsibility over the PWD, which will attract a fine of up to KES. 200,00 or up to one (1) year imprisonment, or both.

Further Accommodation of PWDs

The Bill also proposes a raft of measures to further accommodate PWDs in their day-to-day life.

First, owners of public service vehicles (PSVs) would be required to modify their vehicles to suit PWDs. Once the modification is made, they may apply to the Cabinet Secretary for Finance for twenty-five percent (25%) of the modification cost. This would cushion the owners of PSVs from having to bear such costs. The proposed modifications would promote inclusion of PWDs in the transport sector and eliminate barriers that currently impede PWDs from fully enjoying public transport services.

Secondly, commercial and residential houses built by government agencies will reserve at least five percent (5%) of the units to PWDs, with favorable payment conditions like longer repayment periods.

This will address the barriers that PWDs face in the real estate market. Similarly, five percent (5%) of market stalls would be reserved for PWDs. This would foster economic independence as it would allow PWDs to engage in commercial activities.

Thirdly, all government departments would be required to have a disability mainstreaming unit headed by a member of the department. The disability mainstreaming unit would be responsible for ensuring compliance with the Bill’s provisions and discussing disability matters with the NCPWD. This would significantly contribute to the development of inclusive policies for PWDs.

Lastly, all media stations with television and radio broadcasts would, on a monthly basis, be required to allocate an hour of free airtime to discuss disability issues. This would help sensitize members of the public on disability issues and the importance of integrating PWDs in society. The NCPWD would also coordinate the publication of at least a column every month in print media on PWD issues.

Conclusion and Recommendations

Whereas the Bill marks a tremendous step in the right direction as far as enhancing PWD interests is concerned, the following proposals should be considered as the Bill undergoes scrutiny within the National Assembly.

i) The issue of vetting for purposes of registration as a PWD under the 2010 Regulations has not been addressed by the Bill. Therefore, there may be need to introduce an amendment to the Bill, to the effect that once a person has undergone a medical examination to ascertain his or her disability, there should be no further vetting undertaken by the vetting committee of the NCPWD.

ii) The Bill does not specify what the owner of a PSV who modifies his or her vehicle to accommodate PWDs should do, as far as the modification costs are concerned. It only provides that such owner shall apply to the Cabinet Secretary for twenty-five percent (25%) of the direct cost of modification. The drafters should clearly specify the nature of accommodation sought by the PSV’s owner from the Cabinet Secretary, whether a cash refund or a tax deduction etc.

iii) Whereas the Bill requires media houses to accord at least one (1) hour of free radio or television coverage on disability related issues per month, it doesn’t specify the place of streaming platforms in such coverage, noting that these platforms are increasingly becoming a source of information and interaction with the general public. Therefore, the role and place of social media should be provided for.

iv) Much as the NCPWD is obligated to ensure that at least a column is published per month on print media addressing disability matters, the Bill should consider whether social media posts fit within the scope of print media. It is noteworthy that social media is gaining traction as the new source of written information, which has, to some extent, impacted the business of traditional print media.

The mining industry continually reshapes itself in the face of market demands, technological innovations and societal expectations. The industry continues to thrive due to its ability to adapt to changing demands in environmental, social and governance (ESG) issues. ESG is therefore not new to the mining sector.

However, in recent years, there is an emphasis on sustainable and responsible mining practices due to the heightened expectations and greater involvement of investors. Investors now require key positive indicators on ESG factors. This has pushed mining companies to have bolder commitments with measurable targets in reporting progress on ESG compliance factors.

In this context, mining companies are prioritizing ESG considerations such as reducing carbon emissions, conserving water and implementing community engagement initiatives. Additionally, mining companies are demonstrating commitment to ethical practices and sustainability in order to maintain their social license to operate.

This article discusses the significant role ESG plays in the development of sustainable mining which ultimately benefit the performance of mining companies and the development of local communities.

 

Scope of ESG

ESG, as relates to business, refers to environmental, social and governance factors that companies aim to comply with, and investors consider in their investment decisions. The scope of each of the elements are:

Environmental- focuses on lowering carbon footprints, safeguarding biodiversity and optimizing the use of resources with a strong interest from investors in reducing carbon outputs and environmental conservation.

The social dimension involves engaging stakeholders and contributing to the well-being of local communities, highlighting the importance of human rights and interactions with residents as well as promotion of employee wellbeing and good labour practices.

Governance pertains to the sustainable management of resources, transparent disclosure practices and adherence to legal frameworks and good governance practices.

Consequently, mining companies must adopt operational methods that are environmentally friendly and promote sustainability. Additionally, they must cater for social needs, promote human rights and adhere to good corporate governance practices. Mining companies that effectively incorporate ESG factors into their operations are in a stronger position to attract investors.

 

Causes for Heightened Focus on ESG

Investors and lenders are increasingly focused on ESG factors when making investment decisions. Thus, to access capital, mining companies must demonstrate commitment to ESG concerns. The following are some of the general factors that have given rise to ESG compliance in the industry:

Investor attraction– Mining is a capital-intensive venture. To access funding, mining companies must demonstrate a robust commitment to addressing ESG concerns and a strong track record of ESG compliance. This is because, institutional investors consider ESG factors when making investment decisions. For example, the International Financial Corporation’s (IFC) Environmental and Social Performance Standards define standards that apply to investment decisions and are considered during credit review processes. Similarly, in certain markets, the influence of ESG rating agencies has resulted in ESG becoming a major focus in relation to IPOs for large mining companies.

Regulatory requirement– ESG requirements are finding expressions in domestic regulatory frameworks. Mining companies have no option than to comply with such regulations. Non-compliance results in heavy sanctions imposed on defaulters. For example, mining companies who unlawfully pollute a water resource beyond the level prescribed by EPA commit an offence. Social factors are covered in employment legislations while governance frameworks are dictated by corporate law and governance codes.

Marketing tool– ESG compliance is now a marketing tool to attract clients and investors. Investors are increasingly focused on ESG factors when making investment decisions, thus companies with strong ESG performance are more attractive to investors seeking sustainable and responsible investment opportunities.

Self-interest– ESG leads to long term sustainability of businesses. It is, therefore, in the interest of mining companies to adopt ESG measures to ensure sustainability of their business over a long term.

 

Ghana’s Regulatory Framework on ESG Factors & its Implementation in the Mining Industry

There is currently no composite law or regulation that governs ESG in Ghana. Nevertheless, ESG requirements in mining are supported by the existing legal framework for the mining industry including the Minerals and Mining Act and its regulations. Under the current regime, the grant of any mineral right is dependent on obtaining an environmental permit from the Environmental Protection Agency (EPA).

The grant of the EPA permit requires the submission of an environmental impact assessment and periodic reports in respect of economic activities that have an adverse effect on the environment. The EPA may also require a mining company to post a reclamation bond to secure implementation of reclamation.

To ensure standards are met and there is no threat to human life and/or the environment, there are strict requirements regarding mining activities. Additionally, relevant permits are required in respect of mining activities in a forest reserve. Regarding the social aspect, fundamental human rights are enshrined in the 1992 Constitution and enforced through various legislations. Employees have protections from unfair labour practices, and unhealthy and unsafe environments under the Labour Act.

In respect of the governance pillar, the Companies Act prescribes the structure for corporate governance, which is centred mainly on the shareholders, the board and management of the company. It allocates the role, powers and duties of each stakeholder, thereby imposing checks and balances on the exercise of power. The Act also covers the fundamental role governance plays in corporate business strategy and decision-making processes leading to profitability and growth.

The various legislations cover different aspects of ESG factors and have minimal reporting requirements. Secondly, the legislations do not provide the details required and leave out many ESG requirements to the discretion of mining companies. This has led to some mining companies resorting to box-checking of the general legislative framework rather than adopting innovative measures to achieve compliance.

Voluntary Codes/Frameworks

The major gap in ESG compliance is lack of a binding and enforceable legal framework. To fill this gap and to achieve ESG compliance, various voluntary codes are being adopted by mining companies to ensure adherence to standards in their reporting and compliance levels. The voluntary codes also help investors to measure the ESG credentials of mining companies.  The following ESG-related guidelines seek to encourage voluntary ESG-related compliance and disclosures:

Sustainable Development Goals and the Global Reporting Initiative (GRI) are the most used standards in the mining sector. The GRI is a sustainability reporting standard which mining companies in Ghana have subscribed to and covers sector-specific sustainability reporting requirements by companies across all the ESG factors.

Mining companies also observe International Council on Mining and Metals standards which provides standardized frameworks dedicated to ensuring a safe, fair and sustainable mining and metals industry.

Additionally, the standards of the Extractive Industry Transparency Initiative (EITI) 2023 has been endorsed by Ghana. It requires compliance with ESG requirements for managing mineral resources at the national level. The reporting obligations on companies is mainly on their environmental and social impacts.

The International Council on Mining & Metals (ICCM) 10 Sustainable Development Principles act as a best-practice framework for sustainable development within the mining and metals industry.

The Minerals and Mining Policy of Ghana also emphasises environmental regulation of mining activities, employment creation, and local economic development (social) which are aspects of ESG.

Though, these are voluntary codes, mining companies are taking active steps to comply with these requirements and reporting on compliance to attract investment.

Challenges of Implementation of ESG Factors

Adoption of ESG and complying with ESG factors are sustainability issues. However, there are challenges particularly in the Ghanaian context, in adopting and seeking to comply with ESG requirements especially in our competitive business environment. These challenges include:

Lack of codified enforceable rules– the regulatory environment for ESG compliance is complex and ever-changing. More importantly, there is no composite enforceable legal framework that comprehensively deal with ESG. It is therefore difficult for companies to stay current with changing requirements and fully understand what is required. This can be challenging to navigate.

Cost– implementing effective ESG practices can be expensive, and many companies may need more resources to invest in ESG initiatives.

Varied Voluntary Codes– there are overlapping voluntary codes/standards existing which can make it difficult for mining companies to determine which code to adopt for their ESG strategy.

Despite the challenges, the truth remains that, investors care about ESG and would only conclude transactions upon an assessment of ESG factors and ascertainment that a company has a track record of good ESG performance. For mining companies to be well positioned for investments, it is prudent for mining companies to develop a clear and robust ESG policy that assuages investor concerns regarding their business and promotes continued investment. Such policies must consider both the mandatory legal requirements, voluntary codes and the company’s specific corporate values and overall strategic priorities. Once an ESG policy is adopted, the next stage is the implementation with measurable goals for reporting.

Conclusion

To conclude, ESG compliance is becoming increasingly important for businesses as investors and other stakeholders demand greater accountability around ESG issues. In like manner, it provides a significant opportunity for mining companies to differentiate themselves by improving their sustainability by reducing the risks associated with ESG issues. By prioritizing ESG practices, mining companies can identify and mitigate risks and build a more resilient business.

Article 47 of the Constitution of Kenya, 2010 (the Constitution) guarantees that every person shall enjoy the right to fair administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. An inherent aspect of this right is the obligation placed on the government to provide written reasons for administrative action that is likely to adversely affect any person. This is what is referred to as the duty to give reasons for administrative actions or decisions.

In the arena of taxation, the duty to give reasons for tax-related decisions made by the Kenya Revenue Authority (KRA) is crucial if the Government of Kenya is to establish a public finance system that promotes an equitable society where the tax burden is shared equally as required by Article 201 of the Constitution.

However, in practice, this duty to give reasons is not always adhered to. Frequently, taxpayers find themselves at a loss when faced with KRA’s decisions that fail to elaborate the reasons upon which tax assessments or other decisions have been made.

Fortunately, the High Court has considered and made its determination on KRA’s duty to provide reasons in a recent tax decision. In this article, we analyse a recent Judgment of the High Court (Majanja J) delivered in Joseph Muriithi Ndirangu t/a Ndirangu Hardware v Commissioner of Domestic Taxes (2023) KEHC 19357 (KLR).

Background to the Case

In this instance, the appeal to the Court arose from a Judgment of the Tax Appeals Tribunal (the Tribunal) in Joseph Muriithi Ndirangu t/a Ndirangu Hardware v Commissioner of Domestic Taxes (Tax Appeals Tribunal, Tax Appeal No. 202 of 2018) setting aside an assessment on the grounds that KRA failed to give written reasons for its decision to issue a Value Added Tax (VAT) assessment of KES 8,576,321 to Ndirangu Hardware (the Appellant).

Ordinarily, when a taxpayer lodges an objection from a tax assessment with KRA, KRA is obligated to consider the objection and respond in writing with an objection decision detailing the reasons for either accepting or rejecting the objection. This was the Tribunal’s previous finding in Local Productions Kenya Limited v Commissioner of Domestic Taxes (Tax Appeals Tribunal, Tax Appeal No. 50 of 2017).

By providing a detailed and reasoned decision as required by the Constitution and the law, a taxpayer is better equipped to challenge such a decision whether through an appeal to the Tribunal or by way of an application to the High Court for judicial review of the decision.

However, these statutory avenues to challenge KRA’s decisions are meaningless in circumstances where taxpayers do not understand the basis or reasoning for tax assessments or other decisions taken by KRA and therefore cannot easily ascertain whether such assessments or decisions are inaccurate or unlawful.

The genesis of this dispute was KRA’s selection of the Appellant’s case as part of its Revenue Enhancement Initiatives (REI) flowing from data collected under the Government’s Integrated Financial Management Information System (IFMIS) in the year 2015.

KRA issued additional assessments on the taxpayer for the years 2015 and 2016 based on a verification exercise of the Appellant’s VAT declarations, which exercise elicited a finding that the Appellant had not declared VAT charged on taxable supplies to the Kenya Forest Service (KFS).

The Appellant objected to the additional assessments, following which KRA issued an objection decision affirming the assessments on 14th August 2018 (the Objection Decision).

Aggrieved by the Objection Decision, the Appellant lodged an appeal to the Tribunal against the Objection Decision on the grounds that KRA rendered the Objection Decision without giving reasons. In response, KRA contended that the Appellant had made taxable supplies to the KFS in the year 2015 for which VAT was not declared. KRA further contended that the Appellant did not discharge its burden of proof by availing evidence to support its claim of having remitted VAT for the taxable supplies to KFS.

Having heard all the parties, the Tribunal found that the Appellant’s claim of having remitted VAT for the taxable supplies to KFS was not supported by evidence. Consequently, the Tribunal held that KRA was well within the law to raise the additional assessments.

High Court Decision

At the High Court, it was found that the issues raised on appeal were similar to those raised at the Tribunal. The Court reconsidered KRA’s Objection Decision and found that KRA did not provide adequate reasons for rejecting the Appellant’s objection as required by the Constitution and statute.

The Court opined that the requirement to give reasons for an Objection Decision under the Constitution and section 51(10) of the Tax Procedures Act, 2015 (TP Act) was couched in mandatory terms. Consequently, the Court agreed with the Appellant’s contention that the purported Objection Decision was inadequate for failure to give reasons and did not amount to a valid Objection Decision as contemplated by law.

In the Court’s view, the duty to give reasons was not a trifling requirement as it is a Constitutional mandate embedded in the right to fair administrative action guaranteed by Article 47 of the Constitution. Further, the Court held that the right to fair administrative action as protected by the Fair Administrative Action Act, 2015 (the FAA Act) requires administrative bodies to provide reasons for an administrative action as a matter of course where a right under the Bill of Rights has been or is likely to be adversely affected by administrative action.

The Court’s conclusion was that the Objection Decision was inadequate for not providing adequate written reasons for the decision. As such, the Objection Decision was null and void ab initio. The Tribunal’s Judgment was set aside with the Appellant’s objection to the tax assessment being consequently allowed.

The High Court’s decision in Joseph Muriithi Ndirangu t/a Ndirangu Hardware v Commissioner of Domestic Taxes largely affirms the earlier decision by the Tribunal in Local Productions Kenya Limited v Commissioner of Domestic Taxes (Tax Appeals Tribunal, Tax Appeal No. 50 of 2017). In this case, the Tribunal also held that taxpayers have a constitutioal right to be given reasons for tax decisions made by KRA in line with the Constitution, the TP Act and the FAA Act. The case concerned an appeal lodged by Local Production Kenya Limited (LPK) against a tax decision by the KRA. LPK was engaged in the business of producing and commissioning production of television content as well as provision of quality review and control services for television content and sought input VAT refunds based on its supply of zero-rated exported services to its non-resident customers. Following negotiations between LPK and KRA, it was agreed that KRA would disallow a portion of the refund claims.

However, KRA disallowed the entirety of the refund claim through a notice uploaded on LPK’s account on KRA’s iTax web portal, which notice did not give reasons for the tax decision rejecting LPK’s refund claim. Following this notice, LPK was aggrieved and filed an objection, providing supplementary information which KRA had failed to consider in arriving at its tax decision. LPK thereafter appealed to the Tribunal.

LPK’s position was that KRA acted in complete disregard of section 49 of the TP Act as well as section 4 of the FAA Act by failing to give reasons for its decision to reject LPK’s tax refund claim. The law requires KRA to provide written reasons where it refuses a taxpayer’s application under any tax law.

KRA’s position was that there were no procedural lapses in rejecting the LPK’s input VAT refund. KRA claimed that the refund was rejected because LPK failed to separate its own export services from those performed on behalf of its clients.

The Tribunal held that section 49 of the TP Act imposes a mandatory duty on KRA to provide a statement of reasons for tax decisions. The Tribunal further observed that the duty to give reasons for tax decisions is interpreted through the lens of the right to fair administrative action as enshrined under Article 47 of the Constitution.

In light of the above reasoning, the Tribunal found that KRA acted in violation of LPK’s right to fair administrative action contrary to section 4 of the FAA Act which requires written reasons be given for administrative actions taken by public authorities that negatively affect individuals.

Key Takeaway

From the foregoing cases, it clearly emerges that KRA is under a duty to provide reasons for tax assessments and its other tax decisions. This is a crucial aspect of maintaining a fair, just and transparent tax dispute resolution regime. The provision of reasons for tax decisions ensures that taxpayers understand and have access to the rationale behind tax assessments and other KRA decisions, facilitating their right to challenge any inaccurate tax assessments or unlawful decisions made by KRA. This can only promote the fundamental constitutional values of justice, fairness, transparency, and accountability.

At any rate, as the maker of the decision, KRA should have no difficulty explaining the reasoning behind the decision, failure to which it may be inferred that the decision lacked any reasoning in the first place. Giving reasons for the decision is thus beneficial for both KRA and the taxpayer.

For a continent that has historically maintained the lowest carbon footprint globally, Africa’s recent strides in low-carbon development signal two critical shifts. First, the urgency to address climate change is undeniable, as its impacts threaten to reverse decades of hard-won development progress. Second, Africa is positioning itself at the heart of the global transition to a low-carbon economy, leveraging its vast natural resources, human capital, and innovative potential to drive sustainable growth on its own terms.

Guided by the African Union’s Agenda 2063, which envisions economic transformation in harmony with climate priorities, Africa’s green transition is unfolding at multiple levels—regional, national, and local. Governments, businesses, and communities are actively implementing to cut carbon emissions and advance green growth.

Policy and Strategic Milestones

A major milestone in Africa’s green transition occurred at the 38th African Union Summit in February 2025, where Heads of State adopted strategies on sustainable aviation fuels, green hydrogen, energy efficiency, and climate-smart infrastructure. These commitments build on the Nairobi Declaration on Climate Change and Call to Action (September 2023) and are already shaping national strategies or the other way around. Ghana, for instance, has outlined a pathway to net-zero emissions by 2060, emphasizing a shift to biofuels in aviation and shipping. South Africa’s Just Energy Transition Implementation Plan (2023-2027) prioritizes renewable energy investments, energy efficiency, and climate-smart rail infrastructure, aligning with its 2050 energy transition goals.

Private Sector-Led Low-Carbon Projects

The private sector is playing an increasing role in Africa’s low-carbon transition, particularly through public-private partnerships (PPPs). One example is the 200 MW Sanankoroba Solar Power Station in Mali, which broke ground in May 2024 under a PPP between the Malian government and NovaWind (a subsidiary of Rosatom). The project, which is West Africa’s largest solar plant, is expected to significantly expand Mali’s renewable energy capacity. Similarly, South Africa’s 140 MW Umsinde Emoyeni Wind Power Station, currently under construction, will supply power to Sibanye-Stillwater, a major mining conglomerate, through a 20-year power purchase agreement. The project is led by a consortium that includes African Clean Energy Developments and Energy Infrastructure Management Services.

Green Financing Accelerates Climate Action

Private sector investment in climate financing in Africa is gaining momentum. This is an upside development for the continent, having historically depended heavily on public funds from external sources to finance climate action. At the global level, the Climate Investment Funds (CIF) issued its inaugural $500 million bond in January 2025 to mobilize private sector capital for low-carbon technologies in emerging markets. The bond was highly oversubscribed, attracting orders exceeding $3 billion, highlighting strong investor interest in climate-aligned initiatives, particularly in developing economies.

It is also encouraging to see funding availability for private sector-led climate action. In July 2024, Helios Investment Partners launched the Helios Climate, Energy Access, and Resilience (CLEAR) Fund, securing an initial $200 million to support mid-sized African companies in sectors such as low-carbon energy, climate-smart agriculture, sustainable mobility, recycling, and digital climate solutions. The fund is backed by major development finance institutions, including the UK’s development finance institution, the European Investment Bank, and the Dutch Development Bank.

Looking Ahead: Strategic Steps to Accelerate Momentum in 2025 and Beyond

As 2025 marks a crucial year for revising Nationally Determined Contributions (NDCs) under the Paris Agreement, Africa’s top greenhouse gas emitters are expected to raise their emissions reduction targets. Key areas of focus will include scaling up renewable energy investments, enhancing energy efficiency, deploying electric vehicles, and decarbonizing high-to-abate sectors. Africa must carefully navigate key challenges, opportunities, and critical factors that will shape the success of its green transition.

Africa’s green transition is constrained by a massive financing gap, with only 17.8% of mitigation and 20% of adaptation finance needs met between 2021 and 2022. Overreliance on external public funding—82% of which 76% comes from multilateral institutions and bilateral donors—is unsustainable, especially amid potential cuts following a U.S. Paris Agreement exit. To diversify funding sources by attracting private capital, Africa must scale carbon markets, explore carbon taxes, and introduce take-back obligations in hard-to-abate sectors, which require legal reforms in industries like oil and gas. Senegal, Nigeria, Mozambique, Zambia, Uganda, and Zimbabwe are advancing carbon pricing instruments, signaling a regional shift toward innovative climate finance solutions. Countries without carbon market/carbon tax regimes must urgently develop regulatory frameworks to secure investor confidence in navigating risks.

Energy transition as a key component of Africa’s green transition is often framed as expanding renewables to electrify millions of Africans without power. However, less focus is placed on the business case for private sector-led clean energy investments in productive sectors. Stimulating demand requires strategic policies—tax incentives, tariff adjustments, and industrial policies—to align energy supply with industry needs and drive growth.

Carbon Capture and Storage (CCS) is emerging as a key decarbonization tool for Africa’s high-emitting industries, with countries like Ghana, Uganda, Egypt, Nigeria, and South Africa integrating it into their energy transition strategies. Many African countries may overlook the fact that CCS could usher in a new era of resource extraction, given the continent’s favorable geology, particularly the East African Rift basalts. Africa cannot afford to remain on the sidelines while the rest of the world advances in CCS innovation. To fully capitalize on this potential, a deep understanding of CCS technology is essential. South Africa leads in CCS research and pilot project, backed by the World Bank, while Nigeria hosts the Africa Center of Excellence for Carbon Management Technology and Innovation to advance and accelerate the deployment of carbon management technologies in Africa including CCS. To harness CCS effectively, African governments must establish robust policy, legal, and regulatory frameworks for CCS, invest in R&D, and develop infrastructure through public-private partnerships to accelerate industry growth and attract investment. Additionally, governments need to commit funding to accelerate the development of a viable CCS industry.

Africa’s green transition plans must align with global decarbonization trends. Africa does not operate in isolation—its industries are shaped by global decarbonization policies such as the EU’s Carbon Border Adjustment Mechanism (CBAM), just as its actions influence international markets. However, it appears that some national transition plans fail to reflect this reality. Ghana’s energy transition and investment plan, for instance, aims for net-zero emissions in the steel and cement industries beginning in 2040, yet the CBAM, which prohibits  such high-emission products’ entry into the EU, will take full effect by 2026. This 14-year misalignment could leave Ghanaian businesses noncompetitive in the EU market. To avoid such risks, African countries must align their transition strategies with global policies, ensuring competitiveness and meaningful climate action.

In conclusion, Africa’s green transition presents vast opportunities, but success hinges on strategic financing, regulatory clarity, and alignment with global decarbonization policies. By scaling carbon markets, supporting clean energy in industries, and leveraging technologies like CCS, Africa can drive sustainable development while remaining competitive in the evolving global economy.

Interim measures of protection in arbitration have emerged as a vital tool in safeguarding the interests of parties engaged in dispute resolution. In Kenya, this aspect of arbitration law has garnered significant attention, as it bridges the gap between the initiation of arbitration proceedings and the final award. The ability to secure interim relief can be crucial in preserving assets, maintaining the status quo, and ensuring that the arbitration process remains effective and equitable. With the rise of complex commercial disputes and the increasing reliance on arbitration as a preferred method of dispute resolution, understanding the nuances of interim measures in Kenya is more pertinent than ever. This article delves into the evolving landscape of interim measures of protection in Kenyan arbitration, exploring landmark cases, legislative frameworks, and the delicate balance between Court intervention and arbitral autonomy.

Nature of Interim Measures of Protection

An interim measure of protection is an order issued by either a Court or an arbitral tribunal aimed at preserving the status quo or preventing the dissipation of assets pending the resolution of the dispute. These measures can be granted either before the commencement of the proceedings before the tribunal or during the proceedings, but before an award has been rendered. Importantly, the granting of these measures is discretionary and not a matter of right. Various conditions must be met before a tribunal or Court can grant them, particularly when it comes to Court-issued measures. This discretion ensures that Courts do not overstep their bounds and usurp the role of the arbitral tribunal.

Originally, Courts were the sole judicial authority empowered to grant interim measures of protection. However, this position has evolved, with many countries revising their national arbitration laws to explicitly recognize the concurrent jurisdiction of both Courts and arbitral tribunals. Arbitral tribunals in Kenya are permitted to grant preliminary and/or interim relief under both the Arbitration Act, 1995 (the Arbitration Act) and institutional rules applicable within the Kenyan jurisdiction. Specifically – Section 18 (1) (a) of the Arbitration Act – An arbitral tribunal can order a party to take such interim measures of protection as it deems necessary or appropriate.

• Rule 18 (2) (i) of the Chartered Institute of Arbitrators Rules (CIArb Rules) – An arbitral tribunal has jurisdiction to make one or more interim awards, including injunctive relief and conservatory measures.
• Rule 27 (1) of the Nairobi Centre for International Arbitration Rules, 2015 (NCIA Rules) – An arbitral tribunal, subject to the agreement between the parties, can issue a range of interim or conservatory orders in the arbitration.

An interim award made pursuant to the CIArb Rules and the NCIA Rules is final and binding upon the parties pursuant to the Arbitration Act and the institutional rules, which define an “arbitral award”  to include any award by the arbitral tribunal, including an interim award. There is no automatic right of appeal against a decision allowing an application for security for costs brought under section 18 of the Arbitration Act. A party may only appeal such a decision on a point of law that arises within the arbitration or stemming from an award to the High Court (under section 39 of the Arbitration Act). This recourse, however, is only available where parties have expressly reserved their right of appeal. In the absence of such an agreement by the parties, an Arbitrator’s award is final and binding and can only be set aside or its enforcement challenged on the basis of the limited grounds set out under section 35 and section 37 of the Arbitration Act.

Role of the Courts

Section 7 (1) of the Arbitration Act provides that the High Court may allow applications for interim measures when so moved by either of the parties. The primary objective of Courts when intervening is to ensure that the subject matter of the arbitration proceedings is not jeopardised before an award is issued, thereby rendering the entire proceedings otiose.

This purpose was well elaborated in the case of CMC Holdings Limited v Jaguar Land Rover Exports Limited (2013) eKLR as follows: “In practice, parties to international arbitrations normally seek interim measures of protection. They provide a party to the arbitration an immediate and temporary injunction if an award subsequently is to be effective. The measures are intended to preserve assets or evidence which are likely to be wasted if conservatory orders are not issued. These orders are not automatic. The purpose of an interim measure of protection is to ensure that the subject matter will be in the same state as it was at the commencement or during the arbitral proceedings. The Court must be satisfied that the subject matter of the arbitral proceedings will not be in the same state at the time the arbitral reference is concluded before it can grant an interim measure of protection.”

Section 7 (2) of the Arbitration Act states that where a party applies to the High Court for an injunction or other interim order and the arbitral tribunal has already ruled on any matter relevant to the application, the High Court shall treat the ruling, or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.

Conditions for Grant of an Interim Measure of Protection

The conditions that a Court or arbitral tribunal must consider before granting interim measures of protection have become well established under Kenyan law. These principles were clearly outlined in the landmark case of Safaricom Limited v Ocean View Beach Limited & 2 Others (2010) eKLR which set out the following criteria for consideration: The existence of an arbitration agreement.

• Whether the subject matter of the arbitration is under threat.
• A careful assessment of the appropriate measure of protection based on the merits of the application.
• If the measure is requested before the arbitration proceedings commence, the Court or tribunal must specify the duration of the measure to prevent overstepping the tribunal’s authority.

In addition, the case of Futureway Limited v National Oil Corporation of Kenya (2017) eKLR introduced further considerations, including:

• The urgency with which the applicant has approached the Court.
• The risk of substantial (though not necessarily irreparable) harm or prejudice if the protection is not granted.

These criteria underscore the careful balance that must be struck between providing necessary protection and respecting the autonomy of the arbitral process. As Kenyan jurisprudence continues to evolve, these guiding principles ensure that interim measures are applied judiciously and fairly, maintaining the integrity of both the arbitration process and the subject matter in dispute.

Emergency Arbitration

In certain cases, the urgency of a matter may require one party to seek interim measures even before an arbitral tribunal has been fully constituted. To address such situations, an increasing number of the leading arbitral institutional rules now include provisions for the appointment of emergency arbitrators. Emergency arbitrators enable parties to obtain urgent relief before the tribunal is constituted and without having to go to Court.

Emergency arbitration is a process that allows parties to seek urgent interim relief before a full arbitral tribunal is constituted. This mechanism is typically invoked when a dispute requires immediate attention, and the parties cannot afford to wait for the formation of the standard tribunal. An emergency arbitrator is usually appointed to hear an application for interim relief pending the substantive arbitration.

Key advantages of emergency arbitration over seeking interim measures from Courts include maintaining the confidentiality of the proceedings, avoiding the jurisdictional pitfalls in seeking Court intervention highlighted above and, in some cases, assuaging the concerns of parties that are apprehensive of obtaining justice from local Courts, especially in the case of foreign parties seeking remedies against national governments and their institutions.

In Kenya, the Arbitration Act and Arbitration Rules do not specifically address emergency or expedited arbitration. However, both the NCIA Rules and the CIArb Rules have provisions in place for managing expedited and emergency arbitrations. Under the CIArb Rules, an emergency arbitrator must be appointed within two (2) days of an application, with the expectation that the arbitrator will resolve the issues raised in the request for interim measures as quickly as possible, ideally within fifteen (15) days of their appointment. Importantly, the emergency arbitrator is also required to ensure that all parties receive reasonable notice and an opportunity to be heard.

The NCIA Rules equally require an emergency arbitrator to be appointed within two (2) days, and the arbitrator is required to establish a schedule for considering the emergency arbitration within two (2) days and make an order or award within fifteen (15) days from appointment, subject to any extensions as may be agreed by the parties. Under Rule 28 (4) of the NCIA Rules, upon expedited formation of the arbitral tribunal, the emergency arbitrator shall have no further power to act in the dispute. Under Rule 28 (6) of the NCIA Rules, an order or award made by the emergency arbitrator is binding on all the parties upon being issued.

It is expected that going forward, parties will increasingly adopt emergency arbitration in seeking interim measures of protection.