Alternative dispute resolution (ADR) clauses in contracts are becoming increasingly popular among businesses in Kenya, as they provide a faster and less expensive way to resolve disputes than going to court. However, it is important for businesses to consider hiring an advocate when drafting ADR clauses in their contracts to ensure that the clauses are legally binding and enforceable.
First, an advocate can advise businesses on the different types of ADR clauses that are available in Kenya, such as arbitration, mediation, and conciliation. Each type of ADR clause has its own advantages and disadvantages, and an advocate can help businesses choose the most appropriate clause for their specific needs. For example, arbitration is a good option for disputes that involve technical or complex issues, while mediation is a good option for disputes that involve relationship-building or communication issues.
Second, an advocate can advise businesses on the specific terms and conditions that should be included in the ADR clause. For example, an advocate can advise businesses on the language that should be used to describe the dispute resolution process, the jurisdiction where the dispute will be resolved, and the fees and expenses that will be incurred. Additionally, an advocate can advise businesses on how to draft the clause in a way that is legally binding and enforceable, which is important in case the dispute goes to court.
Third, an advocate can advise businesses on the legal requirements for ADR clauses in Kenya. For example, an advocate can advise businesses on the legal requirements for signing an ADR clause, such as the need for a written agreement and the requirement for the parties to be competent to enter into an agreement. Additionally, an advocate can advise businesses on the legal requirements for the enforcement of an ADR clause, such as the need for the clause to be in writing and the requirement for the parties to be bound by the clause.
Fourth, an advocate can assist businesses in the process of ADR if a dispute arises. For example, an advocate can assist businesses in the preparation of the dispute resolution process and the negotiation of a settlement. Additionally, an advocate can assist businesses in the enforcement of a settlement agreement, which is important in case the dispute goes to court.
Finally, an advocate can advise businesses on the legal implications of ADR clauses in Kenya. For example, an advocate can advise businesses on the legal implications of an ADR clause in case of a dispute, such as the effect of the clause on the jurisdiction of the courts and the enforceability of the clause. Additionally, an advocate can advise businesses on the legal implications of an ADR clause in case of a settlement, such as the effect of the settlement on the jurisdiction of the courts and the enforceability of the settlement.
In conclusion, businesses in Kenya should consider hiring an advocate when drafting ADR clauses in their contracts. An advocate can advise businesses on the different types of ADR clauses that are available, the specific terms and conditions that should be included in the clause, the legal requirements for ADR clauses in Kenya, and the legal implications of ADR clauses in case of a dispute or a settlement. By hiring an advocate, businesses can ensure that their ADR clauses are legally binding and enforceable, which can help them resolve disputes faster and more cost-effectively than going to court.
Shafiq Taibjee
Lawyer/Arbitrator/Mediator
Islamic Arbitrator & Expert
Honorary Fellow IICRA -UAE