The World's Most Open Bench

Isaac Aluochier, S.Arb, S.Adj, Arbitral Fellow, CPM · Aluochier Dispute Resolution · July 2026

For most of the world's dispute-resolution professionals, Kenya does not yet appear on the map of places to build an arbitration practice, or to seat an international dispute. That absence is not a judgment on Kenya's law. It is simply that almost nobody outside the country has been told what its Constitution actually built in 2010, in a short and easily overlooked clause: alongside the courts, the people of Kenya delegated a share of their sovereign power directly to “independent tribunals” — quasi-judicial bodies operating under Article 47 of the Constitution and the Fair Administrative Action Act, exercising genuine constitutional authority to resolve disputes, not a private authority borrowed from a contract clause. What follows is written for two groups who have reason to care about this, wherever in the world they happen to be: those who adjudicate disputes for a living, and those who have disputes that need adjudicating.

Every proceeding under these frameworks — AITAR for commercial, civil, domestic, and international matters, AISTAR for succession, AIETAR for elections — runs on Kenyan procedural law, without exception. That is not a limitation so much as a consequence of what these tribunals are. They exercise the sovereign power of the people of Kenya, delegated under Article 1(3)(c) of the Constitution, and the manner of exercising delegated sovereign power is necessarily governed by the law of the sovereign who delegated it. The room itself is unmistakably Kenyan.

But the dispute decided inside that room need not be. The substantive law applied to resolve a given dispute is whatever law properly governs the parties' relationship, and that can be almost anything. A contract governed by Chinese civil law remains governed by Chinese civil law. A dispute arising under Indian statute or Indian common law is decided under Indian law. English common law, or any of its variants across the common law world, applies exactly as it would in an English-seated arbitration. So does the statutory law of any other country the parties have chosen, the customary law of a particular community, or the religious law of a particular faith, wherever that law properly governs the underlying relationship. The tribunal's procedure is Kenyan. The dispute's substance is whatever the parties, or the applicable law, say it is.

Picture a courthouse built on a single, constitutionally solid foundation, with doors opening onto every legal tradition in use anywhere in the world. The foundation does not vary from case to case. What is decided behind those doors can be almost anything.

Put in the vocabulary international arbitration practitioners already use: the juridical seat of every AITAR, AISTAR, and AIETAR proceeding is fixed at Nairobi, Kenya, and Kenyan law is therefore always the lex arbitri — the procedural law governing the proceeding, invariably. Unlike ICC, LCIA, or SIAC arbitration, where the seat is a separate choice the parties may fix anywhere regardless of the administering institution, an AITAR seat is not a variable to be negotiated. It is fixed by constitutional necessity, because the procedure exercises the sovereign power of the people of Kenya and can be governed by no other procedural law. What remains fully open to party choice, case by case, is only the substantive law applied to the dispute itself — which may be drawn from any legal tradition in the world.

Article 78 of the Kenyan Constitution generally requires that a person be a citizen of Kenya to be eligible for election or appointment to a State office. But Article 78(3)(a) expressly carves one category out of that requirement: judges and members of commissions. Kenya's own Constitution, in other words, already accepts that a person exercising judicial power on behalf of the Kenyan people need not themselves hold Kenyan citizenship. Judges and independent tribunals sit in the same constitutional category, as joint delegates of the same sovereign power under Article 1(3)(c). There is no principled basis, and no legal one, for a citizenship bar to attach to the second category that the Constitution has already declined to impose on the first.

Two further provisions close the question entirely. Article 27(4) forbids the State from discriminating against any person on a long and explicit list of grounds, including ethnic or social origin, colour, religion, and culture. And section 12(1) of the Arbitration Act removes nationality specifically as a ground for excluding anyone from acting as an arbitrator, unless the parties themselves have expressly agreed otherwise. Between them, these provisions leave no space for a nationality bar on the AITAR Roster. It is open to any qualified adjudicator, anywhere in the world, on exactly the same terms as a Kenyan applicant.

If you resolve disputes for a living — as an arbitrator, mediator, retired judge, academic, or senior practitioner, in any legal tradition, in any country — this is an income opportunity outside your ordinary practice that requires neither relocation nor a Kenyan qualification. What it requires is competence in Kenyan procedural law, which the AITAR Tribunal Training Programme exists specifically to build, tier by tier, for practitioners who have never touched Kenyan procedure before. What you bring to the panel is precisely what you already know: French civil law, Chinese contract law, Sharia jurisprudence, English commercial law, Nigerian company law, or the family law of your own jurisdiction. A dispute governed by a particular law is best decided by someone who actually knows that law, sitting within a forum whose procedural fairness is guaranteed by a written constitution rather than resting solely on the private reputation of an arbitral institution.

The major international institutions do not, as a rule, draw their panels this broadly. The ICC's panel leans predominantly on practitioners trained in French and English law. The LCIA's leans heavily on English law practitioners. SIAC's draws mainly from Singapore and the wider common law world. None of this reflects a rule barring other backgrounds — it reflects each institution's own history and the default gravity of its seat. The AITAR Roster has no equivalent default to fall back on, because Article 27(4) of the Constitution and section 12(1) of the Arbitration Act do more than permit a broader panel — they make a nationality-restricted one constitutionally impossible to sustain. A French civil law notary, a Chinese contract lawyer, a Nigerian commercial silk, and a Kenyan constitutional advocate can sit on the same AITAR panel, each deciding the dispute under whichever of their specialisms actually governs it. That is not a diversity policy adopted by an institution. It is what the Constitution itself already requires.

If you are choosing which forum will administer an international dispute, most institutions let you fix the seat wherever you and the other party agree, independently of which institution you choose. This forum works differently, by design: choosing AITAR fixes Nairobi as the seat and Kenyan law as the procedural law, both without exception, for the same constitutional reason described above. What that fixed seat buys you is a legitimacy most seats cannot offer. Most seats derive their legitimacy purely from party agreement and the arbitration statute of the host state. This one derives its legitimacy from a written constitution and a Bill of Rights that bind the tribunal directly, regardless of where the parties come from. Article 50(1) guarantees a fair, independent, and impartial hearing to any person whose dispute is submitted to this forum, Kenyan or otherwise, and the procedural protections built into Article 47 and the Fair Administrative Action Act apply to that hearing without regard to either party's nationality. None of this requires accepting Kenyan substantive law. Your contract's own governing law, your own choice-of-law clause, remains exactly what it was. What changes is the forum deciding it — constitutionally accountable, procedurally rigorous, and open to you regardless of where in the world your dispute arose.

None of this rests on Kenya's own constitutional text alone. Article 14 of the International Covenant on Civil and Political Rights — ratified or acceded to by more than one hundred and seventy states, covering the large majority of the world's population — guarantees every person a fair and public hearing by a competent, independent, and impartial tribunal established by law, in both criminal matters and in the determination of civil rights and obligations. That is precisely the kind of tribunal these frameworks are built to be: not a private panel whose authority rests on a contract clause and an institution's reputation, but a tribunal established directly by a country's supreme law, deciding disputes in the name of a public, constitutional authority.

The source of that authority runs deeper than delegation alone. Article 1(2) of the Kenyan Constitution provides that the people may exercise their sovereign power either directly or through their democratically elected representatives. Independent tribunal members are appointed, not elected — they are not democratically elected representatives of anyone. When they exercise the adjudicative authority delegated to them under Article 1(3)(c), that exercise is properly understood as a direct exercise of sovereign power by the people of Kenya themselves, conducted through a constitutionally established instrument, rather than an act of representative government exercised on the people's behalf at one remove. An AITAR Determination, an AISTAR settlement instrument, or an AIETAR Determination is accordingly issued in the name of the people of Kenya directly — precisely the kind of public, non-private authority Article 14 of the ICCPR contemplates when it speaks of a tribunal “established by law.”

Roster applications are open now, to any qualified adjudicator anywhere in the world, at gazette.aluochier.co.ke/roster/index.html. Disputants may likewise choose AITAR as the forum for a new or existing dispute — Nairobi fixed as the seat, Kenyan law fixed as the procedure, their own chosen law governing the substance — without any prior connection to Kenya beyond the choice to do so. Neither requires waiting for an introduction, a referral, or a reason to have heard of Kenya's dispute resolution landscape before today. The bench is, deliberately, the most geographically open one available anywhere — built that way by the Constitution itself, not merely by institutional policy.