ES/2 won't only be a 64-bit kernel. It will be able to boot into both 32-bit mode and 64-bit mode depending on settings, or boot-time overrides.
That really doesn't make sense. If a user needs to reboot to use older software, why would you need a new kernel? There are many options to do that already, and there are probably very few OS/2 programs that could be converted to 64 bit programs. In a lot of cases, the source is not available, so it would require a complete rewrite to make those programs work. Programs like OpenOffice, and Firefox, already run better in other operating systems.
I intend to write a full driver suite, and to create tools to help others port drivers to support as much hardware as is possible from published sources.
Why don't you start with drivers, and make it possible to convert to 64 bit, when/if that feature becomes available. Today, we need a lot of new drivers. If we don't get those drivers, there won't be any need for a new kernel because the platform will be long dead (unusable), before the kernel becomes available. There are very few people, spending long hours, trying to keep OS/2 viable, and that doesn't include even dreaming about a new kernel. Today, we desperately need USB 3. eMMC, GPT, WiFi, (although this one is under way), and more.
As I understand it, there is a legal barrier in what we're able to do with the existing OS/2 kernel and drivers. We are not allowed legally to reverse engineer anything, or to perform binary patches. Arca Noae was able to get a license to do that for their new release of OS/2, but for the rest of us it's out of bounds.
It is true, that you cannot reverse engineer the kernel (legally), however OS/2 is designed to be enhanced by simply replacing parts with new parts (Object oriented). Doing so is not going to cause legal problems, as long as you don't copy what somebody else did. Patches are a gray area. From what I understand, you are not allowed to patch something, then distribute the patched file (Arca Noae has an exemption, for OS/2 itself, but not for other things). It seems to be okay, if you distribute a patch that a user can apply to the original file.
As i understand it, one of the biggest problems with drivers, is that they need the device driver development package, from IBM (the DDK), and that is no longer available. Some people do have that package, and they can develop drivers, using it. If that package could be replaced, drivers would be easier to develop. In addition, I expect that there are more than a few DDK licenses, sitting idle, and those could be put to good use, if those who have them would donate them to somebody who can/will use them.
There isn't any point in putting a modern gas/electric hybrid engine in a model T Ford, if the tires are going to wear out next month, and they cannot be replaced. Better to find a way to reliably replace the tires, then worry about replacing the engine.