Ghana: International Arbitration Comparative Guide

Last Updated: 11 September 2019
Article by Bobby Banson
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1 Legal framework

1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?

The Alternative Dispute Resolution Act 798/2010 governs arbitration in Ghana. Section 1 of the act states that the act does not apply to matters which relate to the following:

  • the national and public interest – a term which is not defined in the act;
  • the environment;
  • the enforcement and interpretation of the Constitution; or
  • any other matter that by law cannot be settled by alternative dispute resolution.

Section 2 of the act provides that an agreement to arbitrate must be in writing. However, Section 89 provides that once a dispute has arisen, the parties may orally agree to submit the dispute to customary arbitration.

1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?

The legislation does not differentiate between domestic and international arbitration per se. The only instance in which the act provides for different regulation concerns the enforcement of domestic awards and foreign awards. Section 57 provides that a domestic award may be enforced in the same manner as a High Court judgment; for a foreign award, by contrast, the conditions laid down in Section 59 must be satisfied before the award can be enforced.

1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?

The Alternative Dispute Resolution Act largely reflects the UNCITRAL Model law, with the notably addition of recognition of customary arbitration.

1.4 Are all provisions of the legislation in your jurisdiction mandatory?

Once the parties to an agreement have decided to resolve any dispute arising therefrom through arbitration, the Alternative Dispute Resolution Act has mandatory application and must be complied with.

1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?

No plans to amend the act have been announced.

1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?

Ghana signed the New York Convention on 9 April 1968 without any reservations. The provisions of the convention were incorporated into Ghanaian law by Section 59(c) of the act.

1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?

Ghana is a signatory to the International Convention for the Settlement of Investment Disputes.

2 Arbitrability and restrictions on arbitration

2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?

Section 1 of the Alternative Dispute Resolution Act states that matters relating to the following are not arbitrable:

  • the national and public interest – a term which is not defined in the act;
  • the environment;
  • the enforcement and interpretation of the Constitution; or
  • any other matter that by law cannot be settled by alternative dispute resolution.

Section 72 of the Courts Act 459/1993 also provides that all civil matters are subject to settlement out of court, including settlement through arbitration.

2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?

There are no such restrictions under the Alternative Dispute Resolution Act.

3 Arbitration agreement

3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?

All arbitration agreements must be in writing. The written requirement may be fulfilled by any of the following means:

  • an exchange of written communication, including letters, telexes, faxes or emails; or
  • the exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

The above notwithstanding, any agreement to arbitrate may be set aside where evidence of any vitiating factor – such as duress, undue influence, mistake or fraud – is adduced to obviate the consent of the party to the arbitration agreement.

3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?

Yes. Section 2(2) of the Alternative Dispute Resolution Act provides that an agreement to arbitrate may be a clause in an agreement between the parties or may be a separate agreement on its own.

Section 3(1) also provides that the invalidity of an agreement does not render an arbitration clause therein or an agreement to arbitrate a dispute arising therefrom unenforceable.

3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?

Under Ghanaian law, in the absence of a seat of arbitration clause in the agreement, the arbitrator is entitled to choose which seat has the closest connection to the dispute.

Again, where there is no agreement as to the language to be used between the parties, the arbitrator shall determine the language to be used for the arbitration.

4 Objections to jurisdiction

4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?

An objection to the jurisdiction of the tribunal must be raised before proceedings on the merits commence. For the avoidance of doubt, an objection to the jurisdiction of the tribunal can be raised once the tribunal has been empanelled.

An objection to the jurisdiction of the tribunal can also be raised in the course of the proceedings if the tribunal exceeds its jurisdiction in the matter.

An objection to jurisdiction should be made at first instance to the tribunal, with a right to repeat the objection before the appointing authority or the court.

The decision of the appointing authority or the court on jurisdiction cannot be appealed, except with leave of the court.

4.2 Can a tribunal rule on its own jurisdiction?

In consonance with the principle of kompetenz-kompetenz, the tribunal can rule on an objection to its jurisdiction.

4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?

An objection to jurisdiction should be made at first instance to the tribunal, with a right to repeat the objection before the appointing authority or the court.

Such an application will be entertained by the court if:

  • it is made within seven days of the date of the tribunal's ruling on jurisdiction; and
  • there is justification for the court to interfere with the ruling of the tribunal.

5 The parties

5.1 Are there any restrictions on who can be a party to an arbitration agreement?

Anyone with capacity under the Contract Act of Ghana 29 – that is, who is of sound mind and over 18 years of age – can be a party to an arbitration agreement.

5.2 Are the parties under any duties in relation to the arbitration?

Apart from complying with the procedural orders of the tribunal and with the statutory or contractual obligations of a party to arbitration, the parties are under no other generic duties.

5.3 Are there any provisions of law which deal with multi-party disputes?

The law makes no specific reference to multi-party disputes, but applies to disputes irrespective of the number of parties thereto.

6 Applicable law issues

6.1 How is the law of the arbitration agreement determined in your jurisdiction?

The parties are at liberty to determine the law applicable to the arbitration. In the absence of such agreement, the tribunal is entitled to apply the law as determined by the conflict of law rules it considers applicable and common trade practices applicable to the transaction, if any.

6.2 Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?

The tribunal will uphold an agreement between the parties as to the substantive law of the dispute. Where the substantive law is unclear from the agreement of the parties, the tribunal shall select the law as determined by the conflict of law rules applicable to the transaction.

7 Consolidation and third parties

7.1 Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?

With the consent of the parties, the tribunal may consolidate one arbitral proceeding with another arbitral proceeding and hold concurrent hearings.

7.2 Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?

The Alternative Dispute Resolution Act is silent on the joinder of parties to arbitration proceedings. However, the rules of court allow parties to be joined to actions where their presence is necessary for the final and effective determination of the matters in dispute. This rule of procedure may be adopted in arbitration proceedings.

7.3 Does an arbitration agreement bind assignees or other third parties?

The agreement to arbitrate binds all parties which can trace their interest to a party to the arbitration agreement.

8 The tribunal

8.1 How is the tribunal appointed?

The parties are free to appoint the arbitrators or to stipulate the procedure for their appointment. In the absence of an agreement between the parties, the appointing authority may appoint the arbitrators.

8.2 Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?

The parties are at liberty to determine the number of arbitrators to be appointed, although this number must be odd.

In the absence of an agreement between the parties on the number of arbitrators, this number shall be three.

8.3 Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?

Yes, the appointment of an arbitrator can be challenged on the grounds that he or she is not impartial or independent, or does not have the qualifications agreed by the parties. The challenge should be raised within 15 days of constitution of the tribunal or within 15 days of becoming aware of the grounds for the challenge.

8.4 If a challenge is successful, how is the arbitrator replaced?

The parties may agree on the procedure for replacing an arbitrator whose appointment is successfully challenged. Where the appointment of an arbitrator is challenged by both parties, the appointing authority shall replace the arbitrator.

8.5 What duties are imposed on arbitrators? Are these all imposed by legislation?

Generally, an arbitrator must be fair and impartial, and give each party an opportunity to present its case. These duties are imposed by Section 31(1) of the Alternative Dispute Resolution Act. In addition, Section 31(2) allows arbitrators to conduct the arbitration proceedings in the manner that they consider appropriate to avoid unnecessary delay and expenses. This duty gives arbitrators a lot of leeway to act in the best interests of the case and to deliver effective justice.

8.6 What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?

(a) Procedure, including evidence?

Section 31(3) of the Alternative Dispute Resolution Act provides that an arbitrator has the power to decide on matters of procedure and evidence. This power is limited by any agreement between the parties on the procedure to be adopted for the arbitration and on matters of evidence.

(b) Interim relief?

An arbitrator has the powers to make interim orders on the application of a party to the arbitration to preserve the subject matter of the dispute.

(c) Parties which do not comply with its orders?

An arbitrator has no power to enforce compliance with the arbitral award. The award creditor must commence enforcement proceedings under the Alternative Dispute Resolution Act to enforce an award.

(d) Issuing partial awards?

An arbitrator has the power to issue a partial award under Section 37(1) of the Alternative Dispute Resolution Act.

(e) The remedies it can grant in a final award?

An arbitrator can grant only the relief sought by a party to the arbitration or relief which directly arises from the matters in dispute. If the arbitrator grants relief which either was not sought by a party or does not arise from the issues, the arbitrator will be deemed to have acted beyond his or her jurisdiction and the award may be set aside.

(f) Interest?

The Arbitrator has the power to award the payment of simple or compound interest on the principal amount claimed. However, the award of interest will be based on the contract between the parties or the applicable law to the dispute.

8.7 How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?

The Alternative Dispute Resolution Act gives the tribunal the power to adjourn the hearing if a party, without sufficient reason, does not participate in the hearing or if the parties agree on the postponement of the hearing. However, the tribunal has the power to proceed to take evidence and make an award based on the evidence before it if a party does not participate in the hearing, despite having been served with notice of same.

8.8 Are arbitrators immune from liability?

The arbitrators and all those who are in the employment of the tribunal during the course of the proceedings are immune from liability for anything done pursuant to the arbitration, unless it is shown that they have acted in bad faith.

9 The role of the court during an arbitration

9.1 Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

The Alternative Dispute Resolution Act obliges the court to stay proceedings at any time before a defence to a claim is filed and refer the parties to arbitration if the agreement between the parties that is the subject matter of the court case contains an arbitration clause.

9.2 Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?

The court has certain powers relating to the arbitration proceedings, including the following:

  • Under Section 26 of the Alternative Dispute Resolution Act, the High Court has the power to make a determination on whether the tribunal has jurisdiction once the tribunal has decided on that issue.
  • Where the urgency of the case so requires, the court may, on the application of a party to the arbitration, make orders for:
    • the taking and preservation of evidence and assets relating to the proceedings;
    • the sale of any goods which are the subject of the proceedings;
    • the granting of an interim injunction or appointment of a receiver;
    • the determination of any question of law which will substantially affect the rights of the parties in the course of the arbitral proceedings;
    • the determination of a challenge to an arbitrator, if the arbitrator is being challenged by the party that appointed him or her; and
    • the determination of whether an award (either domestic or international) should be enforced in accordance with the laws of Ghana as if it were a judgment of the court.

9.3 Can the parties exclude the court's powers by agreement?

The parties to an arbitration agreement cannot exclude the powers of the court as conferred by statute.

10 Costs

10.1 How will the tribunal approach the issue of costs?

Unless the parties have already agreed on who will pay the costs, the tribunal may, within 14 days of its constitution, hold a management conference to discuss with the parties the issue of costs, when they will be paid and by whom. The decision reached at the management conference is binding on the parties.

10.2 Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?

There are no restrictions in the Alternative Dispute Resolution Act on what the parties can agree in terms of the costs.

11 Funding

11.1 Is third-party funding permitted for arbitrations seated in your jurisdiction?

The Alternative Dispute Resolution Act makes no mention of third-party funding. However, the ethics of the legal profession would prevent third parties from sponsoring litigation in any form or manner. In the authors' opinion, third-party funding is not yet accepted in Ghana.

12 Award

12.1 What procedural and substantive requirements must be met by an award?

The arbitrators must decide the dispute in accordance with the law applicable to the substance of the dispute. The award must:

  • be in writing;
  • be signed by the arbitrators;
  • include the date and place of the award; and
  • unless the parties have agreed otherwise, specify the reasons for the award.

12.2 Must the award be produced within a certain timeframe?

There is no timeframe within which the award must be delivered after close of the hearing.

13 Enforcement of awards

13.1 Are awards enforced in your jurisdiction? Under what procedure?

A domestic award is enforced in Ghana as if it were a judgment of the High Court. The award creditor must apply to the High Court for leave to enforce the award. The application for leave must include evidence of the award and the fact that the tribunal had jurisdiction.

For a foreign award, an application for recognition and enforcement of the award must be made to court.

14 Grounds for challenging an award

14.1 What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?

An arbitral award may be set aside where the applicant satisfies the court that:

  • a party to the arbitration was under some disability or incapacity;
  • the law applicable to the arbitration agreement is not valid;
  • the applicant was not given notice of the appointment of the arbitrator or of the proceedings, or was unable to present its case;
  • the award deals with a dispute not within the scope of the arbitration agreement or outside the agreement; however, the court shall not set aside any part of the award that falls within the scope of the agreement;
  • a party has failed to conform to the agreed procedure;
  • the arbitrator has an interest in the subject matter of the arbitration which he or she failed to disclose; or
  • the subject matter of the dispute is not arbitrable.

14.2 Are there are any time limits and/or other requirements to bring a challenge?

The award should be challenged within three months of the date of service of notice of the award.

14.3 Are parties permitted to exclude any rights of challenge or appeal?

The parties cannot exclude the right to challenge or appeal an award in the arbitration agreement.

15 Confidentiality

15.1 Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?

Arbitration proceedings are confidential.

15.2 Are there any exceptions to confidentiality?

The parties may agree to disclose the contents of the arbitration award or the award, and proceedings may have to be disclosed by operation of law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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