4.3 Indigenous Dispute Resolution Methods in Ghana
4.3.2 Arbitration in Ghana
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ODR service providers exist and include the ADR Hub, Centre for Peace and Reconciliation, West Africa Dispute Resolution Centre (WADREC), Ashaiman Central ADR Centre, Zenu Liberty ADR Centre, among others.
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the New York Convention). The provisions of the New York Convention were incorporated into the new Act.424
The Alternative Dispute Resolution Act set the legal framework for the practice of arbitration in Ghana.425 This has been promulgated with the view to properly align arbitration practice in Ghana with the UNCITRAL Model Law Provisions as well as those of the New York Conventions. The ADR Act distinguishes between customary arbitration, common law arbitration and foreign arbitration.
The ADR Act set out the process of initiating arbitration. Schedule 2 Rule 7 of the ADR Act426 outlined it as follows: the first step to take, if one intends using arbitration to resolve his/her dispute, is to give notice to the other party. The notice must include the following:427 an agreement to arbitrate; a demand to refer the dispute for arbitration; party names and addresses; the arbitration clause or arbitration agreement being relied on; reference to the contract out of which the dispute emanates or relate; statement of claim containing the amount seeking (if any); and the remedy being sought or proposed number of arbitrators (if has not been agreed on). However, rule 7(3) states that the notice may also contain a proposal to appoint an arbitrator, a notification of the appointment of an arbitrator stating the full name, address, nationality, and qualification of same. The institution to arbitrate the dispute ought to be notified at the time of notifying the other party (‘respondent’). The arbitration begins interestingly on the date of receipt of the notice by the respondent.428 The institution to arbitrate the dispute has seven (7) days from the date of receipt of the notification to inform the other party (respondent). The respondent has fourteen days upon receipt of the notice to file an answer. A counterclaim, if any, ought to be in the response and shall include notice of same, the amount involved, (if any), and the remedy being sought. The appropriate fee must accompany a counter claim.
Rule 7(10) of the second schedule makes it clear that even though a failure by the respondent to file an answer to a notice and claim shall be deemed to be a denial of the claim it will not amount
424 The full citation of the Act is Arbitration Act 1961.
425 Alternative Dispute Resolution Act (n 306).
426 Alternative Dispute Resolution (n 306) second schedule rule 7.
427 Alternative Dispute Resolution Act (n 306) schedule 2 rule 7(2).
428 Alternative Dispute Resolution Act 798 of 2010 schedule 2 rule 7(5).
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to a stay of arbitral proceedings. What this means is that once the arbitration clause in the agreement or contract is triggered, there is no turning back.
However, the presence of an arbitration clause in a contract does not automatically oust the jurisdiction of the court. What the defendant can do is to enter appearance, notify the plaintiff, and make an application to the court to refer either the entire action or the part of the action that relates to the arbitration agreement.429 What it also means is that the court can proceed to hear a matter notwithstanding the presence of an arbitration clause. The reason is that the right to arbitrate can be waived be it expressly or by inference from conduct. This waiver can be done where a party fails to request permission from the court for the matter to be referred to arbitration after entering appearance but goes ahead to take steps to defend himself/herself in the case.
The idea is that parties should not proceed with litigation if they do not desire to use it. In the absence of this, the court will proceed to hear the matter, and have it determined, and the parties would be bound by its outcome. The anticipation of section 6(4) of the Act is that by the time section 6(1) kicks in only interim measures would have been considered.430 It is very interesting to note that the mere filing of a suit in court in the face of an arbitration agreement does not waive a party’s right to arbitrate.431 The Supreme Court of Ghana in De Simone Limited v Olam Ghana Limited,432 made the point that this is in order because proceedings may be commenced in court to obtain interim reliefs an example of which is to preserve the subject matter of the dispute.
The concept of arbitrability is of paramount importance in arbitration. Arbitrability has been defined differently. Justin of the New York University sees it as agreement to use arbitration to resolve disputes. In other words, is the subject matter of the dispute part of the parties’ agreement to arbitrate? It also hinges on the question of whether the dispute can be resolved by arbitration.433 Again, Articles II(1) and V(2)(a) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (New York Convention) ,and Article 36(1)(b)(i)
429 Alternative Dispute Resolution Act 798 of 2010, s 6(1).
430 De Simone Limited v Olam Ghana Limited [2018] GHASC 22.
431 Alternative Dispute Resolution Act 798 of 2010, s 54(2).
432 De Simone Limited v Olam Ghana Limited [2018] GHASC 22.
433 Mistelis LA and Brekoulakis SL, ‘Arbitrability: International and Comparative Perspectives’ [2009] Kluwer Law International 2009 3 – 4.
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of the UNCITRAL Model Law, 1985 as amended in 2006 look at arbitrability from the perspective of disputes. They defined it as ‘disputes which are capable of being settled by arbitration’. Hence, a question of arbitrability if raised is meant to say that a particular dispute or a dispute on a particular matter cannot be resolved using arbitration. Arbitrability could centre on:
(1) whether an arbitration aagreement exists, its scope and its validity; (2) whether an agreement which relates to arbitration exists, and its validity, (3) whether the matter in issue is in line with the arbitration aagreement.434 This could, if successful strip an arbitrator of a right to resolve a particular dispute.435 On a broad scale, however, the ADR Act436 stipulated that matters of the environment, those of national or public interest, those relating enforcement as well as interpretation of the Ghanaian constitution, and other prohibited by law cannot be resolved using ADR (arbitration inclusive).
Arbitral awards are binding and final.437 What this means is that the decision of an arbitrator or arbitral tribunal is binding on the parties. Even though this is the position of the ADR Act, the situation on the ground may be different. Crook discovered on the ground that an arbitral award lacks backing and could not be enforced.438 Even though section 52 of the ADR Act stipulates that arbitral awards are final and binding, such awards can be challenged. A challenge is likely to succeed if the court establishes that the subject matter of the dispute was not one capable of been settled by arbitration or that the arbitral award was procured by fraud.439 An aggrieved party wishing to challenge an award must file an application at the High Court. A successful challenge will lead to the setting aside of the award.440
Ainuson challenged some of the claims made by proponents of arbitration.441 He argued that the duration of an arbitration process could be longer than we have been made to believe defeating the popular belief that resolving disputes using arbitration is speedier than litigation. The
434 Alternative Dispute Resolution Act 798 of 2010, s 24.
435 The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, Article V(2)(a);
UNCITRAL 1985 as amended in 2006, Article 34(2)(b)(i).
436 Alternative Dispute Resolution Act 798 of 2010, s 1.
437 Alternative Dispute Resolution Act 798 of 2010, s 52.
438 Crook C Richard, ‘Access to justice and land disputes in Ghana’s state courts: The Litigants’
perspective’ [2006] Journal of Legal pluralism 1.
439 Alternative Dispute Resolution Act 798 of 2010, s 58(3).
440 Alternative Dispute Resolution Act 798 of 2010, s 58(3).
441 Ainuson (304) 407.
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researcher agrees with this view since some arbitral matters may be very complex necessitating a lengthy process and duration. Sadly, it has been argued that the inclusion of lawyers in arbitration is responsible for the various procedural challenges as well as weights placed on exhibits and indeed the internal mechanisms of arbitration. This has contributed largely to the arguments by some scholars that arbitration is the ‘new litigation’.442