On March 6th 2024, Bobby Banson, a legal practitioner launched a book on the practice and procedure in Commercial Arbitration in Ghana. Isaac Aburam-Lartey – a lawyer with a wide swath of insights on arbitration – reviewed the book. According to Aburam-Lartey, the book encompasses the rules of procedure which governs arbitration in Ghana. The book as well details rules of some arbitral institutions in Ghana such as the Ghana Arbitration Centre and the Ghana ADR Hub among others. The insightful reflections and review by Mr Aburam Lartey appear below:
Sometime last year, I pitched an idea of writing a book on Commercial Arbitration in Ghana to my boss. This was after I had realized upon careful reflection that there was no book dedicated to the theory, practice and procedure of Commercial Arbitration in Ghana. It turns out that the visionary Bobby Banson was thinking ahead and was in the process of writing what is arguably the first book dedicated to the practice of arbitration within the Ghana Legal System.
I was therefore pleasantly surprised when he called me to request that I write a review of his book, Commercial Arbitration in Ghana-Practice and Procedure. I accepted this request not only out of my admiration for Bobby but also in response to my desire to see a book on the Ghanaian legal market dedicated towards the practice and procedure of Arbitration.
This is therefore an overview of the book which highlights the salient issues covered by the book and provides a critical analysis of some issues addressed by the author where necessary.
- General Structure of the Book
The book has been written in response to the dearth of publications and legal text on the practice and procedure of arbitration in Ghana. Its purpose is to discuss the rules of procedure of the legislation which governs arbitration in Ghana as well as that of some arbitral institutions in Ghana such as the Ghana Arbitration Centre and the Ghana ADR Hub. It guides practitioners on the relevant rules which govern the various stages of the arbitral process in Ghana from the initiation of a notice of arbitration to the enforcement or challenge of an arbitral award in Ghana. In the words of the author,
“It is simply a discussion on how to commence arbitral proceedings, plead facts and lead evidence in support of a claim or counterclaim, deliver a valid arbitral award and enforce a valid award or set aside or resist the enforcement of an award.”
This purpose is achieved through the five chapters of the book.
- Chapter 1
In Chapter 1, the author introduces the concept of arbitration succinctly without engaging in a theoretical and historical discourse on what constitutes arbitration. As a book on the practice and procedure of arbitration for practitioners, this approach is highly commendable as it limits itself to the fundamental elements of arbitration. Thus, the author discusses in plain language what arbitration is and highlights its basic elements including the existence of an agreement to settle disputes by arbitration and voluntary consent to the process. He further expatiates the content of a valid arbitration clause by emphasizing the need to have express words that suggest an intention to resolve a dispute by arbitration.
In dealing with arbitration agreements, the author notes on page 11 of the book that an arbitration agreement could be established by the conduct of the parties. This is remarkedly different from the general perception on the need for a written arbitration agreement. Indeed, tribunals have relied upon the conduct of non-signatory parties to establish the existence of an arbitration agreement between a signatory party and a non-signatory party. Principles such as equitable estoppel have been relied upon by Tribunals in coming to such a conclusion.
Even though the author does not shed light on the issue of the extension of arbitration agreements to non-signatory parties, this has become a topical issue in arbitration, and it is hoped that the author will consider this in the second edition of the book.
For instance, under section 5 of the Contract Act of Ghana, any provision in a contract which seeks to confer a benefit on a person who is not a party to the contract may be enforced by that party. The question which there comes to the fore is whether, in the practice and procedure of arbitration in Ghana, a person who has benefits conferred on them under a contract with an arbitration clause to which they are not a party can enforce the benefits through arbitration with the signatory party (promisor) of the arbitration agreement in the contract.
Comparatively, Section 8 (1) of the English Contracts (Rights of Third Parties) Act 1999 makes this possible and provides that
“the third party shall be treated for the purposes of that Act (English Arbitration Act) as a party to the arbitration agreement as regards disputes between himself and the promisor relating to the enforcement of the substantive term by the third party”.
Since Section 5 of Ghana’s Contract Act is silent on this issue, it is uncertain whether a third-party beneficiary under a contract with an arbitration clause can initiate arbitral proceedings against the signatory promisor under the Contract or the third-party beneficiary would have to enforce the promises in the courts through litigation.
There is also an emphasis on the need for a defined scope of the dispute to be submitted to arbitration. On this note, the author presents an interesting discussion on whether there is a dispute referable to arbitration when a debtor acknowledges a debt in pre-arbitration correspondence. The gravamen of the discussion is whether the mere presence of an arbitration agreement in a contract entitles a party to an automatic stay of proceedings and an order of referral. I would leave you to follow the discussion after you purchase the book.
Chapter 1 also contains other salient concepts which every arbitration practitioner must be conversant with including the distinction between a venue and seat of arbitration, the distinction between institutional and ad-hoc arbitration, and the concept of separability of arbitration clauses among others.
On a more important and practical note, Chapter 1 provides some guidance on the drafting of arbitration agreements by including model arbitration clauses of some arbitration institutions both in Ghana and internationally. This will come in handy to arbitration practitioners as well as in-house and transactional lawyers when drafting arbitration clauses in contracts. Many times, arbitrations are frustrated due to pathological arbitration clauses inserted in agreements by parties or their lawyers who may not be experienced in arbitration. It is therefore commendable that the book goes at length to highlight various model arbitration clauses as a guide to readers.
- Chapter 2
In Chapter 2, the author explores the statutory regimes which have governed arbitration in Ghana. This is presented through a discussion of the legal framework for arbitration in Ghana before the passage of the Alternative Dispute Resolution Act in 2010 and the current legal regime which governs arbitration in Ghana.
Perhaps the central theme of Chapter 2 is the comprehensive analysis of the author of the various legislations in Ghana that prescribe arbitration as a dispute resolution mechanism for disputes in some key sectors. In response to the attractiveness of arbitration as a form of dispute resolution, there has been an increasing drive by Parliament to include arbitration as a dispute resolution mechanism in some new legislation. This takes the form of a section in relevant statutes which prescribes arbitration as the mode of dispute resolution.
The author argues that despite the good intentions behind the incorporation of these provisions which seek to prescribe mandatory arbitration, the mechanics and operation of some of these provisions do not sit well with the general concept and notions of arbitration.
In this regard, the author considers some provisions in current legislation including section 98 of the Land Act, 2020 (Act 1036) and section 41 of the Banks and Specialized Deposit Act, 2016 (Act 930) which either expressly or impliedly seek to prescribe arbitration as a dispute resolution mechanism for the settling of disputes in the instances identified by these legislations.
Concerning section 41 of the Banks and Specialized Deposit Act, the author argues that because the banking system is one of public interest as it involves a state entity if parties are allowed to subject the causes contained in section 41 to arbitration, the award will not be made public to serve as a guide or information to all stakeholders. He therefore argues on grounds of public policy that disputes relating to interest in financial institutions and banks interest should not be arbitrable.
More ingeniously, the author assesses the constitutionality of section 142 of Act 930 which empowers an arbitral tribunal in making its determination to examine whether a defendant acted unlawfully, arbitrarily or capriciously having regard to some factors stated in the said section. The author argues that this gives the arbitral tribunal formed under section 142 the jurisdiction to “review” administrative acts or omissions against a public institution established by the constitution. The author then cites compelling authorities to buttress this point. I do not intend in this review to consider the merits or otherwise of the author’s position.
However, it is interesting to note that in similarly academic fashion, Prof. Oppong Frimpong in his article on the Nature and Constitutionality of Statutorily-Imposed (Non-Contractual ) Arbitration in Ghana, considers the constitutionality of section 141 (1) of Act 930 and assesses whether the withdrawal of a license by the Bank of Ghana under the said section must be challenged under article 23 of the Constitution since the governor of the Bank of Ghana is a public officer. In other words, he also considers whether by referring such disputes to arbitration, section 141 (1) of Act 930 is not in contravention of Article 23 of the 1992 Constitution.
It is therefore encouraging that Chapter 2 of the book joins the continuous academic discourse on the constitutionality of mandatory arbitration with reference to section 142 of Act 930 and Article 141 of the 1992 Constitution. I hope this will stir the interest of constitutional lawyers in the room to test the law on the inconsistency of section 142 of Act 930 with article 141 of the 1992 Constitution.
The other legislations considered in Chapter 2 are the Labour Act, 2003 (Act 651) and The Securities Industry Act 2016 (Act 929)
- Chapter 3
I have personally titled Chapter 3 as Arbitrators and their Jurisdiction as the chapter predominantly provides useful guidance relating to the appointment and composition of a tribunal, the procedure for challenging the appointment of an arbitrator and the obligations of an arbitrator after the appointment.
The author touches on the factors to consider in appointing arbitrators which I consider to be necessary not only for arbitration practitioners but clients, as they ultimately have the final say on this issue since they are the parties in arbitral proceedings. This section reminds me of a recent instance where our firm had to advise a client on the factors it should consider in selecting its party-appointed arbitrator. This exercise brought to light the significance of this decision, which is usually underestimated. Indeed, no two arbitrations are the same as alluded to by Prof Loukas Mistelis. The complexity of a dispute, the industry from which the dispute emanates and even the quantum involved in the dispute are crucial factors which play out during the selection of arbitrators. These are additional factors to the requirement of high moral character and independence of the arbitrator and the writer has sufficiently addressed these factors in the book.
The chapter also highlights some relevant guidelines on conflict of interest particularly the International Bar Association Guidelines on Conflict of Interest in International Arbitration. In this regard, the various instances of potential conflict as well as requirements of disclosure under the said guidelines have been painstakingly reproduced by the author in the book. This in my opinion will be highly beneficial to practitioners who sit as arbitrators in evaluating whether there is the need to make any disclosure when they find themselves in the various instances highlighted in the book.
The chapter also touches on the revocation of the appointment of arbitrators, resignation of arbitrators and the filing of any vacancy on a tribunal. The author opines that Article 9.9 of the Rules of the Ghana ADR Hub which makes the decision of the Hub on the removal of an arbitrator final without room for appeal is at variance with the provisions of section 18 of the ADR Act. This section entitles parties to apply to the High Court for the removal of an arbitrator. Indeed, the author’s position is further buttressed by section 18 (3) of the ADR Act which reveals the appellate nature of an application to the High Court.
On the jurisdiction of tribunals, the book explores key areas such as the original jurisdiction of the tribunal which includes the jurisdiction to rule on its own jurisdiction, particularly in respect of the existence, scope and validity of the arbitration agreement and the existence or validity of the agreement to which the arbitration agreement relates. This is in line with the well-established principle of Kompetenz-Kompetenz.
In this regard, I would wish to compare the author’s account of the tribunal’s jurisdiction in Chapter 3 to his observations in Chapter 1 of the book. In commenting on vitiating factors to arbitration agreements, the author opines in Chapter 1 that where a party contends through prima facie evidence that he did not voluntarily consent to settling the dispute using arbitration, that issue should be settled by a court of competent jurisdiction and not referred to an arbitral tribunal for determination. The author premises his argument on the view that a tribunal may decide against bifurcation, which is the act of separating the determination of jurisdiction from the merits of the claim by a tribunal. The author further cites the High Court case of Pride v. Hanergy Global where Kyei Baffour J (as he then was) shared a similar view.
With due respect to the learned judge and the author, it is submitted that so long as any vitiating factor borders on the validity of an arbitration agreement, this goes to the jurisdiction of the tribunal and the tribunal under the principle of Kompetenz -Kompetenz must be able to decide on its jurisdiction. This would tilt the scales in favour of the tribunal against the courts. Indeed, this is clearly the import of section 24 of the ADR Act, Act 978.
The Chapter also addresses the jurisdiction of the tribunal to correct delivered awards or make additional awards, the jurisdiction of the tribunal on expedited proceedings, the jurisdiction of the tribunal to act as an emergency arbitrator and the jurisdiction of the tribunal to order security for costs.
The author also highlights the power or scope of the High Court’s intervention in arbitral proceedings including making a preliminary point of law determinations, entertaining applications on the questions of the jurisdiction of the tribunal, entertaining applications by non-parties challenging the jurisdiction of the tribunal as well as entertaining applications to enforce arbitral awards.
Indeed chapter 3 of the book not only touches on the composition and powers of the arbitral tribunal but also shows the supportive role played by the courts in facilitating the arbitral process.
- Chapter 4
Chapter 4 of the book can be arguably described as the crux of the book Commercial Arbitration in Ghana-Practice & Procedure. This chapter explores the rules of procedure applicable to commercial arbitration in Ghana and discusses the commencement of arbitral proceedings, the conduct of parties to the arbitration, the drafting of pleadings in arbitrations, as well as the laws applicable to various stages of the arbitration.
Given the dominance of litigation in Ghana, it is not surprising that a lawyer may practice for over 10 years without having experienced or handled any dispute settled by arbitration. Even though arbitration is taught at the Ghana School of Law as part of the Alternative Dispute Resolution module, most lawyers seem to grapple with the steps to take when they are instructed on their first arbitration brief. That is what Chapter 4 of the book seeks to remedy.
On the commencement of arbitral proceedings, the author provides step-by-step guidance to navigating this task with reference to the rules of both the Ghana Arbitration Centre and the Ghana ADR Hub. The author also refers to the arbitration rules of the International Chamber of Commerce (ICC) Court of Arbitration. The author provides information on what must be contained in a notice of intention to commence arbitral proceedings.
The chapter further provides guidance on the filing of the Respondent’s Response to a notice of claim, filing of a counterclaim and making amendments to claims and responses. Other key relevant topics treated by the chapter are the effect of the failure of a Respondent to file a response, the need for no ex-parte communication during the proceedings, service of processes, reckoning and extension of time.
Given the dominance of litigation within the legal landscape of Ghana as already alluded to, it is not surprising that counsel usually approach advocacy in arbitral proceedings with the style they do in litigation. There are however some nuances when it comes to arbitration. The author therefore provides some insight into the various stages of the arbitral process including the Preliminary and Procedural Hearings. There is guidance given on the progression of the proceedings from the last procedural hearing to the actual hearing. The author indicates who is usually required to present their case (usually the Claimant) but rightly points out that under section 34(9) of the ADR Act, the Tribunal reserves the right to vary the order of the presentation.
The Chapter further considers issues such as oral and documentary hearings, and the General Rules of Evidence Applicable to the Arbitral Proceedings. In this regard, the author considers some provisions of the Evidence Act which are mandatory rules of evidence in Ghana and are therefore applicable in arbitral proceedings. This includes section 51 (3) of the Evidence Act which requires the admission of only relevant evidence in proceedings. The author considers other issues of evidence such as objection to the admission of evidence in arbitral proceedings, stamping of documents, and authentication of documents issued by foreign agencies among others.
The chapter also considers the applicability of the IBA Rules on Evidence 2020 in arbitral proceedings in Ghana. The author further considers the powers of the tribunal during proceedings including the subpoenaing of witnesses and discovery of documents, investigation or inspection of property, preservation of property and adjournment of proceedings.
The lawyers in this room will agree that it is not uncommon to purchase a law textbook and resort to it only when the need arises. However, if you purchase a copy of the book today, which I know you all will, I recommend that you read chapter 4 before leaving it on your shelves for future reference.
- Chapter 5
The climax of every arbitration is the giving of an award by the tribunal. A Tribunal may deliver a partial or final award after the proceedings. The cardinal principle that arbitrators have in mind when giving an award is to give an enforceable award which cannot be challenged or resisted during the enforcement stage.
This chapter therefore considers what qualifies as a valid award in Ghana, the form of the award, service of the award, scope of the award and time for delivering the award.
The chapter also highlights the different types of awards which could be awarded by the tribunal including Interim Awards, Partial Awards and Final Awards.
On a practical note, the chapter provides guidance on the process for enforcing arbitral awards in Ghana. In line with the practical approach of the book, the author provides a template or precedent for a motion on notice for leave to enforce an award pursuant to section 57 of the Alternative Dispute Resolution Act, 2010 (Act 798). The chapter further elaborates on the various mechanisms for the enforcement of arbitral awards. Since arbitral awards in Ghana are enforceable in the same manner as a judgment of the court, the various mechanisms discussed by the author are those contained in the civil procedure rules. Finally, the chapter provides some useful guidance on the setting aside of an award.
- Concluding Remarks
In conclusion, the book is a must-have for any lawyer or judge with an interest in commercial arbitration in Ghana. The author adopts a succinct style of writing, making it easy to read and understand. The book assembles most of the Ghanaian case law dealing with arbitration in Ghana for purposes of reference and research. Indeed, the consistent reference to the ADR Act, the Ghana Arbitration Centre Rules and the ADR Hub rules makes it easy for practitioners to study the book without having to constantly reference the Act and the rules.
I must commend Mr. Bobby Banson for setting the pace by writing a book on the practice and procedure of commercial arbitration in Ghana. This is certainly a historic feat.
To borrow the words of Sir Sam Jonah in his foreword to the book, “this attempt encapsulates the true spirit of Bobby’s alma mater Adisadel College, “Vel Primus Vel Cum Primis”.
