Introduction
We affirm that arbitration is an open, friendly and peaceful approach to seeking a just and durable solution. Compulsory arbitration is a practical instrument of pacification and, as such, it can and should be enacted…
There is no doubt that arbitration has become a widely accepted method of resolving all manner of disputes across the globe. Importantly, it offers an alternative to mainstream litigation and by so doing, arguably, allows parties to resolve disputes in a more efficient, private and flexible manner. That notwithstanding, there continues to be an increase in the use of statutory arbitration and this raises concerns about the role of party autonomy in arbitral proceedings. In Ghana, for example, certain statutes subject specific disputes to compulsory arbitration. Statutory arbitration, whilst providing a framework for dispute resolution in areas where disputes are technical, complex and require specialized expertise, to a degree compromises party autonomy. This leads to tension and concerns about fairness, impartiality and the effectiveness of the arbitral process. This essay examines the tension between statutory arbitration and party autonomy, highlighting the imperative of party consent in ensuring effectiveness and legitimacy of arbitral proceedings.
Party Autonomy in arbitral proceedings
Party autonomy is fundamental to arbitration in that it allows the parties to tailor the arbitral process to their specific needs and preferences. The principle of party autonomy is grounded in the belief that the parties are best placed to determine the most effective and efficient means of resolving their disputes. Ghana’s Alternative Dispute Resolution Act, 2010 (Act 798) (“ADR Act”) has at its foundation the concept of party autonomy. Section 2 of the ADR Act emphasizes that the parties to a written agreement may provide that a dispute arising under the agreement shall be resolved by arbitration. The Act further states that “a provision to submit a dispute to arbitration may be in the form of an arbitration clause in the agreement or in the form of a separate agreement.” Several provisions of the ADR Act defer to the superior considerations of the parties by specifically including phrases like “unless otherwise agreed by the parties” or “except otherwise provided in the arbitration agreement” or “unless the parties have agreed”.Party autonomy reflects freedom of contract because the parties can exclude the jurisdiction of courts and choose arbitration as a dispute settlement method by means of an arbitration agreement. More so, the concept of consent is found throughout the Act be it from the formation of the arbitration agreement, the selection of arbitrators, the determination of the procedural rules, the choice of the applicable law, the choice of the language and seat of arbitration, through to the actual hearing as well as in respect of the enforcement of the arbitral award. In other words, under traditional arbitration, the parties to the arbitration agreement are free not only to choose laws but also to conduct the arbitration process.
Compulsory Statutory Arbitration
Unlike traditional arbitration, statutory arbitration involves arbitration that is mandated by statute. In such arbitrations, the parties are directly or indirectly required by statute to submit. It has traditionally stood apart from mainstream consensual commercial arbitrations and is difficult to situate within the framework of arbitration since it takes place not pursuant to the agreement of the parties but is rather a compulsory creation of parliament even if the ADR Act is applied to it. It does not leave the parties with the discretion as to the subject of the dispute. Rather, statute determines the dispute to which the procedure is applicable in a systematic fashion. Under statutory arbitration, reference is made under the provisions of an Act of Parliament only and this enables arbitration without an agreement. Though it has a resemblance to private or optional arbitration, it is not equated with an arbitration agreement. Instead, statutory arbitration functions as a parallel since it is based on legal imperatives as opposed to voluntary consent. Thus, the statutory norm takes the place of an arbitration agreement and thus the arbitration is presumed as being conducted under an agreement of the parties. This makes statutory arbitration mandatory or compulsory.
In Ghana, some Acts of Parliament provide that some disputes arising thereunder be settled by arbitration. A typical example is section 141 of the Banks and Specialised Deposit-Taking Institutions Act, 2016 (Act 930) which provides that a review of a decision of the Bank of Ghana on official administration, liquidation and receivership be done by mandatory resort to arbitration under the rules of the Alternative Dispute Resolution Centre established under the ADR Act. Similarly, section 274 of the Lands Act, 2020 (Act 1036) provides that where there are disagreements over compensation payable or restoration in respect of land which has been temporarily occupied or compulsory acquired by the state in accordance with Article 20 of the 1992 Constitution, the Lands Commission is mandated to refer the matter for resolution under the ADR Act. The provisions of the ADR Act are thus made to apply to these statutory arbitrations unless they are inconsistent with the particular provisions of those Acts in which case the provisions of those Acts will apply. These statutes require a leap of faith in that the command of parliament is deemed to be an agreement between the citizens, thus demonstrating an attempt to bring together these essentially different procedures. A major criticism is that in ordinary arbitration the parties are free and not obliged to resort to arbitration but in the case of statutory arbitration it is compulsory to resort to arbitration under the Act.
Tension between statutory arbitration and party autonomy
The tension between statutory arbitration and party autonomy arises from the potential conflict between the statutory framework and the parties’ preferences. Usually, where arbitration is mandated by statute, the parties may be required to follow procedures that are not of their choosing such that it jeopardizes the fairness and effectiveness of the arbitral process. The ADR Act in its current form does not necessarily provide clear guidance on the relationship between statutory arbitration and party autonomy, potentially leading to conflicts and disputes. In statutory arbitration, party consent may be compromised when the parties are required to proceed in a manner primarily not of their choosing. This affects their willingness to accept the outcome of the arbitral proceedings and by so doing may hinder the willingness to comply with the award. Another potential issue occurs where one party expresses its refusal to consent to the arbitration and declines participation, for example, on grounds that it is not a proper party to the arbitration. Such an action may be premised on the understanding that arbitration under the ADR Act arises from the agreement and consent of parties and thus in the absence of consent, the arbitration as contemplated cannot be imposed on the parties.
Furthermore, a basis for the refusal to consent and thus not participate in the statutory arbitration proceedings may be argued to accord with section 27 of the ADR Act which provides that “a party who takes part or continues to take part in an arbitral proceeding…and who fails to promptly or within the time specified in the Arbitration Agreement or under this Act to object to the proceedings shall be deemed to have waived the right to raise the objection.” Thus, since the statute which imposes the compulsory arbitration does not provide a procedure by which a party could object to that party’s inclusion in an arbitration when ordinarily that party should not be a participant, the refusal to consent serves as a means of objecting to the proceedings going on in a manner that includes that person as a party. A greater risk is that considering the mandatory and compulsory nature of statutory arbitration, refusing to consent and thus participate in a statutory arbitration may expose such party to a binding arbitral award; to future requests to make contributions for the payment of compensation to the arbitral tribunal as well as to requests to pay procedural fees even though that party did not participate in the proceedings.
Conclusion
The tension between statutory arbitration and party autonomy is a real one which highlights the imperative of party consent in arbitral proceedings. While statutory arbitration can provide benefits including efficiency and expertise, it can also compromise party autonomy. To ensure the effectiveness and legitimacy of arbitral proceedings, party consent is essential. It is necessary to consider implementing safeguards to protect party autonomy as a way of ensuring that statutory arbitration remains fair, impartial and an effective dispute resolution mechanism. Suggestions for reform include allowing opt-out provisions in statutory arbitration such that parties are allowed to opt-out and agree on alternative dispute resolution procedures. Furthermore, parties should be allowed to agree on specific procedures and rules that govern the arbitral process in a mandatory statutory arbitration. Finally, arbitrators should be independent and impartial and parties should have a say in the selection of arbitrators. This and many more suggestions would go a long way to provide clear guidance in respect of statutory arbitration.
God bless!
