At OAKS Legal, we have an experienced team who are on hand to help you settle disputes by using a range of methods including Alternative Dispute Resolution (ADR).
Arbitration is a form of ADR and The Alternative Dispute Resolution Act 2010, Act 798 is the law governing arbitration in Ghana. The same law applies to domestic arbitrations and the enforcement of international arbitral awards.
Commercial arbitration is a private form of legally binding dispute resolution and is conducted before an impartial tribunal.
Use of Commercial Arbitration
Arbitration is usually used to resolve commercial disputes outside of court.
Companies conducting business in Ghana commonly choose arbitration over litigation, which for many years had been the dominant method of resolving disputes.
Arbitration is most used in the following areas:
• Construction
• Energy
• Insurance disputes
• Intellectual property rights
• Labour disputes
• Maritime and shipping
• Mining
• Oil and gas
• Property and land disputes
Arbitration is popular among multi-national companies due to the greater confidentiality, privacy and speed of resolution that it offers.
Advantages/disadvantages
The advantages of arbitration compared to court litigation and other forms of dispute resolution are:
• Expertise of the arbitral tribunal
• Finality of decision
• Low cost
• Privacy of proceedings
• Procedural informality
• Speed
The disadvantages of arbitration as compared to court litigation and other forms of dispute resolution are:
• Costs associated with venue and fees of tribunal
• Limited powers of the arbitral tribunal for interim orders
• The need to summon the court’s assistance for enforcement
Tribunal
Arbitrations are typically conducted by either one or three arbitrator(s), referred to in each case as the “tribunal”. The tribunal is the equivalent of a judge in a court setting. However, the arbitrators are generally selected by the parties and, as a result, the parties maintain some control over who will determine the outcome of the dispute.
OAKS Legal’s arbitration team are highly experienced lawyers and are experts in their field. There are no specialised arbitration courts in Ghana, however, there are judges who specialise in arbitration law and are equipped to handle arbitration-related matters that are referred to them.
The tribunal has the power to award interest as part of an arbitral award and may impose simple or compound interest at a rate determined by it following the terms of the contract and the applicable law.
A party may claim, and the tribunal may include reasonable expenses in any award it gives. Unless the parties agree otherwise, all expenses of the arbitration shall be paid for equally by the parties. There are no restrictions against contingency fee arrangements and/or third-party funding under the laws of Ghana
In practice, the courts respect an arbitral tribunal’s competence to rule on questions concerning its jurisdiction, although, the courts may review the decision of the arbitrators on an application made to it by a dissatisfied party, or in an application to set aside an arbitral award.
Are there any types of disputes that are not arbitrable?
Yes, according to the Alternative Dispute Resolution Act 2010, Act 798, ADR and therefore Arbitration does not apply to matters of national or public interest; the environment; the enforcement and interpretation of the Constitution; or any other matter that by law cannot be settled by an alternative dispute resolution method. The general rule is that only matters that can be subjected to compromise and settlement are to be referred to arbitration. Although the Arbitration Act does not make any express provision for disputes in the areas of intellectual property, antitrust, competition law, securities transactions and intra-company disputes, such disputes may be settled through arbitration.
The courts in Ghana will not enforce a foreign arbitration award under any of the following circumstances:
1. If the award has been annulled in the country in which the award was made;
2. If the party against whom the award was made was not given sufficient notice
3. If there was no proper representation for a party lacking legal capacity;
4. If the arbitration award does not answer the issues submitted to arbitration;
5. If some of the decisions contained in the award are beyond the scope of the matters submitted to arbitration.
If the dispute is not arbitrable, the arbitral tribunal is limited in its jurisdiction and the claim must instead be submitted to domestic courts.
How do I Commence Arbitral Proceedings?
An arbitration proceeding is initiated when a party to a dispute in respect of which there is an arbitration agreement refers the dispute to a sole arbitrator, a tribunal or to the Alternative Dispute Resolution Centre.
The party initiating the arbitral proceedings is required to notify the other party of the commencement of the proceeding. A party to an agreement who is not notified of an arbitration proceeding arising under that agreement may apply to the High Court to set aside any arbitral award.
Unless the parties decide otherwise, an arbitrator must hold a case management conference with the parties, both:
• Within 14 days after being appointed, and
• Having given the parties seven days’ written notice
The arbitrator’s decision at the management conference should be in writing and served on the parties.
About OAKS Legal
OAKS Legal & Consulting is a law firm based in Accra, Ghana that serves the needs of a broad range of corporate and private clients.
Our team of lawyers are specialists in mediation and other Alternative Dispute Resolution methods in Ghana across a broad range of sectors and industries.
We pride ourselves on our excellent service and extensive understanding of the legal systems, cultures, economic and regulatory environment in Ghana and sub-Saharan Africa. Total client satisfaction is always our goal and we see ourselves as an extension of our clients, working together to achieve your objectives.
