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Vol 24 No 12 Dec 19/Jan 20

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Merkin and Flannery on the Arbitration Act 1996

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The Government of Ghana and International Arbitration

ISBN13: 9780854902286
Published: September 2017
Publisher: Wildy, Simmonds and Hill Publishing
Country of Publication: UK
Format: Paperback
Price: £19.95

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Since the dawn of the twenty-first century, at least twelve international arbitration claims have been submitted against the Government of Ghana (GoG). This is a significant number compared with what had previously been the case.

To date, there has been little or no academic study involving the claims, the arbitral awards resulting from them, and their implications for Ghana. This book aims to fill that void. It examines GoG’s experiences with international arbitration. It draws on lessons from those experiences, as well as the comparative insights extrapolated from other jurisdictions.

The book, the 2017 Inaugural Lecture for the Ghana Academy of Arts and Sciences, focuses on arbitration between GoG and private foreign individuals, firms or corporations. It does not deal with interstate arbitration. The book examines:-

  • the nature of international arbitration;
  • the writings of Ghanaian scholars on international arbitration;
  • the legal regimes and contractual mechanisms that make GoG amenable to international arbitration as a method of settling disputes between it and private foreign individuals, firms or corporations;
  • the record of actual international arbitration claims that have been brought against GoG, and the awards that have resulted from such claims;
  • the reception and treatment of Ghanaian law as the applicable law in international arbitration claims;
  • the extent to which Ghana has implemented its international obligations with respect to international arbitration;
  • and, the enforcement of foreign arbitral awards against GoG within and outside Ghana.

Wildy, Simmonds and Hill, Arbitration and Alternative Dispute Resolution
1. Introduction 1
2. International Arbitration and Ghanaian Scholarship 4
A. The Nature of International Arbitration 4
B. Ghanaian Scholars on International Arbitration and Ghana 9
3. Dispute Settlement Provisions in Statutes, Treaties and GoG Contracts 20
A. Statutes 20
(i) Unilateral Statutory Offer of Arbitration 20
(ii) Using Ghanaian Courts to Settle Disputes with GoG 24
(iii) Reforming Existing Statutes 30
B. Bilateral and Multilateral Treaties 34
C. Contracts 42
4. Ghana’s Experiences with International Arbitration 47
A. Confidentiality and Accessing Arbitral Awards involving GoG 47
B. Issues Arising from Existing Arbitral Awards 60
(i) Costs of International Arbitration 60
(ii) Participation and Legal Representation 61
(iii) Constitution of Arbitral Tribunals 66
(iv) Nature of Disputes and Awards 68
5. Ghanaian Law as the Applicable Law in Arbitrations involving GoG 76
A. The Lex Arbitri and the Seat of Arbitration 77
B. The Lex Causae - Applicable Law of GoG Contracts 81
(i) Ghanaian Law as the Applicable Law 81
(ii) Applicability of Customary and General Principles of International Law 86
(iii) Parties’ Choice of International Law as Applicable Law 91
C. Law Applicable to Arbitration Agreements in GoG Contracts 94
D. Application and Avoidance of Ghanaian Law by Arbitral Tribunals 97
6. Enforcement of Arbitral Awards against GoG 109
A. The New York and ICSID Conventions in Ghanaian Law 109
B. Enforcing Arbitral Awards against GoG in Ghana 111
C. Setting Aside Foreign Arbitral Awards against GoG in Ghana 115
D. Enforcing Arbitral Awards against GoG outside Ghana 116
7. Conclusion 120
Annex A – Extracts from Ghanaian Statutes Related to International Arbitration 123
Annex B - Selected Bibliography 130