This article provides information to law firms and their clients to help them strategize on how best to get their foreign commercial arbitration awards enforced in Ghana.
Arbitration is fast becoming the popular dispute mechanism for business disputes. This is especially because of the advantage of neutrality. In most cases, the venue for the arbitration is a third country of which none of the parties in disputes are citizens of. Also, arbitration proceedings are often chaired by a panel of 3 arbitrators with specific industry knowledge. In addition, the process is deemed fair and efficient as most arbitration clauses are agreed to in advance by the parties before any dispute arises.
Arbitration awards obtained against Ghanaian nationals or Ghanaian based businesses can be effective only of it can be enforced by the judicial system in Ghana. The current legal regime governing enforcement of foreign commercial arbitration in Ghana is the Alternative Dispute Resolution Act, 2010 (Act 795). Act 795 has made significant changes to the enforcement of foreign arbitral awards in Ghana. Prior to 2010, The ARBITRATION ACT, 1961 (ACT 38) governed enforcement of foreign commercial arbitration awards in Ghana. Under Act 38, only awards from reciprocating States could be enforced in Ghana. A reciprocating State was defined by Act 38 as “a State declared by the President by legislative instrument to be a party to the [The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958] or any other State to which this Part is, by legislative instrument, applied by the President on the basis of reciprocity. Thus arbitration awards from countries which were not listed in the Legislative Instruments could not be enforced in Ghana. For such awards, a fresh action must be instituted against the Ghanaian defendant and the arbitration award can only be introduced as evidence in the case. The holder of the arbitration award therefore had to deal with the cost and time that comes with a fresh action.
The Alternative Dispute Resolution (ADR) Act, 2010, has done away with the requirement that the award can be enforced only if the award was given in a country that has been designated by the President of Ghana as a reciprocating country. In fact under the ADR Act, arbitration awards from countries that are not signatories to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 can be enforced in Ghana if the court is satisfied that the award was made by a competent authority under the laws of the country in which the award was made.
The Alternative Dispute Resolution (ADR) Act, 2010 makes it clear that a party who seeks to enforce an arbitration award in Ghana must produce the original award or a properly authenticated copy of the award. The party seeking enforcement of the award must also produce the agreement pursuant to which the award was made. The Ghana court must also be satisfied that there is no pending appeal against the award in any court that has jurisdiction over the arbitration.
It must be noted further that under Ghana law, a party who seeks to enforce an international arbitration in Ghana must produce a certified true copy of any document he seeks to rely on if the document is not in English.
However, 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 to enable him present his case;
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.
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