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ARBITRATION AGREEMENTS AND THE COURTS OF GHANA
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- 3.0. CONCLUSION
2.6.5. ARBITRATION AGREEMENTS AND THE COURTS OF GHANA Indeed numerous authorities are to the effect that under the Constitution, the jurisdiction of the High Court cannot be ousted by a statute or an agreement between parties, as held in the case of Akyem v Adu; Adu v Brantuo 80(Consolidated) thus: “(2) There was a presumption that no matter was deemed to be beyond the jurisdiction of a superior court unless it was expressly shown to be so… Similarly there was a strong presumption against the construction of statutes so as to oust established jurisdiction or else restrict the jurisdiction of the Superior Courts.”
We have in this paper highlighted the various dispute resolution mechanisms, which pertain to the oil and gas sector. We have shown that arbitration, especially international arbitration is increasingly becoming a popular mechanism for the resolution of dispute in the oil and gas industry. There is however evidence to the effect that litigation in the courts is still the most dominant82mechanism for the resolution of disputes in the industry. This paper however proposes that where arbitration ought to be resorted to as the most favourable mechanism, domestic arbitration tribunal ought to be the preferred seat of the arbitration. The host country’s negotiators who have to negotiate the agreement may be guided by the draft arbitration clause hereunder: “All or any dispute with the exception of matters relating to interpretation of the Constitution of the Republic of Ghana, the environment and the national interest relating to or arising between the parties to the main agreement and this arbitration agreement and any question relating to its existence, validity or termination which cannot be resolved between the parties by consultation, negotiation and an independent expert determination within thirty (30) days from the occurrence of the dispute shall be settled by arbitration in accordance with the Alternative Dispute Resolution Act of Ghana and the applicable rules by three members.” The arbitration shall be held in Accra, Ghana in the English language. The arbitral award shall be final and binding upon the parties and may be entered in a domestic court of competent jurisdiction for enforcement.” As has been highlighted in this paper, domestic courts, as in the case of Ghana, will normally not abdicate their jurisdiction to entertain such disputes unless the Constitution does not permit them to assume jurisdiction in such matters. The Courts would normally stay proceedings instead of abdication. It is further proposed that the government of Ghana should, as a matter of urgency operationalize the Alternative Dispute Resolution Centre established under Act 798 to facilitate domestic resolution of disputes arising from a petroleum agreement. In consonance with current trends in the oil and gas industry, the paper proposes for the establishment of a Commission akin to an umpire whose main function will be to assist the parties to a dispute to settle same in the preliminary stage as a condition precedent to resort to domestic arbitration and litigation. 1The Ghana Constitutional Review Commission (hereinafter called ‘the Commission’). The Report is dated 20th December, 2011, at p. 619, available at www.crc.gov.gh< Accessed on 20. 04.13. 2 Public Interest and Accountability Committee (PIAC) [2012] 3 Rick Vander Ploeg, Radoslav (Radek) Stefanski and Samuel Wills – Harnessing Oil Revenue in Ghana, www.theigc.org - 15 July, 2011, pp.2-3 < Accessed on 20.4 13 5 See the Commission’s report supra at n. 1 above. 6Anthony Connerty "Dispute Resolution In The Oil and Gas Industry” available online at www.dundee.ac.uk/cepmlp/journal/html/vol18/article8-8.html 7Paul Samuel Tamuno:’ The Unsuitability and Inadequacy of the Option of Agreed Dispute Resolution Process in Disputes Between Foreign Oil Companies and Developing Oil Producing Countries.’ Available at http://CEPMLP_RNWP_2010_1pdf 8 See note 6 above 9On this see Greg Gordon and John Paterson ( eds.) in OIL AND GAS LAW; CURRENT PRACTICE AND EMERGING TRENDS, Dundee University Press (2007) p. 432-433 10Article 40(c) of the 1992 Constitution of the Republic of Ghana 11Article 73. Emphasis mine. 12Article 75 (1) and (2) 13We shall however refer to it as “the Convention” 14Article 2 of the Convention 15It is said that the first session of this U.N Convention began in Caracas in 1974, however discussions as to dispute resolution processes continued until the convention was approved in 1982. On this see Anthony Connerty; above at note 6 16Article 279 of the Convention 17Rudolf Dolzer and Christoph Schreuer: Principles of International Investment Law Oxford University Press Great Clarendon Street, Oxford (2008) p.211 19Barcelona Traction Light and Power Co. Ltd (Belgium v Spain) ICJ Reports, 1970, p.44. Also available at p.212 Rudolf et al. 20Rudolf et al at p.214 21Mohammad Alramahi ‘Dispute Resolution in Oil and Gas Contracts’. (2011), available on line at http://ssrn.com/abstract=2159702>Accessed on 01.05.13 22Ibid 23Ibid 24Id p.215. For instance the United State of America (USA) Supreme Court has stated that it lacks the jurisdiction to examine the validity of the appropriation of property by a foreign government in its territory notwithstanding an allegation that it amounts to a breach of international law. See the case of Banco National de Cuba v Sabbatino, 376 US 398, 3 ILM 381 (1964) 25Alfred Fiadjoe in “Alternative Dispute Resolution: A Developing World Perspective”, published by Routledge Cavendish, Australia (2004) at p.72. These claims shall be subjected to critical analysis in the subsequent pages of this paper. 26See n. 6 above. This paper will revert in detail to the various arguments proffered for and against dispute resolution by international adjudicating bodies. 27 See n. 1 above P.619, of the report Emphasis supplied. 28See chapter 11 and particularly article 125 and 140 of the 1992 Constitution of the Republic of Ghana hereinafter referred to as ‘the Constitution’ 29See article 125(1) of the 1992 Constitution of Ghana 30Order 58 High Court of Ghana Civil Procedure Rules CI 47 31Ghana’s Alternative Dispute Resolution Act, 2010 (Act 798) 32See s. 1 of ACT 798 33S. 135 34Sections 2,5,6, Act 798 35Section 114 36Hereinafter called the Kosmos Agreement 37Article 24 (1) of the Kosmos Agreement. 38Article 24 (10) of the Kosmos Agreement 39This phrase is a legal term that refers to something which is ineffectual or void. See Black’s Law Dictionary 10th ed. (2011) p. 221 40 Article 24 41See section 1 of Act 798 42Suit No. J/1/2012 dated 16th May 2012. 43Article 181 and 268 of the Constitution of Ghana 44The 1992 constitution of Ghana 45Article 1(2) the Constitution of Ghana,1992. 47Tim Boykett, Marta Peirano, Simone Boria, Heather Kelley, Elisabeth Schimana, Andreas Dekrout. Rachel OReilly: “Oil Contracts.How to Read and Understand a Petroleum Contracts”. Version 1.1 2012 at p.178 .A catalogue record for this book is available from the British Library. ISBN: 5800086962958Times Up Press Industriezeile 33b 4020 Linz. Also available online at AustriaWebsite: www.timesup.org 48Article 29 of the Norwegian Model Petroleum Agreement available at www.regjeringen.no/upload/OED/vedlegg/konsesjonsverk pdf< accessed on 02.05.13 49Article 268 (1) of the 1992 Constitution of Ghana. Emphasis provided. 50Article 181 (2) and by extension 181 (5) states that “An agreement entered into under clause (1) of Article 181) (1) and (5) shall be laid before Parliament and shall not come into operation unless it is approved by a resolution of parliament” On this see Article 268 (2). 51[2005-6] SCGLR 271 52Suit No. J/1/2012, dated 16th May, 2012 53See Article 181, especially clause 5 54P.41. Emphasis supplied. 55Act 798 S. 3 (1) 56It is interesting to observe that the said s.3 of Act 798 is a verbatim representation of Section 7 of the United Kingdom Arbitration Act 1996. Indeed, the said provision of the UK Arbitration Act is itself almost a replica of the relevant sections of London Court of International Arbitration Rules (the LCIA Rules) See art. 23 (1) thereof which states that; “An arbitration clause which forms part of the contract and which provides for arbitration under these Rules shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitration tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.” On this, see also the case of HEYMAN VRS. DARWINS LTD. [1942] A.C.356. 57Indeed as far back as 1967, the US Supreme Court firmly established the doctrine of separability in the case of Prima Paint Corp; Inc. v. Flood & Conklin Manufacturing co. ltd388 U.S. 395 (1967) at p. 402, where the Court held that: “Arbitration clauses as a matter of federal law are “separate” from the contracts in which they are embedded.” 58See Atkins Encyclopedia of Court Forms in Civil Proceedings; stated at page 68 of volume 6 (1989 issue) cited with approval by Annin Yeboah Jsc. In the case of Republic Vrs. High Court, Tema, Exparte MY SHIPPING PVT LIMITED AND DEEJONES PETROLEUM & GAS LTD &ORS, 2011 1 [SCGLR] at page 6 59 Professor J. Ware in a Paper entitled ‘Employment Arbitration And Voluntary Consent’. 25 Hofstral rev. 83. 128-138 (1996) also available in the selected Works of Stephen J Ware at http://works.bepress.com/stephen-ware/21 Accessed on 02.o5.13 60See page13 of this paper 61See art. 127 (1) and (2) 62See the case entituled: In The Matter Of An Application For Judicial Review: Article 23 & 296 Of The Constitution, 1992 And Order 55 of Ci.47, between: Albert Anthony Ampon and 1. The Attorney General, 2. The Head of Civil Service; Suit No. AP 95/2009; Coram S.K.A. Asiedu, J. sitting as Justice of the High Court of Ghana, dated 2nd December 2009, unreported. Where the court, in declaring an executive act void, stated thus; “...the decision of His Excellency the President of Ghana interdicting the Applicant, ordering a refund by the Applicant of the sum of US$20,000 and directing the Head of the Civil Service to impose further disciplinary measures against the Applicant on the basis of the National Security Report on Investigations into allegations against the former Minister of Youth and Sports, Alhaji Muntaka Mohammed Mubarak, was unlawful.” P. 42. Emphasis mine. See also the case of Ghana Bar Association vs. The Attorney General & Another [1995-96] 1 GLR 598 @ page 605 where the court per E. Wiredu JSC. (as he then was) stated that: ‘In this country, however, under the new order of constitutional supremacy, the Constitution, 1992 has vested the power of supervising and the enforcement of the Constitution in the Supreme Court, the judges of which have sworn to uphold and defend its provisions without fear or favour. Parliamentary sovereignty as practised in Britain is alien to our new legal order. The Constitution, 1992 has vested the power of judicial review of all legislations in the Supreme Court. It has dealt away with either an executive or parliamentary sovereignty and subordinated all the arms or organs of state to the Constitution. The court as the repository and watchdog of the Constitution, 1992 is enjoined to protect, defend and enforce its provisions and should not allow itself to be diverted to act as an independent arbiter of the Constitution, 1992’. 63See Order 58 of the Ghana Civil Procedure Rules, CI 47 by which that division of the High Court is empowered to adjudicate on commercial cases. Recently other divisions like the Financial, Land, Labour and Industrial in addition to Environmental Court have also been set up. In England, following the Lord Woolf reforms on Access to Justice dated July 1996, the Civil Procedure Rules (CPR) were enacted requiring the court to encourage parties to resort an ADR mechanism the is most suitable for their case and to facilitate the use of such procedure. See Greg Gordon et al. p. 443. 64Resolution 3281 dated December 12, 1974, Chapter II, Article 2. Thus, this paper wonders why inpite of this widely accepted principle, host resource-rich but developing countries such as Ghana allow the IOCs to have international arbitration inserted in petroleum agreements instead of domestic adjudication of such dispute. 65On this see Tamuno at note 7 above. 67See art. 140(1) 68See art. 181 and 268 69The above matters, in addition to what is meant by timious filing of an application for stay of proceedings have been exquisitely discussed by Anin Yeboah JSC in the case of Republic Vrs. High Court, Tema, Exparte MY SHIPPING PVT LIMITED AND DEEJONES PETROLEUM & GAS LTD &ORS, 2011 1 [SCGLR] 237. It is interesting to note that Justice Anin Yeboah’s exposition on when to file the application for stay of proceedings which must be “after appearance and not before the date fixed for hearing” was given on 29th April 2010. This date is significant in that the “purposive” interpretation given by Anin Yeboah JSC appears to have been adopted by the law-makers when they provided under section 6 of Act 798that a party may, after entering appearance apply to the Court to refer the matter or part thereof subject to an arbitration clause for arbitration. 70S. 6 of Act 798 71 See the case of BCM Ghana Ltd. vrs. Ashanti Goldfield Ltd, [2005-2006] SCGLR 602, at p. 611 72s. 1 of the Act 73The public interest (also referred to as the national interest) is defined widely by Article 295 (1) of the constitution to include “any right or advantage which inures or is intended to inure to the benefit generally of the whole people of Ghana”. 74See again s. 1 of the Act 75See n. 42 above 76See art. 181 and 268 of the constitution 77See art. 11 78See art. 1(2) of the Constitution 79Ghana’s Alternative Dispute Resolution Act (Act 798) . As already highlighted in this paper, Act 798 excludes matters bordering on the environment, public interest and the enforcement and interpretation of the Constitution from being adjudicated upon even by the Alternative Dispute Resolution Centre established under the laws of Ghana. 80[1976] 2 GLR 63, where it is stated in holding (2) thereof. 81[2001-2002] SCGLR 786, at 792. See also the case of Mensah v Ghana Football Association, High Court Cape, Coast Suit No. SC 28/88, 4th May 1988, unreported applied by the Supreme Court in the GPRTU case supra. 82Anthony Connerty, see n.6 above Directory: wp-content -> uploads -> 2014 2014 -> For want of a nail 2014 -> Stop Militarizing Law Enforcement Act of 2014 2014 -> Ihbb asian Championships 2014 middle school bowl Round 4 First Quarter 2014 -> Ihbb european Championships 2014 Bowl Round 4 First Quarter 2014 -> International History Bee and Bowl 2013-14 Asian Division Question Set Bowl Round Six 2014 -> United states patent and trademark office 2014 -> Coffs harbour eisteddfod vocal syllabus 2014 -> Listen News Programs Schedule pledge now 2014 -> Slow club announce third album complete surrender Download 146.78 Kb. Share with your friends:
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