By: Prince Kojo Tabiri & Godwin Selasi Owusu
Recently, arbitration has emerged as the favored approach for settling disagreements in international trade and investment deals worldwide.
The Alternative Dispute Resolution Act, 2010 (Act 798) in Ghana was established to offer a thorough legal structure for processes such as arbitration, mediation, and various other methods of resolving disputes outside the conventional court system.
The Arbitration part of the Act conforms to global arbitration norms, specifically mirroring the UNCITRAL Model Law on International Commercial Arbitration (1985, revised 2006), as well as adhering to the principles set out in the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
Nevertheless, considering the dynamic character of arbitration and the recent reforms introduced under the UK Arbitration Act 2025, it is essential to evaluate if Ghana’s alternative dispute resolution (ADR) framework continues to be both competitive and effective.
The article mainly discusses arbitration, analyzing how well the Arbitration segment of Ghana’s ADR Act aligns with global benchmarks. It also delves into possible changes aimed at improving Ghana’s arbitration environment to make it more effective, appealing for investors, and internationally competitive.
This article provides:
Primary regions where Ghana’s arbitration system matches global standards.
- Pinpointed deficiencies and obstacles present in the existing ADR legislation.
- Suggestions for policies and reforms aimed at updating Ghana’s arbitration system to align with international best practices and current global standards.
- A review of whether Ghana should keep a combined ADR statute or implement a separate Arbitration law.
Alignment with International Standards
(A) Alignment with the UNCITRAL Model Law (1985, revised 2006)
-
Recognition of Arbitration Agreements
– The Ghanaian ADR Act recognizes both arbitration clauses and independent arbitration agreements, as required by the UNCITRAL Model Law. -
Kompetenz-Kompetenz Principle
– In Ghana, the legislation permits tribunals to decide on their own jurisdiction (Section 24), which is consistent with the principles of jurisdictional independence set forth by UNCITRAL. An arbitral tribunal holds the power to establish its jurisdiction over several issues, including: (a) the presence, extent, or legitimacy of the arbitration agreement; (b) the existence or legality of the underlying or encompassing contract; and (c) whether the disputes presented fall within the purview of the arbitration agreement. -
Limited Court Intervention
– In line with the UNCITRAL Model Law’s principle of minimal judicial intervention, Ghana restricts courts from intervening in arbitration processes.
Enforcement of Foreign Arbitration Decisions (New York Convention, 1958)
Ghana has signed the New York Convention and implements foreign arbitration awards as per Section 59 of the legislation.
The reasons for not enforcing it align with Article V of the Convention (such as inadequate notification, an invalid arbitration clause, or procedural bias).
Practical Issue
– In certain cases, Ghanaian courts have postponed the implementation of foreign arbitral awards because of various procedural obstacles. For instance, in the case of
Balkan Energy vs The Republic of Ghana
PCA Case No. 2010-7
In 2007, there was a disagreement brought before an arbitration panel following a violation of a power purchase contract between the Government of Ghana and Balkan Energy Limited concerning the Osagyefo Power Barge.
The enforcement process took more than two years because of judicial review applications following the tribunal’s order for Ghana to compensate Balkan Energy with $11.75 million, along with interest and legal fees.
Comparison with UK Arbitration Act 2025 Amendments
It should be highlighted that Ghana’s Act enhances confidentiality requirements more than the UK Act does. In contrast, the UK legislation lacks explicit provisions offering similar levels of protection.
In the UK, the requirement for confidentiality in arbitration is still considered an implicit obligation rather than a legal statute. In contrast, Ghana has codified this principle into law under Section 34 of their act.
Unless the parties agree otherwise, the Arbitral Tribunal must necessarily issue directives regarding the confidentiality of the arbitration process or related issues and can implement safeguards to protect trade secrets and private information.
The 2025 UK Act provides arbitrators with explicit authority to quickly discard unfounded claims, whereas Ghana’s legislation does not include this provision. Ghana might want to contemplate granting broader powers to tribunals as part of its arbitration reforms.
Under Section 31, the responsibilities and authorities granted to an arbitrator do not empower them to promptly dismiss claims deemed lacking merit.
This amendment to the UK legislation brings the arbitration procedure into alignment with the summary judgment criteria applied in civil litigation within the UK, particularly under Civil Procedure Rule 24.
Both statutes explicitly state ”
little chance of actual success
“as the primary criterion for quickly rejecting unsubstantiated claims or cases.” Despite Order 14 of C.I 47 in Ghana being conceptually akin to the United Kingdom’s Civil Procedure Rule 24, it lacks those precise phrasings.
As part of our effort to bring about reforms, we might adopt the same methodology and enact legislation for a test that mirrors the present framework of summary judgments in Ghana, aiming for similar consistency.
Secondly, unless stated differently, an arbitration agreement follows the legal framework established by the underlying contract.
The 2025 UK Act elucidates this stance: the legislation applicable to an arbitration agreement is either the law explicitly consented to by the involved parties, or if no such agreement exists, the law of the location where the arbitration takes place.
The 2025 UK Act introduces another exemption to the updated standard rule for cases involving investor-State arbitrations. This specific carve-out applies when the arbitration agreement originates from either a treaty or legislation outside of the United Kingdom.
In Ghana, however, if the parties do not indicate which law should govern the arbitration agreement, the courts are likely to rule that the law of the arbitration seat will apply. This approach was accepted by the High Court of Ghana in the case of
Dutch African Trading Co. BV v. West African Mills Co
.
Ltd.
[2022]DLCA 11307
.
Nevertheless, a distinct legal clause could be established to deem the law of the arbitral seat as the governing law when the parties have not explicitly agreed upon one. This is crucial for resolving the discussion around the applicable law for arbitration agreements.
The 2025 UK Act expands the protection afforded to arbitrators against liability for stepping down, except when such resignation is considered unjustifiable. Conversely, Ghana’s ADR Act does not provide immunity from liability due to resignation as outlined in Section 31.
To uphold specific institutional arbitration rules (
for example, the 2021 ICC Rules
In the 2025 Act, which includes provisions for appointing an emergency arbitrator, these arbitrators are explicitly granted the same authority as a complete arbitral panel. This allows them to (i) issue binding orders and (ii) enable parties to seek recourse from the courts.
These capabilities are intended to strengthen the enforcement of provisional orders issued by emergency arbitrators.
To the extent that the Ghana ADR Hub’s regulations allow for the appointment of emergency arbitrators within their emergency arbitration procedures, implementing more extensive statutory provisions would constitute significant progress.
The UK legislation streamlines the procedure for overturning an award, unlike Ghana’s system which stays rather complicated as outlined in Section 58.
The UK courts will neither consider additional reasons for objections nor accept new evidence unless the applicant shows that despite all due effort, these were unavailable at the time of presentation to the tribunal. Additionally, they will not revisit any previously heard evidence.
Is It Necessary for Ghana to Have Its Own Separate Arbitration Act?
(A) Reasons to Maintain the Current State of the ADR Act
-
Comprehensive Dispute Resolution Framework
– The present legislation offers a unified framework that integrates arbitration, mediation, and traditional dispute resolution methods into a single legal structure. This makes the process more approachable and recognizable for local professionals. -
Promotes Mediation and Traditional Arbitration
— In contrast to numerous legal systems, Ghana acknowledges traditional and informal methods of dispute resolution. These approaches assist in decreasing court backlogs and encourage community-focused conflict management. -
Flexibility for Users
– Businesses and individuals have the option to select the most appropriate dispute resolution method without dealing with multiple legal systems.
Reasons to Establish a Distinct Arbitration Act for Ghana
-
Alignment with International Practice
– The majority of prominent arbitration venues (such as those found in the UK, Singapore, and Canada) distinguish arbitration from alternative dispute resolution techniques, thereby enhancing its strength and appeal for investors. -
Enhancing Arbitration’s International Appeal
— Enacting a specific arbitration statute might bolster Ghana’s standing as a favored venue for international arbitration by offering more transparent regulations and a robust enforcement framework.
The Complex Problem of Artificial Intelligence and Mediation
Artificial Intelligence has seamlessly integrated into both our private spheres and workplaces. In a nation such as Ghana, where alternative dispute resolution methods are expanding and technological integration is increasing, it’s crucial for us to keep abreast of these developments—particularly within the field of arbitration—if we aspire to position Ghana as a leading center for arbitration.
Prominent organizations such as the Singapore International Arbitration Centre (SIAC), International Chamber of Commerce (ICC), and London Court of International Arbitration (LCIA) have begun integrating AI technologies into their e-filing and case administration processes to enhance efficiency.
Although we should welcome the integration of AI into arbitration processes in Ghana, it’s important to be aware of potential drawbacks. Instances have occurred where AI systems like ChatGPT have generated fictitious legal precedents when utilized by attorneys.
For instance, in the latest U.S. case involving
Wadsworth vs. Walmart Inc and others
\xa0
(Case No. 2:2023cv00118)
, attorneys filed documents referencing fictitious cases created by an internal artificial intelligence system.
In the case, the judge penalized the attorneys and dismissed one of them. Likewise,
Chang v. Chen, 2024 BCSC 285, Chong Ke
A Vancouver-based attorney presented a legal document in a child custody dispute to the British Columbia Supreme Court, which contained fictitious cases fabricated by ChatGPT. Consequently, this prompted an inquiry from the Law Society of British Columbia.
In our view, Ghana will struggle to reap the full benefits of AI in arbitration and simultaneously safeguard against potential misuse and tackle ethical concerns without establishing a clear regulatory framework or guidelines.
We suggest establishing comprehensive AI guidelines specifically designed for arbitration professionals and organizations. These guidelines should particularly focus on addressing concerns related to the confidentiality and impartiality of arbitrators in relation to the application of artificial intelligence.
Arbitration relies heavily on maintaining confidentiality, and as mentioned earlier, the Alternative Dispute Resolution (ADR) Act in Ghana explicitly requires arbitrators to uphold this confidentiality throughout the process. Utilizing AI tools such as ChatGPT for analyzing documents and evidence could potentially lead to the exposure of sensitive party information.
Concerning the autonomy of arbitrators, they must render decisions independently and are prohibited from delegating any aspect of their individual responsibility to anyone else.
Nevertheless, when AI tools are utilized by arbitrators, they might be seen as delegating their authority to these systems. Furthermore, employing AI tools during arbitration could lead to ethical concerns regarding the independence of the decisions made.
Comprehensive instructions outlining that the utilization of AI tools by arbitrators should complement rather than supplant their own independent examination of the facts, legal principles, and evidence would represent progress.
Policy Suggestions & Transformation Strategy
-
Option 1
Implement a separate Arbitration Act, leaving mediation and traditional arbitration within the purview of the ADR Act. This approach aligns with global standards and enhances investor trust. -
Option 2
Develop a supplementary Arbitration Code aimed at enhancing procedural transparency while maintaining arbitration under the present ADR Act. This can act as a temporary solution prior to complete segregation.
It is essential to emphasize that both approaches should be considered for further regulation of third-party funding and addressing corruption in arbitration, as well as incorporating advancements in artificial intelligence into any forthcoming reforms.
Conclusion
Ghana’s Alternative Dispute Resolution (ADR) Act mostly aligns with international norms but falls short on incorporating certain contemporary arbitration advancements. By drawing insights from the United Kingdom’s reform initiatives scheduled for 2025 and following broader global developments, Ghana has an opportunity to strategically amend its legislation and regulatory structure. This could enhance overall effectiveness, draw more investments, and lessen reliance on judicial involvement in arbitration processes.
Although Ghana’s comprehensive Alternative Dispute Resolution (ADR) system is praiseworthy, establishing a distinct Arbitration Act could bring it more in line with international standards, thereby reinforcing Ghana’s role as a leading center for global arbitrations.
A staged method for reform, beginning with revisions to the current ADR Act and progressing towards enacting a distinct legislation, might serve as the optimal route ahead.
These changes will bolster arbitration in Ghana, boost investors’ trust, and establish the nation as a premier center for conflict resolution across the continent.
About the Writers
Prince
He is a lawyer, arbitrator, and mediator who holds membership with the American Arbitration Association’s International Centre for Dispute Resolution (ICDR) under their Young & International program, along with being a member of both the Chartered Institute of Arbitration branches in Ghana and Canada. His expertise lies particularly in international trade and investment, alongside commercial dispute resolution.
Godwin
He is a lawyer specializing in intellectual property rights advocacy and commercial arbitration. A member of both the Chartered Institute of Arbitration’s branches in Ghana and New York, his expertise lies in intellectual property rights, music, media, entertainment business, and international commercial arbitration.
.
Provided by Syndigate Media Inc. (
Syndigate.info
).
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