International Arbitration Comparative Guide

1 Legal framework

1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?

The relevant legislation on arbitration in Ghana is the Alternative Dispute Resolution (ADR) Act, 2010 (Act 798). This sets out a comprehensive statutory framework governing arbitration and other forms of alternative dispute resolution in Ghana. It applies to both domestic and international arbitration conducted in Ghana.

The requirement for written arbitration agreements is a key limitation of the act. The act does not recognise oral arbitration agreements. For an arbitration agreement to be enforceable under the act, it must be in writing. This requirement aligns with international best practices, ensuring clarity and certainty in arbitral proceedings.

The act governs written arbitration agreements. The arbitration agreements must be written, signed by the parties through means such as an exchange of letters, telexes, faxes, emails or other means of telecommunication which provides a record of the agreement. The agreement can be a reference in a contract to a document containing an arbitration clause, provided that the reference is such as to make the clause part of the contract.

However, oral arbitration agreements are recognised under customary law in Ghana for which the Alternative Dispute Resolution Act recognises as Ghanaian customary law knows no writing.

This approach ensures alignment with the UNCITRAL Model Law on International Commercial Arbitration and best international practices. Ghana's recognition of oral arbitration agreements under customary law is a unique hybrid model accommodating indigenous dispute resolution practices, although not enforceable under commercial arbitration rules.

1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?

The legislation does not differentiate between domestic arbitration and international arbitration expressly; neither does it define what domestic arbitration and international arbitration are. The legislation distinguishes between domestic arbitration and international arbitration only in terms of:

• the enforcement of a domestic arbitral award; and
• the enforcement of a foreign arbitral award.

A domestic award may be enforced in the same manner as a High Court judgment. A foreign award must meet the conditions set out in the legislation before the award can be enforced.

Although the law does not provide definitions, in practice, international arbitration is understood as involving:

• foreign parties;
• foreign laws; or
• foreign seats.

The only operational differentiation lies in the enforcement of domestic versus foreign awards, which follows distinct statutory pathways.

1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?

Yes, the legislation is substantially based on the UNCITRAL Model Law on International Commercial Arbitration. The First Schedule of the ADR Act explicitly includes the full text of the UNCITRAL Model Law. This schedule serves as a supplementary legal framework for international arbitration in Ghana. This incorporation of the UNCITRAL Model Law gives Ghana's legal framework international credibility and provides comfort to foreign investors and contracting parties, ensuring predictability in legal processes.

1.4 Are all provisions of the legislation in your jurisdiction mandatory?

Not all provisions of the ADR Act are mandatory. The act contains both mandatory and permissive/voluntary provisions, depending on:

• the nature of the dispute;
• the context; and
• the stage of the process.

Mandatory provisions include those relating to:

• court-referred ADR, where the courts are sometimes required to promote reconciliation and may refer cases to ADR where appropriate;
• the qualifications and appointment of arbitrators and mediators; and
• certain procedural steps in arbitration – such as the issue of awards, the timelines for challenge and enforcement.

Permissive/voluntary provisions include the following:

• The use of mediation or arbitration is voluntary, as the parties are free to choose what form of dispute resolution mechanism they want.
• The parties can select their preferred mediator or arbitrator.
• The parties may agree on their own rules or adopt those in the ADR Act.

Mandatory provisions preserve the integrity of the arbitral process by ensuring fairness and due process; whereas permissive provisions safeguard party autonomy – a cornerstone of arbitration.

1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?

No, there are no current plans to amend the ADR Act.

1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?

Yes, Ghana is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Ghana acceded to the convention on 9 April 1968. Ghana made no reservations or declarations to the convention upon accession. Ghana's unqualified accession to the convention enhances the enforceability of awards both domestically and internationally, promoting confidence in Ghana as a seat of arbitration.

1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?

Ghana is a signatory to the International Convention on the Settlement of Investment Disputes, which provides a mechanism for investor-state arbitration under the International Centre for Settlement of Investment Disputes. These treaty commitments complement Ghana's ADR Act and broaden its enforcement regime in transnational investment and commercial disputes.

2 Arbitrability and restrictions on arbitration

2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?

In Ghana, whether a dispute is arbitrable depends on whether it can legally be resolved through arbitration rather than through the courts. Generally, a matter may be submitted to arbitration if it is the subject of an arbitration agreement. However, the Alternative Dispute Resolution (ADR) Act provides for certain exceptions, including:

• the national and public interest;
• the environment;
• the enforcement and interpretation of the 1992 Constitution of Ghana; and
• any other matter that by law cannot be settled by ADR.

These exceptions ensure that matters of public interest and fundamental legal principles remain within the purview of the judiciary. This aligns with global best practices to maintain judicial control over issues that affect constitutional and public policy considerations.

2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?

Yes, in Ghana, there are certain restrictions on the choice of seat of arbitration, but these are limited and context specific. Generally, parties have broad autonomy to choose the seat of arbitration, except in cases involving:

• the Ghanaian state;
• the public interest; or
• statutory obligations.

If the parties do not choose the arbitral tribunal, the arbitral tribunal has the power to determine the seat, considering:

• the circumstances of the case; and
• the convenience of the parties.

This provision:

• ensures that state and public interest concerns are not sidestepped by selecting foreign seats;
• ensures local regulatory compliance; and
• affords the Ghanaian courts supervisory jurisdiction where needed.

3 Arbitration agreement

3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?

In Ghana, the validity of an arbitration agreement is primarily governed by the Alternative Dispute Resolution Act, 2010 (Act 798).

• Written form: An arbitration agreement must be in writing. This requirement is satisfied if the agreement is documented through:
• • an exchange of written communications such as letters, emails, telexes or faxes;
  • an exchange of statements of claim and defence where one party alleges the existence of the agreement and the other party does not deny it; or
  • a reference in a contract to another document containing an arbitration clause.
• Mutual consent: The parties must agree to submit their dispute to arbitration and the consent should not be vitiated by factors such as:
• • fraud;
  • duress;
  • undue influence;
  • mistake; and
  • other vitiating factors.
• Capacity to contract: The parties to the arbitration must have the legal capacity to contract.
• Arbitrability of dispute: The dispute must fall within the parameters of dispute that can be resolved by arbitration in Ghana.
• Separability of the arbitration clause: The arbitration clause is still enforceable if the main contract is found to be invalid.
• Irrevocability: Unless otherwise agreed by the parties, an arbitration agreement is generally irrevocable.
• Public policy: An arbitration agreement is deemed valid as long as it does not offend Ghanaian public policy.
• The emphasis on writing enhances evidentiary reliability and mitigates disputes about the existence of arbitration agreements. The reference to public policy reinforces the boundary between arbitrable and non-arbitrable matters.

3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?

Yes, Ghanaian law explicitly addresses the separability of arbitration agreements, primarily through the Alternative Dispute Resolution Act (ADR), 2010 (Act 798), which is the key statute governing arbitration in Ghana. The act expressly adopts the doctrine of separability as it clearly recognises that an arbitration clause in a contract is separate and independent from the other terms of the contract. This means that even if the main contract is alleged to be void, invalid or terminated, the arbitration agreement remains valid and enforceable. The ADR Act incorporates the UNCITRAL Model Law on International Commercial Arbitration as a guide and the Model Law itself includes the principle of separability. Ghana's alignment with the Model Law reinforces the principle that the arbitration agreement is autonomous and not dependent on the validity of the main contract. The separability doctrine ensures that arbitration clauses survive challenges to the main contract, preventing parties from avoiding arbitration simply by disputing contract validity.

3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?

Yes, there are default rules on both the seat and language of arbitration when the parties have not made an agreement on these matters. The place of arbitration will be determined by the arbitral tribunal, having regard to:

• the circumstances of the case; and
• the convenience of the parties.

The arbitral tribunal will also determine the language or languages to be used in the proceedings if there is no agreement by the parties. These default rules:

• reinforce the tribunal's procedural autonomy; and
• uphold the efficiency of arbitration where party agreements are silent.

4 Objections to jurisdiction

4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?

A party must raise the objections early specifically by raising the objection first before intending to defend or contest the case on its merits. Where a party continues to participate in the proceedings without objecting, it may be deemed to have waived their right to object. An objection can also be raised where a party assumes that during the arbitration proceedings, the tribunal has exceeded its jurisdiction. The tribunal may also entertain an objection made later than the prescribed time if it considers that there is sufficient justification to do so.

An objection to jurisdiction must first be made to the arbitral tribunal and must be in writing; and the grounds for the objection must be clearly stated. Timeliness in raising objections upholds procedural integrity and prevents abuse of process. Waiver of objection through continued participation without protest is a widely accepted procedural safeguard.

4.2 Can a tribunal rule on its own jurisdiction?

Yes, a tribunal can rule on its own jurisdiction based on the doctrine of 'kompetenz-kompetenz', which means that that tribunal is empowered to determine:

• whether it has jurisdiction over the dispute; and
• any objections to the existence or validity of the arbitration agreement.

This principle of kompetenz-kompetenz aligns with international standards and supports procedural efficiency by reducing premature court interventions.

4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?

Yes, a party can apply to the court of the seat for a ruling on the jurisdiction of the tribunal. The party must first raise the objection to the tribunal as required. If the party is aggrieved with the tribunal's ruling on its jurisdiction, the aggrieved party can then, on notice to the other party and the arbitrator, apply to the appointing authority or the High Court for a determination on jurisdiction of the tribunal. Such an application must be made within seven days of the tribunal's ruling and the application must contain the reasons for the application. This review mechanism ensures a judicial check while respecting the tribunal's primary role. It promotes accountability and trust in arbitral proceedings.

5 The parties

5.1 Are there any restrictions on who can be a party to an arbitration agreement?

Yes, there are restrictions on who can be a party to an arbitration agreement in Ghana, primarily based on contractual capacity and legal competence. Legal capacity to contract applies to both natural and artificial persons. Examples of such restrictions include:

• minors (persons under 18 years);
• persons of unsound mind or lacking mental capacity; and
• entities not recognised by law.

This ensures that only those capable of legally binding themselves can submit to arbitration, reinforcing the contractual foundation of arbitration agreements.

5.2 Are the parties under any duties in relation to the arbitration?

Yes, parties to an arbitration agreement are subject to certain duties in relation to the conduct of the arbitration based on:

• the Alternative Dispute Resolution Act, 2010 (Act 798);
• general principles of contract law; and
• the fundamental principle of good faith in arbitration proceedings.

Among other implied duties, the parties must:

• arbitrate in good faith;
• comply with procedural orders and timelines;
• pay arbitration costs and fees;
• cooperate with the tribunal; and
• preserve confidentiality.

Good faith and procedural cooperation are integral to arbitration and reflect its consensual nature. These duties ensure an efficient and fair dispute resolution process.

5.3 Are there any provisions of law which deal with multi-party disputes?

There is no specific reference to multi-party disputes in the law but applies to disputes irrespective of the number of parties. In practice, where multi-party arbitration arises, tribunals rely on party consent and procedural fairness to incorporate additional parties or coordinate parallel proceedings.

6 Applicable law issues

6.1 How is the law of the arbitration agreement determined in your jurisdiction?

Arbitration prides itself with party autonomy, so the parties are free to elect the law that determines or will be applicable to arbitration in Ghana. However, in the absence of such an agreement, the tribunal is empowered to apply:

• the law that is mostly closely connected with the arbitration agreement, as it is convenient for the parties; and
• the conflict of law rules.

This is usually inferred from:

• the seat of arbitration;
• the substantive law of the underlying contract;
• the place of performance of the contract;
• domicile or place of business of the parties; and
• the language of the arbitration clause.

The law most closely connected doctrine:

• helps to fill interpretive gaps in complex international disputes; and
• aligns with principles of conflict of laws.

6.2 Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?

An arbitral tribunal will uphold the parties' agreement as to the substantive law governing the dispute, in line with the principle of party autonomy, as long as the law is not contrary to public policy or prohibited by law. Where the substantive law to the agreement is unclear, the tribunal must determine the law to apply. This gives the arbitral tribunal discretion to apply a conflict of law analysis or use the closest connection rule on the law that is to be applicable. Tribunals prioritise party autonomy and resort to conflict of laws rules only where necessary, ensuring that the parties' expectations govern the substantive dispute resolution framework.

7 Consolidation and third parties

7.1 Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?

Yes, Ghanaian law does permit the consolidation of separate arbitrations into a single arbitration proceeding and concurrent hearings to be held, but it is not automatic as a condition must be met: there must be the absence of an agreement between the parties which prevents consolidation of arbitral proceedings. Consolidation promotes procedural efficiency but must be balanced with the need for party consent and procedural fairness.

7.2 Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?

The Alternative Dispute Resolution Act is silent on the joinder of additional parties to an arbitration which has already commenced. Insofar as the joinder of parties is allowed by the rules of court, if the party to be joined is a necessary party to the suit and the party's presence will be for the effective determination of the matters in dispute, it cannot be said that this can be necessarily implied into arbitral proceedings. However, if the parties agree to the joinder of a party to the suit, the arbitral tribunal is empowered by the parties to join a party. While joinder is not statutorily defined, the parties' agreement remains key. Institutional rules or tribunal discretion can sometimes facilitate joinder in appropriate cases.

7.3 Does an arbitration agreement bind assignees or other third parties?

Yes, an arbitration agreement can bind assignees or other third parties insofar as they derive their interest from a party to the arbitration agreement. This reflects the principle that rights and obligations under a contract, including arbitration clauses, follow the assignment or transfer of interest.

8 The tribunal

8.1 How is the tribunal appointed?

The appointment of the arbitral tribunal is governed by the parties' agreement and the tribunal must have an uneven number of members. The parties are also at liberty to agree on the procedure for the appointment of the tribunal. If the parties have no agreement, the statutory procedure in the Alternative Dispute Resolution (ADR) Act, 2010 (Act 798) applies. Each party appoints one arbitrator and the two arbitrators then appoint the third arbitrator, who will be the chairperson of the tribunal. Where there are issues regarding the appointment of the arbitrators by the parties or the two arbitrators, the appointing authority will appoint an arbitrator as requested by a party. This mechanism ensures neutrality and maintains party autonomy. It aligns with international standards, particularly where party-appointed arbitrators nominate a chairperson.

8.2 Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?

The parties are free to choose the number of arbitrators in Ghana; however, there should be an uneven number of arbitrators. In the absence of agreement between the parties, there will be three arbitrators.

The parties are free to determine the qualifications of the arbitrators. An arbitrator:

• is a person appointed by the parties or by a person or an institution acting under a power conferred by the parties; and
• may be a person with specific experience or qualifications that the parties have agreed on.

The parties are even free to appoint a person as an arbitrator without any experience or qualifications relevant to the dispute. To ensure the appointment of an independent and impartial arbitrator, the parties or appointing authority should have regard to:

• any personal, proprietary, fiduciary or financial interest of the arbitrator in the matter to which the arbitration relates;
• the relationship of the arbitrator to a party or counsel of a party to the arbitration;
• the nationalities of the parties; and
• other relevant considerations.

The flexibility afforded allows the parties to appoint technically qualified experts or legally trained arbitrators depending on the nature of the dispute, fostering specialised resolution.

8.3 Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?

Yes, the parties are free to agree on a procedure for challenging the appointment of an arbitrator. A party that seeks to challenge the appointment of an arbitrator must, within 15 days of becoming aware of the constitution of the arbitral tribunal or of circumstances that justify the challenge of the appointment of an arbitrator, submit a written statement of the reasons for the challenge to the arbitrator to any other arbitrators. The grounds for challenge are that the arbitrator:

• is impartial;
• is not independent; or
• does not have the qualifications agreed by the parties.

This promotes confidence in the arbitral process by ensuring that only impartial and independent arbitrators preside over disputes. Prompt challenge procedures protect procedural integrity.

8.4 If a challenge is successful, how is the arbitrator replaced?

Due to the principle of party autonomy in arbitration, the parties are free to adopt a procedure for the replacement of an arbitrator whose appointment has been successfully challenged. In the absence of agreement between the parties, the legislation provides that the arbitrator is replaced by the same authority or procedure that appointed them originally. This continuity mechanism ensures that the arbitration proceeds without undue delay or legal vacuum, preserving the momentum of dispute resolution.

8.5 What duties are imposed on arbitrators? Are these all imposed by legislation?

The duties imposed on arbitrators are as follows:

• to be fair and impartial;
• to give each party an opportunity to present its case; and
• to conduct the arbitration proceedings in the manner that they consider appropriate to avoid unnecessary delay and expenses.

These duties are imposed by legislation and aim to ensure procedural fairness, neutrality and efficiency, which are fundamental to party confidence in arbitration.

8.6 What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?

(a) Procedure, including evidence?

Unless otherwise agreed by the parties, the arbitrator will decide on matters of procedure and evidence, including:

• the time and place for holding any part of the proceedings;
• questions that should be put to and answered by the respective parties and how those questions should be put;
• the documents to be provided by the parties and the stage of the proceedings at which they should be provided; and
• the application or non-application of the strict rules of evidence as to:
• • the admissibility, relevance or weight of any material sought to be tendered; and
  • how that material should be tendered.

(b) Interim relief?

At the request of a party, a party may grant any interim relief that the arbitrator considers necessary for the protection or preservation of property. Interim relief may take the form of an interim award and the arbitrator may require payment of the costs of obtaining such relief. The arbitrator may apportion costs related to applications for interim relief in an interim award or in the final award.

(c) Parties which do not comply with its orders?

The ADR Act, 2010 (Act 798) does not explicitly detail sanctions for non-compliance, but arbitrators can proceed with the arbitration and make decisions based on the evidence presented. For the enforcement of interim measures or orders, the parties may seek assistance from the High Court as provided for in the ADR Act.

(d) Issuing partial final awards?

A partial award is an award that decides on some of the issues in dispute. It is final and binding on the issues that it covers, even though the arbitration proceeding is still ongoing for the remaining matters. The legislation allows arbitrators to make interim awards, which can address specific issues or claims before the final award. This enables the resolution of certain matters promptly within the arbitration process.

(e) The remedies it can grant in a final award?

Arbitrators may grant any relief that they consider just and equitable within the scope of the arbitration agreement, including:

• specific performance;
• injunctions; or
• declaratory relief.

(f) Interest?

The arbitrator may grant the appropriate pre-award or post-award relief at simple or compound interest under:

• the terms of the contract; and
• the applicable law.

These powers are consistent with global arbitral standards and allow for effective and flexible resolution of disputes within the agreed framework.

8.7 How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?

The ADR Act empowers the tribunal to adjourn the hearing if a party fails, without good reason, to appear or participate in the arbitration hearing. However, the tribunal has the power to proceed with the arbitration proceeding and make an award based on the evidence adduced by the participating party if a party fails to participate in the hearing despite been served with the notice of the arbitration proceedings. This ensures that non-participating parties cannot frustrate the arbitral process, thereby:

• preserving procedural efficiency; and
• enforcing fairness for participating parties.

8.8 Are arbitrators immune from liability?

An arbitrator is not liable for any act or omission in the discharge of their functions as an arbitrator unless they are shown to have acted in bad faith. This also applies to an employee or an agent of an arbitrator. This does not affect liability incurred by an arbitrator as a result of their resignation. This immunity:

• protects arbitrators from vexatious litigation; and
• enables them to act decisively and impartially, unless they engage in egregious misconduct.

9 The role of the court during an arbitration

9.1 Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?

The courts in Ghana will stay the proceeding and refer the parties to arbitration if there is an arbitration agreement. According to the Alternative Dispute Resolution Act 2010 (Act 789), where there is an arbitration agreement and a party commences an action in a court, the other party may, on entering appearance and on notice to the party that commenced the action in court, apply to the court to refer the action or a part thereof to which the arbitration agreement relates to arbitration. If satisfied that the matter in respect of which the application has been made is a matter in respect of which there is an arbitration agreement, the court will refer the matter to arbitration. The grant of an application will serve as a stay of the proceedings in the court. Unless otherwise agreed by the parties, where court proceedings are stayed for the purpose of arbitration, any security given, property detained, injunction or restraining orders imposed in the original action will apply to the arbitration. This demonstrates the Ghanaian courts' respect for party autonomy and the integrity of arbitration agreements, reinforcing the principle of minimal judicial interference.

9.2 Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?

The court has several powers concerning arbitration. For example:

• Section 39(1)(e) of the Alternative Dispute Resolution Act 2010 (Act 789) states that the court may grant interim measures, such as injunctions or the appointment of a receiver, to preserve the subject matter of the dispute;
• Section 40 of the act provides that the court can assist in the taking of evidence for arbitration proceedings;
• Section 57 provides that the court can enforce arbitral awards, making them binding as a judgment of the court; and
• Section 58 provides that the court may set aside an award on specific grounds, such as:
• • incapacity of a party; or
  • misconduct by the arbitrator.

These powers:

• preserve the court's supervisory jurisdiction without usurping the tribunal's primary role; and
• help to support, rather than undermine, arbitral proceedings.
  

9.3 Can the parties exclude the court's powers by agreement?

While the parties have autonomy in arbitration proceedings, they do not have the power to exclude the court's powers by agreement. The courts retain supervisory jurisdiction in all matters and this cannot be ousted by an agreement between the parties. This reflects the balance between party autonomy and the public interest in maintaining the courts' oversight in matters involving:

• jurisdiction;
• procedural fairness; and
• enforcement.

10 Costs

10.1 How will the tribunal approach the issue of costs?

Unless otherwise agreed by the parties, the tribunal's approach to the issue of costs is determined by the Alternative Dispute Resolution Act 2010 (Act 789). The arbitral tribunal must, within 14 days of being appointed and upon giving seven days' written notice to the parties, conduct an arbitration management conference with the parties or their representatives in person or through electronic or other telecommunication media to determine costs and arbitrators' fees, bearing in mind the relevant fees, among other issues relating to the arbitration. The decision reached at the arbitration management conference is binding on the parties.

The arbitral tribunal must fix the costs of the arbitration in its award. The term 'costs' encompasses:

• the fees of the arbitrators and umpire, to be stated separately as to each arbitrator and to be fixed by the arbitral tribunal itself in accordance with this rule;
• the travel and other expenses incurred by the arbitrators;
• the costs of expert advice and of other assistance required by the arbitral tribunal;
• the travel and other expenses of witnesses, to the extent that those expenses were approved by the arbitral tribunal;
• the costs of legal representation and assistance of the successful party:
• • if these costs were claimed during the arbitral proceedings; and
  • only to the extent that the arbitral tribunal determines that the amount of these costs is reasonable; and
• any fees and expenses of the Ghana Arbitration Centre.

The tribunal's discretion in awarding costs:

• encourages procedural discipline; and
• discourages frivolous claims or dilatory tactics.

10.2 Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?

The Alternative Dispute Resolution Act does not impose specific restrictions on the parties' agreement regarding costs. The parties are thus free to agree on the allocation and responsibility for costs, provided that this agreement is not contrary to public policy. Freedom to agree on cost arrangements:

• assists the parties in managing financial risks; and
• encourages the inclusion of arbitration clauses in commercial contracts.

11 Funding

11.1 Is third-party funding permitted for arbitrations seated in your jurisdiction?

The Alternative Dispute Resolution Act 2010 (Act 789) makes no comment on third-party funding. Although it is not prohibited, the regulatory uncertainty surrounding third-party funding in Ghana means that parties must proceed cautiously and consider applicable ethical rules.

12 Award

12.1 What procedural and substantive requirements must be met by an award?

The parties are free to agree on the form of the award. In the absence of such an agreement, the award will be in writing. The arbitrator must:

• sign the award;
• state the date and place where the award was made; and
• state in writing the reasons for the award, unless the parties have agreed otherwise.

Where there is more than one arbitrator, the signatures of the majority of the arbitrators will suffice where the reason for the omission of the signatures of some of the arbitrators is stated. A signed copy of the award must be delivered to each party and the mode of payment and rate of interest on any sum, where applicable, will be determined by the arbitrator.

These requirements:

• ensure the transparency and enforceability of awards; and
• protect against judicial challenges based on procedural improprieties.

12.2 Must the award be produced within a certain timeframe?

The Alternative Dispute Resolution Act 2010 (Act 789) does not specify a strict timeframe for delivery of an award. However, arbitrators are expected to conduct proceedings without unnecessary delay and to deliver awards promptly, ensuring efficiency in the arbitration process. Although no statutory deadline is prescribed, arbitrators are under an implied obligation to avoid unnecessary delay, consistent with the principles of efficient justice.

13 Enforcement of awards

13.1 Are awards enforced in your jurisdiction? Under what procedure?

Yes, arbitration awards are enforced in Ghana. The Alternative Dispute Resolution Act 2010 (Act 789) recognises two types of awards – domestic and foreign:

• A domestic award made by an arbitrator pursuant to an arbitration agreement can be enforced in the same manner as a judgment or order of the court to the same effect. The award creditor must apply to the High Court for leave to enforce the award. Where leave is so given, judgment may be entered in terms of the award. Also, leave to enforce an award will not be given where, or to the extent that, a person against which the award is sought to be enforced can show that the arbitrator lacked substantive jurisdiction to make the award.
• A foreign award must meet the requirement under the Alternative Dispute Resolution Act for it to be recognised in Ghana. An application must be made to the High Court for recognition and enforcement of the foreign award.

The bifurcation between the enforcement of domestic and foreign awards:

• mirrors global practice; and
• provides a reliable route to recognition and execution.

14 Grounds for challenging an award

14.1 What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?

Subject to the Alternative Dispute Resolution Act 2010 (Act 789), an arbitration award may be set aside on application by a party to the arbitration to the High Court. The award may be set aside by the court only if the applicant satisfies the court that one of the following applies:

• A party to the arbitration was under some disability or incapacity;
• The law applicable to the arbitration agreement is not valid;
• The applicant:
• • was not given notice of the appointment of the arbitrator or of the proceedings; or
  • was unable to present its case;
• The award deals with a dispute that is not within the scope of the arbitration agreement or outside the agreement;
• There has been a failure to conform to the procedure agreed by the parties;
• The arbitrator has an interest in the subject matter of the arbitration which they failed to disclose;
• The subject matter of the dispute is incapable of being settled by arbitration; or
• The arbitral award was induced by fraud or corruption.

If the applicant is dissatisfied with the ruling of the High Court on the application to set aside the award, it can appeal the decision of the High Court in the Court of Appeal. These grounds:

• reinforce procedural integrity, fairness and adherence to the scope of arbitral jurisdiction; and
• ensure that awards are legally and procedurally robust.

14.2 Are there are any time limits and/or other requirements to bring a challenge?

The award should be challenged within three months of the date of service of notice of the award by the aggrieved party. However, an aggrieved party may make an application to challenge or set aside an order after the expiration of the three months from service of the notice of the award for justifiable reasons. The limitation period ensures finality and legal certainty while accommodating delayed challenges for just cause in exceptional cases.

14.3 Are parties permitted to exclude any rights of challenge or appeal?

The parties cannot exclude the right to challenge or appeal an arbitration award in their arbitration agreement. This preserves the rule of law and judicial oversight in the arbitral process, acting as a safeguard against abuse or miscarriage of justice.

15 Confidentiality

15.1 Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?

The parties are at liberty to determine whether the arbitration will be confidential. However, arbitration proceedings are generally confidential. Confidentiality is provided for in the Alternative Dispute Resolution Act 2010 (Act 789). This statutory guarantee of confidentiality upholds privacy, which is a significant advantage of arbitration over litigation.

15.2 Are there any exceptions to confidentiality?

Confidentiality may be waived if the parties agree to disclose information. Confidentiality may also be breached where disclosure:

• is required by law;
• is necessary for the enforcement of the award; or
• is needed to protect or enforce a legal right.

These exceptions strike a balance between privacy and transparency where the law or the enforcement process demands limited disclosure.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.