November 27, 2022

Introduction

The phrase “arbitration” has gained a variety of traction lately. It’s now “modern” or “chique” to include arbitration clauses in every kind of agreements. Even legislative drafters have caught on to this “new wave” of together with arbitration provisions in public laws. Therefore, Acts of Parliament and subsidiary laws handed within the final 3 years embody different dispute decision provisions because the technique of settling disputes arising from the interpretation and/or software of these legal guidelines. This development, for proper or improper, marks a departure from the standard notion of the Courts being the one adjudicators of disputes regarding statutory interpretation.

On this article, the Writer considers the idea and options of conventional arbitration vis-à-vis its comparatively current variant, statutory arbitration. The writer depends on quite a few statutes together with current banking and land laws to display the difficulties with what has been referred to by some others as obligatory statutory arbitration.  The Writer’s place is that regardless of the nice intentions behind the incorporation of those provisions, the mechanics and operations of those provisions don’t sit properly with the overall idea and notions of arbitration.

Important Options of An Arbitration

Arbitration, in its easiest phrases, is the voluntary submission of a dispute to a number of neutral individuals for a closing and binding willpower.[1] It as the method by which a dispute or distinction between two or extra events as to their mutual authorized rights and liabilities is referred to and decided judicially and with binding impact by the appliance of legislation by a number of individuals as an alternative of by a courtroom of legislation.[2]

People or States might desire arbitration for disputes settlement for causes starting from occasion autonomy, the neutrality of the discussion board to the experience of the arbitral tribunal.[3]

The sine qua non for the graduation of arbitral proceedings is whether or not or not the Events have an arbitration settlement. Part 2 of the Different Dispute Decision Act, 2010 (Act 798) offers as follows:

(1)Events to a written settlement might present {that a} dispute arising below the settlement shall be resolved by arbitration.

(2) A provision to submit a dispute to arbitration could also be within the type of an arbitration clause within the settlement or within the type of a separate settlement.

(3) An arbitration settlement shall be in writing and could also be within the type supplied within the Fifth Schedule to this Act.

(4) For the aim of this Act an arbitration settlement is in writing if

(a)  it’s made by alternate of communications in writing together with alternate of letters, telex, fax, e-mail or different technique of communication which give a document of the settlement; or

(b)  there may be an alternate of assertion of declare and defence by which the existence of the settlement is alleged by one occasion and never denied by the opposite.

The provisions of Act 789, as reproduced above, is consistent with the incontrovertible place of all authorized programs that arbitral proceedings can’t start with out prior voluntary settlement between the Events. Andrea Marco Steingruber emphasised this place of legislation within the Oxford Worldwide Arbitration Collection[4], the place he said “The principal attribute of arbitration is that it’s chosen by events by concluding an settlement to arbitrate. The arbitration settlement is taken into account the muse stone of worldwide (industrial) arbitration, because it data the mutual consent of the events to undergo arbitration-mutual consent which is indispensable to any processes of dispute decision outdoors nationwide courts. Such processes rely for his or her very existence upon the settlement of the events. Therefore, this ingredient of mutual consent is important, as with out it there will be no legitimate arbitration.”

It’s this defining character or voluntary consent of events earlier than arbitral proceedings can start that differentiates arbitration from the state adjudication course of (i.e. judicial system). Whereas an individual has no alternative however to make use of the State’s judicial system to settle a dispute, the State doesn’t have such coercive powers in the case of arbitration. The Events should voluntarily comply with submit their dispute to arbitration, and so they can’t be pressured to.

The consent to arbitration have to be not restricted to solely the consent to refer the dispute to arbitration. The consent should even be in respect of the next:

  1. The submission of the dispute to arbitration
  2. The selection of the arbitrator
  3. The selection of the arbitral establishment (for institutional arbitration)
  4. The selection of the foundations of arbitration.
  5. The venue of the arbitration
  6. The language of the arbitration

Certainly, it has been concluded that an arbitration settlement which lacks all these components will not be enforceable and deemed faulty.[5]

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One different benefit of arbitral proceedings is the confidentiality which underlines the whole proceedings. Not like judicial proceedings that are held in public[6], arbitral proceedings and the award arising from similar can’t be made public except with the consent of the events.[7]

Arbitrability of Sure Explanation for Actions/Disputes

Regardless of the precise of Events to resolve to submit their dispute to arbitration, additionally it is accepted that there are some causes of actions and disputes that the curiosity of the State looms too giant to be left within the arms of “personal individuals” as “closing resolution makers”. That is the idea behind the arbitrability or in any other case of some disputes.

The time period “Arbitrability” refers to issues, or disputes of which aren’t able to settlement below arbitration.[8]  The difficulty of arbitrability is important to invoke the jurisdiction of the arbitral tribunal as a result of if the subject material is just not arbitrable, the jurisdiction of the tribunal can’t be invoked to settle any dispute arising out of the subject material.[9]

In accordance with Carbonneau and Janson[10], arbitrability determines the purpose at which the train of contractual freedom ends and the general public mission of adjudication begins. Redfern and Hunter[11] argue that each nation, influenced by its socio-economic circumstances and insurance policies, determines which issues are to be arbitrable and which shouldn’t be.

By its very nature, an arbitration settlement is guided by the precept of occasion autonomy which permits events to find out the scope and extent of an settlement. Thus, the place an award is made in respect of a matter not inside the scope of the settlement between the events, it could finally not be arbitrable.[12]

In sure circumstances, nationwide courts have supplied the explanation why sure issues are usually not arbitrable inside that authorized regime. The Supreme Courtroom of the USA, as an example held within the case of Continental Airways Inc. v. Zimmerman[13] that as a result of significance of chapter proceedings to the sleek functioning of the financial fibre of the USA, it was crucial that any resolution regarding chapter needs to be reserved for a Courtroom and never for an arbitral tribunal.

The idea of arbitrability is just not alien to the jurisprudence of Ghana. Part 1 of Act 798 offers for issues past the scope of software of the Act. By purposive interpretation, Part 1 of the Act offers for issues not topic to arbitration in Ghana. The issues listed therein are usually not issues, disputes of which will be settled by arbitration- they’re subsequently not “arbitrable”.

Part 1 of the Act offers as follows:

“This Act applies to issues apart from people who relate to

(a) the nationwide or public curiosity;

(b) the setting;

(c) the enforcement and interpretation of the Structure; or

(d) another matter that by legislation can’t be settled by another dispute decision methodology.”

The ambit of the provisions of Part 1 of the Act is what is usually known as “Arbitrability Provisions”.

Because of this in Ghana, the place the dispute between the Events pertains to the enforcement and interpretation of the structure, or will have an effect on the setting or shall be of public curiosity, Events who could also be immediately concerned within the transaction or information resulting in the dispute won’t have the choice/proper to submit such disputes to arbitration. A courtroom of competent jurisdiction should settle these disputes.

Statutory Prescriptions for Obligatory Arbitration

“Obligatory arbitration” seems like an oxymoron contemplating the truth that arbitration is voluntary between the events. Be that as it could, in Ghana, there are statutes with mandate that for disputes arising from the appliance of these statutes, the Events should submit themselves to arbitration. On this half, we are going to set out these legal guidelines and analyse whether or not every of them suits the commonly accepted circumstances to invoke the jurisdiction of an arbitral tribunal.

1.Land Act, 2020 (Act 1036)

The Land Act, 2020 was assented to in December 2020  to revise, harmonise and consolidate the legal guidelines on land to make sure sustainable land administration and administration, efficient and environment friendly land tenure and to offer for associated issues.[14]

Part 2 of the Act offers that the best curiosity/title in land is the allodial title and will be held by the State, a Stool/Pores and skin, Household, Clan or Particular person. It’s trite that in Ghana, an Particular person who holds allodial title curiosity in land will need to have acquired it from a household, stool/pores and skin or clan.[15]

It’s common for there to be disputes with respect to the possession of curiosity in land. Part 98 of the Act offers that “An motion regarding any land or curiosity in land in a registration district shall not be commenced in courtroom except procedures for decision of dispute below Different Dispute Decision ACT, have been exhausted.”

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A studying of this part signifies that an individual who’s difficult the curiosity of one other in a land, can’t start an motion in courtroom except the particular person has exhausted the choice dispute decision procedures supplied for below Act 798. What are the choice dispute decision mechanisms supplied for below Act 798?

The preamble of Act 798 offers for the means of other dispute decision anticipated by the Act. The preamble states, amongst others, that the Act is an “AN ACT to offer for the settlement of disputes by arbitration, mediation and customary arbitration….”

A studying of the provisions of part 98 of the Land Act within the context of the preamble of Act 798 will present that the legislation is suggesting that earlier than an individual can proceed to courtroom to provoke an motion in respect of their curiosity in land, that particular person will need to have demonstrated that he has tried to resolve the dispute by both arbitration, mediation and customary arbitration with out fail.

With respect, this statutory prescription flies within the face of all of the recognized important perquisites for arbitration vis:

  1. The Events wouldn’t have consented in an settlement to topic the dispute to arbitration (both customary or industrial arbitration)
  2. The Events wouldn’t have agreed on the arbitration heart or the foundations of arbitration.
  3. Arbitration doesn’t fail. It should end in an award/binding resolution and so a dissatisfied occasion to an arbitral award can’t re-litigate the problem in a courtroom of legislation[16].
  4. The land tenure system is that of public curiosity as there may be just one State Entity (i.e. Lands Fee) which serves because the registry of lands. If events are allowed to topic land disputes to arbitration, the award won’t be made public or registered on the Lands Fee. On the grounds of public coverage, disputes regarding curiosity in land shouldn’t be arbitrable.

On these grounds enumerated above, it’s the opinion of the writer that part 98 of the Land Act is inconsistent with the overall physique of legal guidelines in Ghana and needs to be struck out as such.

2.Banks and Specialised Deposit Act, 2016 (Act 930)

Act 930 was handed in 2016 as an “Act to amend and consolidate the legal guidelines regarding deposit-taking; to control establishments which stick with it deposit-taking enterprise, and to offer for associated issues.”

Part 41 of the Act offers as follows:

(1) The place an individual is aggrieved with a call of the Financial institution of Ghana in respect of

(a)  issues below sections 107 to 122 or sections 123 to 139;

(b)  withdrawal of the registration of a monetary holding firm;

(c)  issues which contain the revocation of a licence of a financial institution or a specialised deposit taking establishment; or

(d)  an motion below sections 102 to 106 and the place the Financial institution of Ghana determines that there’s a severe threat to the monetary stability or of fabric loss to that financial institution or specialised deposit- taking establishment or monetary holding firm

and that particular person wishes redress of such grievances, that particular person shall resort to arbitration below the foundations of the Different Dispute Decision Centre established below the Different Dispute Decision Act, 2010 (Act 798).

This provision expressly states that the dispute decision mechanism for any particular person aggrieved by the choice of the Financial institution of Ghana can solely be via arbitration below the foundations of the Different Dispute decision Middle established below Act 798. Not like the Land Act, this Act goes additional by naming an arbitral centre to manage the administration. Be that as it could, sadly, this Act additionally sins towards the important function of arbitration.

First, as of the date of the passage of the ADR Act to this point, the Different Dispute Decision Middle has not been constituted, and therefore this provision can’t be enforced. Moreover, just like the Land Act, this statutory prescription contradicts all necessities for arbitration vis:

  1. The Events wouldn’t have consented in an settlement to topic the dispute to arbitration (both customary or industrial arbitration).
  2. The difficulty of banking system is that of public curiosity as there may be just one State Entity (i.e. Financial institution of Ghana) which serves because the regulator of the Business. If events are allowed to topic such causes of motion to arbitration, the award won’t made public to function a information or data to all stakeholders. On the grounds of public coverage, disputes regarding curiosity in monetary curiosity establishments and banks curiosity, shouldn’t be arbitrable.
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Moreover, part 142 of the Act additional offers that “With respect to an arbitration continuing towards the Financial institution of Ghana, a member of the decision-making physique, a employees of the Financial institution of Ghana, an agent of the Financial institution of Ghana, or Arbitration Panel in reaching a call, might study whether or not the defendant acted unlawfully or in an arbitrary or capricious method having regard to:

(a)  the peculiar information,

(b)  the provisions of this Act,

(c)  a directive of the Financial institution of Ghana, or

(d)  Iny different enactment.

This provision provides an arbitral tribunal the jurisdiction to “evaluation” administrative acts or omissions towards a public establishment established by the Structure[17] and its officers. This provision is inconsistent with Article 141 of the 1992 Structure, which vests within the Excessive Courtroom, the jurisdiction to evaluation selections of decrease our bodies established below the 1992 Structure. Article 23 of the 1992 Structure additionally offers that individuals aggrieved by selections of administrative our bodies shall have the precise to hunt redress earlier than a courtroom.

Date Bah[18] sitting because the Sole Arbitrator is the arbitral proceedings involving Dr Kwabena Duffour as Claimant and Nii Amanor Dodoo as Respondent noticed as follows “Furthermore there are points relating as to if the particular process prescribed by Act 930 is constitutional, being in obvious battle with Article 23 of the 1992 structure when it’s invoked in relation to an alleged illegal train of administrative authority.”

The writer is of the opinion that these provisions within the Act 930 are usually not solely at variance with the overall important circumstances for a dispute to be referred to arbitration however are additionally unconstitutional

Conclusion

Arbitration is usually deemed as a dispute-resolution mechanism the place events comply with arbitrate their disputes. The mutual and voluntary consent requirement  is a situation of each legitimate arbitration continuing. When involuntary, as talked about by the quite a few clauses examined, it doesn’t solely defeat the broader intention of the choice dispute settlement, however it additionally raises doubts within the minds of the events who’ve been pressured to take part in a course of they didn’t selected to take part in.  Arbitration have to be voluntary and any try to make it in any other case by statute, needs to be discouraged.

[1] Blackaby and others Redfern & Hunter on Worldwide Arbitration, 6th Ed. Oxford College Press (2015) pg 2

[2] Halsbury’s Legal guidelines of England (4th Version, Butterworths 1991), para 601, 332.

[3] Blackaby and others Redfern & Hunter on Worldwide Arbitration, (6th Ed. Oxford College Press, 2015) pages 28-31

[4] “Consent in Worldwide Arbitration” (Oxford College Press, 2012)

[5] See Schmitthoff “Faulty Arbitration Clauses” [1975] J.B.L. 9

[6] Besides in sure circumstances expressly supplied for my legislation like matrimonial causes

[7] See Skilled Report of Stephen Bond in Esso/BHP v Plowman (1995) 11 Arbitration Worldwide No 8 at web page 273.

[8].L.A. Mistelis S.L. Brekoulakis (ed), Arbitrability: Worldwide and Comparative Views (Kluwer Regulation Intl, 2009) pages 3-4.

[9] The Conference on the Recognition and Enforcement of International Arbitral Awards, 1958 (the New York Conference), Article V (2)(a); the UNCITRAL Mannequin Regulation on Worldwide Industrial Arbitration, 1985 (as amended in 2006) (the Mannequin Regulation), Article 34 (2)(b)(i).

[10] T.E. Carbonneau, F. Janson, “Cartesian Logic and Frontier Politics: French and American Ideas of Arbitrability”, [1994] 2 Tul. J. Int’l & Comp. L. (Tulaine Journal of Worldwide and Comparative Regulation) 193, at p.194.

[11] N. Blackaby, C. Partasides, A. Redfern, M. Hunter, Redfern and Hunter on Worldwide Arbitration (5th Version Oxford College Press, 2009) at p.124

[12] A. Rogers, “Arbitrability”, [1992] 1 A.P.L.R. (Asia Pacific Regulation Evaluate) 2, at p.1.

[13] 464 U.S.1038, 104 S.Ct. 699, 79 L.Ed.second 165, January 9, 1984.

[14] See the preamble of Act 1036.

[15] Aidoo v. Adjei (1976) 1 GLR 431; Golightly v. Ashirifi (1955) WACA 49; Akyea-Djamson v. Duagbor (1989-90) 1 GLR 223 S.C; Nyasemhwe v. Afibiyesan [1977] 1 GLR 27-36

[16] The Act 798 has supplied for the grounds of intervention by the Excessive Courtroom in arbitral proceedings however these grounds don’t counsel that an arbitral award will be the topic of an attraction within the excessive courtroom.

[17] See Article 183 of the 1992 Structure

[18] A retired justice of the Supreme Courtroom of Ghana


The Author is the Lead Guide with Robert Smith Regulation Group, a boutique legislation agency primarily based in Accra and assists with the instructing of Civil Process on the Ghana College of Regulation, Makola Campus-Accra. He’s additionally Fellow of the Chartered Institute of Arbitrators.