Arbitration has become a preferred method for resolving disputes in commercial and investment transactions globally. Ghanaâs Alternative Dispute Resolution Act, 2010 (Act 798) was enacted to provide a comprehensive legal framework for arbitration, mediation and other forms of alternative dispute resolution. The Arbitration section of the Act aligns with international arbitration standards, particularly the UNCITRAL Model Law on International Commercial Arbitration (1985, amended 2006) and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
This article provides a detailed summary of the Ghana Arbitration Act, covering its key provisions, international affiliations, and practical implications for parties involved in arbitration proceedings.
International Conventions and Treaties
Ghana is a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Ghana became a party to the New York Convention on 9 April 1968, which came into force on the same date. No declarations or notifications were made under articles I, X and XI of the New York Convention. Yes. Ghana is also a party to the International Convention on the Settlement of Investment Disputes, which came into force on 14 October 1966. Ghana has entered into 28 bilateral investment treaties with other countries, most of which contain dispute resolution provisions.
Key Takeaways:
- Ghana is a signatory to the New York Convention, ensuring recognition and enforcement of foreign arbitral awards.
- Ghana is a party to the International Convention on the Settlement of Investment Disputes.
- Ghana has multiple bilateral investment treaties with dispute resolution clauses.
Domestic Arbitration Law
The Alternative Dispute Resolution Act 2010 (Act 798) (the ADR Act) regulates domestic arbitral proceedings. The ADR Act is divided into five parts. Part 1 is the part that provides for arbitration. Part 1 of the ADR Act is largely based on the UNCITRAL Model Law on International Commercial Arbitration. However, there are some differences between the ADR Act and the UNCITRAL Model Law.
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Key Differences:
- The UNCITRAL Model Law essentially relates to commercial disputes between contracting parties at the international level.
- The ADR Act, however, provides an avenue for the resolution of a wide variety of disputes, including commercial disputes.
- The ADR Act provides for customary arbitration, which is unique to the Ghanaian legal system.
The ADR Act does not regulate foreign arbitral proceedings; however, it provides the framework for the enforcement of foreign arbitral awards. Arbitration proceedings are considered foreign when they are undertaken outside the jurisdiction under a system of law other than the laws of Ghana. The party seeking to enforce a foreign award must apply to the High Court of Ghana to enforce the foreign award.
Arbitration Agreement
The ADR Act provides that an arbitration agreement must be in writing. However, an arbitration agreement is not rendered unenforceable by reason of the death, merger or dissolution of a party to the agreement. The obligations of a party under an arbitration agreement may be transferred to their successors, personal representatives or liquidator on the death, merger or dissolution of such a party.
Arbitration agreements that form part of a contract are generally deemed to be independent of the other terms of the contract. In principle, arbitration agreements cannot be extended to third parties who are not signatories to the arbitration agreement. The ADR Act does not make any express provision for the imposition of liability arising from an arbitration agreement on account of assignment, agency or insolvency. However, the assignment of the underlying contract may be presumed to include the acceptance of any arbitration agreements contained in or incorporated into the underlying contract. Similarly, a principal may be bound by an arbitration agreement entered into by an agent.
Under the ADR Act, the occurrence of death does not discharge a party to an arbitration agreement from liability. The implication is that a successor-in-title will be required to discharge the liabilities arising from the arbitration agreement entered into by the deceased.
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Arbitrability
Yes. The Alternative Dispute Resolution Act 2010 (Act 798) (the ADR Act) expressly states that matters involving the following are not arbitrable:
- National or public interest.
- The environment.
- The enforcement and interpretation of the Constitution.
- Other matters that by law cannot be settled by an alternative dispute resolution method (including criminal action and abuse of human rights).
The general rule is that only matters that can be subjected to compromise and settlement are to be referred to arbitration. Section 72 of the Courts Act provides that all civil matters can be settled out of court, including through arbitration.
Enforceability
An arbitration agreement is valid even where it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other, or when reference is made in a contract to any document containing an arbitration clause. An arbitration agreement may not be enforceable if waived by the parties or if the parties decide to submit the matter to the jurisdiction of the courts, or if declared null and void by the arbitral tribunal.
However, an arbitration agreement is not rendered unenforceable by reason of the death, merger or dissolution of a party to the agreement. The obligations of a party under an arbitration agreement may be transferred to their successors, personal representatives or liquidator on the death, merger or dissolution of such a party. In addition, a party to an arbitration agreement who is not notified of an arbitral proceeding may apply to the High Court to set aside the arbitration agreement.
Third Parties
The ADR Act does not contain any provisions with respect to third-party participation in arbitration. However, third parties may participate where the arbitration agreement in a main contract entered into by the parties extends to ancillary contracts that one of the parties to the main contract executes with a different party, or where the parties agree to the joinder of a third party. Also, under the Contracts Act of Ghana 1960 (Act 25), a third-party beneficiary of the main contract may enforce an arbitration agreement contained in the main contract as if it were a party to the contract.
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Groups of Companies
Under the principle of separate legal personality, companies in the same group will not be bound by an arbitration agreement entered into by a parent company or subsidiary company, or another company in the same group, unless the corporate veil is lifted.
The ADR Act provides that parties that submit a matter for arbitration must have an agreement between them. This implies that the arbitrator, or the tribunal as the case may be, shall not have the mandate to extend any arbitral proceedings to another party that was not a party to the agreement.
The law does not grant any exemption to companies in this regard, and hence the âgroup of companiesâ doctrine may not be applicable in Ghana, unless the corporate veil is lifted.
Multiparty Arbitration Agreements
There is no express provision relating to multiparty arbitration agreements under the ADR Act. Thus, the requirements for a valid bilateral agreement would, in principle, be the same as those set out for the validity of a multiparty arbitration agreement.
Consolidation
Consolidation of arbitration proceedings is subject to the agreement of the parties. The ADR Act provides, at section 31(6), that the parties may agree to permit the arbitrator to consolidate separate arbitral proceedings, and hold concurrent hearings.
Key Provisions for Consolidation:
- Consolidation requires the agreement of all parties involved.
- The arbitrator can hold concurrent hearings if the parties agree.
Customary Arbitration in Ghana
One of the enduring challenges of plural legal orders is how dominant legal orders treat inferior legal orders. Crafting rules of recognition have arisen when parties to a case urge Nigerian courts to recognize arbitral awards of another legal order as dispositive of the case before the court. The case of Agu[6] is usually regarded as the turning point in the articulation and elaboration of the rules of recognition of customary arbitration by Nigerian courts.
Another advantage of allowing the relevant customary law to determine the validity of the arbitration is demonstrated in Agu.[33] In that case, one of the main reasons for the dissenting opinion of Nnaemeka-Agu JSC was that the plaintiff âsummonedâ the defendant, which meant that the summoned party did not consent to the arbitration invalidating the proceedings. Perhaps, the relevant customary law would have helped determine the effect of the word âsummonedâ, which is to say, whether it meant that the party summoned could not refuse to attend the arbitration of the chiefs or elders or whether it was an invitation, in reality, allowing the party to agree or refuse to submit to the arbitration if he so wished.
Evaluating a customary arbitration around a customary law framework acknowledges that customary law is a complete normative system capable of determining the validity of its dispute resolution mechanism.
Arbitrators
Parties are given the power to appoint any persons to act as arbitrators, regardless of their experience or nationality. The ADR Act provides in relevant parts that, in appointing an arbitrator, the parties, the person or the appointing institution shall have regard to the ânationalities of the parties and other relevant considerationsâ.
Parties are at liberty to challenge the appointment of any arbitrator whose appointment does not satisfy the foregoing requirements. Generally, the Alternative Dispute Resolution Act 2010 (Act 798) only requires that an arbitrator must be independent and impartial.
Challenging and Replacing Arbitrators
The appointment of an arbitrator may be challenged if it emerges that the arbitrator does not possess the qualifications agreed upon by the parties or circumstances exist that give rise to justifiable doubt as to the arbitratorâs independence or impartiality. The party challenging the appointment of the arbitrator can also apply to the High Court for the revocation of the arbitratorâs authority on notice to the other party.
The High Court may remove an arbitrator where there is sufficient reason to doubt the impartiality of the arbitrator. If the arbitrator is physically or mentally incapable, or there is justifiable doubt as to the arbitratorâs capability to conduct proceedings, he or she may also be removed by the High Court. Additionally, if the arbitrator has refused or failed to conduct the arbitral proceedings properly, or to use reasonable dispatch in conducting the proceedings or making an award, and substantial injustice has or will be caused to the applicant, the High Court may remove that arbitrator.
If the parties fail to agree on the replacement arbitrator, an appointing authority shall, on application by a party, appoint another arbitrator in accordance with the law.
Relationship between Parties and Arbitrators
Arbitrators, whether appointed by the parties or by the appointing institution, or otherwise, are required to be independent, and to act fairly and impartially. Arbitrators are not agents or representatives of the parties in the dispute. The parties are also required to bear the expenses and remuneration of the arbitrator or the tribunal.
The ADR Act provides immunity to arbitrators in the performance of their functions and explicitly regulates their liability. However, an arbitrator will be liable for the consequences of deliberate wrongdoing arising from the performance of his or her duties.
Jurisdiction and Procedure
If a party institutes court proceedings in spite of an arbitration agreement, the other party may make an application to the court to stay its proceedings and refer the parties to arbitration. Once constituted, the arbitral tribunal is competent to rule on its own jurisdiction.
A party making a jurisdictional challenge before the arbitral tribunal must raise the motion before taking the first step in the proceedings to contest the case on its merits. Parties are not precluded from raising an objection to the jurisdiction of the arbitral tribunal or arbitrator because they have appointed or participated in the appointment of an arbitrator.
The arbitral tribunal may address the issue of jurisdiction in a preliminary award before ruling on the merits of the case. The award rendered may only be challenged through an annulment action at the High Court or to the appointing authority.
The ADR Act provides that where the parties are unable to agree on the place of arbitration, it shall be determined by the arbitrator or the arbitral tribunal, taking into consideration the circumstances of the case and the convenience of the parties. The law also confers power on the arbitral tribunal to determine the language to be used for the arbitral proceedings if the parties are unable to agree on this issue.
Subject to the agreement of the parties, the arbitrator may dispense with the requirement for a hearing. In lieu of a hearing, the arbitrator may request the parties to make their respective cases through the submission of documents and other materials. However, if the parties desire to be heard, there are a number of procedures that must be satisfied.
Correction and Interpretation of Awards
The Alternative Dispute Resolution Act 2010 (Act 798) (the ADR Act) grants the arbitrator the power to correct any clerical, typographical, technical or computational error in the award, and to make an additional award in respect of a claim presented to the arbitrator but omitted from the award. Such corrections can be effected at the instance of the arbitrator or at the request of a party, within 28 days of delivering an award or such longer period as the parties may agree on, upon giving 14 daysâ notice to the parties.
Challenging Awards
The ADR Act does not permit the parties to appeal on the merits of the decision of an arbitrator or arbitral tribunal. A party that wishes to set aside an arbitral award for any irregularity is required to apply to the High Court.
Enforcement of Foreign Awards
A party must file an ex parte application (without notice to the judgment debtor) in the High Court for leave to register and enforce the foreign arbitral award. Once the application is granted, the successful applicant must draw up the order granting the registration and enforcement of the award. The order must specify the period within which an application may be made to set aside the registration of the award.
Yes, an action to enforce an arbitral award may not be brought after 12 years from the date of the delivery of the award. The Limitation Act 1972 (NRCD 54) provides that an arbitration award under an arbitration agreement under seal shall not be enforced after 12 years.
Emergency Arbitrators
The ADR Act and the rules of the Ghana Arbitration Centre do not provide for emergency arbitrators or the enforcement of orders made by emergency arbitrators. We are not aware of any Ghanaian case law in which the courts enforced orders by emergency arbitrators.
Costs
The ADR Act does not have express provisions dealing with the costs of enforcing awards.
Key Provisions of the ADR Act
Ghanaâs ADR Act is generally aligned with international standards but lacks some modern arbitration innovations. While Ghanaâs integrated ADR framework is commendable, separating arbitration into a standalone Arbitration Act could align with international best practices and strengthen Ghanaâs position as a global arbitration hub.
Kompetenz-Kompetenz Principle
Ghanaâs Act allows tribunals to rule on their jurisdiction (s.24), aligning with UNCITRALâs jurisdictional autonomy principles.
Confidentiality
In Ghana, confidentiality is statutorily provided for under Section 34 of the Act. Except otherwise agreed to by the parties, the Arbitral Tribunal is mandatorily required to make orders concerning the confidentiality of the arbitration proceedings or any other matters in connection with the arbitration and may take measures for protecting trade secrets and confidential information.
Use of AI in Arbitration
Jimmy Yim SC on AI in Dispute Resolution & Arbitration Trends in Asia | DAW 2025
For a country like Ghana, where arbitration is growing and the adoption of technology is rising, we must stay on top of the trends, especially in the practice of arbitration, if we want to make Ghana an arbitration hub. There have been instances where AI tools such as ChatGPT have hallucinated and produced non-existent case law when used by lawyers. It is our considered opinion that Ghana cannot fully take advantage of the benefits of the use of AI in arbitration on the one hand and provide protection against its abuse and address ethical considerations on the other hand if there is no clear regulatory framework or guidelines.
We propose that there should be a detailed AI guidelines for arbitration practitioners and institutions. Particularly, the issues of confidentiality and independence of arbitrators should be addressed in light of the use of AI. Arbitration thrives on confidentiality and as indicated supra, the ADR Act of Ghana specifically mandates arbitrators to ensure confidentiality in the arbitration process. Using AI tools like ChatGPT to analyse documents, evidence etc, risks exposing confidential information of parties.
Separability of Arbitration Agreement
The doctrine of separability in commercial arbitration is the principle that arbitration clause is not merged with the contractual agreement. Separability principle makes the arbitration clause a stand-alone clause. Unless otherwise agreed by the parties, an arbitration agreement which forms or is intended to form part of another agreement, shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid or did not come into existence or has become ineffective and shall for that purpose be treated as a distinct agreement.
The Supreme Court of Ghana in Attorney-General vs Balkan Energy PLC[5] held a contrary opinion on separability of an arbitration agreement. An international commercial arbitration is not by itself an autonomous transaction commercial in nature which pertains to or impacts on the wealth and resources of the country. An international commercial arbitration draws its life from the transaction it deals with.
From the above dicta, consent is the essential element of arbitration agreement. Further, what constitutes a valid arbitration agreement is when the consent to arbitration is voluntary. Act 798 defines arbitration as voluntary submission of a dispute to one or more impartial persons for a final and binding determination. This refers to an agreement based on knowing and willing. As we have already observed in this Ruling, the Parties negotiated and entered into the agreement on their own volition and consent. Here, it can be inferred that the separability of an arbitration agreement can be enforced when there is a valid consent.
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