Arbitration is quickly becoming the preferred method of settling disputes arising under commercial contracts in Ghana. The state’s efforts to promote alternatives to litigation as the primary means of resolving disputes led to the repeal of the Arbitration Act, 1961 (Act 38) and its replacement with the Alternative Dispute Resolution Act, 2010 (Act 798) (the “ADR Act”). The ADR Act provides a modern framework which governs the commencement and conduct of arbitral proceedings as well as the enforcement of foreign and domestic arbitral awards in Ghana. Recognising the expediency of arbitration over litigation, several legislations in Ghana also encourage and/or require the settlement of disputes by arbitration as well as other ADR methods. It must be noted that matters relating to national or public interest, the environment, the enforcement and interpretation of the Constitution, and any other matter that by law cannot be settled by an alternative dispute resolution method are all outside the scope of the ADR Act. The Ghana Arbitration Centre is the most widely-used arbitration centre in Ghana. Other centres include the Ghana Association of Certified Mediators and Arbitrators, the National Labour Commission and the Marian Dispute Resolution Centre. Ghana is a Common Law jurisdiction and it has incorporated into the ADR Act, the rules of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), which it acceded to on 9th April 1968.
The ADR Act generally leaves the decision on most issues concerning the arbitral proceedings to the parties to determine and provides default rules that are applicable where the parties neglect or fail to agree on a matter. Under the ADR Act, unless otherwise agreed by the parties, the arbitration proceedings shall be private and arbitrators are required to keep the arbitration as well as the arbitral award confidential subject to the consent of the parties and the provisions of law. There is no requirement to retain local counsel but, unless the parties otherwise agree, a party may be represented by counsel or any other person chosen by the party. Parties are permitted to present employee witness testimony; however, before the hearing, a party is required to give the arbitrator and the other party personal particulars of the witnesses that the party intends calling and the substance of the testimony of each witness. The parties may also agree on the place where proceedings or hearings are to be held and in the absence of an agreement, the tribunal shall determine the venue for meetings or hearings, taking into account the convenience of the parties and circumstances of the case. The ADR Act makes provision for expedited arbitration proceedings under which parties may choose a fast track route to resolving their dispute.