Once a favourable arbitration award or judgment has been rendered, investors in Ghana face certain hurdles when it comes to enforcement. We explore these in a series of three blog posts.
Ghana is a signatory to the New York Convention (the “NYC”), which provides that a signatory state must enforce an arbitration award granted in another signatory country as though it were a court judgment of the first signatory.
However, the NYC does provide for a limited number of grounds for the second signatory country to refuse recognition of an award, including i) lack of jurisdiction of the arbitral tribunal and ii) public policy of the enforcing country. These grounds are open to differing interpretations by the courts of signatory countries, with some taking a very narrow view and others a considerably wider view, which may not be free of political concerns, particularly where the state is the losing party.
Recent case law (see our earlier articles here and here) suggests that the argument previously run in cases in which a Ghanaian state entity is a party to the agreement - that an international arbitration clause runs afoul of Article 181(5) of the Ghanaian Constitution (the “Constitution”) - is no longer an issue. The argument was that parliamentary approval is required in respect of “international business transactions” to which Ghana is a party and that an arbitration clause was, in itself, such a transaction.
However, there remains the potential effect of the Ghanaian Alternative Dispute Resolution Act 2010, which expressly carves out matters relating to the “interpretation of the Constitution” as well as the “national or public interest” from issues which are arbitrable. This could found an argument that one of the above NYC grounds for non-enforcement of a foreign award are made out.
Nonetheless, it should also be noted that NYC awards may be more easily enforceable against the Ghanaian state and other assets outside Ghana than an English (or other) judgment because the enforcement of the latter would depend on bilateral/multilateral arrangements between England and the place where the assets are located