Ace Annan Ankomah, a senior legal practitioner has appealed to the Courts to grant Arbitration practice the freedom to operate.
According to him, although the judiciary proclaims its support for arbitration through the rules of court procedures (especially Order 64 of CI 47), its frequent interventions in arbitral proceedings hamper the independence of arbitration practice.
In a presentation at a colloquium in Accra on Arbitration in Ghana, organised by the Ghana ADR Hub, Mr Ankomah, a Managing Partner at Bentsi-Enchill, Letsa & Ankomah law firm, said the situation was restricting the progress of arbitration in Ghana.
The colloquium, which aimed at helping to redefine the scope of arbitration in Ghana, was to assess the degree of court interventions in arbitration under the Alternative Dispute Resolution Act 2010, Act 798.
Lawyer Ankomah likened the present relationship between the courts and arbitration practice to the situation where a mother tries to remotely exercise control over the daily activities of her children who she has supported to leave the house to pursue their career endeavours.
“The courts are finding it difficult to let go of arbitration,” he said, adding that there is a need for the courts to recognise that arbitration is governed by a dedicated legislation, ADR Act 2010.
He said the usual phrase by judges to parties going for arbitration to “come back when arbitration doesn’t work,” illustrates the reluctant of the courts to let go arbitration, adding that some of the courts “feel arbitration is negotiated settlement.”
Citing a number of cases, he said the courts often clash with the law with their frequent interventions in arbitral proceedings.
He raised issue with a number of the provisions such as those regarding separability, enforcement of foreign awards, jurisdiction of arbitral tribunal, stay of proceedings in court to allow for arbitration and the non referral of cases for arbitration due to allegations of fraud, citing them as some of the provisions that have to be reviewed to enhance arbitration proceedings and also redefine the level of court interventions.
Regarding Section 6 of the ADR Act which requires an application to the Court to refer an action to arbitration and stay proceeding in Court, Mr Ankomah suggested the referral or granting of an application for arbitration, especially where an arbitration agreement has been discovered, should not only serve as a stay of court proceedings but a termination or dismissal of the action.
Also, he opined that the situation where courts fail to refer actions that have arbitration agreement to arbitration, with the excuse that there are allegations of fraud in the action, does not augur well.
He noted that because the parties have voluntarily agreed to resolve their disputes through arbitration, the court have to grant the parties that right.
“Otherwise parties who want to avoid arbitration contrary to their agreement, would just be alleging fraud against the other simply to keep the matter in dragging litigation,” he said.
Chaired by Justice Nene Amegatcher, a Supreme Court Judge, the colloquium, held at the GIMPA School of Law, was attended by judges, lawyers, ADR practitioners and law students.
The panelists included Sir Justice Dennis Adjei, Justice of the Court of Appeal, Justice Mrs Justice Gertrude Torkornoo, Supervising Judge, Commercial Courts, Vincent Kizito Beyuo, Michael Gyang Owusu, Ms Diana Asonaba Dapaah and Emmanuel Amofa, all distinguished legal practitioners, were unanimous in recommending an amendment of a number of provisions in the ADR Act to enhance its implementation.
By Edmund Mingle/ adrdaily.com