Legal luminary, Professor Nana S.K.B. Asante, Chairman of the Ghana Arbitration Centre, has called for clarity in the scope of Ghana’s Alternative Dispute Resolution Act, 2010 (Act 798).
According to the law professor and international arbitration expert, the ambiguity of section one of the ADR Act, threatens the objective of the Act in promoting the mass adoption of ADR mechanisms in settling disputes rather that resorting to court litigation.
In an interview with ADR Daily after he opened a three-day training workshop on domestic and international arbitration, organised by the Ghana Arbitration Centre in Accra, Prof Asante supported calls for a review of section.
His call follows similar suggestions by astute judges, lawyers and ADR practitioners who believe it is time for an amendment that would, among other things, redefine section one and other provisions that have been found to be ambiguous or in conflict with international practice.
Section one of the ADR Act, 2010 (Act 798) states that “This Act applies to matters other than those that relate to: (a) the national or public interest; (b) the environment; (c) the enforcement and interpretation of the constitution, or (d) any other matter that by law cannot be settled by an Alternative Dispute Resolution method.”
The amendment advocates say the difficulty of section one is that there is no provision covering the scope of the elements in the section, especially the clause barring ADR from environmental matters. The difficulty, according to them is compounded by the total silence of the memorandum that accompanied the Bill to Parliament, on section one.
“There is a great need for clarity,” said Prof Asante.
Justifying the call for amendment, he said it would be appropriate for a categorization of matters relating to the environment that can or cannot be resolved through ADR mechanisms.
In his opinion, the Act may have contemplated monumental environmental issues, including large scale environmental regulation breaches, but he noted that many environmental issues can be amicably resolved without litigation.
He cited an instance when he had an issue with his neighbour who had given out a parcel of land for the mounting of a telecommunication mast which is a matter that relates to the environment.
“Such cases can easily be resolved through ADR mechanisms,” he said.
Touching on the state of ADR in Ghana, he said a lot of progress has been made by the industry in the last few years, especially in arbitration.
“ADR is doing reasonably well,” he said, but noted that “we still have pockets of conservatism among members of the Bar” who need to be persuaded to acknowledge the benefits of ADR.
He said arbitration has been particularly useful in resolving commercial disputes relating to domestic and international transaction, and therefore, called for mass adoption by corporate firms and institutions.
Prof Asante remained optimistic that Ghana’s ADR industry can blossom with the active involvement of more legal practitioners specialised in the various sectors of the economy, citing Nigeria which has advanced in arbitration practice because of the active participation of the Bar.
“There is progress, but we can do better,” he stressed.
By Edmund Mingle/ adrdaily.com