After eight years of its passage, a national Colloquium on Arbitration in Ghana has called for an urgent review of the Alternative Dispute Resolution (ADR) Act 2010, Act 798 to ensure its effectiveness implementation.
The colloquium of Judges, Lawyers and ADR practitioners, particularly called for a review of section one of the Act which they described as vague and inhibits the Act from achieving its full objectives in both arbitration and mediation.
Chaired by Justice Nene Amegatcher, a Supreme Court Judge, the colloquium, which assessed “the proper degree of court interventions in arbitral proceedings under the ADR Act,” suggested an amendment of section one, since its presence was causing harm.
The colloquium, held at the GIMPA School of Law in Accra, was organized by the Ghana ADR Hub, a network of ADR practitioners, with the aim of helping to redefine the scope of arbitration in Ghana.
The panelists, including Sir Justice Dennis Adjei, Justice of the Court of Appeal, Justice Mrs Justice Gertrude Torkornoo, Supervising Judge, Commercial Courts.
Ace Annan Ankomah, Kizito Beyuo, Michael Gyang Owusu, Ms Diana Asonaba Dapaah, Ace Ankomah and Emmanuel Amofa, all distinguished legal practitioners, were unanimous in recommending an amendment of a number of provisions in the Act, especially section one which deals with the Application of the Act.
Section 1 of the Act 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.”
According to the panelists, the lack of clarification on the scope of “national interest” and “public interest,” as well as matters relating to “the environment” makes it difficult to determine which matters qualified to be resolved through arbitration.
Making his submission, Sir Justice Dennis Adjei, said the problem of Section one remains difficult to handle because the Memorandum on the Act by Parliament is also silent on the section.
“There is the need to have clear parameters. We need to have a whole relook at section one whether it is even necessary to be there,” he said.
The panelists were also of the view that the clause on the environment has to be clarified because forbidding the resolution of disputes relating to the environment through arbitration is highly retrogressive.
According to Justice Nene Amegatcher, Ghana seems to be the only country with such a provision barring arbitration from environmental matters, adding that most jurisdictions have adopted arbitration as an option in effectively dealing with environmental cases.
Regarding other provisions, the panelists faulted section 40, which deals with the “determination of preliminary point of law,” and called for it to be scrapped.
They indicated that giving the High Court the sole mandate to determine any question of law in arbitral proceedings was not in line with best practice.
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“Section 40 must also go,” said Emmanuel Amofa, Administrator of the Ghana Arbitration Centre.
According to him, arbitrators should have the right to determine points of law in cases they handle, adding that most arbitrators are retired Judges and senior lawyers who have enough experience to determine questions of law in arbitral proceedings.
Ms Diana Dapaah, Law Lecturer at GIMPA and Vice President of Ghana ADR Hub, for her part, described Section 40 as “copy and paste” from Section 45 of the English Arbitration Act 1996, adding that in trying it simplify it while copying, “we omitted vital subsections that define that section.”
She also criticised Section 58 of the ADR Act which provides the grounds for the setting aside of an arbitral award by the High Court, indicating that the issues of conflict of interest, disclosure and procedural impropriety have to be clearly defined.
Other provisions that were discussed at the colloquium, which was moderated by Michael Gyang Owusu, President of the Ghana ADR hub, included sections 16 (3b), 18(1),19(2), 22(1), 26(1),28(1), 39, 57, 58 and 59, with the panelists suggesting amendment to the various provisions to enhance the integrity of the ADR Act.
By Edmund Mingle/ adrdaily.com