Jun 13, 2017
Patrick Seddoh, a legal practitioner and ADR consultant, has raised questions over the involvement of the courts in the Arbitration system, saying the present situation where the courts “review” awards from Arbitration is a hindrance to the progress of the arbitration system in the country.
According to him, the practice impedes the Alternative Dispute Resolution (ADR) Act 2010 (Act 798) which states that an arbitration award is final and binding on the parties.
He explained that in situations where cases that have been decided on through arbitration are “re-opened” by the courts which only have a duty of ensuring enforcement, runs contrary to the objectives of the ADR concept.
Arbitration is a legally binding process by which an impartial third person(s) appointed by disputing parties, privately adjudicates and reaches a decision which is binding on the parties. The decision reached by the Arbitrator is termed as an arbitration award.
Section 52 of the ADR Act says “subject to the right of a party to set aside an award under section 58 of this Act; an arbitration award is final and binding as between the parties and any person claiming through or under them.”
Also, section 57 (1) states that “an award made by an arbitrator under an arbitration agreement may, by leave of the High Court, be enforced in the same manner as a judgment or order of the court to the same effect.”
But in an interview, after a lecture on Arbitration Procedure to a class of professional ADR trainees in Accra on Saturday, Mr. Seddoh said the current practice in the court is somehow viewed as limiting the benefits of the law, adding that the court’s mandate on arbitration awards, relates to enforcement and not the process leading to the award.
“Largely, one expects that once the arbitrator does his work well, there should not be any challenges.
“But whether that is what is done in the court, without going through another trial process is an issue.
“It appears to be the case that arbitral awards are not just enforced by the courts, but the courts go to deal with the issues from A-Z as if it were a formal trial.
“And that is rather unfortunate because it somehow defeats the objective of ADR which aims for a speedy settlement,” he stressed.
He urged the Judiciary to review the involvement of the court in that regard to ensure the effective implementation of the Arbitration regulations, saying that would help to enhance the settlement of disputes out of court.
Mr. Seddoh also expressed concern about the absence of the National and Regional ADR Centres which he believed would play a significant role in the out-of-court settlement of disputes and enforcement of awards.
Also, he said the centre would play an essential role in the training of more Arbitrators and Mediators to provide professional services for the amicable settlement of cases, especially those in the commercial sector.
In spite of the challenges, he said ADR mechanism remains the best option which should be adopted to avoid litigation that is associated with high legal fees, time-consuming and acrimony between parties.
“Arbitration is the key method to solving the majority of civil cases, especially contract disputes as compared to litigation,” he stressed.
By: Fred Gadese-Mensah/adrdaily.com