Members of the Ghana National Association of ADR Practitioners (GNAAP) has urged business firms and institutions to choose Ghana as seat for arbitration, saying the resort to external locations for arbitration is inimical.
According to the Appropriate Dispute Resolution (ADR) practitioners, the continuous resort to foreign jurisdictions for arbitration to particularly resolve international commercial disputes, remains detrimental to local firms as well as Ghana’s ADR industry and the economy in general.
Contributing to a discussion on “arbitration management conference” at GNAAP’s annual 2018 Mandatory Continuing Professional Development Workshop (MCPDW) at Kasoa in the Central region on Saturday, the members of GNAAP called for a change in the trend.
But that change, most of them observed, could only materialize when local firms become more vigilant and assert themselves during contract negotiations in ensuring that mediation and arbitration clauses in agreements, choose Ghana as the seat of arbitration and mediation.
The seat of arbitration determines the applicable laws and courts that will have exclusive jurisdiction over the arbitration proceedings, while the venue of arbitration is the geographical location for arbitral proceedings.
International commercial contracts between local companies and foreign firms often have arbitration clauses that stipulate the use of foreign locations particularly, London, Singapore, Hong Kong, Dubai, South Africa among others, as arbitration seats.
Most of the agreements for foreign funded projects also direct that arbitration takes place in the home countries of the funding agencies.
For instance Mr Daniel Owusu Koranteng, General Secretary of the Maritime and Dockworkers Union, and an ADR practitioner, said many local firms take these clauses for granted, but when there are issues, it becomes challenging for them due to travelling cost and the use of unfamiliar laws.
Instances were also cited in which some distressed local firms were unable to finance their trips to London and Singapore for arbitration.
Mr Alex Nartey, National ADR Coordinator for the Judicial Service, who led the discussion, attributed the situation to ignorance about Ghana’s ADR Act 2010, Act 798 that offers legal framework for quality arbitration and mediation practice in Ghana.
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He said with the increasing availability of arbitration and mediation centres in Ghana, it is believed that firms would make use of the local ADR industry.
“The only way out is for local firms to negotiate such arbitration clauses that choose foreign seats and amend the clauses to have Ghana as the seat for arbitration,” he said.
By Edmund Mingle/adrdaily.com