Alternative Dispute Resolution
As long as human interactions exist, disputes will remain inevitable. Long before Alternative Dispute Resolution (ADR) mechanisms were formally recognised as a means of settling differences, parties to disputes resolved matters by some form of ‘back and forth discourse’. This discourse, which was largely informal, were saddled with innumerable challenges. This, therefore, informed the need for a more formal and standardized mode of resolving disputes. ADR, thus, slowly took shape and became the umbrella name given to any method of dispute resolution outside litigation. It is a wide range of processes, techniques and procedures that parties can adopt to resolve disputes of many kinds, usually with the help of a third party neutral.
ADR mechanisms include but are not limited to arbitration, mediation, negotiation, settlement conferences, neutral evaluation, neutral fact-finding, ombuds, expert determination and customary arbitration. Its enabling legislation in Ghana is the Alternative Dispute Resolution Act 2010 (Act 789). Under Section 1 of the said Act,789 and by extension, the practice of ADR in Ghana, ADR mechanisms can be used to resolve all matters except matters relating to the national or public interest, the environment, the enforcement and interpretation of the Constitution, or any other matter that by law cannot be settled by an ADR method.
Arbitration, the focus of this discussion, is the voluntary submission of a dispute to one or more neutral persons for a final and binding determination. It is arguably the most widely accepted ADR method because of the binding nature of the award given after an arbitration. This mode of dispute resolution offers parties to a dispute the balance of a well-structured dispute resolution mechanism fused with the pleasures of more relaxed proceedings; in a comparatively hustle-free environment.
It is worth mentioning that this series of writings focusing on various aspects of ADR, is not intended to present philosophical or jurisprudential arguments on the quality of ADR and the outcome of its proceedings. The goal is to ‘open up’ the discussion on ADR and other matters related to this mode of dispute resolution.
Now, more than ever, there is a need for practical ADR pointers on how the interests of litigants, legal practitioners, business owners and the society at large, can be met. Before diving into the deep end, it is imperative to look at one of the leading arbitration centres in Ghana; the Ghana Arbitration Centre. It is not the only ADR Centre in Ghana. This piece is in no way an encyclopedia on what pertains in the Ghana Arbitration Centre; it is just the tip of the iceberg to pique the interest of persons who will subsequently engage their services. All being well, such persons would find this discussion valuable and stimulating.
The Ghana Arbitration Centre
The Ghana Arbitration Centre (The Centre) is an autonomous, non-profit institution incorporated on the 19th of October, 1996, as a company limited by guarantee under the then Companies Code, 1963 (Act 179) . The establishment of The Centre was sponsored by a cross-section of senior members of the Ghanaian legal profession which includes; a retired Supreme Court Judge and seasoned practitioners in commercial law and arbitration. It is undoubtedly Ghana’s oldest and most well-known institution for resolving disputes through arbitration. Despite its establishment in 1996, it was not until the early 2000s that parties began to engage the facility actively. That is to say, the paradigm shift from acrimonious litigation to an amicable settlement of disputes, particularly arbitration, did not happen overnight. If the number of cases currently being handled by The Centre is anything to go by, one can safely say that Ghanaians and other stakeholders have steadily warmed up to the idea of settling disputes at The Centre.
Businesses, organisations, and individuals entering into contractual agreements have become more aware of the need to include an arbitration clause in their agreements. The presence of an arbitration clause in an agreement to clearly state that disputes arising out of or in connection with the agreement should be resolved by arbitration at “The Ghana Arbitration Centre” invokes the jurisdiction of The Centre over the dispute. Unfortunately, arbitration clauses found in some agreements are drafted in a manner that makes the enforcement (of the said arbitration clause) challenging when the need arises. More often than not, parties are of the mistaken belief that once the word ‘arbitration’ is found in their agreement, then disputants can use any venue as a forum to resolve the dispute under the agreement; that is however not the case. Specific mention must be made of the “Ghana Arbitration Centre” or any other forum, such as the Ghana ADR Hub in Kumasi, where the parties would like their dispute to be heard and settled. The Rules Book of The Centre suggests an arbitration clause, which purports to makes it clear that once the arbitration clause in the agreement states that disputes arising should be resolved using arbitration by reference to the Centre, the Centre is seized with jurisdiction to hear the dispute arising therefrom.
However, it must be noted that the absence of the express mention of or reference to The Centre in the agreement is not fatal to parties’ desires to have their disputes settled at The Centre. According to Section 7 & 9 of the Rules Book, parties to a conflict can invoke the jurisdiction of The Centre by “Initiation under Submission”. Initiation under submission entails one or both parties submitting a dispute to The Centre even though The Centre was not expressly mentioned in the arbitration clause of their agreement. This is done when parties to an existing dispute file two copies of a written and signed agreement to arbitrate under the rules of The Centre.
Procedural flexibility is a prominent feature of arbitration that sets it apart from litigation. Unlike litigation, parties can adjust the procedures to the specifics of the dispute and the parties involved in order to increase efficiency, lower costs, and save time. For instance, the parties can determine the nature and scope of discovery (whether or not to allow depositions), the conduct of the hearing (including testimony by live video) and the duration of the entire proceeding. Section 11 of the Rules Book makes it clear that the parties may mutually agree on the place of the arbitration. When the parties are unable to reach a mutual agreement, the arbitrator will fix a time and place for the hearing. The venue may be The Centre or any other convenient forum. One visit to The Centre however, is enough to convince anyone to make use of the services available due to its serene atmosphere, the pleasant disposition of the administrative staff, and the ‘world class’ fixtures in the room where the arbitration process takes place.
The confidential nature of arbitral proceedings is unparalleled. Trial proceedings held in courtrooms often lack the element of confidentiality, as hearings are open to the public. On the other hand, arbitration hearings are only attended by parties involved in a particular dispute in a private setting; there would be no news reporters, rival company representatives, spies, relatives or friends. The arbitrator is bound to maintain the privacy of the hearings unless the law states otherwise. In the absence of any such law, it is safe to say that “what takes place at The Centre stays at The Centre.”
Selection of Arbitrators
The fact that parties can decide who would be the arbitrators in their peculiar dispute is one advantage of arbitration and, by extension, the Ghana Arbitration Centre. . Litigants may have a fair idea of the particular third party neutral who would preside over their case; the names of persons presiding over various matters is no secret. When in doubt, members of the general public can quickly ascertain this information. However, a litigant may have no idea who the Judge would be in their case until it is assigned to a particular court by the court registry. This is not the case in arbitration.
At the Ghana Arbitration Centre, there are three methods of appointment of an Arbitrator; discussed in sections 13, 14 and 15 of The Centre’s Rules Book”. A list of Arbitrators of The Centre is readily made available to parties if they have not already chosen their arbitrator. Regardless of the method chosen by the parties, finding out the identities, interests, expertise, and in some situations, personal inclinations of arbitrators is not a cumbersome task in this ‘age’ of social media. A Google search may be enough to reveal information the parties may need to make an informed decision on who their arbitrator would be at the end of the selection process; parties should be confident that their case is in good hands.
Parties from other countries are well catered for at The Centre. According to section 16 of the Rules Book if one of the parties is not a Ghanaian national or resident, the sole Arbitrator or the neutral Arbitrator shall, if any of the parties place a request, be appointed from among the nationals of a country other than that of any of the parties. When such mutual concessions are made based on a party’s request, they are signs of the good faith and fairness that pertain to arbitration procedures conducted at The Centre.
The role of a Lawyer
It is commonplace to find parties attempting to navigate legal matters such as drafting leases, making appearances in court and even drafting court processes without the involvement of a lawyer. The excuse is always the cost attached to hiring the services of a lawyer. Unfortunately, only a handful of such persons who go ahead with legal proceedings succeed without a lawyer. Such persons, upon further investigations, are found to have family members or close friends who informally provide some legal support for the party. Gleaning from this, it would be prudent for parties to procure the services of a lawyer to navigate the arbitration territory.
The Rules Book of The Centre does not expressly state whether or not parties must be represented by legal counsel. It however makes it clear in section 22 of the Rules Book that once a party intends to engage the services of legal counsel, the other party as well as The Centre should be put on notice, at least three (3) days’ to the hearing where Counsel would first appear. If the arbitration process is however initiated by Counsel on behalf of the parties, there would be no need for notice to be given. A quick visit to The Centre would reveal that most parties appear with their legal representation. This is to ensure that they are able to properly put forward their case and adhere to the peculiar rules of arbitration. Parties may decide to do otherwise and the process would be conducted without any legal representation. However, for the aforementioned reasons, this is not advisable.
Sections 48 -52 of the Rules Book deal extensively with the expenses to be incurred by the parties. Generally, all expenses, including initial deposit for the Arbitrator’s fee, expenses of witnesses, the cost of stenographic record and transcripts, travel expenses and any other cost related to the arbitration are borne equally by the parties. When the final award is given by the Arbitrator, the necessary payments and reimbursements would be made to the respective parties.
There is no “one size fits all” standard of fees at The Centre. Per section 51 of the Rules Book, the Arbitrators’ Fees are calculated by taking into consideration the work done, the complexity of the case and any special qualifications of the Arbitrators; “at rates appropriate to the particular circumstances of the case.”
By: Lauraine Mercy Ewurama Ghartey