Author: Kimathi & Partners Corporate Attorneys
Proceedings subsequent to issuance of award.
Interpretation and correction of awards.
Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?
The Alternative Dispute Resolution Act 2010 (Act 798) (the ADR Act) grants the arbitrator the power to correct any clerical, typographical, technical or computational error in the award, and to make an additional award in respect of a claim presented to the arbitrator but omitted from the award. Such corrections can be effected at the instance of the arbitrator or at the request of a party, within 28 days of delivering an award or such longer period as the parties may agree on, upon giving 14 days’ notice to the parties. The law is silent with respect to the power of the tribunal to interpret the award.
Challenge of awards
How and on what grounds can awards be challenged and set aside?
The validity of an award can be challenged on a number of grounds. Among several others, the existence of any of the factors outlined below can provide a basis for challenging the award:
- a party to the arbitration was under some form of disability or incapacity;
- the law applicable to the arbitration agreement is not valid;
- the applicant was not given notice of the appointment of the arbitrator or of the proceedings, or was unable to present the applicant’s case;
- the award deals with a dispute not within the scope of the arbitration agreement or outside the agreement, except that the court shall not set aside any part of the award that falls within the agreement;
- there has been a failure to conform to the agreed procedure by the parties;
- the arbitrator has an interest in the subject matter of arbitration that the arbitrator failed to disclose;
- the subject matter of the dispute is not capable of settlement by arbitration under the laws of Ghana; or
- the award is in conflict with public policy.
A party that alleges that any of the above-stated factors have impugned the credibility of the award is required to apply to the High Court to set aside the award.
Levels of appeal
How many levels of appeal are there? How long does it generally take until a challenge is decided at each level? Approximately what costs are incurred at each level? How are costs apportioned among the parties?
The ADR Act does not permit the parties to appeal on the merits of the decision of an arbitrator or arbitral tribunal. However, an aggrieved party may apply to the High Court to set aside the arbitral award.
A party that wishes to set aside an arbitral award for any irregularity is required to apply to the High Court. If the party is dissatisfied with the ruling of the Court, an appeal lies, as of right, to the Court of Appeal, with further appeal to the Supreme Court (the last appellate court). The ADR Act is silent on the costs to be incurred and the time frame. The parties will be required to bear their own costs unless the court decides otherwise. Regarding the time frame, it is difficult to determine beforehand how long it will take for a challenge to be decided at each level. It will depend largely on the number of cases to be decided by the court at each period.
Recognition and enforcement
What requirements exist for recognition and enforcement of domestic and foreign awards, what grounds exist for refusing recognition and enforcement, and what is the procedure?
An award will generally be recognised when it satisfies the requirements of due process and natural justice. An award shall be enforced in the same manner as a judgment or order of the High Court.
In order for a foreign award to be enforceable, it must satisfy the following requirements:
- it was rendered by a competent authority under the laws of the country where the award was made;
- a reciprocal agreement exists between Ghana and the country in which the award was made;
- the award was made under the international convention specified in the First Schedule to the ADR Act;
- the party has produced the original award or a certified copy thereof, and the agreement pursuant to which the award was made or a duly authenticated copy; and
- there is no appeal pending against the award in any court under the law applicable to the arbitration.
An award may not be enforced where it is shown that the arbitrator lacked jurisdiction to make the award.
Time limits for enforcement of arbitral awards
Is there a limitation period for the enforcement of arbitral awards?
Yes, an action to enforce an arbitral award may not be brought after 12 years from the date of the delivery of the award. The Limitation Act 1972 (NRCD 54) provides that an arbitration award under an arbitration agreement under seal shall not be enforced after 12 years. This limitation applies to arbitration agreements under the ADR Act because the Act specifically provides that an arbitration agreement is only enforceable where it is in writing, and arbitration agreements are separable from the main or substantive underlying agreement.
Enforcement of foreign awards
What is the attitude of domestic courts to the enforcement of foreign awards set aside by the courts at the place of arbitration?
The ADR Act clearly provides that a foreign arbitral award that has been annulled (and by implication set aside) in the country in which it was given cannot be enforced in Ghana, and the courts are likely to uphold this provision.
Enforcement of orders by emergency arbitrators
Does your domestic arbitration legislation, case law or the rules of domestic arbitration institutions provide for the enforcement of orders by emergency arbitrators?
The ADR Act and the rules of the Ghana Arbitration Centre do not provide for emergency arbitrators or the enforcement of orders made by emergency arbitrators. We are not aware of any Ghanaian case law in which the courts enforced orders by emergency arbitrators. However, a court of competent jurisdiction, under its inherent powers, may enforce an order made by an emergency arbitrator where the court considers it fair and just to do so.
Cost of enforcement
What costs are incurred in enforcing awards?
The ADR Act does not have express provisions dealing with the costs of enforcing awards. However, it can be reasonably expected that the person who seeks to enforce either a domestic or foreign award shall bear the full costs associated with the enforcement.
