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The Nature and Constitutionality of Statutorily-Imposed (Non-Contractual) Arbitration in Ghana

Published online by Cambridge University Press:  14 June 2021

Richard Frimpong Oppong
Richard Frimpong Oppong*
Affiliation:
University of Bradford, Bradford, UK
*
[email protected]
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Abstract

Ghanaian law contains a number of statutes that broadly provide that certain disputes shall be settled by arbitration. This compulsory approach to arbitration departs significantly from the consent-based model of arbitration. This article considers the legal framework for statutory arbitration in Ghana. It examines the origins of statutory arbitration, documents some of the statutes that provide for statutory arbitration and assesses the rationale for statutory arbitration. The article also examines the issue of consent in statutory arbitration, the procedural aspects of statutory arbitration, as well as the constitutionality of this form of arbitration.

Keywords

Ghanaarbitrationstatutorily imposed on partiesnon-contractualconstitutionality
Type
Research Article
Information
Journal of African Law , Volume 65 , Issue 2 , June 2021 , pp. 205 - 222
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Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of SOAS University of London

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Footnotes

*

Associate professor, School of Law, University of Bradford.

References

1 See, for example: Labour Act 2003, secs 160(2) and 162(2); Banks and Specialised Deposit-Taking Institutions Act 2016, sec 141(1); Ghana Water and Sewerage Corporation Act 1965, sec 2(4); Ghana Broadcasting Corporation Act 1968, sec 13(7); Ghana Ports and Harbours Authority Act 1986, sec 23(2); Plants and Fertilizer Act 2010, sec 16(3); Ghana Railway Corporations Act 1977, sec 8(3); Rivers Act 1903, third sched, sec 10; and University of Ghana Act 1961, sec 16(4)(c) and (d).

2 Maritime and Dockworkers Union of the Trades Union Congress of Ghana v State Shipping Corporation (Black Star Line) [1982–83] GLR 671.

3 Nii Amanor Dodoo v Dr Kwabena Duffour suit no CM/RPC/0624/2018 (High Court, Accra, ruling of Justice Jennifer Abena Dadzie, 17 May 2019); Dr Kwabena Duffour v Nii Amanor Dodoo suit no CM/MISC/0121/2020 (High Court, Accra, judgment of Justice Jennifer Abena Dadzie, 24 February 2020). See also Dr Paa Kwesi Nduom v Bank of Ghana suit no HR/094/2019 (High Court, Accra, judgment of Justice Gifty Agyei Addo, 19 December 2019).

4 Dr Kwabena Duffour v Nii Amanor Dodoo (award of Justice Samuel Kofi Date-Bah, 23 October 2019).

5 Maritime and Dockworkers Union, above at note 2 at 679.

6 Various UK legislation provides for statutory arbitration. See, for example: Agricultural Holdings Act 1986, sec 84; Agricultural Tenancies Act 1995, sec 22; New Roads and Street Works Act 1991, sec 62(5); Acquisition of Land Act 1981, sched 2, para 6(2); Railways Clauses Consolidation Act 1845, sec 81; Water Industry Act 1991, secs 49(3), 56(3), 148(5), 161(6), 162(8), 166(6), 176(4), 177(3), 186(7), 205(2), sched 6, sec 11(3), sched 12, secs 1(3), 4(2), 5(2) and 6(3), sched 13, secs 1(4), 3(4) and 5(4), and sched 14, sec 4(2). For some judicial decisions arising from awards in statutory arbitrations, see: Durham County Council v Darlington Borough Council [2003] EWHC 2598 (admin); In Re an Arbitration between Knight and the Tabernacle Permanent Building Society [1891] 2 QB 63; In Re the County Council of Kent and the Sandgate Local Board [1895] 2 QB 43.

7 See, for example: Arbitration Act, RSBC 1996 cap 55, sec 2(1)(b) (British Columbia); Arbitration Act 1996, sec 9 (New Zealand); Arbitration and Reconciliation Act 1996, sec 2(4) (India); Commercial Arbitration Act 2010, sec 1(6) (New South Wales, Australia); and Commercial Arbitration Act 2011, sec 1(6) (Victoria, Australia). See also: Arbitration Act, 1965, sec 40 (South Africa); Arbitration Act 1986, sec 43 (Bermuda); and Arbitration Act 1965, sec 40 (Namibia).

8 New Zealand Law Commission Arbitration: Report No 20 (1991) at 100, citing Prof Ross Cranston of the University of London.

9 Alexander, JRW “Outline of arbitration” (1951) 17/2 Arbitration 32 at 33Google Scholar. The same point was made in Waterhouse, D “Institute of Arbitrators lectures on arbitration: 1964: First lecture Thursday, 1st October, 1964” (1965) 31/2 Arbitration 32 at 40Google Scholar.

10 Crease, JL “Arbitration and the Lands Tribunal Act, 1949: ‘It is certainly justice; it is probably the law for that reason’” (1951) 17/1 Arbitration 12 at 15Google Scholar.

11 Dodoo v Duffour, above at note 3; Duffour v Dodoo, above at note 3.

12 Emphasis added.

13 Emphasis added.

14 Emphasis added.

15 Banks and Specialised Deposit-Taking Institutions Act, sec 141(1)(a)–(d).

16 Rivers Act 1903, third sched, sec 10.

17 University of Ghana Act 1961, sec 16(c).

18 Ibid.

19 Ghana Water and Sewage Corporation Act 1965, sec 2(3); Ghana Broadcasting Act 1968, sec 13(1) and (5); Ghana Ports and Harbours Authority Act 1986, secs 19–21; Plants and Fertilizer Act 2010, sec 16(1), (2) and (4); Ghana Railway Corporations Act 1997, sec 8(1) and (2); Ghana Highway Authority Act 1977, secs 36 and 37(1).

20 Maritime and Dockworkers Union, above at note 2 at 681.

21 New Zealand Law Commission “Arbitration: Preliminary paper no 7” (1988), para 176.

22 Maritime and Dockworkers Union, above at note 2 appears to be the only reported case arising from one such statutory arbitration.

23 Blackaby, N and Partasides, C Redfern and Hunter on International Arbitration (6th ed, 2015, Oxford University Press), para 2.01Google Scholar.

24 Ibid.

25 Arbitration Act 1961, sec 33.

26 Dallal v Bank Mellat [1986] 1 All ER 239 at 251.

27 McKendrick, E Goode on Commercial Law (4th ed, 2010, Penguin Group Ltd) at 1305–06Google Scholar.

28 [1987] QB 815 at 847 (emphasis added). This dictum was quoted with approval by Dadzie J in The Republic v Ghana National Gas Company Ltd, Ex Parte: Kings City Development Company suit no GJ/1535/2019 (High court, Accra, 2020).

29 [1985] AC 374 at 409 (emphasis added).

30 The Constitution, art 141.

31 See Arbitration Act 1934, sec 20; Arbitration Act 1950, sec 31; and Arbitration Act 1996, secs 94–98. See also Arbitration (Scotland) Act 2010, secs 16–17.

32 Merkin, R and Flannery, L Merkin and Flannery on the Arbitration Act 1996 (6th ed, 2019, Routledge) at 835CrossRefGoogle Scholar.

33 Id at 836.

34 E Onyema “The new Ghana ADR Act 2010: A critical overview” (2012) 28 Arbitration International 101 at 102.

35 See also secs 165–67 on the powers of arbitrators, how vacancies in the arbitral tribunal should be filled and the publication of awards.

36 Ghana Water and Sewerage Corporation Act 1965, sec 2(4); Ghana Broadcasting Corporation Act 1968, sec 13(5); Ghana Ports and Harbours Authority Act 1986, sec 23(2); and Ghana Railway Corporations Act 1977, sec 8(3). The following expressly reference the Alternative Dispute Resolution Act: Plants and Fertilizer Act 2010, sec 16(3); and Banks and Specialised Deposit-Taking Institutions Act, sec 141(1).

37 See above at note 36.

38 See Alternative Dispute Resolution Act, sec 135, which defines alternative dispute resolution as “the collective description of methods of resolving disputes otherwise than through the normal trial process”.

39 See Gupta, S “Maladies of Indian arbitration: A case for a dualist regime” (2013) 16/2 International Arbitration Law Review 60 at 73Google Scholar, noting “India also provides for statutory arbitrations under various legislations like electricity, labour laws, etc. When such provisions exist, clearly they override the Arbitration Act 1996. In Gujarat Urja Vikash Nigam Ltd v Essar Power Ltd [appeal (civil) 1940 of 2008, judgment 13 March 2008] the Supreme Court held that provisions for dispute resolution between the licensees and generating companies contained in the Electricity Act, 2003 will prevail over the provisions of the 1996 Act, dealing with the appointment of arbitrators.”

40 None of the statutes examined for this study falls into this category.

41 Desputeaux v Éditions Chouette (1987) Inc 2003 SCC 17, [2003] 1 SCR 178, para 66.

42 Scott v Avery [1843–60] All ER Rep 1 at 7.

43 Brekoulakis, S “The historical treatment of arbitration under English law and the development of the policy favouring arbitration” (2019) 39 Oxford Journal of Legal Studies 124CrossRefGoogle Scholar, arguing that the attitude of English judges to arbitration was never fundamentally hostile.

44 Adofo v The Attorney General [2005–06] SCGLR 42 at 56.

45 Id at 52.

46 Divestiture of State Interests (Implementation) Law 1993 (PNDCL 326), sec 15.

47 Ghana Cocoa Board Re-Organisation and Indemnity Law 1985 (PNDCL 125), sec 5.

48 See also Alternative Dispute Resolution Act, sec 7, which empowers courts to refer parties to arbitration, albeit with the “consent of the parties in writing”.

49 The Constitution, art 273.

50 Id, arts 218 and 219.

51 Id, art 280.

52 National Media Commission Act 1993, secs 13–15.

53 Emphasis added.

54 Bimpong-Buta v General Legal Council [2003–05] 1 GLR 738 at 790.

55 Ibid.

56 Aduamoa II v Twum II [1999–2000] 2 GLR 409 at 416.

57 See Oppong, RF “International business transactions, arbitration and the Constitution of the Republic of Ghana” in Oppong, RF and Agyebeng, K (eds) A Commitment to Law, Development and Public Policy: A Festschrift in Honour of Nana Dr SKB Asante (2016, Wildy, Simmonds and Hill Publishing) 237 at 239Google Scholar.

58 Alternative Dispute Resolution Act, sec 40.

59 Ghana Water and Sewage Corporation Act 1965, sec 2(3); Ghana Broadcasting Act 1968, sec 13(1) and (7); Ghana Ports and Harbours Authority Act 1986, secs 19–21; Plants and Fertilizer Act 2010, sec 16(1), (2) and (4); Ghana Railway Corporations Act 1997, sec 8(1) and (2); and Ghana Highway Authority Act 1977, secs 36 and 37(1).

60 Duffour v Dodoo, above at note 4.

61 See, for example, Labour Act 2003, sec 167(1), which provides for the publication of awards given by the Labour Commission in a compulsory arbitration.

62 The Constitution, art 140(1).