The New Ghana ADR Act 2010: A Critical

Overview

by D R E M I L I A O N Y E M A

ABSTRACT
This article critically analyses the provisions on arbitration, customary arbitration and
mediation in the new Ghana ADR Act 2010. The provisions on arbitration in the new Act are
based on internationally recognised principles such as autonomy of the arbitration agreement
and supremacy of party autonomy. It however pushes the boundary of current standards in
arbitration laws by, for example granting the appointing authority an expanded role in the
arbitral process. The new Act also breaks new grounds in legislating on customary arbitration
and granting the settlement agreementfrom mediation proceedings an enhanced status akin to an
arbitral award. This article concludes that this new ADR Act is comprehensive, modern and
forward looking and should enhance Ghana's chances of being chosen by parties as seat of their
arbitration references within sub-Sahara Africa.

Ghana enacted a new legislation that regulates various alternative dispute-

resolution mechanisms in 2010. 1 The new law is titled The Alternative Dispute
Resolution Act, Act 798 (the Act). In the Preamble to the new law, it states that it
deals with the settlement of disputes by arbitration, mediation and customary
arbitration. In addition to the regulation of these mechanisms, the new Act sets up
an independent Alternative Dispute Resolution Centre (ADR Centre) 2 with the
mandate to 'facilitate the practice of alternative dispute resolution'. The new law is

Dr Emilia Onyema is a lecturer in international commercial law at the School of Oriental and African
Studies, University of London and can be contacted at eo3@soas.ac.uk. T h e author acknowledges with
appreciation the helpful comments made by Justice Samuel Marful-Sau of the Court of Appeal, Ghana.
' As defined under sec. 135 of the A D R Act.
2
See sees. 114—124 of the A D R Act. T h e A D R Centre is a body corporate and enjoys all the privileges and
liabilities of a legal person. T h e Centre has clearly defined objectives listed under sec. 115 which includes: to
provide facilities for the settlement of disputes, maintain a list of arbitrators and mediators and conduct
relevant research.

ARBITRATION INTERNATIONAL, Vol. 28, No. 1

© LCIA, 2012

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 102 Arbitration International, Volume 28 Issue 1

divided into five parts on arbitration (Part I), mediation (Part II), customary
arbitration (Part III), the Alternative Dispute Resolution Centre (Part IV) and
makes provisions on financial, administrative and miscellaneous matters 3 (Part V).
The new Act also contains five schedules with Ghana's implementation of the
(New York) Convention on the Recognition and Enforcement of Foreign Arbitral
Awards 1958 as the first schedule. 4
This article critically analyses the provisions of this new Act with special
emphasis on the sections on arbitration and customary arbitration. It also
highlights the modified or novel provisions in the new Act. Reference will be made
to the provisions of the old 1961 Arbitration Act of Ghana and the UNCITRAL
Model Law on International Commercial Arbitration 5 which influenced the new
Act with a view to explaining the differences between these laws and what impact
these may have on the law and practice of international arbitration in Ghana. 6 It
is worthy of note that the sections regulating customary arbitration are completely
new in the statutory regulation of arbitration in Ghana or in any other African
country. An analysis of these provisions on customary arbitration will assist other
African countries in deciding whether to include similar provisions in their own
arbitration or alternative dispute-resolution statutes.
To achieve these stated objectives, this article analyses the sections of the new
Act on arbitration (1), customary arbitration (2) and mediation (3). It concludes
with the view that the new Act which is heavily influenced by the UNCITRAL
Model Law, provides for a modern and flexible arbitration regime that upholds the
essential principles of party autonomy, limited court interference and supportive
guidance for parties arbitrating in Ghana thus making Ghana a very viable seat to
host international commercial arbitration proceedings in the sub-Sahara Africa
region. 7

I. ARBITRATION
Arbitration of all matters except those that relate to national or public interest, the
environment, enforcement and interpretation of the Constitution, or any other
matter that by law cannot be settled by arbitration is regulated under Part One of

See sees. 125-133 of the A D R Act which establishes the Alternative Dispute Resolution Fund and states the
objectives to which the Fund monies will be applied among others.
G h a n a implemented the New York Convention on 8 J u n . 1968. The second schedule contains Arbitration
Rules for the A D R Centre, the third schedule contains the A D R Centre's Expedited Arbitration Proceedings
Rules and the fourth schedule contains its Mediation Rules while the fifth schedule contains samples of
arbitration clauses or agreements for use by parties.
5
T h e Arbitration Act 1961 (Act 38) of the Republic of Ghana. The text of the U N C I T R A L Model Law on
International Commercial Arbitration 1985 (as amended in 2006) is available at http://www.uncitral.org/
pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf (accessed 7 June 2011).
However, all references in this Article are to sections of the new A D R Act except where otherwise mentioned.
This is in addition to Ghana's transport accessibility, political stability, and sustained growth in her economy.
See Justice Edward Torgbor, Ghana Outdoors: The New Alternative Dispute Resolution Act 2010 (Act 798): a Brief
Appraisal, 77 Arbitration 211-219 (2011).

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 The New Ghana ADR Act 2010: A Critical Overview 103

the ADR Act. This section explores various matters under the new Act that
evidence its pro-arbitration stance in nine subsections.

(a) Arbitration Agreement

The new Act recognizes both arbitration clauses and submission agreements
which are in writing. 8 It recognizes and expressly provides for the autonomy or
independence of the arbitration clause. 9 The arbitration agreement can be
revoked by the parties, and can be discharged by the death of one party, or
dissolution or merger of a corporation 10 while it is enforceable against the personal
representatives, liquidator or successor of a party to the arbitration agreement.''
Parties arbitrating under the new Act can opt to proceed ad hoc or under the rules
of any arbitration institution of their choice, and can also opt to use the ADR
Centre and its rules. 12 Thus in the new Act, the Ghanaian legislature evidences its
acceptance, adoption and implementation of the basic and generally recognized
attributes of the arbitration agreement under a pro-arbitration regime.

(b) Arbitrators
Any individual or physical person can act as an arbitrator under the new Act. 13
Arbitrators can be appointed direcdy by the parties or indirectly by another person
or institution as empowered by the parties. 14 The arbitral tribunal shall be made
up of uneven number of arbitrators with a default provision in the Act for three
arbitrators. 15 Each arbitrator must be independent and impartial and is required
to disclose any information likely to affect his or her neutrality in the arbitration
reference before he accepts appointment. 16
Party autonomy drives the arbitrator appointment process under the new Act.
For example, the Act expressly empowers the parties to agree on the appointment
procedure. In default, the Act requires each party to appoint one arbitrator and the
two party appointed arbitrators to appoint the third arbitrator who shall also act as
the presiding arbitrator. 17 There is, however, very tight time schedules built into
the default appointment procedure. For each stage of appointment, the parties
have fourteen days within which to exercise their right of appointment. Upon the

See sec. 2 A D R Act which provides a very robust definition of writing.

9
See sec. 3 A D R Act.
10
See sec. 3(2) A D R Act.
1
' See sec. 4 A D R Act.
12
See sec. 5(1) A D R Act.
There is no requirement that such persons should be in full enjoyment of their legal rights as in some other
jurisdictions such as art. 13 Brazilian Arbitration Law No 9.307 of Sep. 23, 1996 or art. 1450 of the French
Arbitration Law No 211-48 of 13 J a n . 2011.
14
See sec. 12(1) A D R Act.
15
See sec. 13 A D R Act.
16
See sec. 12(5) A D R Act.
17
See sec. 14 A D R Act. However, for the appointment of a sole arbitrator for which the Act does not make any
default provisions, the parties may jointly agree on the person to appoint, use the list method for the
appointment, or request an appointing authority to appoint the sole arbitrator. This implies that parties must
agree on the appointment of a sole arbitrator and the procedure for the appointment.

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 104 Arbitration International, Volume 28 Issue 1

lapse of the fourteen-day limit, a party can request an appointing authority to

make the relevant appointment. 18
The obligation to disclose 'any circumstance likely to give reasonable cause to
doubt his independence or impartiality' rests with the arbitrator. This is a
mandatory provision of the Act and an ongoing obligation of the arbitrator
through the arbitral reference. Therefore, an arbitrator's appointment may be
challenged where such circumstance is proved to exist. Note that an arbitrator can
also be challenged where he does not possess any agreed qualification. However,
this is waiveable by the parties provided they are aware of the lack of
qualification.19
The procedure for challenging an arbitrator may be agreed by the parties failing
which a default procedure is provided in the Act. The Act provides for the
challenging party to submit a written statement to the arbitral tribunal (including
the challenged arbitrator). This must be done within fifteen days of the party
becoming aware of the constitution of the arbitral tribunal (and not the challenged
arbitrator accepting appointment) or of becoming aware of the circumstance
justifying the challenge. 20 The arbitral tribunal shall decide the challenge. Upon a
successful challenge, the challenged arbitrator may decide to withdraw. Where all
the disputing parties agree to the challenge then the challenged arbitrator must
withdraw. In the case of a sole arbitrator, the decision on his challenge, lies with the
appointing authority and where there is no appointing authority, the High Court
shall decide the challenge. 21
An arbitrator can also lose his mandate for other reasons. 22 The parties can
agree to circumstances under which the arbitrator's authority will be revoked.23
Under the Act, the arbitrator's authority may be revoked where the arbitrator
withdraws from his office as arbitrator, by the parties' agreement, by the
appointing authority (acting for the parties) and where the arbitrator fails to sit
within a reasonable time. 24 The High Court also has powers to revoke the
authority of the arbitrator and remove him in two different instances. The first is
where the court considers it fit to remove him. In such a situation, the applicant is
not required to show it suffered or will suffer any form of injustice from the action
or inaction of the arbitrator. 25 The second instance is where substantial injustice is
or will be caused to the applicant. This is usually where there is sufficient reason to
doubt the impartiality of the arbitrator, where the arbitrator does not possess the
qualification required by the parties or is unable to conduct the proceedings

18 See sec. 14 A D R Act.

19 See sec. 15(1) and (2) A D R Act.
20 See sec. 16 A D R Act.
21 See sec. 16(3) A D R Act.
22 This includes by death according to sec. 20 A D R Act.
23 For the analysis of whether the arbitrator is an employee or agent of the parties, see Emilia Onyema,
International Commercial Arbitration and the Arbitrator's Contract 6 0 - 7 0 (Routledge 2010).
24
See sec. 17 A D R Act.
25
It may be feasible for a party wishing to remove an arbitrator under the common law ground of misconduct
to proceed under this section.

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 The New Ghana ADR Act 2010: A Critical Overview 105

properly or with reasonable despatch. 26 After a withdrawal by the arbitrator, a

successful challenge or loss of mandate, a new arbitrator will be appointed to
replace the erstwhile arbitrator. 27 A new provision in the Act is the statutory right
granted to the arbitrator to make representations to the High Court on the
application to remove him. 28 This may be a useful right to possess since the
removed arbitrator may be liable to repay 'any fees or expenses already paid' to
him. 29
The Act makes detailed provisions on the fees of the arbitrator with primacy
given to the parties and arbitrator to agree on the fees payable. 30 It expressly makes
the parties jointly and severally liable for payment of the agreed fees.31 The Act
also provides the basis by which the arbitrator's fees will be calculated and these
are ad valorem or on an hourly basis (which will include daily rates). It is important
to note that a party can challenge the amount payable to the arbitrator as fees and
can apply for its adjustment before the appointing authority or the High Court. 32
One final provision of note under this subsection is that every arbitrator subject to
the Act enjoys partial immunity which extends to his employees and agents. An
arbitrator subject to the Act shall not be liable for, 'any act or omission in the
discharge of the arbitrator's functions as an arbitrator unless the arbitrator is
shown to have acted in bad faith'.33 The provisions that regulate the arbitrator
under the new Act are more detailed and clearer than those in the old Act, retain
generally accepted standards, and provide better guidance to arbitrators, parties,
counsel and the courts.

(c) Jurisdiction of the Arbitrator

The new Act codifies the principle of competence-competence though subject to
agreement of the parties. It further clarifies the remit for the application of this
doctrine. These are in respect of the existence, scope or validity of the arbitration
agreement and the underlying contract. 34 Thus for every other ground on which
the jurisdiction of the arbitrator may be challenged, it will be for the High Court
to adjudicate. 35 A party may challenge the jurisdiction of the arbitrator at any
time, 'before taking the first step in the proceedings to contest the case on its
merits'. 36 This does not preclude a challenge on the ground of excess of

See sec. 18 A D R Act which also applies to making the award timeously.
See sec. 16(4) and (5) of the Act and note that where both parties successfully challenge an arbitrator the
replacement arbitrator will be appointed by the appointing authority and not the parties.
See sec. 18(5) A D R Act.
See sec. 18(6) A D R Act. Note that under sec. 19 of the Act where the arbitrator resigns, the parties and
arbitrator can agree his fees and expenses payable or any relief from liability.
This is a new and welcome provision which clarifies the person primarily responsible to pay the arbitrator.
This raises the question of what the situation will be where the fees were not agreed by all the parties. It is
suggested here that the principle of reasonableness of the fees payable should apply.
See generally sec. 22 of the Act on the fees for arbitrators.
See sec. 23 A D R Act.
See sec. 24 A D R Act.
An example will be where a party alleges that the arbitral tribunal is improperly constituted.
See sec. 25 A D R Act.

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 106 Arbitration International, Volume 28 Issue 1

jurisdiction which will usually arise when the matter alleged to be beyond the
jurisdiction of the arbitral tribunal is raised. It is important to note that excess of
jurisdiction though a ground on which the arbitral award may be set aside, is also
a waiveable matter. 37 Though the Act expects these steps to be taken timeously, it
nevertheless empowers the arbitrator to extend such time where he considers that
there is sufficient justification to do so. 38
A party dissatisfied with the decision of the arbitrator on his jurisdiction is
entitled to apply to the appointing authority (where there is one) or the High Court
for a determination of the question of the jurisdiction of the arbitrator. The
applicant must make the application with reasons within seven days of the
arbitrator handing down his jurisdictional decision and put the other party and
the arbitrator on notice. 39 If a party is dissatisfied with the decision of the
appointing authority, he will need to obtain the leave of the High Court for judicial
review (by the High Court) of the decision and where the decision was made by the
High Court in the first instance, the applicant will need to obtain leave to appeal
to the Court of Appeal. 40 This provision completely changes the old law and is one
of the provisions that evidence the enhanced role assigned to the appointing
authority under the new Act.41 To reduce the scope for this provision to be used to
delay the arbitral proceeding, the Act provides that the application to the
appointing authority or High Court will not act as stay of the arbitral proceeding
unless the parties agree otherwise. 42 It is important to note that this is not a
mandatory provision of the Act and so parties (especially in international
arbitration) may wish to contract out of this provision and expressly state that any
challenge to the decision of the arbitrator on his jurisdiction will lie directiy to the
High Court or expressly delimit the powers of the appointing authority to
determine such applications. This should ensure that the High Court makes the
decision with the possibility of appeal lying directly from the High Court to the
Court of Appeal, removing one layer of adjudication.

(d) Powers and Duties of the Arbitrator

The Act makes provisions on the duties and powers to be exercised by the
arbitrator. The Act expressly imposes on the arbitrator the primary obligation to
decide the dispute, which is the service he renders and for which the parties

Refer to sec. 58(2)(d) A D R Act. Section 27 of the Act helpfully lists matters which a party will be presumed
to have waived where he fails to take timely steps. These include where the party knew the arbitrator lacked
jurisdiction, the arbitral proceedings were improperly conducted, the arbitration agreement or Act had not
been complied with or where there is an irregularity affecting the arbitrator or the arbitral proceeding.
See sec. 25(4) A D R Act.
Under sec. 26(3) of the Act, to grant the application, the appointing authority or High Court need to be
satisfied that the application was made within time and is justified.
Leave will be granted where the High Court is satisfied that the application involves a point of law which is
fundamental to the case or one which 'for some special reason deserves consideration by the Court of Appeal'
as stated under sec. 26(6) of the Act.
See section 1.8 below.
See sec. 26(4) A D R Act.

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 The New Ghana ADR Act 2010: A Critical Overview 107

appoint and remunerate him. 43 In addition to the arbitrator's obligation to act

fairly and impartially towards the parties, he is required to give each party an
opportunity to present its case and avoid unnecessary delay and expense through
a positive obligation to adopt measures that will expedite resolution of the
dispute. 44 These are all mandatory provisions of the new Act. A new obligation
imposed on the arbitrator in the new Act is to ensure the confidentiality of the
arbitration subject to the agreement of the parties and any applicable law.45
As to the powers given to the arbitrator in the new Act, he can order the
provision of security for costs except the parties agree otherwise; 46 give directions
for the inspection, preservation, photographing, detention or taking of samples for
experiments that affect the property which is the subject matter of the arbitration
and which is owned or in the possession of a party to the arbitral reference; 47 and
require the attendance of a witness and administer an oath or affirmation in taking
evidence from witnesses. 48 The arbitrator is empowered to grant any interim relief
(at the request of a party) he considers necessary for the protection or preservation
of property. This section arguably expands the power granted under the old law as
it may not necessarily be limited to property that forms the subject matter of the
arbitration. 49 The arbitrator retains his default powers to determine the language
and seat of the arbitration in the absence of agreement by the parties. 50 The
arbitrator also has powers to inspect property, appoint a tribunal expert, postpone
and reopen hearings and generally control the arbitral hearing subject to the
agreement of the parties on such issues of procedure. 51 Parties must note the power
of the arbitrator to withhold the award and refuse to deliver it to the parties until
his fees and expenses are fully paid. 52 The range of relief the arbitrator is
empowered to grant is very wide and subject only to the terms of the arbitration
agreement. 53 Though the arbitrator enjoys very wide powers under the new Act,
he lacks powers to consolidate arbitral proceedings or hold concurrent hearings
except where the parties so permit him. 54

See sec. 48 of the Act and note that the arbitrator is required to decide the dispute in accordance with the law
applicable to the merits of the dispute.
This is because under sec. 31 the Act gives the arbitrator control over the arbitral proceeding.
iD
See sec. 34(5) of the Act. It is suggested that this requires the arbitrator and his employees and agents to keep
the arbitration confidential and also may form the basis of the power of the arbitrator to make orders aimed
at ensuring the confidentiality of the reference is maintained by the parties and their agents.
46
See sec. 31(7) of the Act and note that the arbitrator may not exercise this power where the party is not
resident or a body registered or established in Ghana. Here the arbitrator has the power by default and so
parties need to opt out of this if they do not wish the arbitrator to exercise such a power.
47
See sec. 31(8) A D R Act.
48
See sec. 31 (9) and (10) A D R Act.
See sec. 19 read with sec. 16(2)(e) of the 1961 Act and sec. 38 of the A D R Act however, the difference may
only be cosmetic since the nature of arbitration itself limits the power of the arbitrator to the property that
is the subject of the arbitration agreement.
M
See sec. 32 on language and sec. 11 on seat.
51
See generally sec. 37, sees. 4 3 ^ 6 A D R Act.
'2 See sec. 56(1) of the Act but note that under sec. 56(2) a party can apply to the High Court (or appointing
authority) for an order to the arbitrator to deliver up the award with conditions.
53
See sec. 50 A D R Act.
54
See sec. 31 (6) A D R Act. Parties need to grant the arbitrator these powers.

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 108 Arbitration International, Volume 28 Issue 1

(e) Arbitration Proceedings

The disputing parties have the right to be represented by counsel or any person of
their choice in the arbitral hearing. 55 The Act empowers both the parties and
arbitrator to determine the rules to apply to the arbitral procedure and empowers
parties to change or make new pleadings. 56 On time limits, the parties by
agreement, the arbitrator with the agreement of the parties, or the appointing
authority at the request of a party showing good cause, may modify any time limits
in the Act except the time limit for making the award. 57 The Act also expressly
provides that the arbitral hearing is private though the parties can agree
otherwise. 58 The arbitrator is under a positive obligation to notify the parties of the
date of hearing. 59 In view of the provisions of section 28 discussed below, it is
suggested that this obligation of the arbitrator can only be discharged where a
party has appeared before the tribunal or the other party has provided to the
arbitral tribunal a functional address for service of notifications. It is thus suggested
that where this is not the case, the arbitrator should not be held to be in breach of
not notifying the party of the hearing under this section. 60 It should be the
responsibility of a party to the arbitral reference to ensure the tribunal is informed
of its address for correspondence purposes. 61
In section 28, the Act makes clear provisions for the right of a party to the
arbitration agreement who was not notified of the arbitral proceeding. Such a
party may apply to the High Court to vindicate its rights under the arbitration
agreement and seek a stay of the arbitral proceeding pending the determination of
the application including any appeal proceedings where leave to appeal is granted.
The first question that arises here is whether a party to the arbitration agreement,
aware of the existence of the arbitration proceeding, should apply directly to the
arbitral tribunal for an answer to the questions listed under section 28(l)(a)-(c) as a
challenge to the jurisdiction of the arbitral tribunal, instead of applying to the
High Court on the basis of section 28(1) as a separate ground. 62 The second
question is whether where such a party waits until an award had been made (on
the presumption of the party being aware of the arbitration proceeding) to apply
to the High Court under section 28 (l)(d)-(e), such act will amount to a breach of
section 27 which presumes that at that stage, such a party had waived these same
rights. One way of dealing with these issues will be to subsume subsections (d) and
(e) of section 28(1) under section 27 where the party was aware of the existence of
the arbitration reference. In situations where the party was not aware of the

55
See sec. 42 A D R Act.
56
See sees. 6 and 8 of the Act respectively.
See sec. 9 of the Act and note that under sec. 58 the court can extend this time.
58 See sec. 34(7) of the Act which implies the parties can opt for a public hearing.
59 See sec. 34(1) A D R act.
This has implications for the arbitrator's obligation to act fairly and impartially and discharge his obligations
without delay.
This will only be relevant where a party has entered appearance (even if conditional) before the arbitral
tribunal.
This should be on the basis of competence-competence recognized under sec. 24 of the Act.

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 The New Ghana ADR Act 2010: A Critical Overview 109

existence of the arbitration, it is suggested that this will be a breach of section

58(2)(c) on which the arbitral award may be challenged in an application to set it
aside.
The arbitral hearing terminates in the arbitrator making his decision in an
award. 63 The parties can agree on the form of the award and where there is no
agreement, the award must be in writing, signed by the sole arbitrator (or
majority), be reasoned (except the parties agree otherwise), dated and should state
the place where it was made. 6 4 Note that the parties may agree that the award will
be registered with the High Court or another institution and for it to also be made
public (possibly in a redacted form). 65 The award is final and binding on the parties
and any person claiming through or under them. 66 The provisions under this
subsection also reflect the standards of a modern arbitration regime.

(f) Arbitration Management Conference

The new Act provides more detailed guidance to the arbitral tribunal and the
parties on the conduct of the arbitration. It should be noted that parties can opt
out of these provisions thus preserving the supremacy of the principle of party
autonomy in the conduct of the arbitral reference. However as a guide, this is a
very useful provision especially for parties and arbitrators with little or no
experience of how arbitration proceedings are conducted. The Act provides for an
arbitration management conference to be held within fourteen days of the
constitution of the arbitral tribunal. The arbitral tribunal must give the parties
seven days written notice so that effectively, the tribunal must set about convening
this conference within seven days of its constitution. Note that parties can agree
otherwise so that a different time outiay may be agreed by the parties. 67 The Act
expects that the parties or their representatives will be present at the management
conference or participate via any electronic or telecommunications media. Thus
the conference can be by video or telephone conferencing or possibly through a
web chat engine, the primary idea being full participation by all parties involved in
the arbitration reference. The Act helpfully lists some matters that should be
determined at the conference. The list is not exhaustive but includes issues for
determination in the arbitration, legal and logistical matters for the hearing,
matters relevant to the award and costs of the arbitration. 68
Note should be made of another new provision tucked away in this part of the
Act providing for attempts at conciliation during the arbitration process with the
consent of the parties by the appointing authority, institution or any individual (but

Note that the parties can jointly terminate the arbitral reference at any time before the award is published to
them or upon settlement of their dispute.
See sec. 49 A D R Act.
See sec. 49(7) and (8) A D R Act. In the absence of such agreement, the award need not be so registered.
See sec. 52 of the Act which does not affect the right of the parties (and the arbitrator) to request the
correction of the award or make an additional award under sec. 53.
See sec. 29(1) A D R Act.
See sec. 29 generally.

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 110 Arbitration International, Volume 28 Issue 1

not the arbitrator 69 ). It is suggested that where the parties agree to participate in
such conciliation this will stay the arbitration reference and for purposes of taking
steps that have time limits in the main arbitral proceeding, this will also place the
running of such time limits in abeyance to recommence when the conciliation fails.
This section must be read with section 47 which permits the arbitrator to
encourage the parties to settle their dispute. However, there is scope for confusion
under section 47 which appears to suggest that the arbitrator may 'use mediation
or other procedures at any time during the arbitral proceedings' in pursuit of this
settlement exercise.70 This clearly contradicts the provision of section 30 on the
arbitrator not acting as a conciliator in the same reference. A purposive
interpretation to reconcile these two provisions may be that the arbitrator should
encourage the parties to settle but not himself act as the mediator, conciliator or
other facilitator. This interpretation will preserve the clear intent of the Act for the
arbitrator to act solely as arbitrator in any particular reference under it. An
alternative interpretation may be that under section 47 the arbitrator can also act
as mediator, conciliator or other facilitator in the same reference. This will
however defeat the aforementioned intent of the Act and may leave the arbitrator
open to challenge especially where the mediation or conciliation process fails. In
determining which path to opt for, parties should note that proceeding under
section 30, they will end up with a conciliation agreement while they can request
the arbitrator to enter their agreement as a consent award if they proceed under
section 47. 71 It is clearly more advantageous to the parties (and the arbitral
process) to proceed under section 47. 72 Subject to this, the provisions on the
management conference are a welcome addition to the new Act.

(g) Pleadings
Parties can submit various pleadings to the arbitral tribunal including statements
of claim, defence, counter claim and replies. The Act does not contain any
prescriptive times for the submission of statements of claim and defence but leave
this to the agreement of the parties failing which the arbitrator shall decide. It
however requires that the statement of claim must contain the claim and
supporting facts, the points in issue and the relief sought while the statement of
defence should contain the particulars of the respondent's case. 73 This is a very
robust regime which should be encouraged in other jurisdictions.

See sec. 30 of the Act which automatically discounts the possibility of the arbitrator wearing two hats in any
one reference.
See sec. 47(2) ADR Act.
See sec. 47(3) and (4) ADR Act.
The arbitral award has res judicata effect and is not just a settlement agreement.
See sec. 33 of the Act but note the power of the arbitrator to refuse an amendment on the grounds of undue
delay. The Act also provides guidance on the order in which these documents should be exchanged or
submitted.

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 The New Ghana ADR Act 2010: A Critical Overview 111

(h) The Expanded Role of the Appointing Authority

One major and novel matter in the Act is the expanded role and new tasks
allocated to the appointing authority with the effect that such appointing
authorities now enjoy a new status under the Act. The presence of the appointing
authority in international arbitration was made popular under the UNCITRAL
arbitration regimes comprising the Model Law on International Commercial
Arbitration 1985 amended in 2006 (Model Law) and the Arbitration Rules 1976
amended in 2010. 74 The traditional role assigned to the appointing authority is
one of support or assistance. The appointing authority generally assists the parties
in the appointment of arbitrators to ensure effective constitution of the arbitral
tribunal. 75 Under some arbitration regimes the appointing authority may also
assist with fixing or agreeing the fees of the arbitrators (on behalf of the parties)
and in some cases assist with the disbursement of such monies. 76 An appointing
authority may be an individual, legal person, office, institution or organization and
usually a fee will be payable for its services.77 It is therefore generally a private
entity, not a public one. With the expanded functions assigned to the appointing
authority under the new Act, the role is now more analogous to that of a public
rather than a private entity. This change in the status of the appointing authority
in the arbitral reference may raise some difficulties which will need to be analysed.
This is especially important as a number of jurisdictions within the sub-Sahara
Africa region are currently looking to revise their arbitration laws and will
presumably be influenced by the provisions of this new Act in Ghana.
The first point that should be made here is that parties are not bound to
nominate an appointing authority so that where parties do not wish an appointing
authority to perform the various roles allocated to it under the Act, they should not
therefore appoint one. This is important since the parties can limit some but not
all, of the powers of the appointing authority as given to it under the Act. Thus,
parties retain some degree of autonomy on this matter.
The functions of the appointing authority under the Act include its traditional
role of assisting the parties with the appointment of arbitrators and determination
of arbitrator challenge applications, which are not controversial. 78 However in
addition to these, the appointing authority is empowered to hear certain
applications which ordinarily or traditionally will be heard by a national court. An
example is where an arbitrator resigns, and cannot agree his fees, expenses or
liability with the parties, he (the arbitrator) can apply to the appointing authority
and put the parties on notice, for an order granting him relief from any liability

'4 For full texts of these instruments see http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration.html.

75
See, e.g., arts. 6 and 11(3) of the U N C I T R A L Model Law, 2006 and arts. 6 and 8(2) of the U N C I T R A L
Arbitration Rules 2010.
76
See, e.g., the London Court of International Arbitration (LCIA) when acting as an appointing authority:
http://www.lcia.org/Fundholding/Fundholding.aspx last accessed 7 J u n e 2011.
' See, e.g., the Secretary General of the Permanent Court of Arbitration acting in this role at http://www.pca-
cpa.org/showpage.asp?pag_id=1048 (accessed 7 June 2011).
78
See, e.g., sees. 14(3) and 16(3)(a) of the Act where a sole arbitrator appointed by the appointing authority is
challenged.

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 112 Arbitration International, Volume 28 Issue 1

incurred and the determination of the fees and reimbursable expenses he is

entitled to. 79 A more extreme example is found in section 26(1) which empowers
the appointing authority to rule on the jurisdiction of the arbitrator on the
application of a party dissatisfied with the initial decision (on the same question)
made by the arbitrator. This is a novel provision in arbitration laws and is another
layer of adjudication. It is interesting that under this section the dissatisfied party
can choose whether to apply to the High Court or appointing authority, raising the
question why the appointing authority is so empowered in the first place. In these
situations under the new Act a party dissatisfied with the decision of the appointing
authority is given a statutory right to seek judicial review in the High Court usually
with leave of the High Court. 80 A judicial review process has additional cost and
time implications for parties. 81
Another interesting and novel provision affecting the function of the appointing
authority is found in section 36(2) which provides for parties wishing to submit
additional or other agreed documents or other evidence after the closure of
hearing to the arbitral tribunal, to submit these through the appointing authority.
The query here is whether there is a need for the parties to submit documents or
evidence to the same arbitral tribunal they had appeared before (and so should
have contact details) through the appointing authority. It is difficult to appreciate
the practical relevance of this provision since the Act allows transmission of
documents through various means including any electronic medium so that such
documents may be couriered, faxed, scanned and emailed as attachments, directly
to the arbitrators as long as the parties have their contact details to enable them
effect such transmission. 82 Evidently, transmitting such documents through the
appointing authority has both cost and time implications and it may also breach
any relevant confidentiality requirements.
The last notable new task imposed on the appointing authority under the Act is
found in section 56(6). This section provides that the appointing authority may be
charged with the obligation to deliver the award to the parties. Under such
situation the right of the arbitrator to withhold the award until all fees and
expenses of the arbitration (including the fees of the appointing authority) are paid
under section 56(1) may be compromised. This is for the simple reason that the
arbitrator will no longer be in possession of the arbitral award. This is also
compounded by the fact that the arbitrator cannot sue the appointing authority for
the payment of his fees and unpaid expenses if the parties refuse to pay and collect

See sec. 19(2) ADR Act.

See, e.g., sec. I9(5)(b) ADR Act.
This is particularly relevant in international arbitration even if not the case in domestic arbitration in Ghana.
Note also that under sec. 55(2) of the Act, the parties will pay for the expenses of the arbitration in equal
shares, except where they have agreed otherwise or the arbitrator has apportioned such costs differently.
See sec. 34(10) on various means of communication and since this provision is effective after the hearing
surely the parties would have contact details for the arbitrator even where such arbitrator is outside
jurisdiction.

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 The New Ghana ADR Act 2010: A Critical Overview 113

the award. 83 In addition it should be noted that contractually, there is no

relationship between the arbitrator and the appointing authority who is appointed
by the parties and not the arbitrator while there is a contractual relationship
between the arbitrator and parties, so that the arbitrator may claim against the
parties jointly and severally for his fees in contract. It is important that arbitrators
are aware of these provisions and are encouraged to expressly agree these issues
with the parties. It is therefore hoped that jurisdictions in the sub-Sahara Africa
region revising their arbitration laws will have a more robust debate on the merits
and demerits, and relevance of granting the appointing authority such expanded
roles that go well beyond its traditional role of rendering support and assistance to
the parties and arbitrators.

(i) Arbitration and National Court

The relevant court to hear arbitration related applications under Part One of the
Act is the High Court. The jurisdiction of the High Court can be invoked at
various stages of the arbitral reference. Some of these are concurrent with certain
powers exercisable by the arbitrator and some with those exercisable by the
appointing authority. The court may become involved in the reference before the
commencement of the arbitration. Where a matter subject to an arbitration
agreement is brought before a court, the court may either suo motu8^ or on the
application of a party, 85 stay its proceedings and refer the parties to arbitration.
Section 7 on the power of the court to refer parties to arbitration even where there
is no arbitration agreement, is novel. 86 This section empowers the court, where it
forms the view that a matter pending before it should be resolved by arbitration, to
seek the consent of the parties in writing and refer them to arbitration. The
initiative under section 7 is that of the court which clearly will be a strong influence
on the parties' decision. Practically, it is difficult to see how a party can withhold
its consent under a section 7 nudge by the court. 87 It is suggested that in the light
of the power (subtle as it is) wielded by a High Court judge over parties in a matter
before it, it may not be practicable for a party to withhold its consent to such
suggestion by the court. This clearly begs the question on the genuineness of the

This is unlike the situation under institutional references where the arbitrator looks to the institution for the
payment of his fees and expenses.
See sec. 7(5) A D R Act.
See sec. 6 of the Act and note that this section requires the applicant to make the application for stay on
entering appearance and to put the other party on notice. Note also that unlike sec. 25(1) there is no positive
requirement to make this application before taking steps in the proceeding.
Note that this section goes beyond the requirement under art. II.3 New York Convention obligations on
Ghana. T h e court is required under the New York Convention to refer the parties to arbitration 'at the
request of one of the parties' except where the arbitration agreement is 'null and void, inoperative or
incapable of being performed'.
It is possible to explain this provision through a reference back to the purpose of this new Act which is to
encourage the use of alternative dispute resolution mechanisms by disputants primarily aimed at court
decongestion.

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 114 Arbitration International, Volume 28 Issue 1

consent obtained from the parties which may be more forced than voluntary. 88 It
therefore appears that the legislator was more interested in the formality of
obtaining a written consent than evidence of a genuine intention of the parties
to arbitrate their dispute. This may not necessarily lead to a just means of
decongesting the court docket. It is important that the court enables the parties
to actualize a genuine intention to arbitrate and not 'force' a written consent to
arbitrate their dispute.
Upon commencement of the arbitration, the court plays a supportive role as
provided under section 39 and this includes assistance with the taking and
preservation of evidence, where there is an urgency and importantly, 'where the
arbitrator or other institution or person vested by the parties with power in that
regard, is unable for the time being to act effectively'.89 Note that with reference to
cases where there is no urgency, a party can still apply to the court for assistance on
the written agreement of all parties. 90 In the absence of such agreement, the
applicant is required to put the other party and the arbitrator on notice and obtain
the permission of the arbitrator before applying to the court. The court also has
powers to determine any point of law upon the application of a party to the
arbitration; to remove an arbitrator under section 18; adjudicate on the fees
payable to the arbitrator under section 22 and to make a final determination of the
jurisdiction of the arbitrator under section 26.
The arbitral award may be enforced as a judgment of the High Court with leave
of the court so that judgment will be entered on the terms of the award. 91 The
losing party can object to the grant of leave to enforce the award on the ground
that the arbitrator lacked substantive jurisdiction to make the award so that
practically speaking there is no award the terms of which can be transformed into
the judgment of the court. 92
Where the losing party wishes to challenge the award, it will need to mount the
challenge to set aside the award before the High Court. It is important to note that
it is only a party (or its successors-in-title or assigns) to the arbitration agreement
that can apply to challenge the award. 93 The grounds on which an award may be
set aside by the High Court are similar to those under article 34(2)(a) of the
UNCITRAL Model Law. 94 The court can extend the time limit (of three months

Pursuant to sec. 7(3) of the Act, the court can refer the parties to arbitration at any time even after close of
pleadings.
See sec. 39(4) of the Act which is aimed at ensuring parties can always approach the court in support of the
arbitration reference.
See sec. 39(3) A D R Act. A party may resort to this subsection in situations where the arbitrator lacks power,
for example where a third-party interest is involved, such as a freezing order directed to a non-party bank.
The same provision was made under sec. 29 of the 1961 Act. Note that foreign awards may be enforced in
G h a n a under this provision or on the basis of the New York Convention.
See sec. 57 A D R Act.
See sec. 58(1) A D R Act.
See sec. 58(2) of the Act which omits art. 34(2)(a)(iv) of the Model Law but includes the new ground under (f)
of the arbitrator failing to disclose an interest in the subject matter of the arbitration and sec. 58(3) on lack
of arbitrability of the subject matter or where the award was procured by fraud or corruption.

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 The New Ghana ADR Act 2010: A Critical Overview 115

from the day the applicant receives the award) for an application to set aside the
award under section 58. 95
The Act makes a separate provision for the enforcement of foreign awards
applications for which shall be made to the High Court as well.96 The Act
distinguishes between enforcement of New York Convention awards and non-
Convention but international arbitral awards. The High Court will enforce a
Convention award in accordance with the provisions of the New York Convention
which is scheduled to the Act. 97 For non-Convention international awards, the
High Court will enforce such awards upon satisfaction that the award was made by
a competent authority under the laws of the country where the foreign award was
made and there is a reciprocity arrangement between Ghana and such country,
upon the production of the original copies of the award and arbitration agreement
or authenticated copies of these documents and if necessary translated into
English. 98 These non-Convention international awards will not be enforced in
certain circumstances. 99 These include where there is an appeal pending in any
court under the law applicable to the arbitration; where the award has been
annulled in the country where it was made; where the applicant was not heard;
where a party lacked legal capacity or was not properly represented; and where the
award dealt with issues not submitted to arbitration or did not deal with issues
submitted to arbitration. 100 It is important to note that parties can opt out of these
sections and thereby limit their access to the court and that determinations of the
court under sections 26, 28, 39 and 56 are subject to appeal (with leave) to the
Court of appeal; those under sections 19 and 58 are appealable as of right, while
those under sections 6, 7, 16, 18 and 22 are not appealable.
It can therefore be summarized that the provisions of Part One of the new Act
evidences a more progressive and arbitration-friendly regime which has not only
taken into cognisance modern developments in the law and practice of arbitration
but has made innovative provisions whose efficacy and impact will be determined
by time and practice.

II. C U S T O M A R Y A R B I T R A T I O N
This part of the Act is a bold step by the Ghanaian legislator especially with its
inclusion in the substantive parts of the new Act. It practically has brought
customary law and practice within mainstream legal statutes and procedures in
Ghana. It is hoped that other jurisdictions in sub-Sahara Africa will be encouraged

See sec. 58(4) ADR Act.

See sec. 59(1) ADR Act.
The party will need to produce the documents listed under art. IV of the New York Convention (translated
into English if necessary) and the award must not be subject to appeal in any court under the law applicable
to the arbitration, so effectively in the courts at the seat of arbitration. The same status will be accorded to
any arbitral award made pursuant to any other Conventions binding on Ghana.
See sec. 58(1) and (2) ADR Act.
The provisions of art. V of the New York Convention apply to Convention awards.
See sec. 58(3) of the Act which closely follows the requirements under art. V.I of the New York Convention.

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 116 Arbitration International, Volume 28 Issue 1

to follow this example set by Ghana. The Act defines customary arbitration as, 'the
voluntary submission of a dispute, whether or not relating to a written agreement
for a final binding determination under Part Three of this Act'.101 One major
distinguishing feature of customary arbitration is the little or no emphasis on
writing. 102 Another distinguishing feature (from arbitration under Part One of the
Act) is the provision that the arbitrator is not obliged to apply legal rules of
procedure but be guided by rules of natural justice and fairness,103 though the
parties can also opt to apply the rules of the ADR Centre which provides very
similar guarantees.
In most communities in Africa since well before colonial times, disputes between
aggrieved members of the family, clan or community were resolved through
informal dispute-resolution processes. For example an aggrieved member of the
community having identified the member or members of the community he
perceived had injured him, went before a recognised body of elders within his
family, clan or the larger community and laid his complaints. This body then
invited the respondent to attend an oral hearing. The respondent decided whether
to attend or reject the invitation (which usually had consequences). Upon accepting
the invitation, a date was fixed for a public hearing at which a decision may be
reached on the dispute and compensation and/or punishment also imposed and
usually executed immediately. This very general description of the nature of
customary arbitration evidences the voluntary and oral nature of the process
which has been retained in the new Act. 104
The Act recognizes that certain types of disputes may not be suitable for
resolution under customary arbitration proceedings and that the arbitrators
should be knowledgeable in the customs and practices of the relevant locality since
most disputes that will feed through this mechanism for resolution will invariably
involve infractions or assertion of rights under such customs and practices. This
realization also informs the provision for its application on the basis of
geographical areas. 105 This is important because customary law by its nature
differs from one community to another since it is rooted in the culture, customs
and practices accepted by the people of a particular area, community or tribe as
binding on them. This section examines the remit of customary arbitration (2.1),
the nature of the customary arbitrator (2.2) and the customary arbitration
procedure (2.3) under the new Act.

See sec. 135 A D R Act. T h e provisions on customary arbitration are contained in sees. 89-113.
Customary practices in various communities in Africa historically are transmitted orally though, written
records of these has been encouraged since pre-colonial times.
In the practice of customary arbitration; this includes the indispensable obligation to hear each party and
his witnesses (if any) and weigh whatever evidence each party adduces in support of its case. No party is
generally required to put before the tribunal evidence that is not favourable to its case or that favours its
opponent. Each party adduces evidence to support his own case.
See A. AUott, Essays in African Law, with Special reference to the IMW of Ghana 117-149 (Butterworths, 1960).
See sec. 92(2) A D R Act. This is particularly to be lauded since customs and practices differ from one
geographical area to another.

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 The New Ghana ADR Act 2010: A Critical Overview 117

(a) Remit of Customary Arbitration

Section 89 of the Act provides that disputes over any matter with the exception of
crimes, may be submitted for resolution under customary arbitration. 106 This
provision may be a misleading over-generalization since not all non-criminal
matters fall within the remit of customary law. 107 It therefore follows that this
section should be qualified to apply only to disputes arising from matters that are
regulated under customary law in accordance with the Constitution of Ghana. 1 0 8
One important observation that should be made at the outset is that under the
new Act a party who opts for customary arbitration cannot withdraw from the
process before completion. 109 The Act expects the process to run its full course and
terminate in a binding decision. 110 Therefore, parties must duly consider their
options before embarking on a customary arbitration hearing under Part Three of
the Act. It is suggested that other jurisdictions may wish to give parties the option
to change over to arbitrate their dispute under Part One even though they started
under Part Three. To avoid abuse, a time limit when such a right can be exercised
may be included. This will give parties proceeding under the Act greater choice,
make the process of customary arbitration more attractive and still ensure that any
possible scope for abuse is limited.

(b) Customary Arbitrator

Under the Act any individual agreed upon by the disputing parties can act as a
customary arbitrator.' *' Such an individual may also be chosen by one party and
accepted by the other party 112 or may be appointed by the ADR Centre. 113 The
customary arbitrator like the arbitrator under Part One is under the obligation to
remain independent and impartial of the parties and to disclose any circumstance
likely to give rise to reasonable doubts as to his compliance with these
obligations. 114 He is also subject to challenge proceedings where reasonable doubts
exist of his impartiality or lack of independence or failure to possess any required

6
Section 89(2)-(4) of the Act makes it a criminal offence both for the arbitrator and the parties, to arbitrate
matters of a criminal nature.
7
Note that not all customs or practices attain the status of customary law.
Some examples of such matters include matrimonial causes, devolution of property and ownership of lands.
109
See sec. 105 A D R Act.
110
See sec. 109 A D R Act.
This is in recognition of the principle of party autonomy. However, it is for the parties to ensure they appoint
persons with some knowledge of the local customs and practices of the geographical area relevant to the
particular transaction.
See sec. 92 of the Act and such an individual can be selected from a list of customary arbitrators to be
maintained by the A D R Centre.
113
See sec. 96 A D R Act.
See sec. 98 of the Act but note that generally under customary arbitration, an interested person can be
appointed by a party onto the arbitral tribunal upon proper disclosures. Usually such communities are
constituted by families known to each other, so there is little scope of concealing such relationships. It
therefore means that the views of the interested tribunal member on the dispute will be interpreted by the
other members of the tribunal on the basis of such disclosed or known interests. This will affect the weight
to be attached to his views or opinion on the dispute.

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 118 Arbitration International, Volume 28 Issue 1

qualifications agreed by the parties. 115 The customary arbitrator can also resign
his appointment at any time though he may be liable to refund some of the fees
already paid to him. 116 The mandate of the customary arbitrator is also personal
to him so that upon his death or resignation or a successful challenge, his authority
ceases and comes to an end. 117 It is evident that the role and status assigned to the
customary arbitrator under Part Three of the Act is heavily influenced by Western
style modern arbitration practices. This updates the role and makes it more
familiar to the modern arbitration practitioner.

(c) Customary Arbitration Proceeding

The parties can adopt their own procedures but where they opt to conduct the
arbitration under the auspices of the ADR Centre, the applicant will need to
register the dispute with the relevant local office of the Centre indicating the
names and addresses of the parties, the arbitrator (if already known) and the
nature of the dispute. 118 The dispute can be heard by any number of arbitrators
agreed by the parties with the default number being a sole arbitrator. 119 Where a
vacancy occurs in the composition of the arbitral tribunal, upon the appointment
of a replacement arbitrator, the proceedings if recorded may be adopted by the
new tribunal but if not recorded the proceeding will be started afresh. This clearly
is a very reasonable requirement since without a recording of what had already
taken place the new tribunal will be unable to execute its obligation of ensuring a
fair hearing of the dispute. This provision is particularly relevant because as
already mentioned one of the hallmarks of customary arbitration is the unwritten
or unrecorded nature of its proceedings.
The customary arbitral hearing under the Act terminates in the arbitrator
making and publishing a binding award within twenty-one days after the first
hearing. The Act in recognition of the customary nature of the process provides
that the award does not have to be in writing. As a matter of fact the default
position in the Act is for the arbitrator to render a verbal award which if a party
wishes to have recorded in a written form such party will then pay for this
recording. 120 Note however that the Act requires the award to be in writing if it will

5
See sec. 99 of the Act but note the shorter time limit within which to mount a challenge. Also note that upon
the filing of a challenge application, the customary arbitrator shall step down. This is regardless of whether
the challenge is meritorious or not. Under sec. 100 the parties can jointly revoke the appointment of the
arbitrator for any reason including those listed under sec. 100(2).
116
See sec. 101 of the Act and note that disputes as to fees payable may be referred to the relevant District
Court or in the first instance to a third party as agreed between the parties and the arbitrator. It should be
observed that in traditional customary arbitration, the tribunal members are not usually paid a fee for their
services. This is simply because the goal of such customary arbitration is the restoration of family or
communal cohesion. This view is supported by the fact that it is commonly the case that upon settlement of
the dispute (which is when a decision is reached and accepted by the disputants), all persons present partake
of a 'peace' drink as a sign of the restoration of that cohesion.
117
See, e.g., sec. 102 A D R Act.
118
See sec. 94 A D R Act.
119
See sec. 95 A D R Act.
120
See sec. 108 A D R Act. Note that if the arbitration took place as a result of a court reference, the arbitrator
must make the award in writing.

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 The New Ghana ADR Act 2010: A Critical Overview 119

be registered in any of the relevant courts. 121 The primary reason for requiring the
award to be in writing is for enforcement purposes by the court which will need to
have at the very least a record of the decision it is required to enforce. 122 It also
goes without saying that a party may be dissatisfied with the award and wish to
challenge and have it set aside. Such a party will require a written award to put
before the relevant court with jurisdiction to hear the challenge application. 123
The award from a customary arbitration proceeding may be set aside upon proof
of any of the following three grounds: that the award (a) was made in breach of the
rules of natural justice, (b) constitutes a miscarriage of justice, and (c) is in
contradiction with the known customs relevant to the dispute. 124
The provisions on customary arbitration in the new Act are evidently influenced
by some aspects of modern arbitration law and practice, the proliferation and use
of modern technological tools by Ghanaians and the increased literacy of the
peoples bound by such customs. These influences do not negatively impact on the
essence of custom which in itself is dynamic and so well suited to be so influenced.
Leaving its adoption and application to the discretion of the parties is
commendable and hopefully will lead to an increase in the numbers of Ghanaians
that will have recourse to this form of dispute-resolution process. Though parties
involved in international arbitration can opt to arbitrate their dispute under the
provisions of this part of the Act, it may not be suitable for the types of disputes
that arise under international transactions.

III. MEDIATION
The Act defines mediation as, 'a nonbinding process under Part Two in which the
parties discuss their dispute with an impartial person who assists them to reach a
resolution'.125 This description of mediation includes the hallmarks of a facilitative
dispute-resolution process that terminates in a non-binding settlement agreement
which may be evidenced in writing. Mediation as contemplated under the new Act
is therefore a 'parties-centered' process. Part Two of the Act contains guidelines
and non-prescriptive provisions on the procedure to be adopted in a mediation
process. 126 Though this definition of mediation expressly refers to contractual
disputes, it is suggested that it may also apply to all manners of disputes that are
amenable to mediation. 127 Section 63 of the Act does not exclude situations where
the agreement contains an arbitration or a jurisdiction clause so that even in the
face of such clauses, the parties may still agree to mediate any dispute that arises

121
See sec. 110 ADR Act.
122
See sec. 111 ADR Act.
123
See sec. 112 of the Act and note that the relevant court may be a District, Circuit or High Court.
See sec. 112(1) of the Act and note that the application to set aside the award must be made within three
months of the award.
125
See sec. 135 ADR Act.
126
See sees. 63-88 ADR Act.
This is because it is expressly hinged on disputes arising from an agreement between the parties.

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 120 Arbitration International, Volume 28 Issue 1

under it. 128 Such a choice will not affect the validity of the arbitration or
jurisdictional clause. This is because since such clauses are also contractual in
nature, the parties can by mutual agreement vary or amend them. This does not
in effect violate or contravene the dispute-resolution mechanism chosen by the
parties. In addition, this makes the consent of all parties essential to invoking this
part of the Act where the agreement contains an arbitration or jurisdiction
clause. 129 Another important referral agency is the court which can refer parties in
a matter before it to mediation. 130 This section briefly examines how disputes can
be submitted to mediation (3.1), the attributes of the mediator (3.2), guidelines for
conducting the mediation (3.3) and provisions on the settlement agreement (3.4)
under the Act.

(a) Submission to Mediation

Following the same spirit of substance over form evidenced in Part One of the Act
on arbitration, the submission to mediation may be made through any mode, for
example verbal (should be confirmed in writing), in writing or through any
electronic means. The important point is to ensure there is evidence of the
agreement or consent of the parties to mediate 131 and a brief statement of
the nature of the dispute. 132 These pieces of information or documents will be
submitted to the institution administering the mediation or the mediator agreed by
the parties. Upon this submission, the institution or mediator will invite the
responding party to participate in the mediation. The responding party may
accept this invitation through any means of communication following which
acceptance the mediation process commences, or he may reject the invitation. 133

(b) The Mediator

The mediator must be an individual who is independent and impartial, not having
any financial or personal interest in the outcome of the dispute, and with an
ongoing obligation of disclosure. 134 The Act empowers the parties to appoint a
person or institution to act as mediator. 135 It is suggested that an institution here
will administer the mediation process and its mandate will include appointing the

Note the provision of sec. 83 of the Act which implies that once mediation commences a party cannot
commence arbitration or judicial proceedings.
See sec. 64(2) of the Act in support of this proposition.
See sec. 64 A D R Act.
See sec. 63(4)—(7) of the Act on acceptance of the invitation to mediate which must happen before mediation
can commence.
See sec. 63(2) and (3) of the Act which requires the submission to state the names, addresses, telephone
numbers and email contacts of the parties.
If the responding party fails to accept the invitation within fourteen days from receipt of the invitation or any
other time stipulated in the invitation, then he would be presumed to have rejected the invitation so that the
mediation will not commence.
See sees. 66—67 A D R Act. Under sec. 68 the mediator is required to disclose any conflicts of interest or
circumstance that relates to him that may create a likelihood of bias or affect the conduct of the mediation.
The parties can replace a mediator under sees. 68(3) and 70.
See sec. 66(2) of the Act which provides that the institution or another person can also assist the parties in
appointing the mediator.

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 The New Ghana ADR Act 2010: A Critical Overview 121

mediator(s). This is especially important since the institution being a legal person
can only act through individuals. 136
The mediator can exercise various powers granted to him under the Act. He has
general control over the process and it is for him to do everything necessary to
'help the parties to satisfactorily resolve their dispute'.137 Thus on the basis of this
provision, the Act expects the mediator to act in a facilitative role while it is the
responsibility of the parties to work out a resolution or setdement of their dispute.
The Act therefore recognizes that the power over resolution lies with the parties in
the mediation process (unlike arbitration where the arbitrator makes a decision for
the parties). The function of the mediator is not to ensure the parties settle their
dispute. 138 The Act expects the mediator to be guided:

by principles of objectivity, fairness and justice and shall give consideration to . . . the rights and
obligations of the parties, the usages of the trade concerned and the circumstances surrounding
the dispute, including any previous business practices between the parties. 139

This principle implies that legal considerations will not be completely ignored in
the settlement conversations between the parties. The Act prohibits the mediator
from acting as arbitrator, representative, counsel or witness to any of the parties in
subsequent arbitral or judicial proceedings where the parties are unable to settle
the whole dispute through mediation. 140 The mediator is entitled to be paid for his
services and reimbursed his expenses by the parties equally.141

(c) Mediation Proceeding

The Act recognizes the practice of caucusing whereby the mediator meets with the
parties separately and empowers him to make suggestions to the parties with a
view to facilitating settlement or aiding their conversation. 142 The parties can be
represented by any person of their choice in the mediation and the mediator can
call in aid technical experts at the expense of the parties. 143 The parties shall make
representations on each of the issues in dispute and support their arguments with
any evidence they consider appropriate while the mediator can seek clarification
from the parties of any issue relevant to the dispute. Though this process is not a
hearing as in an arbitration or litigation, a party who asserts a position or makes a

See sec. 135 of the Act for the definition of a mediator.

See sec. 74(1) ADR Act.
This seemingly mundane point is very important and is aimed at ensuring the mediator appreciates his role
and function in the process.
See sec. 74(5) ADR Act.
See sec. 84 of the Act but note that the parties can agree otherwise.
Note that this is not a joint liability of the parties. See sees. 87-88 of the Act on what fees and expenses the
parties are required to pay, the mediator's right to request deposits from the parties and the effect of the
parties not paying such deposits.
See sec. 74(2) ADR Act. See also sec. 78 which empowers the mediator to disclose information usually
obtained during the caucus session, with the consent of a party to the other party in the mediation.
See sees. 71 and 74(3) ADR Act.

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 122 Arbitration International, Volume 28 Issue 1

claim will be required to prove or justify such assertion or claim. 144 Mediation
under the Act is a private and confidential process. 145 The process can be
terminated by the agreement of the parties, by one of the parties or by the
mediator. O n the part of the mediator, he can terminate the process where he
forms the view or opinion that continuing the process will not assist the parties to
resolve their dispute or where the parties fail to pay an agreed deposit. 146 The
mediation will also terminate where the parties reach settlement and execute a
settlement agreement. In any of these instances, the termination will need to be
evidenced in writing.

(d) Settlement Agreement

The desired outcome of the mediation process is for the parties to reach an
enforceable settlement over some or all of the issues in dispute between them. 147
Such settlement will be evidenced in a settlement agreement. The Act imposes on
the mediator the obligation to draft the mediation settlement agreement. This does
not prevent the parties agreeing to draw up the terms of settlement themselves.
The settlement agreement signed by the parties is deemed binding on them and
those claiming through or under them. 148 A novel and possibly controversial
provision is the status accorded to the settlement agreement under the new Act.
Section 82 expressly states that the settlement agreement has the same status as an
arbitral award. This is controversial on several grounds, the most important of
which is that an arbitral award is usually based on the existence of a valid
arbitration agreement. The mediation process is clearly a different process from
arbitration and the Act does not make the conclusion of an arbitration agreement
a prerequisite to commencing the mediation process. Therefore except where such
settlement agreement that is termed an arbitral award is to be enforced in Ghana
it may be difficult to enforce it as an arbitral award in other jurisdictions, for
example under the provisions of the New York Convention.
The provisions of Part Two of the Act which codifies the practice of mediation
as a process of resolving disputes is a welcome guidance especially in its non-
prescriptive form. This method makes for a persuasive argument to other
jurisdictions in the region looking to modify their arbitration laws to enact a more
comprehensive and all encompassing law for various alternative dispute-resolution
processes.

The primary difference from arbitration or litigation is that in mediation, the parties assert their legal or
commercial rights through dialoguing with each other under the guidance of the mediator.
See sec. 77 on privacy and sec. 79 on confidentiality which is very wide and extends to subsequent judicial
(or arbitral) proceedings, though it falls short of a blanket ban.
See sees. 74(7) and 80(2) ADR Act.
Note, however, that where settlement is not achieved, the process will not necessarily have failed since the
issues in dispute may have been narrowed and the parties possibly understand each other better or proceed
to commence arbitration or litigation over fewer issues.
See sec. 81(3) ADR Act.

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 The Mew Ghana ADR Act 2010: A Critical Overview 123

IV. CONCLUSION
Under Part One of the new Act on arbitration, some of the provisions clearly have
been updated to take account of developments in the law and practice of modern
arbitration and advancements in the areas of telecommunications and information
technology which should be encouraged. On the role of the national court in
arbitration, there are few surprises as the amended sections have sought to
strengthen the supportive role of the court to arbitration while the major and novel
idea that pervades the new Act can be said to be the enhanced status and role of
the appointing authority which may be a trap for many unsuspecting parties. It
remains to be seen how parties and appointing authorities function under these
new provisions before a view can be formed on whether it should be encouraged
and recommended for adoption by other jurisdictions.
Customary law and practice remain an integral part of the lives of the peoples
of various communities in sub-Sahara Africa and most disputes that implicate such
customs or cultural practices affecting these peoples are still resolved through a
process of customary arbitration. It is therefore commendable that this new Act by
making provisions on customary arbitration has effectively recognized this practice
and codified it in this statute, thereby elevating customary arbitration to the main
stream of dispute-resolution processes in Ghana. The very nature of customs,
customary laws or forms of customary dispute-resolution processes are varied and
heavily dependent on practices accepted within particular geographical areas,
tribes and communities. Thus the best Part Three of the Act can aim for is to
provide guiding principles and general outlines for parties opting to resolve their
disputes under customary arbitration. It cannot therefore be prescriptive in nature
as evidenced by the very wide discretion given to the parties and arbitrator with
more flexible procedure and the allocation of shorter time scales for the
performance of various functions under this part of the Act. 149
The provisions on mediation contained in Part Two of the Act are also
completely new and in the main codifies generally recognized guidelines and
principles in the practice of mediation as an alternative dispute-resolution process.
The novel provision of the settlement agreement having the same status as an
arbitral award may be open to controversy and may lead to the possible lack of
recognition of such 'awards' in international arbitration as falling short of the
standard required for a New York Convention award. It will therefore be
interesting to see how this new status of the settlement agreement will be enforced
in practice both by the courts in Ghana and other New York Convention
jurisdictions.
This new Act thus contains very comprehensive provisions on the procedures of
various alternative dispute-resolution mechanisms. It is clear and contains various

See, e.g., sec. 113 of the Act on other customary dispute-settlement mechanisms.

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 124 Arbitration International, Volume 28 Issue 1

bold new steps aimed at marketing Ghana as arbitration friendly and the venue of
choice in sub-Sahara Africa for international arbitration references. It remains to
be seen how its provisions will be interpreted and espoused by Ghana's national
courts before a reasoned assessment of its effectiveness can be made by both the
domestic, regional and international arbitration communities.

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