Fairness and Integrity of the Arbitrator under the Alternative Dispute Resolution Act of Ghana,

2010, Act 798

Diana Asonaba Dapaah, Esq1.

Great progress was made when arbitration treaties were concluded in which the contracting
powers pledge in advance to submit all conflicts to an arbitration court, treaties which not only
specify the composition of the court, but also its procedure -
Ludwig Quidde

A report in the early part of 2010 that a new Act on Alternative Dispute

Resolution (ADR) was to be passed later in the year, undoubtedly, was welcome news to

most people in the Ghanaian legal community. Such an Act was long overdue looking at

the inadequacies of laws regulating ADR in Ghana2. With the fast pace of development,

boom in the commercial sector of the country, culminated especially by the oil find in

Ghana, it is without doubt that laws must be passed establishing, recognizing and

enforcing alternative modes of dispute resolution and this is what the proposed new Act

on ADR sought to do. The strong advocacy for ADR is evident when one examines the

difficulties associated with litigation procedure in the courts generally, and the Ghanaian

courts are no exception. Lost dockets, delay in court, high expense, severance of

relationships, just to mention a few, characterize the present court system in Ghana.. In

his keynote remarks delivered at the American Re-Insurance Arbitration Association

1
LLB (KNUST-Ghana), LLM (Fordham), Solicitor and Barrister (Ghana & New York), Lecturer, Faculty of Law-Ghana
Institute of Management and Public Administration (GIMPA).
2
Prior to Act 798 was the Arbitration Act 1961, Act 38 which by its name only regulated arbitration in Ghana
excluding the other forms of ADR. Case law existed to regulate other forms of ADR like customary arbitration.

1
 Annual meeting on the topic, “The Role of Mediation in Dispute Resolution,”3Professor

John D Feerick4 underscored the problems plaguing the civil justice system in the United

States of America. In his remarks, Professor Feerick referred to an interim report of a

Task Force of the American College of Trial Lawyers and the Institute for the

Advancement of the American Legal System at the University of Denver which raised

alarms about the nation’s civil justice system.5 Ghana is no stranger to the problems

characterizing the civil justice system generally in the world as identified by Professor

Feerick.

Alternative dispute resolution, according to Section 135 of the Alternative

Dispute Resolution Act of Ghana, 2010, Act 798 (hereinafter referred to as Act 798)

means the collective description of methods of resolving disputes otherwise than through

the normal trial process.

The objective of this paper is to analyse how Act 798 provides structures or

mechanisms to ensure the fairness and integrity of the arbitrator under the ADR Act of

Ghana, 2010, Act 798. The objective of the paper will be achieved by a focus on ethical

issues of fairness, conflict of interest and fees. The paper will thus evaluate the adequacy

or otherwise of Act 798 in ensuring a high sense of integrity and fairness of any arbitrator

regulated by the Act. The paper will then do a comparative analysis of ethical issues as

3
Thursday, November 6, 2008,
4
Professor Feerick is a professor at the Fordham School of Law. He was the Dean of the Law School from 1982-
2002. Professor Feerick served in various distinguished positions spearheading Alternative Dispute Resolution
including serving as the Chair of the Board of Directors of the American Arbitration Association from 1997-2000.
5
According to Professor Feerick, the report suggests that the system has become ‘disabled’ by disproportionate cost
and delay and this dysfunction is impacting justice. 1500 members of the College responded to a Task Force survey,
nearly half of whom expressed their belief that discovery is abused in every civil case. The survey also indicated that
because of costs and delay, cases with merit are not being brought at all and that cases without merit are being
settled out of court because ‘the cost of pursuing or defending those claims fails a rational cost-benefit test”

2
 they exist in other countries and make positive recommendations, if necessary, on how

these ethical issues raised in the paper can be addressed within the ADR spectrum of

Ghana. It is hoped that this paper will influence arbitrators when they so serve under Act

798 to ensure the integrity and fairness of their persons and the process if arbitration as a

means of ADR is to be positively used in the civil justice system of Ghana It is also

hoped that this paper will influence the ADR Center set up under the Act 798 in coming

up with rules to regulate not just arbitration, but the other ADR processes under Act 7986.

Flowing from the plethora of problems identified with the court system, the

business world particularly has become particularly patronizing of arbitration as a means

of resolving commercial disputes. The attraction enjoyed by arbitration flows from the

fact that in arbitration, disputing parties choose their own “judge” who is expected to be

fair, exhibit a high sense of integrity and delivers an award which is enforceable and

highly confidential. The Dictionary of Conflict Resolution7 defines fairness as being just

to all parties, or evenhandedness. It goes further to explain that the concept of fairness

permeates the dispute resolution literature and is fundamental to neutral third-party

intervention. The Dictionary distinguishes between procedural and substantive fairness.

While procedural fairness involves the relative fairness of the process used, substantive

fairness involves the content of the agreement or the outcome. According to the

Dictionary, although justice is often used synonymously with fairness, some

commentators distinguish between the two concepts; fairness is a more idiosyncratic

concept, based in individual perceptions in the context of a particular conflict, process,

6
This is discussed further in the paper.
7
Douglas H Yarn, Dictionary of Conflict Resolution, Jossey-Bass Publishers 1999

3
 and outcome. This paper will discuss fairness generally, encompassing both procedural

and substantive fairness.

The predecessor to Act 798 was the Arbitration Act, 1961, Act 38 which was

passed to regulate the settlement of differences by arbitration and to provide for the

enforcement of awards. Act 38 clearly regulated only arbitration excluding other methods

of ADR like mediation and customary arbitration which Act 798 now provides for. It is

laudable that Act 38 was passed soon after Ghana attained independence from the British

in 1957. Act 38 was however inadequate and outlived its usefulness necessitating, it is

presumed, the present ADR Act. Act 38 provided for party8 and court9 reference to

arbitration. Under Act 38, the High Court of Ghana was given powers to ensure the

enforceability and effectiveness of arbitration agreement, process and awards. The court

could order the attendance of a witness before any arbitrator or umpire, the court could

make orders in respect of security for costs, discovery, the giving of evidence by

affidavit, examination on oath of any witness before an officer of the court or any other

person, the preservation, interim custody or sale of any goods, securing the amount in

dispute, interim injunctions, among others. Conspicuously missing in Act 38 was a

provision stipulating how arbitrators should conduct themselves before, during and after

the process. Such conduct is without doubt very important in ensuring the integrity and

fairness of the arbitrator and the process, in the light of the fact that, Section 26 of Act 38

8
Section 5 provided:
(1) An arbitration is a contract in writing to refer present or future differences to arbitration, whether an arbitrator is
named in the contract or not.
(2)An arbitration agreement may relate to any issue arising between the parties to it which is capable of being the
subject of a civil action, but an arbitrator is not entitled to make an award in the nature of a judgment in rem, that is,
a decision affecting the status of a person or thing or determining any interest in property except as between the
parties themselves.
9
Section 14 of Act 38. This Section, among other things gave the Court the power to appoint an arbitrator where
parties cannot agree on the arbitrator.

4
 provided for the removal of the arbitrator and setting aside the award. The relevant

question to be posed was, in what circumstances will the arbitrator be seen as having

misconducted10 himself and put the whole process in doubt to trigger the court’s

application of Section 26. Section 26 provided as follows:

(1) Where an arbitrator or umpire has misconducted himself or the proceedings, the Court

may remove him, or set aside an award, or both.

(2) Where an award has been improperly procured, the court may set it aside.

(3) Where an application is made to set aside an award, the Court may order that any money

made payable by the award shall be brought into Court or otherwise secured pending the

determination of the application.

On the whole, Act 38 gave a lot of discretion to an arbitrator on how to conduct

himself before, during and after the process. However, Act 38 was not very helpful in

putting arbitrators on alert on how best they can conduct themselves and the process

fairly and in integrity to avoid the Court’s application of Section 26. This was not a

problem to just arbitrators. Parties who took part or thought of taking part in arbitration in

resolving their disputes were not given clear guidance as to what will trigger the Court’s

application of Section 26 of Act 38. This omission may have also shaken the confidence

parties may have had in the process under Act 38. Needless to say, when the process and

the arbitrator’s integrity is put into doubt, the attributes of arbitration as an effective, fast

and cheap means of dispute resolution become a fallacy.

One could argue on the other hand that Act 38 itself need not necessarily contain

rules of conduct for arbitrators and could be contained in other binding rules and

10
The Act used the term ‘misconduct’

5
 regulations. Such an argument would point to some rules of conduct existent at the time

Act 38 was in force, like the Legal Profession (Professional Conduct and Etiquette)

Rules, 1969 (LI 613) , the Code of Conduct for Judges and Magistrates, and the Code of

Ethics of the Ghana Bar Association.11

It is presumed, and rightly so that Act 798, which was passed in 2010, was passed

to make up for the inadequacies of Act 98. It is this Act which informs this paper. The

Alternative Dispute Resolution Act of Ghana, 2010, Act 798, is an Act passed by the

Parliament of Ghana, to provide for the settlement of disputes by arbitration, mediation

and customary arbitration, to establish an Alternative Dispute Resolution Centre and to

provide for related matters.12 Some notable provisions of Act 798 distinguish it from Act

38. Unlike Act 38, Act 798 regulates other forms of dispute resolution namely mediation

and customary arbitration.13 This paper will cover both the arbitrator and the arbitration

process under arbitration properly so called and under customary arbitration as provided

for by Act 798. Another distinguishing feature of the Act is that it provides for the

establishment of an Alternative Dispute Resolution Centre.14

Ethical provisions under Act 798

The writer concedes and rightly so, that under Act 798,15 not only lawyers in

Ghana may serve as arbitrators. A person appointed as an arbitrator by parties or the court

may be a lawyer or a person specialized in the particular area of dispute.

11
These rules of conduct are further discussed later in the paper.
12
Long Title of Act 798
13
This is a peculiar feature of Act which is absent in many if not all foreign Acts regulating ADR.
14
The Centre informs a significant part of this paper.
15
The same can be said of Act 38

6
 As earlier intimated, although Act 38 provided for the setting aside of an arbitral

award where an arbitrator or umpire has misconducted himself or the proceedings16, it

failed to provide for conduct which will influence the court to set aside an arbitral award

given under Act 38. Act 798 which repealed Act 38 faintly cautions arbitrators on how

best to conduct themselves to avoid the setting aside of arbitral awards. Section 15 of the

Act which provides for the impartiality and challenge of the arbitrator reads:

(1) Where a person is requested to be an arbitrator, that person shall disclose in

writing any circumstances likely to give reasonable cause to doubt as to the

independence or impartiality of that person.

(2) An arbitrator, from the time of appointment and throughout the arbitral

proceedings shall without delay, disclose to the parties in writing any

circumstances referred to in subsection (1)

(3) An arbitrator’s appointment may be challenged only if

(a) Circumstances exist that give rise to reasonable cause to doubt as to the

arbitrator’s independence or impartiality; or

(b) The arbitrator does not possess the qualification agreed on by the parties.

(4) A party may not challenge an arbitrator appointed by the party or in whose

appointment that party participated, except for reasons of which the party

becomes aware subsequent to the appointment.

Section 58, subsections (1) and (2)(e) and (f) specifically, of Act 798 also

regulates the procedure for challenging the arbitral award. The Section implies certain

16
Section 26 of Act 38

7
 issues of ethics covered by the scope of this paper, violation of which can lead to a

challenge of the arbitral award. The Section provides:

(1) An arbitral award may subject to this Act be set aside on an application by a

party to the arbitration.

(2) The application shall be made to the High Court and the award may be set

aside by the Court only where the applicant satisfies the Court that

(e) there has been failure to conform to the agreed procedure by the parties;

(f) the arbitrator has an interest in the subject matter of arbitration which the

arbitrator failed to disclose.

Part three of the Act which regulates customary arbitration 17 also provides some

inkling of ethical issues within the scope of this paper. Part three is of particular interest

to the writer for two good reasons. First of all, Part three makes reference to arbitration in

conformity to known customs18 of a particular area and secondly, a lot of discretion is

given to the customary arbitrator on how he conducts himself and the proceeding.

Of specific importance to this paper, with regards to customary arbitration are

Sections 90(2),(4),93(1), 98,(1)(a),(2), 99(1), 100(2)(a) which provide as follows;

90(2): A customary arbitrator to whom a submission for customary arbitration is

made by a party shall inform the other party of the submission and invite that other party

and the party who made the submission to pay a fee or a token for the arbitration.

90(4): Customary arbitration shall not commence where the other party rejects the

invitation by failing to pay the fee or token demanded by the arbitrator

17
Customary arbitration as defined in Section 135 of the Act means 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.
18
This is implied from Section 112 of the Act which provides that a customary arbitral award may be set aside for
reasons including that the award is in contradiction with the known customs of the area concerned

8
 93(1): A customary arbitrator shall apply the rules of natural justice and fairness

and is not obliged to apply any legal rules of procedure in the arbitration.

98(1): A person requested to be a customary arbitrator shall disclose any

circumstance likely to give reasonable cause to doubt as to the independence or

impartiality of that person.

98(2): A customary arbitrator’s obligation to disclose under subsection (1)

subsists throughout the arbitral proceedings.

99(1)(a): A customary arbitrator may be challenged if circumstances exist that

give rise to reasonable cause to doubt as to the arbitrator’s independence or impartiality

100(2)(a): Without limiting subsection (1), the parties may revoke the

appointment of a customary arbitrator where there is sufficient reason to doubt the

impartiality of the arbitrator.

One may argue on behalf of lawyers and judges who serve as arbitrators (whether

as arbitrators properly so called or customary arbitrators) that they are not excused from

their ethical obligations enshrined in the Legal Profession LI 613, the Code of Conduct

for Judges and Magistrates, and the Ghana Bar Code of Ethics, and so this could make up

for any insufficient ethical provisions under Act 798 with regard to lawyers and judges

when they serve as arbitrators. This argument thus necessitates a discussion of these sets

of rules of conduct to determine how best they complement Act 798 on the proper

conduct of lawyers and judges within the scope of this paper.

Rules of Conduct for Lawyers and Judges in Ghana

9
 Three sets of rules regulate the conduct of lawyers and judges in Ghana namely

the Legal Profession (Professional Conduct and Etiquette Rules) 1969 (LI 613), the Code

of Conduct for Judges and Magistrates, and the Ghana Bar Association Code of Ethics.

LI 613

The Legal Profession (Professional Conduct and Etiquette) Rules 1969 (LI 613)

were made by the General Legal Council19 in exercise of the powers conferred on it by

Sections 2320 and 53(1)21 of the Legal Profession Act, 1960 (Act 32). LI 613 basically

regulates the conduct of lawyers in their practice. However, some of the rules regulate the

conduct of lawyers at all times. These rules are Rules 2(2), 5(10), 9(1)(8)(11). They

provide as follows :

Rule 2(2): It is the duty of every lawyer at all times to uphold the dignity and high

standing of his profession and of his own dignity and high standing as a member of it.

Rule 5(10): A lawyer shall avoid representing conflicting interests

Rule 9(1): The conviction of a lawyer for a criminal offence involving

dishonesty or moral turpitude makes him prima facie unfit to continue on the Roll

of Lawyers.

19
Section 1 of the Legal Profession Act of Ghana, 1960 (Act 32) provides for the General Legal Council which is
concerned with the legal profession and in particular with upholding standards of professional conduct.
20
Section 23 of Act 32 provides: The General Legal Council may prescribe standards of professional etiquette and
professional conduct for lawyers, and may by rules made for this purpose direct that any specified breach of the
rules shall for the purposes of this Part constitute grave misconduct in a professional respect.
21
Section 53(1) provides: Subject to subsection (2), the General Legal Council may, by legislative instrument,
make rules in relation to any matter referred to in this Act as prescribed.

10
 Rule 9(8): Any conduct towards a member of the public which is

fraudulent or contains an element of fraud is a professional offence. It is

immaterial for purposes of this rule that the lawyer concerned may not have been

convicted of that fraud by a court of criminal jurisdiction.

Rule 9(11): It is the duty of a lawyer to maintain the honor and integrity of his

profession, and to expose without fear or favor before the proper Tribunal unprofessional

or dishonest conduct by any member of the profession, and to accept without hesitation a

retainer against any member of the profession who is alleged to have wronged his client.

GBA Code of Ethics

The Code of Ethics of the Ghana Bar Association (GBA) regulates the conduct of

lawyers who are members of the Association. The Code is divided into four parts. Part I

deals with the lawyer’s duty to the profession, while Part II deals with the lawyer’s duty

to the public. Part III and IV deal with the lawyer’s duty to the client and the court

respectively. Part I which enumerates a lawyer’s duty to the profession expects some

level of conduct on the part of the lawyer so as not to bring the profession into disrepute.

Rule 1 of the Code of Ethics provides:

1. It is the duty of a lawyer –

(a) To preserve the dignity and honor of his profession;

(b) To discharge his duties to fellow members of the profession with fairness,

courtesy and good faith;

(c) To maintain his own dignity, honor and integrity;

(d) To uphold the laws of Ghana

11
 2. (c) A lawyer commits misconduct if he does any other act likely to bring the

profession into disrepute.

These two rules oblige lawyers to uphold the dignity of their persons and the profession at all

times. This conclusion is reached from a comparison of Rule 3 of the Code of Ethics with the

Rules mentioned above. Rule 322, makes mention of a ‘practising lawyer’ while omitting the

same term in Rules 1 and 2, meaning that under Rules 1 and 2, the lawyer need not be practicing

as a lawyer only, but shall endeavor at all times (emphasis mine) to preserve the dignity, honor

and integrity of his person and the profession.

These two sets of rules are the rules that regulate the conduct of lawyers and so

can be said to operate on the minds of lawyers in any capacity that they serve in order not

to put their persons and their profession into disrepute. One of these capacities may be an

arbitrator (properly so called or as a customary arbitrator) if the rules are constructed to

mean that lawyers have a round the clock duty to maintain a high standard of professional

conduct in their daily lives. Since some lawyers also serve as customary heads in their

customary areas and are likely to be chosen by parties as a customary arbitrator, the rules

of professional conduct may be said to follow them in that regard.

Code of Conduct for Judges and Magistrates

The Code of Conduct for Judges and Magistrates represents, according to the

preview, a concise yet comprehensive set of principles addressing the many ethical issues

that confront judges as they work and live in their communities. The preview again notes

22
Under Rule 3 (1) A practicing lawyer commits misconduct if-
(a) He becomes an active participant in any business or profession which conflicts or involves a serious risk of
conflict with his duties as a practicing lawyer; …

12
 that, the Code defines not only the general principles of judicial ethics, but also rules and

standards of judicial conduct that a judge must follow while fulfilling his official duties,

as well as while engaged on other activities and even in private life (emphasis added).

The purpose of the Code, according to the preview is to assist judges “ in carrying out

their onerous responsibilities; support the independence, impartiality and unity of the

judiciary, and establish and promote public trust and confidence towards the judiciary. It

aims at protecting the prestige and authority of the judiciary and the position of a judge.”

Although Rule 5(F) prohibits judges from acting as arbitrators and mediators or

otherwise performing judicial functions in a private capacity, the rule does not prohibit

judges from serving in those capacities when expressly authorized by law23. Rule 1

mandates all judges to uphold the integrity and independence of the judiciary. Rule 2

continues to admonish judges to respect and comply with the law and at all times act in a

manner that promotes public confidence in the integrity and impartiality of the judiciary.

Even relevant is the commentary to Rule 2 which states as follows:

“ Public confidence in the judiciary is eroded by irresponsible or improper

conduct by judges. A judge must avoid all impropriety and appearance of

impropriety. A judge must expect to be the subject of constant public

scrutiny. A judge must therefore accept restrictions on the judge’s conduct

that might be viewed as burdensome by the ordinary citizen. The

prohibition against behaving with impropriety or the appearance of

impropriety applies to both the professional and personal conduct of a

judge. Because it is not practicable to list all prohibited acts, the

23
Commentary to Rule 5(F)

13
 proscription is necessarily cast in general terms that extend to conduct by

judges that is harmful although not specifically mentioned in the Code.

The test for impropriety is whether the conduct would create in reasonable

minds a perception that the judge’s ability to carry out judicial

responsibilities with integrity, impartiality and competence is impaired.”

It is reasonable to presume that other professional bodies may have similar rules

like the GBA Code of Ethics, and the Code of Conduct for Judges and Magistrates, which

regulate those professionals in their professional and private conduct, all in a bid to

maintain the integrity and honor of those various professions and the persons belonging

to those professions. It is also reasonable to presume that the same rules of those other

professionals inform their conduct in other areas that they serve, other than in their

respective professions, such as, as arbitrators properly so called or customary arbitrators.

These rules of conduct of lawyers, judges and other professionals whichever may be, to

conduct themselves as fairly as possible to maintain the fairness and integrity of the

process of their persons as arbitrators and the process may be implied from their

respective rules of conduct.. For other arbitrators who are not lawyers or judges of

professionals with code of ethics regulating their conduct, Act 798 is not comprehensive

enough to regulate their conduct when they serve as arbitrators (properly so called or

customary arbitrators).

It is in the light of these insufficiencies that this paper seeks to do a comparative

study of ADR ethics elsewhere, specifically as it pertains to arbitrators to draw

inspiration from and propose to the ADR Centre established by Act 798 to come up with

14
 rules pursuant to their powers under Section 11524 of Act 798 which will

comprehensively regulate the conduct of arbitrators under the Act. It is hoped that these

rules of conduct which the ADR Center will come up with will regulate all arbitrators

under the Act filling in especially the lacuna that is created by those who serve as

arbitrators, and yet have no professional codes regulating their conduct.

Code of Ethics for Arbitrators in the US

For the purpose this paper, I shall consider fairness and integrity as it relates to

issues of conflict of interests, impartiality of proceedings and fees. In doing a

comparative study of other rules of professional conduct of arbitrators, I shall limit my

study to the American Arbitration Association (AAA) Code of Ethics for Arbitrators in

Commercial Disputes (2003). I shall occasionally also refer to the distinguished CPR

Georgetown Commission on Ethics and Standards in ADR Model Rule for the Lawyer as

Third-Party Neutral (November 2002 and the Revised Uniform Arbitration Act (RUAA)

(2000).

In the US, the American Arbitration Association (AAA), in my opinion, has come

out with very laudable set of rules, known as the AAA Code of Ethics of Arbitrators in

Commercial Disputes25, to regulate arbitrators in Commercial disputes, Disputes.

Thought these rules regulate arbitrators in commercial disputes, they (together with their

commentary) are helpful as guidance to the ADR Centre established under Act 798 or

any other provider organizations in coming up with exhaustive rules to regulate

24
Section 115(2) of Act 798 provides for the object and functions of the ADR Centre which includes examining
form time to time the rules of arbitration and mediation under the Act and recommending changes in the rules.
25
This was originally prepared in 1977 by a joint committee consisting of a special committee of the AAA and a
special committee of the ABA. The Code was revised in 2003 by an ABA Task Force and Special Committee of the
AAA

15
 arbitrators. The preamble to the AAA rules spell out exactly my thoughts and reasons

why arbitrators need to be well regulated. The Preamble to the AAA Code of Ethics

provides as follows:

“The use of arbitration to resolve a wide variety of disputes has grown extensively

and forms a significant part of the system of justice on which our society relies for

a fair determination of legal rights. Persons who act as arbitrators therefore

undertake serious responsibilities to the public26, as well as to the parties. Those

responsibilities include important ethical obligations. Few cases of unethical

behavior by commercial arbitrators have arisen. Nevertheless, this Code sets forth

generally accepted standards of ethical conduct for the guidance of arbitrators and

parties in commercial disputes, in the hope of contributing to the maintenance of

high standards and continued confidence in the process of arbitration…”

Canon I of the Code sums up the topic of this paper. Canon I states that an

arbitrator should uphold the integrity and fairness of the arbitration process. Specifically

Canon I(A) provides:

“An arbitrator has a responsibility not only to the parties but also to the process of

arbitration itself, and must observe high standards of conduct so that the integrity

and fairness of the process will be preserved. Accordingly, an arbitrator should

recognize a responsibility to the public, to the parties whose rights will be

decided, and to all other participants in the proceedings. This responsibility may

include pro bono service as an arbitrator where appropriate.”

26
In an online interview with Professor Florence Peterson, former general counsel of the AAA, she reiterates that
arbitrator ethics protect not just the parties to a particular dispute, but the process of arbitration and justice in general

16
 Of equal significance is the Comment to Canon 1 which recognizes that

arbitrators may have some expertise in for instance business, technology, commerce

which are involved in the arbitration. Thus a prospective arbitrator is not necessarily

prejudiced by the acquisition of knowledge of the parties, nor the applicable laws,

customs and practices involved in the dispute. However, an arbitrator should not prejudge

any of the specific facts or legal issues to be determined in the arbitration. Canon I also

basically obliges arbitrators to serve independently and without partiality, to follow all

lawful procedures agreed upon by parties, to prevent all delaying tactics, harassment of

parties and disruption of the arbitration process.

a. Conflict of Interest

If an arbitrator27 seeks to ensure fairness and integrity of his person and invariably

fairness and integrity of the process, she must advert her mind to all issues of conflicts of

interest and address them properly. Act 798 does not address comprehensively issues of

conflicts of interests neither does the GBA codes nor LI 613

Canon II of the AAA Code of Ethics specifically addresses conflict of interest.

The Dictionary of Conflict Resolution28 at page 119, defines conflict of interest as a

situation in which duties are irreconcilable or in which private interest or self-interest

conflicts with official or fiduciary duties. Canon II provides:

“ An arbitrator should disclose any interest or relationship likely to affect

impartiality or which might create an appearance of partiality or bias.”

27
Arbitrator from hence refers to an arbitrator properly so called and a customary arbitrator as provided for by Act
798
28
Douglas H Yarn, Dictionary of Conflict Resolution, Jossey-Bass Publishers 1999

17
 Under Canon II, before accepting to serve as an arbitrator, the arbitrator must

make a reasonable effort to inform herself of all pertinent interests and relationships she

may have with any party, co-arbitrator, lawyer of the parties, or witness, and disclose

such interest or relationship. Specifically, the arbitrator must disclose any direct or direct

financial or personal interest she may have in the outcome of the arbitration. All existing,

or past financial business, professional, family or social relationships likely to affect

impartiality or create the appearance of bias must be disclosed by the arbitrator. The

obligation to disclose is a continuing duty which requires the arbitrator to disclose any

such interest at any time during the arbitration when she recalls that there is a conflict of

interest.

Ethically, avoiding any appearance of bias or partiality should subsist even,

within a reasonable time, after the arbitrator renders his award and completes his job.

Whenever there is a doubt as to whether there is a conflict of interest, the doubt must be

resolves in favor of disclosure. It is only after parties’ knowledge of the prospective

arbitrator’s interest, and with parties’ consent, that the arbitrator may properly serve.

Even, a party-appointed arbitrator has a duty to disclose to all parties and arbitrators any

interest and relationships this Canon requires to be disclosed, except that the party-

appointed arbitrator need not include as detailed information regarding such interest or

relationship as is expected of the neutral arbitrator. The AAA requires a proposed

arbitrator to fill and submit a conflict of interest form29.

29
In interview with Professor Peterson, she confirmed this form and submitted that the form demonstrates how an
arbitrator reviews her professional and social relationships to see if there is any conflict of interest. According to her,
parties can always waive conflict of interest. The relevant factor is disclosure by the parties to enable them
determine whether they will waive the conflict of interest or not.

18
 On the issue of conflict of interest and disclosure, the Revised Uniform

Arbitration Act (RUAA), 2000 is also worth noting and mentioning. Unlike Act 798, the

RUAA identifies non-disclosure as a reason by which the court may vacate an award.

Section 12 regulates disclosure by arbitrator and reads exhaustively as follows:

(a) Before accepting appointment, an individual who is requested to serve as an

arbitrator, after making a reasonable inquiry, shall disclose to all parties to the

agreement to arbitrate and arbitration proceeding and to any other arbitrators

any known facts that a reasonable person would consider likely to affect the

impartiality of the arbitrator in the arbitration proceeding, including:

(1) A financial or personal interest in the outcome of the arbitration

proceeding; and

(2) An existing or past relationship with any of the parties to the agreement to

arbitrate or the arbitration proceeding, their counsel or representatives, a

witness, or another arbitrators.

(b) An arbitrator has a continuing obligation to disclose to all parties to the

agreement to arbitrate and arbitration proceeding and to any other arbitrators,

any facts that the arbitrator learns after accepting appointment which a

reasonable person would consider likely to affect the impartiality of the

arbitrator.

(c) If an arbitrator discloses a fact required by subsection (a) or (b) to be disclosed

and party timely objects to the appointment or continued service of the

arbitrator based upon the fact disclosed, the objection may be a ground under

Section 23(a)(2) for vacating an award made by the arbitrator.

19
 (d) if the arbitrator did not disclose a fact as required by subsection (a) or (b),

upon timely objection by a party, the court under Section 23(a)(2) may vacate

an award.

(e) An arbitrator appointed as a neutral arbitrator who does not disclose a known,

direct, and material interest in the outcome of the arbitration proceeding or a

known, existing, and substantial relationship with a party is presumed to act

with evident partiality under Section 23(a)(2)

b. Fair Proceedings

A fair and diligent conduct of arbitration proceedings will result in the arbitrator

being known as a fair arbitrator and one of integrity. A comprehensive rule on the

conduct of arbitration proceedings is desirable if the arbitrator under Act 798 is to be seen

as fair and one of integrity. Fairness implies impartiality. Impartiality has been defined by

the CPR Georgetown Model rules30 as “freedom from favoritism or bias, either by word

or action, and a commitment to serve the process and all parties equally.”

Canons I, III ,IV and V of the AAA Code of Ethics regulate arbitrators’ conduct

of fair proceedings. These Canons require arbitrators to treat parties evenhandedly and

equally, diligently and without prejudice. Arbitrators are further required to be polite and

courteous to parties, their lawyers and witnesses, while encouraging similar conduct by

all participants in the proceedings. These Canons undoubtedly reflect the Preamble to the

AAA Code of Ethics. Arbitrators play a major role in the civil justice system by their

determination of legal rights. If the public will have and continue to have confidence in

30
Comment to Rule 4.5.3

20
arbitration, it behooves on all arbitrators to conduct themselves and the process fairly.

Fairness means avoiding any form of impropriety or the appearance of impropriety.

The arbitrator must allow the parties to be heard and give all parties due notice of

the days and times of hearing. The arbitrator must give each party a fair opportunity to

present their evidence and arguments. The arbitrator must avoid exerting pressure on any

party to use other dispute resolution processes. The arbitrator should not partake in any

settlement discussion and must not serve as a mediator unless the parties desire that she

may so serve. The arbitrator should decide all matters justly, exercising independent

judgment, and should not permit outside pressure or prejudice to affect his decision. Lord

Hewart CJ’s dictum in The King v. Sussex Justices, ex parte McCarthy,1924 1K.B. 256

at 259, perhaps, also comes in handy here to sum up how an arbitrator should conduct

herself to ensure a fair arbitration proceedings, that “justice should not only be done but

should manifestly and undoubtedly be seen to be done.”

Rule 4.5.3 of the CPR Georgetown Model Rules also provides that a lawyer

serving as a third-party neutral must withdraw when at any time in the proceeding, she is

unable to conduct the process in an impartial manner. Again, Rule 4.5.3. extends

disclosure of all conflicts of interest to the lawyer serving as a third party neutral,

members of her immediate family, her current employer, partners or business associates.

Fees and other financial arrangements

The issue of fees and other financial arrangements of the arbitrator is one that

needs to be seriously considered if corruption in arbitration is to be avoided and the

21
 process upheld. Section 2231 of Act 798 makes some provision for fees of the arbitrator.

This issue is very dicey as it exists presently under Act 798 and it is hoped that the ADR

Centre in exercise of its power under Section 115(1)(e) to provide guidelines on fees and

arbitrators and mediators, deals thoroughly with the issue and as much as possible close

all gaps which may lead to corruption of the arbitrator and the process. Subsection 2 of

Section 22 provides some help in the valuation of the fees of the arbitrator. An arbitrator

is paid based on the value of the subject matter of the arbitration, the complexity of the

case and the agreed hourly rate of fee.

Of particular interest is the provision on customary arbitration32 where payment

by the parties of the arbitration fee or token is demanded by the arbitrator. The interest in

that provision lies in the fact that most often than not, traditional leaders like the chiefs,

village head are the ones who serve as customary arbitrators33 or any other person who

wields authority, influence and power within the area concerned. To avoid any coercion

or appearance of coercion and corruption related to the issue of fees, it is desirable that

the ADR Centre regulates this issue appropriately.

Regarding fees, Canon VII of the AAA Code provides that an arbitrator should

adhere to standards of integrity and fairness when making arrangement for compensation

and reimbursement of expenses. Specifically Canon VII (B) provides:

31
Section 22(1) provides that: “ The parties and the arbitrators shall agree on the fees payable by the parties in
respect of the arbitration and the parties are jointly and severally liable for the payment of the agreed fees and if a
dispute arises about the fees a party may refer the issue to the appointing authority or the High Court for resolution.
32
Section 90 of Act 798
33
This is implied from Section 112 that a party aggrieved by an award may apply to the nearest District, Circuit or
High Court to set aside the award on the grounds that the award was, among others, in contradiction with the known
customs of the area concerned. Most often than not, chiefs, village heads and other elders of the community, who
wield authority, are deemed to know the customs of the area concerned.

22
 “Certain practices relating to payments are generally recognized as tending to

preserve the integrity and fairness of the arbitration process. These practices

include:

(1)Before the arbitrator finally accepts appointment, the basis of payment,

including any cancellation fee, compensation in the event of withdrawal and

compensation for study and preparation time, and all other charges, should be

established. Except for arrangements for the compensation of party-appointed

arbitrators, all parties should be informed in writing of the terms established:

(2)In proceedings conducted under the rules or administration of an institution

that is available to assist in making arrangements for payments, communication

related to compensation should be made through the institution. In proceedings

where no institution has been engaged by the parties to administer the arbitration,

any communication with arbitrators (other than party appointed arbitrators)

concerning payments should be in the presence of all parties; and

(3)Arbitrators should not, absent extraordinary circumstances, request increases in

the basis of their compensation during the course of a proceeding.”

In an online interview with Professor Peterson,34 she informed the writer that

before a person serves as an arbitrator for the AAA, the parties receive the proposed

arbitrator’s resume with her fees listed. The arbitrator is prohibited from charging more

than is on her resume. Professor Peterson also reported that the AAA handles the

collection of money from the parties and the distribution of fees to the arbitrator.

34
Former general counsel of the AAA, and former professor of arbitration at the Fordham School of Law

23
 LCIA-MIAC ARBITRATION RULES

Coming home to Africa, one may make reference to the LCIA-MIAC Arbitration

Centre, a product of an agreement between the Government of Mauritius, Mauritius

International Arbitration Centre Limited (MIAC) and the London Court of International

Arbitration (LCIA). The Centre is an independent35 institution which draws on the

experience and expertise of LCIA to offer expeditious, cost effective and neutral

arbitration and other ADR services. The Centre provides relatively comprehensive rules36

from the time of request for arbitration, through to hearings, delivery of the award to

confidentiality of the award. Attached to the rules is a Schedule of arbitration costs which

determines how arbitration fees and expenses are determine, charged and paid.

Recommendations and Conclusion

It is conceded, in agreement with Professor Tuchmann37, that the fact that Act 798

does not provide significant guidance by way of general arbitration rules or ethical rules

related to the arbitration process, this is not fatal, so long as the courts develop from the

language that exist, appropriate standards for arbitrators’ ethics and disclosure. On the

other hand, the fact that Act 798 is not specific enough on arbitrator ethics or does not

provide “special” rules or ethical rules as the case may be, does not discount the

importance of Codes of Ethics for arbitrators. It is in this regard that the ADR Center

35
While the Centre drew on government support to establish it and the government also has representation on
the Board of the Centre, the Centre highly asserts its independence unlike Act 798 where the President controls by
determining who is appointed onto the Board.
36 st
The LCIA-MIAC arbitration rules, effective 1 October 2012.
37
Present general Counsel of the AAA. Professor Tuchmann is also an Adjunct Professor at the Fordham School of
Law. Professor Tuchman was one of the people the writer contacted to generate ideas for writing the paper

24
established under Act 798 should come up with exhaustive Rules or Codes of Ethics

which will regulate the conduct of arbitrators properly-so-called and customary

arbitrators.

The ADR Center may seek guidance from other national and international

institutions to help them regulate conduct of arbitrators on ethical issues raised in the

paper and other issues like confidentiality, immunity, jurisdiction, diligence and

competence which fall outside the scope of this paper. Without doubt, with regard to the

ethical issues raised in this paper, the discussion of this paper has highlighted the areas

where Act 798 falls short, and these areas should inform the ADR Center in coming up

with exhaustive rules under the Act which will cover all manner of arbitrators, wherever

and whenever they operate, be it under private institutions like the Ghana Arbitration

Center or as arbitrators of the ADR Center. The discussion and comparison made in the

paper, which highlight the insufficiencies of Act 798, form the basic recommendations of

the writer to the ADR Center and other provider organizations which may spring up in

Ghana. The ADR Center may particularly want to draw inspiration from the AAA, CPR

Georgetown rules, the RUAA, the LCIA-MIAC as discussed in the paper. It is laudable

how these provider organizations try to give general but exhaustive rules of conduct. For

instance, on issues of conflict of interest under the RUAA, the arbitrator is admonished to

advise himself of not only past and present financial relationships, he may have with one

of the parties, but future relationships too. Also, the AAA Code of Ethics makes it clear

that having knowledge about the parties, and the customs in the area of the dispute does

not necessarily make a proposed arbitrator prejudiced, where he does not draw

conclusions of the fact and law prior to hearing the parties. The Rules of the Ghana

25
Arbitration Center, other than the ones on ethical issues (which is almost like the current

Act 798) however does a good job on other procedural issues like interpreter, evidence

taking, closing and hearing of hearings, waiver of hearings among others (which again do

not form the scope of this paper).

Notwithstanding the discussion which highlights some laudable rules by the AAA

and other institutions, which to the writer are recommendable to the ADR Center, the

writer would like to reiterate that the ADR Center needs to come up with rules covering

conflict of interest, where arbitrators inform themselves of any likelihood of conflict of

interest that may arise when they serve as arbitrators. The likelihood of conflict should

cover past, previous, and present relationships. The rules should further admonish

arbitrators to treat parties with evenhandedness, respect and courtesy. Rules should

admonish arbitrators, especially customary arbitrators who may wield some form of

power or authority over parties, from using coercion or threat to bring parties to

arbitration. Parties should also be made away that such coercion may form the basis for

the setting aside of an award given thereafter. On the issue of fees, the ADR Center

should not leave open fees regulation as currently exists under customary arbitration. A

standard Fee Schedule is appropriate to regulate how much shall be charged as

arbitrator’s fees. The writer acknowledges that some customary arbitrators may want to

receive compensation in kind, for instance in the form of cow, sheep, chicken, drinks and

even cola. Still, a standard needs to be set, taking into consideration the complexity of

particular cases, and the expertise of the customary arbitrator. This will prevent the

likelihood of abuse in arbitrator’s fees.

26
 The writer also recognizes some trends where exhaustive rules are made on a

specific matter and yet no improvements are realized. It is in this regard that the writer

recommends that, Act 798, being a very new Act, the ADR Center may want to embark

on public education to raise awareness on these ethical issues especially among the rural

folks most of whom will resort to customary arbitration. The ADR Center may also make

readily available these ethical rules and guidelines to the business community, provider

institutions, the schools, communities, on the internet, and other public forums. Such

rules and their publication will make arbitrators certain of their roles and ethical

obligations to ensure fairness and integrity of their persons and the process. The public

with knowledge of these ethical rules also will be confident of the process of arbitration.

Notwithstanding these proposals, it is conceived that there may be a novel issue

that may arise in a particular arbitration which may not be covered by the rules. This is

why the ADR Center may want to embark on necessary revisions of the rules with the

exigencies of time and modernity. It is also hoped that the courts will also help in this

regard by developing from the proposed rules language which will inform arbitrators on

how to conduct themselves fairly and with integrity. This will help boost the confidence

of the public in the arbitration process

In conclusion, arbitrators have a high duty to conduct themselves fairly and

appropriately if the public confidence in arbitration under Act 798 is to be established and

maintained. This is why it is relevant to have exhaustive rules to guide arbitrators. If

arbitration and other forms of ADR are to debunk the skepticism of sections of the public

as being a process prone to corruption and other irregularities due to the laxity in most of

its procedures, such rules on ethics are more than needed. All in all, just as Professor

27
 Feerick once implied38, arbitrators should also be guided by their conscience which is an

embodiment of what is fair, impartial and integrity. The rules may not spell out for every

specific instant how an arbitrator should conduct himself, but at the end of the day, one

always has to be guided by her conscience to do what is right, fair, and to conduct herself

in integrity.

38
The writer was a student of Professor Feerick at the Fordham School of Law who co- taught the writer ADR
ethics with Professor Kathleen Scanlon

28