Dispute Resolution Litigation
agreement exists between Ghana and the country, the High Court will recognise, accept and enforce the foreign judgment without retrial or examination on the merits of the case. Currently, Ghana has a reciprocal agreement with the United Kingdom, Brazil, France, Spain, Israel, Italy, Japan, Lebanon, Senegal and the United Arab Republic for the enforcement of judgments. Arbitration Ghana’s Alternative Dispute Resolution Act, 2010 (Act 798) includes provisions for the settlement of commercial disputes through arbitration, mediation and customary arbitration. Ghanaian courts support and encourage ADR and compel parties to resolve disputes by arbitration where there is a prior agreement between the parties to do so. Under certain circumstances, a court before which an action is pending may with the consent of the parties, refer the matter for arbitration. An arbitration award is final and binding as between the parties and any person claiming through them. However, an arbitral award may be set aside on limited grounds and on application to the High Court. An arbitral award made under Ghana’s ADR act may, by leave of the court, be enforced in the same manner as a judgment of the High Court. Ghana is a signatory to the New York Convention which facilitates the enforcement, within Ghana, of arbitral awards made by a competent foreign authority. To enforce an arbitral award, the judgment creditor is required to produce the original award or a copy of the award, authenticated in the manner prescribed by the law of the country in which the award was made, along with the agreement under which the award was made. The court must also be satisfied that there is no appeal pending against the award in the jurisdiction where the arbitration took place.
Commercial disputes can be commenced in the High Court (usually Fast Track or Commercial Division), with rights of appeal to the Court of Appeal and ultimately, the Supreme Court. The District Courts provide court-connected alternative dispute resolution ( ADR ), i.e. mediation for specified disputes. The Commercial Division of the High Court also provides mandatory pre-trial settlement negotiations. Such commercial cases only proceed to trial when all attempts at settlement have broken down. Ghanaian courts will enforce a contract according to the terms agreed between the parties provided that the contract is devoid of illegality or other vitiating factors. However, the courts will not necessarily grant a remedy if it is against public policy, if the principles of equity dictate otherwise, or if the court has discretion as to what remedy it grants. The enforcement rights of parties are also subject to laws relating to liquidation, insolvency, reorganization and any other laws relating to or affecting the enforcement of creditors’ rights generally. Contracts entered into in Ghana are subject to Ghanaian law unless the parties elect to have a different governing law. An international business transaction, i.e. a contract between the Government of Ghana and a foreign entity (or a Ghanaian entity with a significant foreign element), must be approved by the Parliament. In the absence of such approval, the agreement is void and unenforceable. Foreign judgments are enforceable in Ghana if there exists a reciprocal agreement between Ghana and the foreign jurisdiction fromwhich the judgment emanates. If there is no reciprocal arrangement between Ghana and the foreign country, a foreign judgment can only be enforced by issuing a fresh writ in the High Court. However, where a reciprocal
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