• October 3, 2018

    THE NEW AGE OF CORPORATE GOVERNANCE IN GHANA: A STEP BEYOND MERE COMPLIANCE WITH STATUTORY PROVISIONS • By Bobby Banson, ESq ACIArb

    INTRODUCTION Everyday, new Companies are registered at the Registrar General’s Department of Ghana. Statics available at the time of writing this paper revealed that as at date, over One million companies have been issued with Certificates to Commence Business by the Registrar General’s Department. The reason for the popularity in the registration of Companies cannot be far-fetched. For many persons, registering a Company is a step to achieving a life-long dream. For many a person, a company serves as the only vehicle for achieving his or vision in life and provides an avenue for leaving a legacy. Under Ghanaian law, A Company could be registered as a limited liability Company, an unlimited Company or a Company Limited by Guarantee. A company registered as any of the above, could also be a Public Company which may be listed on the Ghana Stock Exchange or a Private Company with a limited membership of up to 50[2]. A company is defined by the Black Laws Dictionary as a “A society or association of persons, in considerable number, interested in a common object, and uniting themselves for the prosecution of some commercial or industrial undertaking, or other legitimate business”. [1] The Author is the lead Consultant of Smith & Adelaide Law, Labone-Accra, a Boutique Law firm specialized in of Corporate Governance Consulting. [2] Section 9 of the Companies Code, 1963, Act 179   Generally, Companies are required to have its Owners (Shareholders or Members) and its Directors. Most Companies also have a third tier structure which is referred to as the Management of the Company. Research has shown that for a Company to thrive and perform effectively, there must be a “proper” and “regulated” relationship between its Members, Directors and Management. These arms of the Company are the stakeholders of the Company and the relationship between them must be properly governed. Corporate Governance is therefore the regulation of the relationship between the various stakeholders of the Company. Corporate Governance focuses on how the relationship between these stakeholders will be managed and harnessed to promote the best interest of the Company at large[1]. The aim of this paper, is to discuss the modern trends in Corporate Governance worldwide and how some of these emerging trends can be adopted in Ghana to make our corporate Governance Regime more effective and efficient.   BREAKING THE MYTH What Corporate Governance is not! The Term Corporate Governance is not new in Ghana. In fact, it is a very popular term among Managers and Directors. The term however, is often used in a very limited context. Corporate Governance, from the survey conducted by the author, is a term that is used in Ghana to refer to the level of compliance with statutory prescriptions by a Company. In other words, a lot of Directors and Management Staff use the term to refer to the ability [3] The Cadbury Report of Corporate Governance, 1992.   of the Company to meet all Statutory Requirements such as Filing of Annual Returns, paying permits and licensing fees etc. This wrong perception, unfortunately is supported by most of the statutory provisions which relate to the incorporation of Companies and the regulations of Companies […]

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  • September 28, 2018

    ENFORCEMENT OF ARBITRAL AWARDS ARISING FROM INTERNATIONAL TREATY AGREEMENTS

    1. INTRODUCTION 1.1 What this paper is About The topic requires a discussion on how Arbitral Awards can be enforced. It is trite that Arbitration Clauses could be included in contracts between non-State entities and also in treaties executed between States. This paper is however only focused on the enforcement of arbitral awards arising from arbitration which is occasioned by an International Investment Treaty (IIT). An IIT could be Bilateral or Multilateral. 1.2 Brief Historical Account of Arbitration The earliest mention of arbitration as a means of settling international disputes dates back from the early fourteenth century. Pierre Dubois, a French publicist, wrote a pamphlet for the recovery of Holy Lands in which he advocated that arbitration was essential to the success of each Crusade. Since then the World has made significant progress on international arbitration as evinced by the establishment of the Permanent Court of Arbitration in 1899, the International Court of Arbitration after World War I in 1923 and the International Centre for Settlement of Investment Disputes (ICSID) in 1966. 2. ENFORCEMENT OF ARBITRAL AWARDS ARISING FROM IITs. 2.1 Recognition and Enforcement 1 De Recuperatione Terre Sancte: traité de politique Générale, published 1981 by Paris A. Picard 2 https://icsid.worldbank.org/en/Pages/about/default.aspx visited on 3rd September 2018 These two words are often used together when it comes to this subject. Foreign Arbitral Awards must first be recognised by a Country, before same can be enforced in that Country. An Award-Creditor, may choose to only seek the recognition of the award without seeking to enforce same. Indeed, some awards may be merely declaratory in nature with no executable/enforceable orders. An Award Creditor who is merely seeking to have the award recognised, without proceeding to enforce same, may choose this path as a means of using the award as a Shield against any attempt by the Award Debtor (or related party) to re-litigate the matter before domestic courts. Where an Award Creditor however proceeds to enforce an award, that Award Creditor is deemed to have taken steps not only to have the award recognised but also to execute the award by using the procedures of the domestic court to attach the assets of the Award Debtor and liquidate same in satisfaction of the Award debt. That way, the Award becomes a sword in the hands of the Award Creditor. An Award cannot be enforced in a Country unless the Country has first recognised same. However, an application can be made to have an award recognised without necessarily steps being taken to have same enforced. Again, where a Party voluntarily submits to an Award by obliging the orders contained in the award and making payments of the amounts awarded in favor of the Award Creditor, there will be no need for an Award to be enforced through the court system. 2.2 Regimes for Recognition and Enforcement of Arbitral Awards There are two main legal regimes which regulate the recognition and enforcement of international arbitral awards. Enforcement could be done under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards or under the International Center for Settlement of Investment Disputes (ICSID) […]

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  • September 28, 2018

    DIVERSITY IN INTERNATIONAL ARBITRATION: RECOGNISING THE DEVELOPMENT OF “ARBITRATION CONSCIOUSNESS” IN AFRICA

    Diversity as a worldwide phenomenon has challenged the minds of many a great men. As Martin Luther King Jr. once said, “An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity”. The need for diversity in all areas cannot be emphasized enough. In order to ensure holistic growth and development, individuals must learn to tap into the experiences, thoughts and cultures of other people who may be fundamentally different from them. 1 By Bobby Banson, ESQ, FCIArb. The author is a Lead Consultant with Smith & Adelaide Law, a boutique Law firm in Accra, Ghana with interest in in International Commercial Arbitration. The time has come for the concept of diversity to be welcomed with wide-open arms in all aspects of life, particularly on the international front in order to promote international comity. The aim of this paper is to discuss African diversity within the international framework, to be specific, within international arbitration. The paragraphs below would delve into matters concerning Africa’s historic and present role in international commerce, Africa’s place on the international arbitration scene and the importance of African arbitrators as a means of diversifying the international arbitration environment. A. THE ROLE OF AFRICA IN INTERNATIONAL COMMERCE African Countries have always played a part in international commerce. History has it that civilization started in Africa. The shores of Africa have been the hub for international trade since trading begun; international commerce hence is no stranger to Africa. According to data by the World Bank, a large chunk of the GDP of African Countries can be attributed to international trade and investments. Africa currently receives about four percent (4%) of foreign direct investment. This is set to increase in the next decade. Research shows African Countries have been dragged before many an international arbitration center as compared to other countries with the exception of South America . With the growth of international commercial relations between countries and individuals, there is a need for treaties and agreements to protect not only the sovereignty of the state, but the interest of the private individuals and corporations involved. In his article titled “International Investment Law and Arbitration: 2 http://data.worldbank.org/indicator/NE.TRD.GNFS.ZS 3 The African Investment Report 2016 4 See the International Center for Settlement of Investment Dispute (ICSID) Caseload Statistics (2016) which indicated that 23% of all cases related to investment in Africa, second only to South America which had 24% of the cases. A Conceptual Framework”, Robert Howse mentions that the use of international law to protect the interests of foreign investors started in the 19th century when capital exporting countries sought to use the customary law of diplomatic protection of foreigners primarily against states in the global South. Where there is an agreement, the possibility of a breach is real. In international commerce, the question in cases of a breach, very often is, “what is the proper forum for the settlement of disputes and issues that may arise out of an international commercial transaction?” As an attempt to balance the interest of both parties, most scholars agree […]

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