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

November 15, 2016

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. 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 1 By Bobby Banson, ESQ, MCIArb.  The author is a Lead Consultant with Smith & Adelaide Law, a boutique Law firm in Accra, Ghana with interest in in International Commercial Arbitration. 2 http://data.worldbank.org/indicator/NE.TRD.GNFS.ZS 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: A Conceptual Framework”, Robert Howsementions 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 that the proper forum would be one that is neutral: a forum in neither party’s state nor country. It is for this reason that international commercial arbitration has gained permanency in the international legal system – as a means of ensuring a fair and neutral forum for the settlement […]

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THE INTRA-REGIONAL JURISDICTION OF THE HIGH COURT, by Bobby Banson, Esq, MCIArb. *

July 28, 2016

BACKGROUND I want to set the tone of this paper with this hypothetical situation. The Plaintiff is a limited liability company with its registered address and place of business in Tema in the Greater Accra Region. The Defendant is also a limited liability company with its registered address and place of business in Tema in the same region. The business transaction, which led to the dispute, was consummated in Tema. The Lawyer for the Plaintiff resides in Accra and so instituted an action in the High Court in Accra. This paper is aimed at answering the question of what will happen in the event that the Plaintiff’s lawyer decides to file a Writ of Summons at the High Court in Accra. REGIONAL JURSIDICTION OF THE HIGH COURT. It is trite that there is only 1 High Court in Ghana. Every student of Ghana Legal System will be conversant with this phrase. Edward Wiredu J (as he then was) held in the case of ABUDULAI v. AGYEI II AND ANOTHER [1976] 1 GLR 185-193 that the oneness of the High Court of Justice of Ghana as established under article 122 of the Constitution of the Second Republic is now too well settled by a number of judicial decisions to admit of any dispute. This was also upheld in the cases of  IN RE AGYEPONG (DECD.); ABOSI V. POKU [1973] 2 G.L.R. 456 AT P. 477 and AWUKU V. BENDA, HIGH COURT, CAPE COAST, 1 JULY 1974, UNREPORTED. 1 The Author is the Lead Consultant of Smith & Adelaide Law, a Boutique Law firm in Accra and assists with the teaching of Civil Procedure at the Ghana School of Law, Makola Campus-Accra In Republic v High Court, Ho, EX-PARTE: NANA DIAWUO BEDIAKO II [2011] SCGLR 704  the Supreme Court held that “By virtue of article 139 of the Constitution 1992 and section 14 (1) (2) and (3) of the Courts Act, 1993 Act 459, the point can safely be made that there is only one High Court in Ghana”. Now, despite there being only one High Court in Ghana, the rules of Court, CI 47, have made provisions for actions to be commenced in the Region which is the most suitable and convenient   for the case, based on the factors provided in the rules. Under Order 3 of High Court (Civil Procedure) Rules, 2004, CI 47 it is provided as follows: (1) Every cause or matter that relates to immovable property or any interest in it or for any damage to it shall be commenced in the Region in which the immovable property or any part of it is situated. (2) Every cause or matter that relates to movable property distrained or seized for any cause shall be commenced in the Region in which the distrain or seizure takes place. (3) Every cause or matter against a public officer to recover penalty or forfeiture shall be commenced in the Region where the cause of action arises. (4) Every cause or matter for specific performance of a contract or in respect of breach of contract shall be commenced in the Region in which the contract ought to have been performed or in […]

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Bridging the Gap between Bilateral Investment Treaties (BITs) and Socio-Economic Development across the West African Sub Region, by Ama Asare Korang, ESQ *

July 9, 2016

INTRODUCTION Investors generally face risks because of market price changes, reliability and fairness in property rights. Investors complain that rules are unfair and not fixed. The host countries also worry that investors will reap most gains and flee at the first sight of trouble, hence the distrust on both parties lead to little or no investment even if it benefits both parties. In recent years, Bilateral Investment Treaties (BITs) have aided the growth of investment in low and middle-income countries by binding the host country to treat all foreign investors from the home country in ways that will protect their investment. BITs have become very popular and their popularity show that investors are not confident about the legal and political environment in low and middle-income countries.[1] BITs provide enforceable rules to protect foreign investment and reduce the risk faced by investors. According to the United Nation Commission on Trade and Development’s (UNCTAD) overview of BITs, the BITs promote FDI through strategies, including guarantees of a high standard of treatment, legal protection of investment in international law and access to international dispute resolution.[2] BITs have become very common in recent times in West Africa. A lot more BITs are being executed between West African Countries and other nations, mostly more developed countries. For the purposes of this paper, we will describe the countries which seek to receive the investments as “Host States” and refer to the investment exporting countries as “Investor States”. There are 15 countries within the West African sub-region. Because the author lives and works in Ghana and can easily verify data involving Ghana, this paper concentrates on using Ghana’s experience in BITs as the basis for its analysis.   WHAT ARE BITs? BITs are agreements between two countries which regulate how investments could be made by nationals of the countries to the agreement. BITs usually contain provisions which state the benefits and rights of nationals (artificial or natural) of member countries when they invest in other member countries.   WHY BITs? There are numerous reasons why countries will insist on executing BITs. Generally, all preambles to BITs contain the provision that among others, the chief aim of the BIT is to protect the investment from the Investor States. To further appreciate why Investor States request for BITs, we will look at some of the salient features of all BITs.   Fair and Equitable Treatment (FET)   Most Favored Nation Clauses: This clause allows citizens from Investor States to take advantage of more favorable provisions in other BITs executed between the Host State and other Investor States. Sometimes, a Host State, for whatever reason, may want to choose to agree to extend special benefits to a particular Investor State in a BIT. The Host State, for good reason, may choose not to include such benefits to another Investor State.  The effect of this clause is that a Host Country will lose the right to decide which Investor State to extend special benefits to and which Investor State not to extend such benefits. This clause exposes the Host State to responsibilities towards Investor States which the Host State did not […]

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