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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OF ROOTS AND BRANCHES; THE CURIOUS CASE OF ORDER 81, by Bobby Banson, Esq, MCIArb.

November 15, 2016

INTRODUCTION “If your knowledge of substantive law is brilliant and you have no knowledge of the rules of Court then you cannot be a “proper” lawyer.” These were the words of Justice Anin Yeboah of the Supreme Court of Ghana when I first met him sometime in 2009. In his estimation, and like those of many Legal (Court room) Practitioners, a good lawyer must know the rules of Court “by heart”. After my first Civil Procedure Class with the brilliant Ace Ankomah, I wondered how someone would be expected to know all the 82 orders of the High Court “by heart”. Some of the Orders have as many as 60 rules. I immediately appreciated how “long” this journey to becoming a “proper” lawyer will be. I soon realized there could be a way out of this task of knowing the rules of Court “by heart”. My escape route was found in Order 81. I loosely understood Ace’s lecture on Order 81 to mean that I do not need to know everything in the rules book. If I sin against the rules, Order 81 rule 1 will be the blood, which will wash away my sins and grant me access to the “throne of mercy”. In my infantile mind, if there would be a cure for not knowing the rules, why do I have to know them? I must admit that with hindsight, I have realized that I was a “child” then and like a “child” I thought and spoke. I have, in my few years in practice, however found the provisions of Order 81 very curious. For me, it is akin to an unruly horse. It leaves so much to the discretion of anyone who is in the position to interpret and apply same and as such can be interpreted by each individual to have a different meaning. 1 Order 81 of High Court (Civil Procedure) Rules, 2004, CI 47. 2 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. The purpose of this Article is to discuss how the Courts have over the years interpreted and applied the provisions of Order 81 and its predecessor rule to “apparently” prevent the multiplicity of suits and avoid delays, cost and unnecessary expenses in civil litigation. BACKGROUND The High Court (Civil Procedure) Rules, CI 47 were enacted in 2004 to replace the L.N.140A, which had been the applicable civil rules of the High Court in Ghana since 1954. Yes, it took 50 years for us to change our rules of Court. The parallel provision in the L.N. 140A was Order 70, r. 1 which provided as follows: “Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as […]

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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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