ENFORCEMENT OF ARBITRAL AWARDS ARISING FROM INTERNATIONAL TREATY AGREEMENTS

September 28, 2018

Bobby Banson Esq. FCIArb and Enyimnyam Paintsil Esq. 1.   INTRODUCTION 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.  1.1 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.[1]  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] 2.   ENFORCEMENT OF ARBITRAL AWARDS ARISING FROM IITs. 2.1 Recognition and Enforcement 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) Convention. However, some Countries have enacted domestic legislations to govern the recognition and enforcement of foreign arbitral awards in those countries.   3.   THE NEW YORK CONVENTION In 1958 the New York […]

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CHOOSING A LAWYER BASED IN GHANA? FOREIGN INVESTORS BEWARE!

September 11, 2018

  INTRODUCTION It is common knowledge that over the years, foreign companies/investors seeking to do business or any form of investment in Ghana for that matter, have had to rely on the services of Lawyers in Ghana to advise and assist them undertake their ventures in Ghana. Hitherto, the Investor should be satisfied if he meets the Lawyer in a plush office with probably a Mercedes Benz to match a “befitting suit”.  Speaking impeccable language is what has become expected of good lawyers.   Arguably, these have become the hallmark of a good lawyer. Well, the Supreme Court of Ghana has taken this to the next level. A foreign Investor seeking to do business in Ghana with the help of a lawyer based in Ghana must go beyond plush offices, sleek cars and suits and big English. The Investor must actually conduct some due diligence to ascertain whether or not the Lawyer has been licensed by the General Legal Council of Ghana to provide Legal Services for the year under review.        B.WHAT DOES THE LEGAL PROFESSIONS ACT SAY? Legal Profession in Ghana is regulated by the Legal Professions Act.  The preamble to the Act states that it is an “Act to consolidate and amend the law relating to the legal profession”. The Act further states in Section 2 that any person whose name appears in the Roll of lawyers kept by the General Legal Council is entitled to practise as a lawyer, whether as a Barrister or Solicitor or both. One key thing to note in this section is that in Ghana, unlike other Jurisdictions such as the United Kingdom, there is no separation of personnel in relation to a Solicitor and a Barrister. The term “Lawyer” is used to refer to both a Solicitor and a Barrister so that any person whose name appears in the Roll of lawyers is qualified to do both Solicitor’s work and that of a Barrister. [1] The Writer is the Lead Consultant with Robert Smith & Adelaide Law, a boutique law firm based in Accra and has advised foreign investors seeking to do business in Ghana. [1] The General Legal Council is the Statutory Body established by the Legal Professions Act, 1960, Act 32 to regulate Legal Practise in Ghana. [1] 1960, Act 32. Section 8 (1) of the Act states that “ A person other than the Attorney-General or an officer of his department shall not practise as a Solicitor unless he has in respect of such practice a valid annual licence issued by the General Legal Council to be known as “a Solicitor’s Licence”. Simply put, the “appearance” of the name of a person in the Roll of Lawyers does not entitle the person to practise as a lawyer year after year. That person must apply for and be issued with a Solicitors License every other year to entitle the person to legally practise as a Solicitor in Ghana.             C.WHAT DID THE SUPREME COURT SAY? Now, the issue that had been raging over the years in respect of Section 8 of the Legal Professions Act has been the consequences of a Lawyer […]

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A SIMPLE GUIDE TO ACQUIRING LAND/LANDED PROPERTY IN GHANA: IS LAND TITLE REGISTRATION ENOUGH?

September 11, 2018

The first lesson I learnt in my Land Law Class is that Land is the only commodity that God has ceased creating. It is the only thing that man, throughout the history of invention, has not attempted to create. Land has become and continues to become a very scarce commodity. The ever increasing global population worsens the situation. The world’s population is now more than seven (7) billion and continues to grow by 83 million people per year. We should not forget the fact that land is a finite sphere and cannot endure infinite growth by any single species. Let us come back home in Ghana! Throughout the history of this great country, wars have been fought and lives have been lost over ownership and control of land. Land litigation is common place in our Courts. Both Pre and Post-Colonial Governments have taken steps to streamline our land tenure systems and its antecedent regimes. Particular praise must however go to the PNDC Government for taking drastic measures at revolutionalising the land sector. These attempts culminated in inter alia, the passage of the Land Title Registration Law in 1986. This law also established the Land Title Registry. The functions of this registry include the keeping and maintenance of “an index arranged in alphabetical order of the names of the proprietors of land and interests in land, showing the numbers of the parcels of which they are proprietors or in which they hold interests”. This section in effect means that all parcels of all lands and their respective owners must be found in the register which is kept at the Registry. But is this the case? [1] PNDCL 152 [2] The Lands Commission Act of 2008 however transformed the Land Title Registry into the Land Registration Division of the Lands Commission. [3] Section 1 (2) (e) of PNDCL 152 That certainly cannot be. The reasons are obvious. A lot of lands in this country are owned by Stools/ Skins, clans or families, which for the purpose of this discussion will be referred to as “Traditional Land Owners”. These traditional land owners trace their root of title to as far back as the days of Adam, when there were no governments nor Land Title Registries for that matter. Though their ownership and interest in land has not been registered as required by the law, these traditional land owners have been in possession of the lands and continue to alienate their interest in these lands by various means of conveyancing to prospective land owners. Trouble Shooting!!!!!!! All cannot be rosy. This is because, there have been and there continues to arise so many disputes over ownership of land between stools/skins, families and mostly individuals. This situation is often complicated by the fact that most people who are in possession of lands have not taken the pains to register their interest in the land at the Land Title Registry. Another scenario that accounts for land litigation is the fact that those who have registered title to the land, may not even be in possession, sometimes, not ever. By possession, I mean, physical occupation and control commensurate with the […]

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MEETING HIGH REVENUE TARGETS; A TALE OF NOTHINGNESS AND THE GRA’S RUSH FOR FOOL’S GOLD Bobby Banson, Esq., MCIArb

September 10, 2018

INTRODUCTIONEvery Country survives on tax. Every person (natural or artificial) is obliged to pay tax on his taxable income or revenue.  All across the world, Revenue Authorities have often been entrusted with wide powers for the sole purpose of ensuring that as much revenue is collected on the State’s behalf as is possible.In Ghana, the situation is no different. The Ghana Revenue Authority (GRA) is charged with the responsibility of collecting tax from individuals and companies for the Country.  The Authority consists of the Internal Revenue Service, Customs Excise and Preventive Service and the Value Added Tax Service.Section 1 (1) of the Revenue Administration Act, 2015, Act 915 provides, “The Ghana Revenue Authority is responsible, through the Commissioner-General, for administering and giving effect to tax laws in accordance with the provisions of the Ghana Revenue Authority Act, 2009, (Act 791)”.In a similar train of thought, Section 3 of the Ghana Revenue Authority Act, Act 791, outlines the functions of the GRA as among other things the collection of taxes for the Republic with optimum efficiency.Conventionally, every budget presented to Parliament of Ghana projects the revenue to be collected by the GRA to support the budget. This projection of the tax, which will accrue to the State, results in the setting of collection targets for the revenue agencies. In 2017, the GRA collected Gh¢ 32.4 billion as against the target of Gh¢ 34 billion representing 97% of the projected tax. The target for the 2018 fiscal year is set at GH¢ 39 billion.In respect of this high revenue target, the GRA has adopted a colossally aggressive approach to revenue mobilization. Media reportage abounds with offices, shops and factories, which have been raided by officials of the GRA allegedly to collect information and1.The Author is the Lead Consultant of Smith & Adelaide Law, a Boutique Law firm in Accra and has provided advisory services in matters relating to Tax to both local and foreign entities doing business in Ghana2.See the preamble of the Ghana Revenue Authority Act3.See thebftonline.com of 24th January 2018equipment/computers in an attempt to enforce the provisions of the relevant tax regimes.In as much as the author of this paper admits the wide powers given to the GRA by the various tax laws, the aim of this paper is to remind the GRA of its superior responsibility to ensure compliance with due process and not the abuse of the rights of the taxable populace. ACCESS TO INFORMATION AND ASSETSSection 33 of the Revenue Administration Act, 2016, Act 915 provides as follows:For the purpose of a tax law, the Commissioner–General shall for reasonable cause, have without prior notice, full and free access to premises, documents or assets   a.In the case of a dwelling house, conveyance or public premises or where a document or asset is located in a dwelling house or public premisesi Between 6:00am and 6:00pmii At other times as permitted by an order of a magistrate under section 88; or  b In any other case, at all times.2. The power of the Commissioner–General under subsection (1) may be delegated to and exercised only by a tax officer who is specifically authorized in […]

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7 POINT ADVICE TO NEWLY CALLED LAWYERS

March 10, 2017

I must begin by congratulating, my soon to be colleagues who will be called to the Bar on the 30th of September 2016, exactly 5 years since I joined this noble profession. As a fellow junior member at the bar, I pray that you will take these words as my infantile advice to you. Being called to the Bar is not an end in itself; it is a means to an end: I can only imagine the joy and the pride that most of you felt when the final results were published and your names appeared therein. It is an ecstatic feeling knowing that you will soon belong to the same profession that has produced great leaders all over the world.  It may have been a very grueling journey over a 6 year or 4 year period (depending on whether or not LLB was your 1st degree or post graduate degree). I am sure at publication of the results, most you may have said “Finally the Battle has Ended”. Well I have bad news for you: The battle just begun. You will soon realize that there is more to be done as a lawyer than there could have ever been as a law student. One of my favorite quotes about Albert Einstein is that “He was no Einstein when he was a student”. The journey to success as a legal practitioner just begun, it has not ended so guild up your loins and let the watch word be forward.   The Wig and Gown brings respect; but your integrity maintains it: The legal profession has recently come under severe criticism because of the perception of bribery and corruption. Once you are given that wig and gown, you are tempted to think that you are above the law. No you are not. People will respect you because they know you are part of a noble profession. Being part of a noble profession does not necessarily make you a noble person. You need to read the Legal Professions (Conduct and Etiquette) Rules over and over again before you begin your full life as a practitioner. Trust me if you do so, there are so many pitfalls you will avoid. Building a reputation as a sincere lawyer is something that is so difficult to achieve now, but once you do, guard it with all your life because your longetivity in this profession, depends so much on the reputation of sincerity you are able to build over time. If you throw your reputation to the dogs and engage in activities which are not worthy of a lawyer, you are finished. It is more dangerous these days because Anas may just be watching you.   The Bar Sticker will not bring you cases; knowing people bring briefs: I am sure that for most of you, getting a bar sticker is one of the first things on your mind (i.e. if you already have a car). Some may have already put it on their windscreens before being called to the bar. There is so much pride in putting the sticker on the windscreen, at least to get some […]

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THE PROBLEM OF LAND LITIGATION IN GHANA: IS LAND TITLE REGISTRATION ENOUGH?

March 10, 2017

The first lesson I learnt in my Land Law Class is that Land is the only commodity that God has ceased creating. It is the only thing that man, throughout the history of invention, has not attempted to create. Land has become and continue to become a very scarce commodity. The ever increasing global population worsens the situation. The world’s population is now more than seven (7) billion and continues to grow by 83 million people per year. We should not forget the fact that land is a finite sphere and cannot endure infinite growth by any single species. Lets come back home in Ghana! Throughout the history of this great country, wars have been fought and lives have been lost over ownership and control of land. Land litigation is common place in our courts. Both Pre and Post colonial Governments have taken steps to streamline our land tenure systems and its antecedent regimes. Particular praise must however go to the PNDC Government for taking drastic measures at revolutionalising the land sector. These attempts culminated in inter alia, the passage of the Land Title Registration Law in 1986. This law also established the Land Title Registry. The functions of this registry include the keeping and maintenance of “an index arranged in alphabetical order of the names of the proprietors of land and interests in land, showing the numbers of the parcels of which they are proprietors or in which they hold interests”. This section in effect means that all parcels of all lands and their respective owners must be found in the register which is kept at the Registry. But is this the case? PNDCL 152 Section 1 (2) (e) of PNDCL 152 That certainly cannot be. The reasons are obvious. A lot of lands in this country are owned by Stools/ Skins, clans or families, which for the purpose of this discussion will be referred to as “Traditional Land Owners”. These traditional land owners trace their root of title  to as far back as the days of Adam, when there were no governments nor Land Title Registries for that matter. Though their ownership and interest in land has not been registered as required by the law, these traditional land owners have been in possession of the lands and continue to alienate their interest in these lands by various means of conveyancing to prospective land owners. Trouble Shooting!!!!!!! All cannot be rosy. This is because, there have been and there continue to arise so many disputes over ownership of land between stools/skins, families and mostly individuals. This situation is often complicated by the fact that most people who are in possession of lands have not taken the pains to register their interest in the land at the Land Title Registry. Another scenario that accounts for land litigation is the fact that those who have registered title to the land, may not even be in possession, sometimes, not ever. By possession, I mean, occupation and control commensurate with the nature of the land. Hence, activities ranging from planting of pillars to mere cultivating of maize on the land could sufficiently pass […]

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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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