THE DIGITAL AGENDA: LEGAL REFORMS TO ACCOMMODATE FINTECH IN GHANA

May 22, 2020

PART 1: DEVELOPMENT OF FINTECH INTRODUCTION On 21st March 2019, Ghana passed the Payment Systems and Services Act 2019 (Act 987), as part of her initiatives to digitise her economy. The 2024 Cash-lite Agenda by the Bank of Ghana is to Foster efficient payments;[1] Improve financial inclusion; and Enhance financial innovations. In an address[2] by Dr. Ernest Addison[3] at the Inauguration of Payment Systems Advisory Committee, Dr. Addison stated that due to the increasing digitisation of payment systems, in the country and globally, it was incumbent on Ghana to develop a strong regulatory framework to oversee the emerging financial digital environment. It is against this sentiment that the Payment Systems and Services Act 2019 (Act 987) was passed. In this Article, the author seeks not only to discuss the inclusion of Fintech companies in the economic framework of Ghana but also discuss the new Payment Systems and Services Act 2019 (Act 987) which is aimed at ensuring a stronger legal framework within the Fintech industry. WHAT IS FINTECH? As the world continues to push for a cashless society, many economies have seen a rise in Fintech (financial technology). Fintech broadly refers to computer programs and other technology used to support or facilitate banking and financial services. Popular examples of Fintech used in everyday life in include, crowdfunding platforms, blockchains and cryptocurrencies, mobile payments and budgeting applications. Crowdfunding Platforms Popular crowdfunding platforms such as GoFundMe and Patreon allow internet users transfer money to each other. Often used as a means to create a money pool, more people are inching away from the traditional way of seeking sponsorships through letter writing and loan applications; and are instead soliciting funds from fellow internet users worldwide.   Blockchain and Cryptocurrency With the advent of bitcoin, cryptocurrency sparked global interest. Cryptocurrency, i.e. virtual or digital money which often takes the form of tokens or coins, uses cryptography to secure financial transactions, and verify digital transfer of assets. This form of Fintech uses blockchain technology, which is an electronic ledger dependent on peer to peer systems, to reduce the incidence of cyber fraud and governmental control and interreference. This ledger is openly shared among a myriad of users to create an unchangeable record of transactions; each transaction is time-stamped and linked to the previous one making it impossible for one user to gain a monopoly or commit fraud. Every time a set of transactions is added, that data becomes another block in the chain thus the name “blockchain”.   Mobile Payments Per data from Statista[4], revenue from mobile payments increased worldwide from $450 billion in 2015 to $930 billion in 2018 and is expected to reach $1trillion in 2019. With the spread of smartphones, mobile payments through applications and platforms like “Apple Pay”, “Paypal”, “Cashapp” and “Venmo” are fast gaining popularity. In some countries, basic mobile phones suffice to transact these mobile payments. For instance, telecommunication companies such as MTN and Vodafone have created an electronic wallet service called mobile money, which allows mobile phone users to receive, store and spend money using their devices.   Budgeting Applications Increasingly, individuals are beginning to rely on their […]

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NAVIGATING THE MAZE OF STRIKING OUT PLEADINGS – A HANDS-ON APPROACH TO INVOKING THE HIGH COURTS JURISDICTION

May 9, 2020

By Kwabena Frimpong Mensah Esq.* INTRODUCTION Disputes and in effect litigation, are aspects of life that have been in existence since the days of old. The earliest form of a dispute is seen in the Bible in Genesis Chapter 13 versus 5-8 where a dispute arose between Abram and Lot over who should occupy the land which they found themselves on. As is common within the practice, there are instances where the pleadings in a suit do not disclose a cause of action against a party. There would also be instances where the whole action was instituted with the aim of litigating a dispute, the merits of which had previously been determined by a court of competent jurisdiction.   What then can a litigant in that situation do? Are there any remedies available to a party who is being vexed twice? And if there are any remedies, how does the litigant access these remedies? Does litigation does truly come to an end? The purpose of this article would be to give a step by step account of what legal practitioners can do when their clients are faced with such challenges. This article will take into account the respective provisions of the High Court Civil Procedure Rules, C.I 47 and decided cases of the Ghanaian Courts. THE COURTS JURISDICTION STRIKE OUT PLEADINGS The power granted the courts to strike out a pleading for not disclosing a cause of action is exercised in two main ways, either under the provisions of the rules of the High Court (C.I. 47) or under the inherent jurisdiction of the court.Though both means give the same results, the two employ different methods at reaching the desired result. The inherent jurisdiction is a doctrine of the English common law under which a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal. In the case of Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd[1], Lord Diplock described the court’s inherent jurisdiction as a general power to control its own procedure to prevent the court from being used to achieve injustice. In like manner, the case of Standard Chartered Bank (Gh) Ltd v. Western Hardwood Ltd,[2] held that aside its general jurisdiction, a superior court has an inherent jurisdiction to correct its own errors in order to prevent abuse of processes and to ensure convenience and fairness when such errors are brought to its attention, irrespective of who presides over the court. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner The High Court is empowered under the rules of Court by Order 11 Rule 18(1) to strike out pleadings in certain situations. The order reads as follows “The Court may at any […]

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LABOUR RELATIONS IN THE WAKE OF COVID-19: IMPLICATIONS OF THE CORONA VIRUS ON LABOUR CONTRACTS

April 28, 2020

Kwabena Frimpong Mensah Esq. and Enyimnyam Paintsil Esq. 1. INTRODUCTION With the onset of the novel Coronavirus (Covid-19) pandemic[1] across the world, life as we know it has come to a virtual standstill.  Every sector of the global economy has been hit, international trade has been stalled and industries crashed; across the world, there is a genuine sense of despair. The most affected by this are the employers who for the next couple of weeks will have to decide the best way to save their businesses and the livelihoods of their employees. In the capitalist world we find ourselves in, saving the business seems to be the alternative the greater majority will take. In doing so, workers will either be put on unpaid leave or be laid off and for those who are lucky, said workers would receive their monthly salaries with or without salary reductions for the period. As at Friday 17th April, 2020, 22 million Americans had filed for unemployment relief after being laid off due to the continued spread of COVID-19.[2] Ghana, like most countries, is also suffering from the pandemic, with casual and permanent workers sitting on tenterhooks over their employment situation during and post COVID-19. The purpose of this article will be to spell out the legal framework in place for employer and employees in such a situation, the protection the law provides each party and also the doctrines of frustration of contracts, Force Majeure, redundancy and leave without pay.   2. EMPLOYMENT CONTRACTS IN GHANA In Ghana, employment relations are governed by the provisions of the Labour Act 2003 (Act 651)[3]; the Contracts Act 1960 (Act 25), the principles of common law[4] and the various judicial decisions on employment issues delivered by the courts. The employment relationship, like all other legal relationships is created by a contract between the employer[5] and the employee. In Ghana, employment contracts are to be in writing except where the tenure of the employment does not exceed a period of six months.[6]  Section 12 of the Labour Act[7], which is headed “Contract of Employment” states, “(1) The employment of a worker by an employer for a period of six months or more or for a number of working days equivalent to six months or more within a year shall be secured by a written contract of employment. (2) A contract of employment shall express in clear terms the rights and obligations of the parties.” However, the absence of a written contract does not invalidate an employment contract. Per Section 11 of the Contracts Act[8], a contract shall not be made void or unenforceable simply because it is not in writing. In a similar vein, Section 175 of the Labour Act[9], defines the term “contract of employment” as a contract of service whether express or implied, and if express whether oral or in writing. The common terms of an employment contracts are; The rights[10] and duties[11] of the employer and the employee; The employee’s leave entitlements (sick leave, annual leave, unpaid leave, maternity leave)[12] Maximum hours of work[13] Remuneration payable to the employee[14] Termination of the employment contract[15]   3. […]

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TRACING AND RECOVERING OF ASSETS IN GHANA: HAS GHANA’S SUPREME COURT LAID DOWN A NEW STANDARD?

April 12, 2020

Bobby Banson Esq. FCIArb INTRODUCTION Globally, there has been an upsurge of persons being victims of sophisticated crimes perpetrated through the means of the internet. Credit Card frauds, impersonation, hacking into bank accounts are but just a few of the examples of such crimes. This article discusses the possible remedies in existing legal regime in Ghana when persons are victimized by such activities and seeks to bring to the fore the recent decision of the Supreme Court of Ghana which, in the opinion of the author, has set a new standard for victims to recover their assets even when the offenders have not been found guilty of any criminal offence.   LAW OF TRUST It has long been established in Ghana’s jurisprudence, which takes its root from the common law of England, that a trustee is deemed to be in a relationship (fiduciary or not) concerning the properties which he assumes possession of, for and on behalf of the Settlor. According to Underhill and Hayton Law of Trusts and Trustees 14th Ed, “A trust is an equitable obligation, binding a person(who called a trustee) to deal with property over which he has control (which is called a trust property) for the benefit of persons (beneficiaries or cestui que trust) of whom he may himself be one, any one of whom may enforce the obligation” For a trust to be created, there must a relationship, direct or indirect, between the Settlor, the Trustee and the Beneficiary under the trust. Where there is a breach of a trust agreement, the assets could be easily traced and recovered for the benefit of the beneficiary or the trustee. BROBBEY J (as he then was) held in the case of COFIE v FORSON [1992] 1GLR 312, that, “To create a trust, there had to be three prerequisites: The words used had to imperative The subject matter had to be definite and certain The objects or beneficiaries had to be identifiable and ascertainable.”   Three types of trust have been identified as applicable in Ghana. These are express trusts, resulting trusts and constructive trusts. An express trust has been defined by Brobbey (supra) as follows, “An express trust might be completely constituted in two main ways: the settlor might either convey the property to trustees or he might declare himself to be a trustee of it”. In the case of DOE v OPOKU-ANSAH [1997-1998] 2 GLR 149, AIKINS JSC, held, in respect of resulting and constructive trusts as thus, “A resulting, implied or constructive trust is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself so that it will be inequitable to allow him to deny to the cestui que trust the beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct; he has induced the cestui que trust to act to his detriment in the reasonable belief that by so acting, he was acquiring a beneficial interest in the […]

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THE AFRICAN FREE TRADE CONTINENTAL AGREEMENT: THE BIRTH OF A NEW ERA By Bobby Banson Esq. FCIArb and Enyimnyam Paintsil Esq.

October 28, 2019

The African Free Trade Area Agreement (AfCTAA) created the world’s current biggest free trade area. Perceived by the World Bank to boost growth in the Continent, Member States continue to watch as the events unfold.

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WHAT TO KNOW ABOUT THE NEW COMPANIES ACT

September 24, 2019

Enyimnyam Paintsil Esq. On Friday 2ND August 2019, His Excellency Nana Akuffo-Addo, President of the republic of Ghana gave his assent to the new Companies Act, Act 992, replacing the old Companies Act of 1963. The new Companies Act, Act 992 undoubtedly will reform company practice in Ghana. This post highlights key provisions in the new Companies Act.   A. REGISTRATION OF A COMPANY UNDER THE COMPANIES ACT 2019, ACT 992 1. Who can register a company under the Companies Act 2019, Act 992? Under the Companies Act 2019, Act 992, any one or more persons may register a company (Section 6, Act 992) as long as said person or group of persons is above 18 years (Section 12, Act 992).   2. What are the duties of a promoter under the Companies Act 2019, Act 992? Under Section 10, Act 992, a promoter of a company is defined as “a person who is or who has been engaged or interested in the formation of that company; this is exclusive of persons rendering services to the company in their professional capacity hired by persons engaged in procuring the formation of a company.” The duties of said promoter include the following: i.     Stand in a fiduciary relationship to the companyii.    Observe utmost good faith towards the company in a transaction with the company or on behalf of the companyiii.   Compensate the company for any loss suffered by the company by reason of the failure of the promoter to observe utmost good faithiv.    Account for any properties, information or profits arising from the use and acquisition of any properties or information that the promoter may acquire in circumstances in which it was his/her duty as a fiduciary to acquire said property or information on behalf of the company   3. What are the requirements to be met for registration under the Companies Act 2019, Act 922? Section 13, of Act 992 which adds on the requirements in Section 14 of the old Companies Act 1963, provides that all applications to register a company must include the following: i.     The name of the company and an indication of the type of proposed company; ii.   The nature of the proposed business if the company is registered with an object; iii.   The address of the proposed registered office, principal place of business of the company in the Republic, telephone number and the post office box, private mail bag or digital address of the registered office of the company; iv.   The electronic mail address and website of the company, if available; v.    The following particulars of each subscriber: a. date, place of birth and nationality;b. present full name and any former name;c. residential, occupational, postal and electronic mail addresses and telephone contact; and vi.   The following particulars of each proposed director of the proposed company: a. present full name and any former name;b. particulars of any business occupation and other directorships  held by the directorc. residential, occupational, postal and electronic mail addresses  and telephone contact; vii.    A statutory declaration by each proposed director of the  proposed company indicating that within […]

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Ghana Sports Monograph

December 13, 2018

Ghana by Bobby Banson Kwame Appiah Oduro AINTOINETTE WINNIE ESSILFIE JEDIDIAH Y WILLIAMS AMA ASARE KORANG ADWOA E. O. PAINTSIL & This monograph is up-to-date as of Month and year 2018 Authors The Authors The Authors Bobby Banson Esq, MCIArb Bobby Banson has been described as a very dynamic and result oriented legal practitioner. Having learnt his trade from well-established Practitioners from Bentsi Enchil,Lesta & Ankomah (Accra), Dadson & Associates (Kumasi) and Minkah-Premo & Co (Accra), he has gained experiences in wide areas of legal practice including Corporate, Investment, Real Estate, Sports and Dispute Resolution. A product of Adisadel College, Mr. Banson furthered had his education at the Kwame Nkrumah University of Science and Technology for his LLB before proceeding to the Ghana School of Law in Accra for his BL where he graduated as the best student in the law of Taxation. He is the Founding Partner of Robert Smith & Adelaide Law, which is a boutique law firm located in Central Business District of Accra, Ghana. He heads the firm’s practice areas focusing on Alternative Dispute Resolution, Investment Advice and Corporate Governance. He has provided legal services to several multinational Companies doing business across the sub region. He has extensively written in the field of commercial law and litigation. Kwame Appiah Oduro Kwame Appiah Oduro attended Mfantsipim school, Mr. Oduro then proceeded to study Political Science and Economics at the University of Ghana Legon, after completion moved into the area of entrepreneurship to set up a company. After some years, He decided to go ahead and pursue his long awaited dream of becoming a legal practitioner and as such enrolled in the University of London Laws Degree programme where he obtained his LLB. He has had the opportunity to serve on the Parliamentary Select Committee on Local Government as well as the Parliamentary Adhoc Committee that was setup to investigate the outcome of the district assembly elections. Kwame has interest in Commercial Transactions, Commercial Litigation as well as Ghanaian Sports law and has done various researches in these areas. He is currently working with Smith & Adelaide law a well established and renowned law firm in Ghana. Aintoinette Winnie Essilfie, Esq Antoinette is currently an associate at Smith & Adelaide Law, a boutique Law firm in Ghana where she specializes in dispute resolution, Corporate and Commercial law. She previously worked with N.Dowuona & Company where she gained vast experience in areas of Corporate and Commercial Transactions. She has been involved in the incorporation and liquidation of various domestic and international companies and has advised on several legal issues ranging from corporate and commercial law, conflict of laws and energy matters in Ghana. She has an LL.B from the Kwame Nkrumah University of Science and Technology where she was selected as a representative for the University in the All African Moot Court Competition in 2013, South Africa. She was called to the Bar in Ghana in 2016 and has a certificate from the Leitner Centre in Fordham University on Human Rights during their summer course in Ghana in 2014. She has a keen interest in the research on Laws […]

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THE NEW AGE OF CORPORATE GOVERNANCE IN GHANA: A STEP BEYOND MERE COMPLIANCE WITH STATUTORY PROVISIONS

October 3, 2018

Bobby Banson, ESq FCIArb *The Author is the lead Consultant of Smith & Adelaide Law, Unit B804, The Octagon INTRODUCTION Every day, 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, a Company Limited by Guarantee or an External Company. 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[1] 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”. 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.   The aim of this post, 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[2], 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 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 in Specific Industries in Ghana.  A cursory reading of the Companies Act[3], the Ghana Stock Exchange […]

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

September 28, 2018

By Bobby Banson, ESQ, FCIArb*   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 emphasised 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 civilisation 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.[1] Africa currently receives about four percent (4%) of foreign direct investment. This is set to increase in the next decade.[2]Research shows African Countries have been dragged before many an international arbitration centre as compared to other countries with the exception of South America.[3]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 Howse[4] 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 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 and resolution of issues. The correlation between international investment and international arbitration cannot therefore be over emphasised. B. THE ROLE OF AFRICA IN INTERNATIONAL ARBITRATION […]

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