This article presents the legal regime on the enforcement of foreign arbitral awards in Ghana, following the passage of the Alternative Dispute Resolution Act, 2010 (Act 798) (‘ADRA’), how that differs from the mechanism for enforcing foreign judgments, and the implications for businesses flowing from the introduction of the current regime.

Development of Ghanaian law on enforcement of foreign awards

Ghana formally acceded to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘Convention’) on 9 April 1968, although on 7 October 1961 (almost 7 years earlier), Ghana had passed the now-erstwhile Arbitration Act[1], incorporating the Convention into municipal legislation[2].

Under the 1961 Arbitration Act, foreign awards were enforceable in Ghana if they were obtained in a State either declared by legislative instrument to be a party to the Convention or to which the law applied to ‘on the basis of reciprocity[3]'. The 1963 Arbitration (Foreign Awards) Instrument[4] listed only 26 countries that had ratified the Convention as at that date. However, the courts extended reciprocity to other countries that had subsequently ratified the Convention[5], aand also enforced foreign awards from non-reciprocating states through the common law[6]

This regime remained in force until 31 May 2010 when Ghana passed the ADRA[7], which is fashioned after the UNCITRAL Model Law[8]. In this work, we will consider the enforcement regime of foreign arbitral awards, that is, awards made outside Ghana.

Current regime for enforcement of foreign arbitral awards

The party must apply to the High Court for leave to enforce the award by filing an originating notice of motion supported by an affidavit containing the relevant evidence. Under ADRA, the party applying must show to the court:

• (i) that the award was made by a competent authority under the lex loci arbitri, under the Convention or any other international arbitration convention ratified by Parliament or that the award was made in a country (i.e. the seat of arbitration) that has a reciprocal arrangement with Ghana;
• (ii) evidence of the original award and the arbitration agreement (or duly authenticated copies of them), with certified English translations of them where required; and
• (iii) there is no pending appeal against the award in any court ‘under the law applicable to the arbitration.’[9]

Counsel for the parties will argue the application in open court, and the court may rule immediately after hearing counsel or adjourn for ruling. ADRA provides that the court ‘shall’ enforce the award where these formal requirements are met[10], and the applicant would then be able to execute the award in Ghana as a judgment of the court.

The ADRA follows the Convention and provides circumstances where the court will not enforce the award, even if the formal requirements are met, as follows:

• (i) the award has been annulled at the seat of the arbitration;
• (ii) lack of sufficient notice to the respondent, who was therefore unable to present its case;
• (iii) lack of proper representation of a party under a legal incapacity;
• (iv) the award does not deal with the issues submitted to arbitration; or
• (v) the award contains a decision beyond the scope of the matters submitted for arbitration.[11]

Enforcement of foreign awards and foreign judgments

There are different and separate statutory regimes for enforcing foreign arbitral awards and enforcing foreign judgments. The latter still operates solely on the basis of reciprocity. The key differences between the two regimes are:

• Reciprocity & Forum: Foreign arbitral awards made by any competent authority at the seat of the arbitration, may be enforced in Ghana. However, foreign judgments may only be enforced in Ghana if they are (i) delivered in countries designated by a legislative instrument,[12] (ii) emanate from a specifically mentioned superior court (apart from judgments made on appeals from courts which are not superior courts), and (iii) final and conclusive between the parties.[13]
• Subject matter: While foreign arbitral awards concerning all matters that can be settled by arbitration qualify to be enforced in Ghana, only foreign judgments for sums of money that are not payable as a tax or other charge of a similar nature or as a fine or penalty may be enforced in Ghana.[14]

Generally, the current regime for enforcement of foreign judgments is more restricted and cumbersome than for enforcing foreign arbitral awards. It is expected, however, that the ratification of international conventions such as the 2019 Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters by countries such as Ghana will lead to the amendments of the relevant domestic laws to align with global standards.

Business implications of regime for enforcement of foreign awards

The current regime on enforcement of foreign awards is largely beneficial to the business community because it provides certainty and clarity of the law. This aids businesses take informed decisions in their dealings with entities with assets in the country, including when drafting arbitration agreements. Further, with the expansion of the categories of awards enforceable, the law promotes settlement of disputes related to domestic and international entities with commercial interests in Ghana via arbitration, as the awards are enforceable in Ghana independent of the seat of arbitration.

However, because arbitral awards are not self-enforcing and victorious parties may have to take enforcement steps in domestic courts, it is recommended that parties enter into arbitration agreements with enforcement in mind, and consider whether the other party can be found, whether that party has assets and the State(s) where those assets are located, the assets’ value and whether the award can be enforced against them.[15]

To this end, we suggest that the following factors be considered by businesses contemplating enforcement of foreign award in Ghana:

• information on and the nature of assets belonging the party;
• nature of the award sought to be enforced;
• potential challenges to the enforcement of the award;
• time limit for enforcement of the award;[16]
• available methods for execution of the award;[17] and 
• expertise of Ghanaian counsel.

In conclusion, the passage of the ADRA, fashioned after the UNITCRAL Model Law and long-standing incorporation of the Convention in the Ghanaian legal jurisprudence show the country’s commitment to uphold and enforce the rights of the parties to arbitration, a situation that bodes well for the business community.

Written by Daad Akwesi and Pappa Kweku Anan-Ankomah, Bentsi-Enchill, Letsa & Ankomah.