Part I: what can be enforced?
1. What counts as an arbitral “award” that can be enforced?
An enforceable award is an award which requires the award creditor to do something or refrain from doing something. An award which merely declares the rights of parties (ie, a declaratory award) cannot be enforced as the rules of enforcement do not provide the means of enforcing declaratory awards.
2. Formal requirements that an award needs to conform with to be enforceable
Under Alternative Dispute Resolution Act 2010 (ADR Act) s49, parties are free to agree the form of the award. However, in the absence of such agreement, the award must follow these formal requirements:
- It must be in writing.
- It must be signed by the arbitrator.
- The arbitrator must state the date and place where the award was made.
- The arbitrator must also provide reasons for the award except where the parties waive this requirement.
In the case of more than one arbitrator, each arbitrator may write their own award; however, the award in question must be signed by all or a majority of the arbitrators. In that instance, the presence of the signature of the majority will suffice provided the reason for the omission of the signature of the minority is given.
After an arbitral award is made, a signed copy shall be delivered to each party of the arbitration.
3. Orders on interim measures: enforceability
These are any awards by the tribunal before the conclusion of the hearing. It may be varied, reversed or confirmed in the final award.
The ADR Act grants arbitrators the power to order interim reliefs. In Ghana, ADR Act s38(1) explicitly provides that an arbitrator may grant interim relief, at the request of a party, for the protection or preservation of property.
Section 38(2) further provides that the interim relief that is granted may be in the form of an interim award. Interim reliefs issued by arbitrators are enforceable in courts as provided for in section 39(1)(e).
a. Domestic awards
Yes, interim awards in domestic commercial arbitrations are enforceable.
b. International commercial arbitration awards
Interim awards in international commercial arbitrations are enforceable in the same manner as final awards.
4. Emergency awards: enforceability
For an emergency award to be enforceable in Ghana, the parties must undertake to abide by the award of the emergency arbitrator. The substantive tribunal is, however, not bound by the award of the emergency arbitrator.
Part II: resisting enforcement
5 a. How are awards set aside?
Domestic awards may be set aside by an originating motion to the High Court made by a party to the arbitration on any of the grounds stated in Act 798 s58(2). The award creditor must be put on notice through service with a copy of the application to set aside the award and they may file an affidavit in opposition.
For foreign arbitral awards, the award debtor may resist the enforcement of the award in Ghana on any of the grounds stated in Act 798 s59.
b. Can enforcement be resisted if the respondent has not formally applied to set aside the award?
An arbitral award cannot be enforced unless an application is filed by the award creditor to the High Court for leave to enforce the award. That application must be served on the award debtor. The award debtor may file an affidavit in opposition setting out the reasons why the court should not grant leave for the award to be enforced. The basis of the opposition could be the same as for an application to set aside the said award. Hence, an award debtor can resist the enforcement of an award (even if an application has not been filed to set aside the said award) by means of an affidavit in opposition to an application for leave to enforce the award.
c. Can non-parties seek annulment?
The ADR Act is silent on this; however, in Ivy Bruku Whalley v Bolton Portfolio Limited (ruling delivered on 23 June 2021), the High Court held that a non-party to an arbitral proceeding may take steps to set aside an arbitration award in instances where the arbitral ruling affects a non-party’s interest and the non-party has proven a right to be heard. In most instances, such as the case of Agricult Ghana Limited v Ghana Cocoa, where an annulment of an arbitration award was upheld, the challenging party is a party to the arbitration.
d. Grounds to seek setting aside
Under the ADR Act s58(2) the following are the grounds to seek setting aside:
- A party to the arbitration was under some disability or incapacity.
- The law applicable to the arbitration agreement is not valid.
- The applicant was not given notice of the appointment of the arbitrator or of the proceedings or was unable to present their case.
- The award deals with a dispute not within the scope of the arbitration agreement or outside the agreement except that the court shall not set aside any part of the award that falls within the agreement.
- There has been failure to conform to the agreed procedure by the parties.
- The arbitrator has an interest in the subject matter of the arbitration, which the arbitrator failed to disclose.
e. Timelines to seek setting aside
ADR Act s58(1) and (4) says that an application to set aside an award may not be made after three months from the date on which the applicant received the award unless the court orders otherwise for justifiable cause.
f. Grounds to resist enforcement of foreign arbitral awards
- The award has been annulled in the country in which it was made.
- The party against whom the award is invoked was not given sufficient notice to enable the party to present their case.
- A party lacking capacity was not properly represented.
- The award does not deal with the issues submitted to arbitration.
- The award contains a decision beyond the scope of the matters submitted for arbitration.
g. Which court to go to for setting aside?
The High Court pursuant to the ADR Act s58(2).
h. Formal requirements before court can grant setting aside
The ADR Act s58(3) states that: “The Court shall set aside an arbitral award where it finds that the subject matter of the dispute is incapable of being settled by arbitration or the arbitral award was induced by fraud or corruption.” ADR Act s1 covers matters outside the scope of arbitration in Ghana, making an award unenforceable even in instances where there is an award, and pertaining to:
- the national or public interest
- the environment
- the enforcement and interpretation of the Constitution
- any other matter that by law cannot be settled by an alternative dispute resolution method
i. Do courts grant stay on enforcement as an interim measure?
The High Court does not have jurisdiction to stay enforcement of an award. The court can only set aside the award or refuse to enforce it.
j. What is the appellate mechanism against the decision of the court of first instance?
Under ADR Act s58(6), an appeal from the court lies to the Court of Appeal.
Part III: enforcing foreign awards
6. New York Convention applicability
Ghana signed the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention) on 9 April 1968 without any reservations and has since recognised and applied it.
7. Timelines for enforcement
There is no specific duration provided by the ADR Act. Once leave is granted for an arbitral award to be enforced, it may be enforced by any of the methods used for executing judgments of the High Court. However, an application for leave to enforce a foreign arbitral award must be filed within 12 years from the date of service of the award as provided in s5(1)(b) of the Limitation Act 1972 (NRCD 54).
8. Which court to go to? Relation with location of assets?
In Ghana, there is only one High Court which sits at different locations or venues. The venue to commence enforcement proceedings of arbitral awards must be the High Court closest to the residential or business address of the award debtor and not where the assets of the award debtor are located.
9. Can non-parties resist enforcement?
Non-parties can only resist enforcement of foreign awards if their assets have been attached in execution of the award. Save this exception, non-parties cannot resist awards.
10. Compelling disclosure of local assets? How to identify assets available for enforcement?
The High Court (Civil Procedure) Rules provide for how an award debtor may be examined on their means of operations to ascertain if there are any assets which can be attached. Usually, the award creditor must investigate the affairs of the award debtor to identify any such assets. These investigations can be undertaken at the Office of the Registrar of Companies, the Collateral Registry, or the Lands Commission.
11. Are third-party funded awards enforceable?
In Ghana, third parties cannot fund an arbitration as it is deemed against public policy. An award from a third-party funded arbitration may be successfully resisted on grounds of public policy.
12. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?
Under ADR Act s38:
- An arbitrator may at the request of a party grant any interim relief the arbitrator considers necessary for the protection or preservation of property.
- An interim relief may be in the form of an interim award and the arbitrator may require the payment of cost for such a relief.
- The arbitrator may apportion costs related to applications for interim relief in an interim award or in the final award.
- No relief is granted ex parte.
13. Formal requirements for enforcement application: what documents need to be filed in court?
The formal requirements as stated under ADR Act s59(1) provide that the High Court shall enforce a foreign arbitral award if it is satisfied that:
(a) the award was made by a competent authority under the laws of the country in which the award was made;
(b) a reciprocal arrangement exists between the Republic of Ghana and the country in which the award was made; or
(c) the award was made under the international Convention specified in the First Schedule to this Act or under any other international convention on arbitration ratified by Parliament; and
(e) there is no appeal pending against the award in any court under the law applicable to the arbitration.
As to the documents that need to be filed in court, s59(1)(d) states that the party that seeks to enforce the award must produce the following:
(i) the original award or has produced a copy of the award authenticated in the manner prescribed by the law of the country in which it was made;
(ii) the agreement pursuant to which the award was made or a copy of it duly authenticated in the manner prescribed by the law of the country in which it was made or in any other manner as may be sufficient according to the laws of the Republic of Ghana; and
Section 59(2) states:
A party who seeks to enforce a foreign award and who relies on a document which is not in the English Language, shall produce a certified true translation of that document in English to the court.
14. Enforcing awards that have been annulled/set aside at other courts. Enforcing when an annulment application is pending at a foreign court
The Ghanaian courts will not enforce a foreign award that has been set aside or annulled by the courts at the place of arbitration. ADR Act s59(3)(a) provides that: “Despite subsection (1) the court shall not enforce a foreign award if (a) the award has been annulled in the country in which it was made.”
15. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?
The ADR Act provides that the court “shall” enforce the award where these formal requirements are met, and the applicant would then be able to execute the award in Ghana as a judgment of the High Court as per ADR Act s57(2).
Thus, the provisions of the High Court (Civil Procedure) Rules apply, which means that arbitration awards may be enforced by any of the following means:
- writ of fieri facias for the attachment and sale of the award debtor’s assets to pay the debt
- writ of sequestration
- writ of possession of immovable property
- writ of delivery and specific delivery of movable property
- garnishee proceedings
- charging orders and stop orders
- order of committal for contempt
- appointment of a receiver or manager
16. What is the procedure for repatriation of sums awarded after obtaining an order for enforcement?
Where the award creditor is not resident in Ghana, they must obtain a permit from the Bank of Ghana for the debt collected to be transferred to the overseas account. Until the permit is granted, the debt collected will be paid into court.
17. Do courts grant orders for security for costs?
The court grants orders for security for costs upon an application by the respondent where the claimant is not resident in Ghana and does not provide any evidence of assets in Ghana, which assets may include monies in the hands of the award debtor.
18. Exchange control regulations: do they affect payments to foreign award holders?
Where the award creditor is not resident in Ghana, they must obtain a permit from the Bank of Ghana for the debt collected to be transferred to an overseas account. Until the permit is granted, the debt collected will be paid into court.
19. Enforcing awards from non-New York Convention places
The court in Ghana will grant leave for the enforcement of foreign arbitral awards from non-New York Convention places only if there is a reciprocal bilateral agreement between Ghana and that originating country of the award.
20. Enforcing against sovereigns
Awards against sovereigns are enforceable in Ghana in the same way as awards against individuals.
21. Appellate mechanism available?
Arbitral awards cannot be appealed against except on a question of law.
Part IV: enforcing domestic awards
22. Timelines for enforcement
An action to enforce an arbitral award may not be brought after six years from the date of the delivery of the award. The Limitation Act 1972 (NRCD 54) provides for this in s4(1)(e).
23. Which court to go to? Relation with location of assets?
In Ghana, there is only one High Court which sits at different locations or venues. The venue to commence enforcement proceedings of arbitral awards must be the High Court closest to the residential or business address of the award debtor and not where the assets of the award debtor are located.
24. Compelling disclosure of local assets? How to identify assets available for enforcement?
The High Court (Civil Procedure) Rules provide for how an award debtor may be examined on their means of operations to ascertain if there are any assets which can be attached. Usually, the award creditor must investigate the affairs of the award debtor to identify any such assets. These investigations can be undertaken at the Office of the Registrar of Companies, the Collateral Registry, or the Lands Commission.
25. Are third-party funded awards enforceable?
In Ghana, third parties cannot fund an arbitration as it is deemed against public policy. An award from a third-party funded arbitration may be successfully resisted on grounds of public policy.
26. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?
Under ADR Act s38, an interim relief may be granted by the arbitrator for the protection or preservation of property. Under subsection (2), an interim relief may be in the form of an interim award and the arbitrator may require the payment of costs for such a relief. No relief is granted ex parte.
27. Formal requirements for enforcement application: what documents need to be filed in court?
Under ADR Act s57, the formal requirement for enforcement is that leave of the High Court must be sought for enforcement to commence.
The documents which need to be filed in court include an originating motion on notice at the registry of the commercial court in the region where the arbitration was held, seeking leave of the court to enforce the award. The original copy of the arbitration agreement, the arbitral award and evidence that the same has been served on the award debtor must be attached to the affidavit in support as evidence.
28. Filing for enforcement when application for annulment is pending
There are no annulment proceedings under Ghanaian law. The option is to set aside the award. Where there is an application to set aside the award, leave will not be granted to enforce the award.
29. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?
Under ADR Act s57(2), once leave is given, judgment may be entered in terms of the award. In such a case, for all intents and purposes, the award is treated as a judgment of the High Court. Thus, the provisions of the High Court (Civil Procedure) Rules apply, which means arbitration awards may be enforced by any of the following means of execution:
- writ of fifa
- writ of delivery
- writ of possession
- garnishee orders
- appointment of receiver
- committal for contempt
- charging orders
30. Do courts grant orders for security for costs?
In domestic awards where both parties are resident in Ghana, the court will not order security for costs. However, where the claimant can provide evidence that the respondent is taking steps to flee from the jurisdiction, the court may order the respondent to provide evidence that it has resources in Ghana to satisfy the award.
31. Appellate mechanism available?
The ADR Act only permits an appeal to be filed against a tribunal’s decision on points of law.
