The Adoption of ADR in Ghana

Accredited arbitrator Beyeeman Akyea divulges extra on the present ADR local weather of Ghana on this function.

In short, may you please summarise the techniques of ADR obtainable in Ghana and the processes concerned?

Traditionally, ADR in Ghana first existed within the type of customary arbitration. Throughout Ghana’s pre-colonial period and previous to the current emergence of formal various dispute decision mechanisms, customary arbitration was administered by the distinguished natives of a clan in ‘colonial courts’ or through the prolonged household system.

In the present day, customary arbitration continues to contain the decision of disputes in keeping with the precise and distinctive cultural norms, practices, and values of every tribe; it’s a well-established relic of ADR that’s recognised by legislation and the Ghanaian authorized group.

Nonetheless, arbitration, mediation and negotiation are the first and prevalent techniques of ADR obtainable in Ghana in the present day. Mediation and negotiation are non-adjudicatory, whereas arbitration is adjudicatory.

Throughout arbitration, events to a dispute might submit their case to a impartial third occasion whose function is to judge the arguments of every occasion and render a choice based mostly on the substantive deserves of the case. The impartial third occasion shall then problem a last choice which turns into an award that’s binding on the events. A Ghanaian Excessive Courtroom might implement the arbitral tribunal’s choice by enforcement proceedings initiated by a profitable occasion.

However, mediation, which is also referred to as assisted negotiation, entails events using the companies of a impartial third occasion to behave as a facilitator who assists the events in resolving their widespread dispute. Events can enter right into a mediated settlement if mediation is profitable.

In the present day, customary arbitration continues to contain the decision of disputes in keeping with the precise and distinctive cultural norms, practices, and values of every tribe.

Concerning negotiation, events, both on their very own or by their representatives, might convene and try to resolve their points with out the involvement of a 3rd occasion. That is undertaken by exchanging provides and counteroffers with the intention of reaching a settlement by negotiation. In instances the place negotiation is profitable, the events might enter right into a negotiated settlement which can type the idea of a consent judgment that will then be formally adopted in a Ghanaian court docket if the negotiation is court-connected.

Hybrid ADR strategies and outgrowths, that are additionally utilised in Ghana, embrace med-arb, arb-med, skilled willpower, impartial analysis and judicial settlement conferences. These ADR mechanisms, in totality, mirror worldwide ADR requirements, practices and procedures. The Different Dispute Decision Act 2010, Act 798, that governs ADR in Ghana has considerably mirrored the UNCITRAL Mannequin Regulation.

What function has the Different Dispute Decision Act 2010 performed in shaping the strategies you might have talked about?

The Different Dispute Decision Act, 2010 (Act 798) codified the observe of ADR in Ghana and serves because the foremost legislative framework that governs the varied types of ADR inside the nation.

As an illustration, Act 798 grants legislative legitimacy to customary arbitration in Ghanaian authorized jurisprudence by recognising it as a proper and legitimate various technique of resolving disputes. Act 798 dictates the conduct, observe and process of customary arbitration in Ghana, whereas such uniform guidelines didn’t beforehand exist.

Concerning arbitration, the ADR Act aligns the Ghanaian ADR observe with worldwide requirements by adopting provisions and rules contained within the UNCITRAL Mannequin Regulation, such because the rules of separability, kompetenz – kompetenz and amiable compositeur.

Lastly, Act 798 shapes mediation by making provision for it for use as a court-connected ADR course of to boost Ghana’s Judicial Service. Below the ADR Act and the Courts Act 1993 (Act 459), the court docket might refer a scope of issues to mediation. This helps to ingrain ADR inside the cloth of dispute decision in Ghana.

The Different Dispute Decision Act, 2010 (Act 798) codified the observe of ADR in Ghana.

What different key statutes govern the observe of ADR in Ghana?

In Ghana, different important statutes that govern the observe of ADR embrace the Excessive Courtroom (Civil Process) Guidelines, 2004 (C.I 47), the Courts Act, 1993 (Act 459) and the Labour Act, 2003 (Act 651).

How have you ever witnessed the ADR panorama develop throughout your time as a practitioner?

I’ve notably seen the sluggish however gradual adoption of ADR inside Ghana’s authorized dispute decision system. ADR was beforehand a facet attraction reserved for unconventional pioneering practitioners or these approaching the sundown of their authorized careers. Nevertheless, the growing case congestion inside Ghana’s courtrooms has compelled the authorized group to seek out an alternative choice to litigation in ADR.

As an illustration, to catalyse the adoption of ADR, the courts, in imposing the Alternate Dispute Decision Act, make appreciable use of court-connected ADR, which is connected to all Excessive Courts and a few District Courts in Ghana.

Moreover, to cut back court docket congestion, Order 58 of the Excessive Courtroom (Civil Process) Guidelines, 2004 (C.I. 47) mandates that pre-trial settlement conferences be held in industrial courts. This concurrently affords judges extra time to successfully deal with instances which aren’t amenable to ADR.

In exercising their duties, tasks and legislative mandates, it is usually noteworthy that governmental establishments make use of varied ADR processes. These establishments embrace the Nationwide Labour Fee, the Fee on Human Rights and Administrative Justice (CHRAJ), the Judicial Service, the Division of Social Welfare and the Authorized Support Fee.

The growing case congestion inside Ghana’s courtrooms has compelled the authorized group to seek out an alternative choice to litigation in ADR.

These modifications have had the snowball impact of increasing the ADR group inside Ghana by encouraging younger legal professionals to proactively prepare with a purpose to specialize in ADR and exhibit their experience by non-public observe and thought management. These developments are shifting the highlight onto ADR in Ghana. Establishments such because the Ghana Arbitration Middle in Accra, the Ghana ADR Hub in Kumasi and the Ghana Affiliation of Licensed Mediators and Arbitrators are on the forefront of creating ADR extra accessible and well-known to most people.

Are there any legislative or cultural obstacles to its extra widespread adoption?

ADR has develop into an integral a part of Ghana’s authorized and judicial system, offering versatile, confidential and extra environment friendly battle decision mechanisms which function viable alternate options to conventional litigation. Regardless of this, there are nonetheless important limitations which have stifled the expansion and adoption of ADR mechanisms in Ghana.

Within the first premise, beneath legislation, sure kinds of disputes will not be amenable to ADR. In accordance with the Matrimonial Causes Act of 1971 (Act 367), divorce proceedings can solely be initiated in a Ghanaian court docket; subsequently, a wedding can’t be formally dissolved by ADR. As well as, Act 798 stipulates that issues involving the nationwide or public curiosity, the surroundings and the enforcement and interpretation of the 1992 Structure of Ghana will not be arbitrable or amenable to different types of ADR.

These legislative obstacles outline and restrict the scope of ADR in Ghana. As regards tradition, the Ghanaian authorized ecosystem has maintained a conservative stance regarding dispute decision, and thus litigation stays the default methodology for resolving authorized points.

Events and their legal professionals are sometimes reluctant to make use of ADR as a primary–line technique of resolving disputes. That is primarily fuelled by the adverse stereotype that ADR, being a voluntary mechanism, is a waste of time and assets since events might withdraw their consent at any time, in addition to the truth that dissatisfied events might not enchantment last and binding awards^[1]. This creates a basic sense of unpredictability, and in consequence, events and their legal professionals normally desire the comparative certainty that conventional litigation provides.

What recommendation would you give to much less skilled authorized practitioners who might want to specialize in ADR?

I might strongly encourage younger and fewer skilled authorized practitioners to view ADR not as a facet attraction however as a main and viable technique of resolving disputes. ADR can present efficient and sensible options to a consumer’s authorized points whereas concurrently broadening a practitioner’s ability set and bringing skilled satisfaction.

I like to recommend that authorized practitioners who want to specialize in ADR might reap its rewards by centring their observe round ADR and carving out a distinct segment for themselves by present process the mandatory coaching (such because the coaching supplied by the Chartered Institute of Arbitrators) to hone their expertise and develop into a market chief in ADR.

Do you might have any expectations for the way ADR will develop in Ghana within the coming years?

The way forward for ADR in Ghana seems more and more promising. I anticipate that ADR will proceed to develop as a observe space as people, companies, and practitioners flip away from pricey and protracted litigation towards cost-effective ADR.

On the present tangent, I count on that worldwide arbitration will notably take centre stage inside the ADR observe. The world continues to expertise globalisation, and Ghana’s optimistic financial outlook will entice commerce and commerce from different international economies. That is sure to create industrial and different worldwide disputes that can require the experience of Ghanaian ADR practitioners to resolve conflicts and shield the nation’s financial pursuits.

Beyeeman Akyea, Affiliate

Zoe Akyea & Co Authorized Practitioners

C114 Aborlebu Crescent, North – Labone, Accra, Ghana

Tel: +233 02637 10092 | + 44 07873 965748

E: beyeeman.akyea@zoeakyea.org

Beyeeman Akyea is an affiliate at Zoe, Akyea & Co. and a barrister and solicitor licensed to observe in Ghana and in England and Wales. He’s additionally a Member of the Chartered Institute of Arbitration and is on the right track to each develop into accredited by the New York State Bar and develop into a Fellow of the Chartered Institute of Arbitration. Beyeeman considers various dispute decision to be a foundational observe space that has vastly assisted him in different areas of his experience, resembling civil litigation, development and vitality legislation and banking and finance legislation (fintech legislation).

Zoe, Akyea & Co is a pioneering, long-established and extremely regarded company, industrial and dispute decision legislation agency in Ghana that has maintained a nationwide repute for offering wonderful full-service recommendation to its shoppers.

[1] Part 52, Different Dispute Decision Act 2010 (Act 798)