Arbitration Agreement (Ghana)

An Arbitration Agreement in Ghana governs the relationship between the parties by fixing what each must do.

Arbitration in Ghana is governed principally by the Alternative Dispute Resolution Act 2010 (Act 798), which replaced the Arbitration Act 1961 (Act 38) and modernised Ghana's arbitration framework in line with the UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended in 2006). Part One of Act 798 governs domestic arbitration between parties resident or incorporated in Ghana. Part Two governs international arbitration where at least one party is domiciled or has its principal place of business outside Ghana, or where the contract relates to performance outside Ghana or the subject-matter spans more than one country. The Ghana Arbitration Centre (GAC), established in Accra, provides institutional arbitration services and administers cases under its own Rules of Arbitration, which are modelled on international best practice and updated periodically.

Section 2 of the Alternative Dispute Resolution Act 2010 (Act 798) defines an arbitration agreement as an agreement in writing by which parties submit disputes to arbitration. The requirement of writing is satisfied by an exchange of letters, electronic messages including emails, or any other written communication that records the agreement. An Arbitration Agreement or arbitration clause contained in a commercial contract is treated as a separate, autonomous agreement under the doctrine of separability recognised in Act 798: even if the main commercial contract is void or voidable, the arbitration clause may still be effective to confer jurisdiction on the tribunal. This doctrine — adopted from UNCITRAL Model Law Article 16 — prevents a party from escaping arbitration simply by asserting that the contract containing the clause was never validly formed.

Section 3 of Act 798 gives the High Court of Ghana the power to stay court proceedings and refer parties to arbitration when a dispute falls within the scope of a valid Arbitration Agreement, provided the application for a stay is made before taking any step in the litigation. The High Court (Commercial Division) in Accra has exercised this power consistently since the passage of Act 798, demonstrating the Ghana judiciary's supportive stance toward arbitration as an alternative to court litigation. Section 30 of Act 798 codifies the Kompetenz-Kompetenz principle, empowering the arbitral tribunal to rule on its own jurisdiction before the High Court can be called upon to intervene.

Awards made in Ghana under Act 798 may be enforced in foreign countries that are parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, to which Ghana acceded in 2007. This gives Ghana-seated arbitration awards access to enforcement in over 170 countries. Similarly, foreign awards from New York Convention states may be enforced in Ghana through the High Court under Part Three of Act 798. Under Section 57 of Act 798, a Ghana arbitral award may be entered as a judgment of the High Court, making it enforceable through the court's execution processes including garnishment, attachment of assets, and charging orders.

For international commercial arbitration, parties to Ghana contracts frequently choose the UNCITRAL Arbitration Rules 2013, the ICC Rules of Arbitration 2021, or the LCIA Rules, depending on the transaction value and the parties' familiarity with each institution. The choice of Accra as the seat subjects the arbitration to Act 798 regardless of the procedural rules chosen. An Arbitration Agreement should be distinguished from a Mediation Agreement under Section 64 of Act 798 — where a neutral mediator assists negotiation but cannot impose a binding decision — and from Customary Arbitration under Part Four of Act 798, which applies to land and customary law disputes in Ghana's traditional communities. Unlike mediation and conciliation, arbitration produces a final, binding, and enforceable award that has the same legal force as a court judgment under Section 57 of Act 798.

Commercial arbitration under Act 798 has grown significantly in Ghana, with the Ghana Arbitration Centre administering disputes in construction, energy, mining, banking, real estate, and general commercial matters. The High Court (Commercial Division) in Accra has demonstrated consistent support for arbitration by granting stays of proceedings, enforcing awards, and applying the doctrine of separability in line with international UNCITRAL Model Law jurisprudence.

An Arbitration Agreement in Ghana is appropriate in a range of commercial and civil circumstances where the parties prefer private, confidential, and expert dispute resolution over litigation in the public courts of Ghana.

An Arbitration Agreement is needed when parties to a significant commercial transaction — such as a construction contract, energy project, mining concession, or international supply agreement — wish to have disputes resolved by an arbitrator with specialist technical or legal expertise rather than by a court judge who may lack sector-specific knowledge. The Ghana Arbitration Centre and independent arbitral tribunals in Accra regularly hear disputes involving the petroleum sector regulated by the Petroleum Commission of Ghana under the Petroleum Commission Act 2011 (Act 821), the mining sector regulated by the Minerals Commission under the Minerals and Mining Act 2006 (Act 703), and major infrastructure projects financed by development banks.

An Arbitration Agreement is required when the transaction involves a counterparty domiciled outside Ghana, and the parties wish to avoid submitting disputes to an unfamiliar national court system. An international Arbitration Agreement with Accra as the seat is often acceptable to both Ghanaian and foreign parties because it is governed by the Alternative Dispute Resolution Act 2010 (Act 798) and awards are enforceable under the New York Convention in over 170 countries, providing a predictable and internationally recognised enforcement route.

An Arbitration Agreement is needed where the parties have an ongoing commercial relationship — such as a long-term supply agreement, a franchise arrangement, or a joint venture between a Ghanaian entity and a foreign investor registered with the Ghana Investment Promotion Centre (GIPC) under Act 865 — and wish to maintain confidentiality over any disputes that arise, since arbitration proceedings under Act 798 and the Ghana Arbitration Centre Rules are private and not matters of public record, unlike High Court litigation which is conducted in open court.

An Arbitration Agreement is appropriate for disputes arising from real property transactions in Ghana, including disputes over Land Act 2020 (Act 1036) conveyances, long-term commercial leases registered with the Lands Commission, and construction disputes on major development sites, where the parties require a faster resolution than the formal court process in the Land Court or High Court typically delivers.

An Arbitration Agreement is needed after a dispute has already arisen — as a stand-alone submission agreement — when both parties agree to refer an existing grievance to a named arbitrator or tribunal rather than commence litigation in the High Court. This form of agreement is particularly useful in Ghana where court backlogs can delay a fully contested commercial case by three to five years or more. Section 2 of Act 798 expressly contemplates both pre-dispute clauses and post-dispute submission agreements, and both are equally effective to confer jurisdiction on the tribunal.

An Arbitration Agreement is required for contracts between state entities in Ghana and private sector parties, where the government's sovereign status would otherwise create jurisdictional complications in foreign enforcement proceedings. Ghana has waived sovereign immunity in commercial matters, but a clear arbitration agreement with an express waiver clause provides additional certainty for private investors contracting with government bodies.

Parties in Ghana should prepare an Arbitration Agreement (Ghana) before any dispute crystallises. The Alternative Dispute Resolution Act 2010 (Act 798) governs all Ghana-seated arbitrations. Section 3 of Act 798 empowers courts to stay proceedings in favour of arbitration. Section 57 of Act 798 allows awards to be entered as High Court judgments. The New York Convention 1958 gives awards international enforceability. The Ghana Arbitration Centre administers institutional proceedings in Accra.

A valid Arbitration Agreement in Ghana under the Alternative Dispute Resolution Act 2010 (Act 798) must contain the following essential elements.

Parties: Full legal names, addresses, and Ghana Revenue Authority (GRA) Tax Identification Numbers (TINs) of all parties. If the parties are companies, their registration numbers from the Office of the Registrar of Companies (ORC) under the Companies Act 2019 (Act 992) must be stated, together with the names and titles of the authorised signatories. The agreement should specify whether the parties are Ghanaian entities (domestic arbitration under Part One of Act 798) or whether one or more parties are domiciled abroad (international arbitration under Part Two of Act 798), because different procedural provisions apply in each case.

Scope of Disputes: A clear definition of which disputes, claims, or controversies arising from or relating to the identified contract or relationship are covered by the Arbitration Agreement. The scope clause should be drafted broadly — for example: all disputes arising out of or in connection with this agreement, including disputes as to its existence, validity, interpretation, performance, breach, or termination — to avoid jurisdictional arguments about whether a particular claim falls within or outside the arbitration commitment.

Number and Appointment of Arbitrators: The agreement must specify whether disputes will be determined by a sole arbitrator or a panel of three arbitrators. For lower-value commercial disputes under GHS 500,000, a sole arbitrator is typically appropriate. For complex or high-value disputes, a three-member panel is preferable. The agreement must include a fallback appointment mechanism — typically a 14 or 30-day period within which the parties must agree on an arbitrator, after which either party may apply to the Ghana Arbitration Centre or to the High Court under Section 16 of Act 798.

Seat of Arbitration: The legal seat of the arbitration in Ghana — typically Accra — determines which courts exercise supervisory jurisdiction over the proceedings under Act 798. The seat is not necessarily the same as the physical venue of hearings; hearings may take place in Kumasi, Takoradi, or by video conference while the seat remains Accra for jurisdictional purposes.

Applicable Procedural Rules: The procedural rules governing the arbitration — Ghana Arbitration Centre Rules, UNCITRAL Arbitration Rules 2013, ICC Rules of Arbitration 2021, or ad hoc procedures agreed by the parties. The choice of institutional rules affects the appointing authority, the fee schedule, the timetable for submissions, and the degree of administrative support provided.

Language and Governing Law: The language of the arbitration (English for most Ghana commercial arbitrations) and the substantive law governing the underlying contract — typically Ghana law under the Contracts Act 1960 (Act 25) and sector-specific statutes — must both be stated expressly.

Time Limits: The period within which a party must commence arbitration after a dispute arises, to avoid the applicable limitation period under the Limitation Act 1972 (NRCD 54) extinguishing the claim. Contract claims in Ghana are generally subject to a six-year limitation period.

Costs and Fee Allocation: How the costs of the arbitration — arbitrators' fees, Ghana Arbitration Centre or other institutional administrative fees, legal costs — are allocated between the parties, either by the arbitral tribunal in its award or by express pre-agreement.

Confidentiality: An express obligation on both parties and the arbitrators to keep the arbitration proceedings, evidence, and award confidential, since Act 798 does not automatically impose confidentiality — unlike in some other jurisdictions where confidentiality is implied by law.

Enforcement: Confirmation that any arbitral award shall be final and binding and may be entered as a judgment of the High Court of Ghana under Section 57 of Act 798 and enforced abroad under the New York Convention 1958. Forms-legal.com provides this Arbitration Agreement as a starting point for Ghana-compliant documentation. Parties should obtain legal advice from a Lawyer enrolled with the Ghana Bar Association before executing the agreement.

Additional compliance elements for an Arbitration Agreement (Ghana) include: Data Protection Act 2012 (Act 843) obligations when processing personal data in the arbitration; the requirement to notify the Ghana Arbitration Centre of the commencement of proceedings where institutional rules are chosen; consideration of interim measures under Section 20 of Act 798; and any sector-specific regulatory requirements — for example, in the banking sector, Bank of Ghana dispute resolution requirements under the Banks and Specialised Deposit-Taking Institutions Act 2016 (Act 930). Forms-legal.com provides this template as a starting point for Ghana-compliant documentation.

Interim Measures: Section 20 of the Alternative Dispute Resolution Act 2010 (Act 798) allows an arbitral tribunal to order interim measures of protection — such as an injunction to preserve assets, an order to maintain the status quo, or a direction to provide security for costs — pending the final award. The Arbitration Agreement should specify whether the parties consent to such interim orders and whether the parties retain the right to seek urgent interim relief from the High Court of Ghana where the arbitral tribunal has not yet been constituted. The ability to obtain prompt interim relief from the Ghanaian courts is an important practical advantage of choosing Accra as the seat of arbitration over a foreign seat, since the High Court (Commercial Division) is familiar with Act 798 and can act swiftly to preserve assets located in Ghana. Parties entering contracts in the energy, mining, construction, and financial services sectors in Ghana should pay particular attention to this clause, as these sectors frequently give rise to disputes where assets are at risk of dissipation before an award can be obtained.