In his forward entitled England and Wales: The Jurisdiction of Choice,[1] The Rt Hon. Jack Straw MP, a former Secretary of State for Justice and Lord Chancellor noted that a whopping 80% of cases in UK’s specialized Commercial Courts involved a foreign claimant (plaintiff) or defendant and that, “. . . the success of the legal services sector plays an unquantifiable role in helping London to maintain its position as a major center for global commerce.”[2]. In this article, I argue that in addition to the great potential of becoming the gateway for investment into Africa, Ghana has the potential of developing as the hub for business dispute resolution in Africa. More importantly, Ghana could develop and use its legal services as part of its investment drive. I make the case that Ghana’s history, legal system, language, geographic position and reputation in Africa and the world makes this proposition achievable. I will begin with a general background and proceed to discuss how Ghana is well placed to achieve this. Dispute resolution has been used in this article to refer to all forms of dispute resolution including in particular arbitration and litigation; these two would be the focus of this article.
Background
Firstly, there is no doubt that in the recent past, significant attention of businesses has been turned towards Africa. One possible reason for this has been the record economic growth rates Africa’s economy has been recording. There is, therefore, the expectation that investments into Africa and commerce generally would increase. Within Africa, trade and investments among African states have been increasing, although at a slower rate than was expected. Intra-Africa trade is in fact expected to increase with the coming into force of the African Continental Free Trade Area (AfCFTA). AfCFTA came into force on April 2, 2019. With a single market of over 1.2 billion people, AfCFTA is the largest free trade area in the world. This expected increase in intra-Africa trade has implications for legal services in Ghana. For instance, as intra-Africa trade and investment increase and business generally become more global, demand for legal services, particularly dispute resolution services would also increase.
Secondly, Ghana has for the past few years determined to position itself as the gateway for investments into Africa. The Government of Ghana speaks of the “golden age of business” and developing the private sector as an “engine of economic growth” for the country. The development of the legal services sector has, however, not been considered as an important factor in attracting global business and investment into Ghana. However, in order for Ghana to fulfil its dream of becoming a gateway for commerce and investment into Africa, it is particularly important for the country to consider and develop its legal services sector. The legal services sector would include its legal system viz. its judiciary, laws, legal practitioners, and other services ancillary to the practice of law.
Thirdly, parties to the contract are generally free to choose the applicable law of the contract, the seat or forum for the resolution of their disputes, as well as their preferred form of dispute resolution. With the increasing popularity of arbitration as a dispute resolution mechanism, party autonomy in contractual disputes is a principle that is actively promoted in many jurisdictions. The United States (U.S.) appears, however, to be the exception. The laws of the U.S allow party autonomy to the extent that there is a “reasonable connection” to the chosen jurisdiction.[3] “That caveat reflects the traditional territoriality of U.S conflicts of law and a reluctance to permit untrammeled party autonomy.”[4] However, in order to effectively compete, particularly with London as the seat for international transaction, the State of New York (NY) for example, passed, in 1984, the NY’s General Obligations Law (G.O.L). The G.O.L allows parties to choose NY law as the governing law even if the transaction has no real connection with NY at all.[5]
Fourthly, because dispute resolution is a service and also that the parties are free to choose the forum they prefer, countries, as service providers, compete for attention particularly where the parties are conducting cross-border transactions.[6] The competition for global attention as the jurisdiction of choice is now very intense. any states have intensified their marketing efforts in that regard. For example, in direct response to the UK’s brochure tiled England and Wales: the Jurisdiction of Choice, in which the UK markets itself as the go-to jurisdiction for dispute resolution, Germany produced its own brochure called “Law-Made in Germany.”[7] Germany’s brochure also contained a preface by the then Federal Minister of Justice and Consumer Protection of Germany. The brochure was the joint effort of all professional organizations of German lawyers, judges and notaries who formed a Union called “Union for German Law.”[8]
Ghana is positioned well to provide international legal services.
Ghana is similar to the UK in many material respects; its place in Africa is similar to the UK’s place in the world in some respects. The point of the article is to show why if properly harnessed, Ghana could be the preferred forum in Africa for dispute resolution. Having regards to the limited scope of this article, an outline only of very few of the factors would be discussed. I focus among others, on Ghana’s legal system, language, the judicial system, historical prominence and geographical location. I hold the view that if Ghana is able to harness these strengths appropriately, it could help halt the export of dispute resolution to Europe and the United States and position it as a place for dispute resolution, at least for intra-Africa business disputes.
Ghana’s Legal System: Common Law
In order to secure a country as a preferred place for dispute resolution, it is not only useful to have the country designated in the agreements of the parties as the place for dispute resolution, it is also important to have the parties designate the laws of the country as the applicable law. Accordingly, one of the ways by which Ghana can become a hub for dispute resolution is when parties to the agreements designate the country’s laws as the applicable laws and also have the country as the forum for the resolution of the dispute. Contracting Parties are generally attracted to jurisdictions whose laws and legal systems are predictable and yet flexible, convenient and efficient.
Ghana’s legal system is modeled exactly on the English common law system. Common law is in fact that most pervading source of law in Ghana.[9] The fact that Ghana is a common law country is important because common law is spreading rapidly to other legal systems in Africa.[10] Some countries in Africa are changing or modifying their legal systems to lean towards common law, where Ghana has been a leader in Africa for several decades.
Most of Africa’s legal systems are a carry-over from colonialism. Accordingly, it is common to find that most of the countries colonized by the French or Portuguese would be made on the Napoleonic code (civil law) while the countries colonized by the British would be based on English common law. Few of the countries like South Africa, which were originally colonized by the Dutch and later the British have a combination of common law and civil law. South Africa’s “mixed legal system” spread to countries like Namibia, Botswana, Zimbabwe, Lesotho and Swaziland.[11]
Having considered that a Common Law legal system helps to attract investment, Rwanda, decided to switch from the civil law system, which it obtained from the Dutch to the common law system based on the legal system pertaining in Mauritius. The legal system of Mauritius itself is based on English common law.[12] There is also the example of Ethiopia which runs the civil law system. Ethiopia has recently adopted a law that makes case law binding.[13] Case law is obviously a distinguishing feature of the common law legal system.
English Language
There is no gainsaying that the English language is the primary language of commerce. The dominance of English as the key language for commerce may be the result of the UK’s past political and economic dominance in the world. Again, the meteoric rise of the United States on the global stage helped positioned the English language as the international lingua franca.[14]
The dominance of English language as the international language for commerce is evidenced by the fact that in the recent past, key non-English speaking European Union (EU) the Member States have set up “English Language Commercial Courts;” the latest being Belgium. Belgium set up the Brussels International Business Court (BIBC).[15] France, Netherlands and Germany had taken earlier steps in that regard.[16] In Africa, in order to properly position itself as a global player, Rwanda “ditched” French language and switched to the English language. The Guardian reports that Rwanda’s decision to “convert” to English was aimed at “increasing access to the global economy…”[17]
Fortunately for Ghana, it is one of the most prominent and respected English-speaking countries in Africa. The English language has been the official language of the country since the colonial era under Britain. All of its laws are not only based on the English legal system but also made in the English language. The courts in Ghana speak only English.
The fact that Ghana speaks English language therefore, should put it in a position to attract investments and also investment disputes into the country. Surely, Ghana’s reputation as one of the most respected English-speaking countries in Africa must contribute to its potential as the preferred destination for commercial disputes in Africa and the world.
Ghana’s Judicial system
Ghana has a very respected judicial system also modelled on the UK judicial system. One of the key features of the court system in Ghana is the specialist courts. The Superior Court of Justice is made up of the High Court (which is a court of the first instance), the Court of Appeal and the Supreme Court. The Court of Appeal has only appellate jurisdiction. The Supreme Court has mostly appellate jurisdiction but also has original jurisdiction in some selected case including the constitutional interpretation and presidential electoral petitions.
Importantly, the High Court has specialized divisions including the commercial court, financial court, labour and industrial court, land court, the court of general jurisdiction, criminal court and human rights court. The commercial court, in particular, is specialized and is manned by judges who have sufficient experience in handling complicated commercial cases of national or international dimension.
The Constitution of Ghana generally guarantees the independence of the judiciary and bars interference from the executive and legislative branches of government.[18] Appointments of Court of Appeal and Supreme Court judges are done by the president on the advice of the Judicial Council. Judges of the Superior courts are usually appointed from among very experienced and respected legal practitioners with several years of experience and reputation among the members of the bar and bench. All appointments are approved by the Legislative arm of government (Parliament).[19] The Judicial Council is an independent body chaired by the Chief Justice. In practice, the Judicial Council makes recommendations for appointment to the President who will seek the approval of Parliament to appoint the justices. High Court Judges are however appointed by the president on the advice of the Judicial Council.[20] The president in most cases appoints when the Judicial Council has made the recommendation. Thus, Judges in Ghana are free from governmental control and therefore decide cases in accordance with their own judgment
Even if parties choose the law of a country other than Ghana as the applicable law to their contract, Ghanaian courts can and do resolve disputes no matter the applicable law. The rules of court and evidence allow the courts to receive foreign law as a fact and decide on issues according to such law. Ghana is accordingly in a position to handle cross-border disputes.
Enforcement of Judgments in Ghana
It is self-evident that a good foreign judgment enforcement regime is necessary in any effort to promote international trade and commerce. [21] Caffrey notes:
“The businessman wants and needs predictability, the security of the transaction and the prompt efficient and certain enforcement of his claims against his debtors in foreign countries. Without this security, international trade and commerce will not only not increase, but it could also conceivably decrease to the manifest detriment of the countries who refuse to grant this most important businessman’s demand.”[22]
It is also obvious that the ability to enforce decisions of the courts of Ghana in Ghana and other parts of the world is important in influencing the choice of Ghana as the forum for dispute resolution by global parties. Ghana is a party to a number of reciprocal arrangements which permits mutual recognition and enforcement of foreign judgments.
Accordingly, enforcing foreign judgments in Ghana and enforcing Ghanaian judgments in many foreign jurisdictions is easily possible.
Ghana as a seat for international arbitration
There is a rise in the use of arbitration in international commercial disputes. Therefore, to secure its position as a preferred destination for arbitrating disputes, Ghana must show that it is an arbitration-friendly country.
In 2010, Ghana completely overhauled its 1961 Arbitration Act[23]. The Act provides a framework for arbitration disputes where the parties fail to agree on the rules governing arbitration of their dispute. It also provides a framework for the enforcement of awards in Ghana. The courts in Ghana regularly enforce arbitration agreements where Ghana is indicated as the seat of arbitration.
Ghana is one of the first of the 142 members who signed the New York Convention on the Recognition and Enforcement of Foreign Awards, 1958. This convention provides a mechanism for worldwide enforcement of arbitral awards.
In addition to that, world-class arbitration centers have been developed in the country: The Ghana Arbitration Centre based in the capital Accra and Ghana Arbitration Hub based in Kumasi the second largest city in Ghana.
What Ghana needs to do and has indeed began to do is to build a core of world-class arbitrators who would be able to attract investment dispute into Ghana.
The geographical position of Ghana
Ghana also has a comparative advantage regarding its geographical position. Although Ghana is technically considered a West African country, Ghana is at the center of the world. It is easy to access Ghana from any part of the world or Africa. Ghana sits right on the equator and the Greenwich meridian passes through it similar to what pertains in the UK. The advantage of Ghana, however, is that it does not change its time in winter and summer as pertains in the UK. Being on the true Coordinated Universal Time (UTC) makes it relatively easier to communicate and deal remotely with persons outside the country from all parts of the world at the same time. Under the present circumstance (COVID-19) where online dispute resolution (ODR) has gained popularity, being based right in the middle of the world is a very important asset in attracting dispute resolution into Ghana.
Ghana’s economy is doing well
Investments and commerce generally flow to countries with stable democracies/politics and growth potential. Ghana is respected and reputed as one of the most stable democracies in Africa. The Country’s economy has also been doing well. The World Bank had the following to say of Ghana in its 2018 country report:
In the past two decades, it has taken major strides toward democracy under a multi-party system, with its independent judiciary winning public trust. Ghana consistently ranks in the top three countries in Africa for freedom of speech and press freedom, with strong broadcast media, and radio the medium with the greatest reach. Factors such as these provide Ghana with solid social capital.[24]
In 2017, Ghana’s economy grew at a rate of 8.1%, making it the second-fastest growing economy in Africa, Ethiopia being the first.[25] The World Bank projects that over the period 2019-2022, Ghana’s economy will grow at an annual rate of 7.0%.[26] Ghana is thus one of the fastest-growing economies in the world.
As noted, a growing economy attracts investments. It is therefore expected that investment into Ghana would significantly change. As investments and trade and commerce increases, so would demand dispute resolution services.
The historical influence of Ghana
Historically, Ghana has had significant influence and reputation on the African continent and the world. Ghana is a former colony of Britain. It was the first country south of the Sahara to gain its political independence. Following its independence in 1957, Ghana came to be at the forefront of the movement for independence across Africa and the rest of the world. Ghana and its first prime minister and president also significantly influenced civil rights movements in many parts of the world including the United States of America (USA). Indeed its independence was attended by many leaders of civil rights movements across the world, including Dr. Martin Luther King, Jr.[27] Ghana had such significant influence on Dr. King and the civil rights movement that in one of his sermons after his return from Ghana, he is reported to have repeated throughout the homily that “Ghana has something to say to us.”[28]
Ghana and its first president, Dr. Kwame Nkrumah were also very influential in the setting up of the now African Union (AU). Nkrumah was of the view that “the independence of Ghana is meaningless unless it is tied to the total liberation of Africa.”[29]
Nkrumah, following the advice of the famed economist, Arthur Lewis, took the position that rapid development and modernization of industries was necessary to develop Ghana. He understood that developing and modernizing industries could not be achieved unless the workforce was “Africanized” and educated. Nkrumah, therefore, invested very heavily in educating the Ghanaian people. As a result, Ghana has in the past supplied skilled human capital to other countries of Africa; including Chief Justices, AttorneyGenerals, Prosecutors, Doctors and other civil servants. Ghana has also produced very may respected international public servants and/or diplomats including Kofi Anna, former secretary-general of the United Nations (UN).
Ghana is very much respect in Africa for its influence, resulting from its history. By that respect and influence, Ghana is uniquely placed to position itself as the go-to place for investment dispute resolution in Africa.
Conclusion
Following the coming into force of the AfCFTA, there is a call to “Africanize” Africa’s commercial dispute mechanisms. There is also agitation for Africa to halt its export of dispute resolution to the developed nations. In the meantime, it is expected that trade and investments within Africa are likely to increase by virtue of AfCFTA and with it the increase in demand for dispute resolution centers and services. Ghana is in a good position to avail itself as the jurisdiction of choice in Africa. This is because it has language, location, a good judicial system and a good dispute resolution structure in place. To take hold of these advantages however, Ghana must strategically develop and market its legal services to the world.
The writer is the Managing Partner, Adu-Kusi, PRUC
[1]Published in October 2007. Available at https://www.eversheds-
sutherland.com/documents/LawSocietyEnglandAndWalesJurisdictionOfChoice.pdf
[2] id, at p5
[3] UCC Section 1-105
[4] Governing Law in Sovereign Debt Lessons from the Greek Crises and Argentina Dispute of 2012, New York City Bar Association, Committee on Foreign & Comparative Law, February, 2013.
[5] Id, P. 5
[6] Hein Kotz, Jurisdiction of Choice: England and Wales or Germany, The, 18 Eur. Rev. Private L. 1243 (2010)
[7] https://www.lawmadeingermany.de/Law-Made_in_Germany_EN.pdf
[8] Hein Kotz, supra
[9] Article 11 of the Constitution of Ghana defines laws of Ghana to include common law
[10] https://www.hoganlovells.com/~/media/hogan-lovells/pdf/publication/informationsheetafricanbusinesslawgrowth_pdf.pdf
[11] Id
[12] id
[13] Gebeyehu, Nadew Zerihun, How Does the Case Law System Fit into the Ethiopian Legal System? (May 9, 2015). Available at SSRN: https://ssrn.com/abstract=2604475 or http://dx.doi.org/10.2139/ssrn.2604475
[14] Jonathan Smith, English the tool for legal dominance, The law society Gazette, October 30, 2017. Available at: https://www.lawgazette.co.uk/commentary-and-opinion/english-the-tool-for-legal-dominance/5063463.article
[15] id
[16] id
[17] Why Rwanda said adieu to French, The Guardian. Available at https://www.theguardian.com/education/2009/jan/16/rwanda-english-genocide
[18] Article 127, 1992 Constitution of the Republic of Ghana.
[19] Article 144(2)
[20] Article 144 (3)
[21] Richard Frimpong Oppong, RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN GHANA: A SECOND LOOK AT A COLONIAL INHERITANCE, available at https://core.ac.uk/download/pdf/68887.pdf
[22] Caffrey, BA, ‘International Jurisdiction and the Recognition and Enforcement of Foreign Judgment in the LAWASIA Region: A Comparative Survey of the Laws of Eleven ASEAN Countries Inter-se and with the EEC Countries’ 6, 1985, Sydney: CCH Australia Limited.
[23] Alternative Dispute Resolution Act 2010, Act 798
[24] https://www.worldbank.org/en/country/ghana/overview
[25] Id
[26] Id
[27] King Reportedly Off for Africa Gold Coast, MONTGOMERY ADVERTISER, Feb. 27, 1957, at A2
[28] The Birth of a New Nation, in 4 King Papers, at 155 (referred to in, H. Timothy Lovelace, Jr., Martin, Ghana, and Global Legal Studies, Indiana Journal of Global Legal Studies,Vol. 25, No. 2 (2018), pp. 623-637)
[29] Kwame Nkrumah, Independence day Speech, Accra, Ghana, March 6, 1956
