By Enoch Asumadu Koranteng
Imagine a case within the context of the African Continental Free Trade Area (AfCFTA) where a Liberian company negotiates a contract with a Kenyan business in South Africa; and finally conclude the contract in Nigeria for the of supply coffee; payment to be effected by Ecobank, Ghana to suppliers account at Kenya Commercial Bank (KCB), Kenya; and given that, Ghana is a host to an International Commercial Court (ICC) for Africa’s geo-political region.
Would you advise submission to the jurisdiction of a forum in Europe, the Golf region, Asia or the Americas to resolve any dispute that arises between these African businesses?
Disputes are inherently part of commerce. At the core of commercial disputes are mostly disagreements between parties on issues including rights and obligations of parties; what is deemed performance; consequence of non-performance amongst others. For these reasons, the principle of party autonomy allows parties to cross-border transactions to structure their contracts and regulate the future of their transactions.
Under this principle, parties are given the power to customize their transactions, including an agreement to confer jurisdiction on a court or forum in so far as such provisions do not contravene any overriding mandatory rules or public policy. Parties are allowed to choose a court and not necessarily the laws of that state. This is usually influenced by the speed in resolution and expertise of the court. According to the Chicago Journal of International Law, the decision on choice of forum in most cases is influenced by proximity; and the demand for competitive and user‑friendly service offerings provided by these specialized courts.
Over the past decade, there has been a proliferation of International Commercial Courts (ICCs) across the globe. ICCs are specialized tribunals within the domestic court hierarchy tailored for the adjudication of complicated cross‑border commercial disputes. ICCs are region-centric niche courts, equipped with optimized procedural rules with specific geopolitical focuses.
One common thread that is seeking to bind African commercial law is the region’s rapid economic growth and increasing integration into the global economy. Today African businesses are increasingly trading among themselves by the introduction of AfCFTA and through the facilitation of the Pan-African Payment and Settlement Systems (PAPSS) which permits cross-border transactions in local currencies.
As domestic and multinational corporations expand their operations across Africa in the context of AfCFTA and for economic growth, navigating the patchwork of regulatory regimes and legal frameworks keep posing severe challenges that demand conscious efforts towards consolidating laws and regulations; building infrastructure and ancillary services including a forum for enforcement of rights that accrue to parties engineering the growth.
Ghana stands more suitable for establishing an ICC for the Africa geo-political region. Ghana is non-aligned, and has long been regarded as one of Africa’s rising economies; Ghana is identified as one of the most stable countries in Sub-Saharan Africa and offers in addition, a more peaceful environment for business.
Ghana prides itself with available and accessible infrastructure; strong statutory institutions and progressively expanding legal system that have spurred the expansion of numerous private and public enterprises and thereby making Ghana one of the most attractive business destinations in Africa, and earning the accolade ‘Gateway to Africa’. Currently, Ghana has over fifteen (15) units of specialized Commercial High Courts that operate with additional procedural rules exclusive to commercial dispute resolution.
The Singapore International Commercial Court (SICC) is recognized as the gold standard of a new and novel type of hybridized litigation model, spurring competition across Europe and Asia, for national authorities elsewhere to establish their judicial equivalents. The SICC is inclined towards alternative dispute resolution mechanisms.
This is visible from its authority to compel parties to participate in mediation before litigation proceedings can be initiated. Under the rules exclusive to commercial dispute resolution in Ghana, parties are required to arrange a conciliation/settlement conference to facilitate the resolution of their dispute; and the court may proceed to litigation only when settlement breaks down.
It therefore appears that the Singapore system is already practiced in Ghana and a model ICC can seamlessly adjust to the standard of SICC and gain an advantage through the unique selling point of linking arbitral and court proceedings under an integrated system. In another breath, the Ghana Arbitration Center, established under the Alternative Dispute Resolution Act, 2010, (Act 798) is actively resolving commercial disputes both locally and internationally. Thus, in setting up a model ICC, Ghana has the option also, to separate international commercial arbitration from international commercial litigation depending on policy considerations.
The SICC exercises Jurisdiction to hear and try any action that is international and commercial in nature. A claim is designated international at the SICC if: the parties to an action have established business outside of Singapore; if no party has a place of business in Singapore; if one party has a place of business in a foreign jurisdiction in which a substantial aspect of the obligations relating to the contract in dispute is or has been performed; or to which the subject matter of the claim is most closely connected; and finally, if parties have submitted a jurisdiction agreement indicating an explicit preference for the SICC.
In Africa, the continent is made up of a mixture of states belonging to different legal systems, with differences in legal positions in respect of substantive and procedural rules of Private International Law. However, jurisdiction can always be exercised by the choice made by the parties or on grounds of reasonability in some cases.
Before the SICC, the parties may apply for a pre-action certification requiring confidentiality and non-disclosure of any information or document related to the case. However, the court can override a pre-action order and publish a judgment if it is of significant legal or public interest.
At the SICC, Registered Foreign Advocates and Solicitors who are granted full registration status may represent parties in an “offshore case and within this grant, lies an application to punish for contempt in connection with proceedings in which foreign representation was permitted. Registered Foreign Lawyers and Registered Law Experts may represent parties solely for the purposes of submitting on matters of foreign law where the SICC has ordered for a question of law to be determined on the basis of submissions instead of proof.
In respect of recognition and enforcement of foreign judgement, The Singapore has ratified the Hague Convention on Choice of Court Agreements, which permits that, a judgment or order of the SICC may be recognized and enforced in States which are parties to the Convention. In addition, within states that have a reciprocal framework with Singapore for the Enforcement of Foreign Judgments, SICC’s judgment are given the same effect and directly enforced as if it was a judgment issued by a national court of the country of enforcement, save for certain limited exceptions.
A similar regulation in Ghana is the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (‘LI 1575’), which lists countries whose judgments are enforceable in Ghana on a reciprocity basis. Ghana should necessarily ratify the Hague Conventions 1971 and 2019, as well as reciprocal frameworks with other non-state parties purposely to expand the legal system and as well attract disputants.
In Singapore, all decisions of the SICC can be appealed at the General Court of Appeal of Singapore. What this means is that the SICC is directly integrated into the Singapore judicial system, and not standing outside of it.
The SICC also honors agreement by parties to waive, limit or restrict the right to appeal. In some other jurisdictions, for example Dubai, the second instance court is a regular court outside the Dubai International Financial Centre (DIFC). Ghana can choose from multiple variations of the competencies of a court, and create a tailor-made solution that can be properly implemented in its internal judicial system.
The Singapore example is a globally recognized success that can be used as the motivation to introduce hybrid court and arbitration models into the Ghanaian legal system. To balance the imperative of openness and consistent jurisprudence, however, Ghana can select an option where the specialized commercial court would be a self-reliant individual tribunal that is separate from the regular trial and appellate court instances of the judicial system.
This means that Ghana can choose a model where international commercial cases would be brought before a specialized commercial court, decisions and judgments of which shall be reviewed and appealed before another specialized appellate court.
In addition, the model court in Ghana can ensure effectiveness and international attractiveness by adopting flexible and party-autonomy-focused mechanisms, such as the selection of foreign judges.
Further, the increasingly extensive introduction of online dispute resolution which rely on the use of technologies in the courts can bring about the expedited and cost-effective process of doing business. What could be novel in the case of Ghana is a facility that accommodates all official languages in Africa with special interpretation system for some widely spoken local languages towards a more efficient justice delivery.
