What are the formal requirements for an enforceable arbitration agreement?
The law requires every arbitration agreement to be in writing. For this purpose, it is sufficient if such agreement can be inferred from an exchange of communications in writing, including exchange of letters, telex, fax, email or other means of communication that provide a record of the agreement; or there is an exchange of pleadings such as a statement of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.Arbitral procedure
Does the domestic law contain substantive requirements for the procedure to be followed?
Unless otherwise agreed by parties, Ghanaian law has detailed rules on procedure to be followed by an arbitrator upon commencement of the arbitral proceedings. Under Ghanaian Law, an arbitration management conference is held by the arbitrator with parties or their representatives in person or through electronic or telecommunication media to determine, among others:
- the issue to be resolved by arbitration;
- the date, time, place and estimated duration of the hearing;
- the need for discovery, production of documents or the issue of interrogatories;
- the law, rules of evidence and the burden of proof that are to apply to the proceedings; and
- the exchange of declaration regarding facts, exhibits, witnesses and related issues.
When and in what form must the award be delivered?
Section 49 of Act 798 allows the parties freedom to determine the form of the award. In the absence of such an agreement the rule says that the award:
- must be in writing and signed;
- must state the date and place where the award was made; and
- except the parties otherwise agree, must state in writing the reasons for the award.
On what grounds can an award be appealed to the court?
There is no right of appeal against an arbitral award; however, a party may apply to the High Court to set aside the award under section 58 of Act 798. An appeal lies against the decision of the High Court on the application to set aside the award to the Court of Appeal. The court may set aside the arbitral award on the grounds that:
- 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 his or her 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 arbitration that the arbitrator failed to disclose;
- the subject matter of the dispute is incapable of being settled by arbitration; or
- the arbitral award was induced by fraud or corruption.
What procedures exist for enforcement of foreign and domestic awards?
Sections 57 and 59 respectively of Act 798 prescribe the procedure for enforcing domestic and foreign awards. The procedure for enforcing both awards is by an application to the court for leave to enforce the award.