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Alternative Dispute Resolution
Act, 2010 Act 795
ARRANGEMENT
OF SECTION
PART
ONE--ARBITRATION
Arbitration agreement
Section
1.Application
2. Form of arbitration agreement
3. Separation of arbitration
agreement and revocation of
agreement
4. Arbitration agreement not
discharged by drat,
5. Reference to arbitration
6. Application to court
7 .Reference by court
8 Change in claim or
counterclaim.
9. Modification of time
10. Reckoning of time
11. Place of arbitration.
Qualification and appointment of
arbitrators
12.
Qualification of arbitrators
13. Number of arbitrators
14. Appointment of
arbitrators
Impartiality and challenge of
arbitrators
15. Impartiality and challenge
of arbitrators
16, Challenge of Appointment
procedure
Revocation of arbitrators
authority
17. Renovation of arbitrators
authority
18. Renovation of arbitrators
authority by the High Court.
19. Registration of
arbitrator
20.
Death of arbitrator or person
who appointed the arbitrator
2L. Filling of vacancy
22.
Fees for arbitrators
23. Immunity of arbitrator
Arbitral Tribunal
24. Competence
to rule on jurisdiction
25. Objection to jurisdiction
26 . Application to High Court
on jurisdiction
27. Waiver of right
28. Rights of party not notified
of arbitral proceedings
Arbitral processes
29.Arbitration
management conference
30.Conciliation
conference
31 Duties and powers of
arbitrator in proceedings
32.Language
of proceedings
33.Statement
of claim and defence
34.The
arbitration hearing
35.Taking
of evidence in presence of
pantes
36.Filing
of documents and other evidence
after hearing
37.Notice
of Investigation
38.Interim
Reliefs
39.Power
of the High Court to support
arbitral proceeding
40.Determination
of preliminary point of law
41. Mode and Substance of
evidence
42. Representation
43.Appointment
of expert
44.Postponement
of hei11ill~
45.Closing
of hearing
46.Re-opening
of hearing
47.Settlement
before concJLlsiul1 of
arbitration
48.Rules
for the award
49.Form
and content of arbitral award
50.Scope
of award
51.Assessment
of fess and compensation
52.Effect
of award
53 Correction of or addition to
award
54.Liability
and waiver
55.Expenses
56.Power
to withhold award in case of
non-payment
Powers of the High Court in
relation to award
57.Enforcement
of the award
58.Challenge
of award
59.Enforcement
of foreign awards
60.Expedited
arbitration proceedings
61 Modification of Centre
Rules
62. Effect of expedited
proceedings
63.Submission
to mediation
64.Reference
to mediation by court
65.Number
of mediators
66.Appointment
of mediator
67.Mediator
with interest
68 Disclosure by mediator
69.Termination
of appointment for delay
70.Filling
of vacancy in mediation
71.Representation
in mediation
72.Date,
time and place of mediation
73.Identification
of issues in dispute
74.Powers
of mediator
75.Administrative
assistance
76.Communication
between mediator and parties
77.Attendance
at mediation
78.Disclosure
of information
79.Confidentiality
of mediation
80.End
of mediation
81.Settlement
agreement
82.Status
and effect of settlement
agreement
83.Resort
to arbitral or judicial
proceedings
84.Role
of mediator in other proceedings
85.Admissibility
of evidence in other proceedings
86.Exclusion
of liability
87.Mediation
expenses
88.Deposits
89.Submission
to customary arbitration
90.Agreement
to submit to customary
arbitration
91.Reference
by court to customary
arbitration
92.Qualification
of customary arbitrator
93.Rules
of customary arbitration
94.Registration
of dispute with the Centre
95.Number
of customary arbitrators
96.Appointment
of customary arbitrator by
Centre
97.Notice
of appointment of customary
arbitrator
98.Disclosure
by a customary arbitrator
99.Challenge
of a customary arbitrator
100.Revocation
of customary arbitrator's
appointment
101.Resignation
of customary arbitrator
102.Death
of customary arbitrator
103.Filling
of vacancy in customary
arbitration
104.Place,
date and time of first customary
arbitration session
105.Withdrawal
from customary arbitration
106.Language
of proceedings
107.Time
for customary award
108.Form
of customary award
109.Effect
of customary award
110.Registration
of customary award Ill.
Enforcement of customary award
111.Setting
aside customary award
112.Negotiation
for a settlement
PART FOUR-ALTERNATIVE DISPUTE
RESOLUTION CENTRE
114.Establishment
of Alternative Dispute
Resolution Centre
115.Object
and functions of the Centre
116.Independence
of Centre
117.Board
of governors
118.Tenure
of office of members of the
Board
119.Allowance
of members of the Board
120.Meetings
of the Board
121.Disclosure
of interest by Board member
122.Committees
of the Board
123.Registration
of arbitrators and mediators
124.Regional
and district offices of the
Centre
PART FIVE-FINANCIAL,
ADMINISTRATIVE AND MISCELLANEOUS
PROVISIONS
125.Establishment
of Alternative Dispute
Resolution Fund
126.Objects
of the Fund
127 Management of the Fund
128.Functions
of the Board in relation to the
Fund
129.Executive
Secretary
130.Appointment
of other staff
131.Delegation
of power of appointment
132.Accounts
and Audit
133.Annual
reports
134.Regulations
135.Interpretation
136.Modification
of court rules
137.Repeals
and savings
138.Transitional
provisions
ACT
798
ACT
OF THE PARLIAMENT OF THE
REPUBLIC OF GHANA
ENTITLED
ALTERNATIVE DISPUTE RESOLUTION
ACT, 2010
An Act to
provide for the settlement of
disputes by arbitration.
mediation and customary
arbitration, to establish an
Alternative dispute
Resolution Centre and to provide
for related matters.
DATE OF ASSENT: 31st
day of May 2010
PASSED by Parliament and
assented to by the President:
PART ONE -- ARBITRATION
Application
1. This Act applies to matters
other than those that relate to
(a) the national or
public interest;
(b)
the environment;
(c)
the enforcement and
interpretation of the
Constitution;
(d)
any other matter that by law
cannot be settled by an
alternative dispute resolution
method.
Form of arbitration agreement
2. (1) Parties to a written
agreement may provide that a
dispute arising under the
agreement shall be resolved by
arbitration.
(2) A provision to submit a
dispute to arbitration may be in
the form of an arbitration
clause in the agreement or in
the form of a separate
agreement.
(3) An arbitration agreement
shall be in writing and may be
in the form provided in the
Fifth Schedule to this Act.
(4) For the purpose of this
Act an arbitration agreement is
in writing
(a)
it is made by exchange of
communications in writing including
exchange of letters, telex, fax,
e-mail or other means of
communication which provide a
record of the agreement; or
(b)
there is an exchange of
statement of claim and defence
in which the existence of the
agreement is alleged by one
party and not denied by the
other.
Separation of arbitration
agreement and revocation of
agreement
3.
(1) Unless otherwise agreed by
the parties, an arbitration
agreement which forms or is
intended to form part of another
agreement, shall not be regarded
as invalid, non existent or
ineffective because that other
agreement is invalid or did not
come into existence or has
become ineffective and shall for
that purpose be treated as a
distinct agreement.
(2) Unless a contrary intention
is expressed in the agreement,
an arbitration agreement is
irrevocable except by agreement
of the parties.
Arbitration agreement not
discharged by death
4.
An arbitration agreement is not
discharged by the death of the
person or the dissolution or
merger of the body corporate
which is a party to that
agreement and it is enforceable
by or against the personal
representative, liquidator or
successor of the party.
Reference to arbitration
5.
(1) A party to a dispute in
respect of Which there is an
arbitration agreement may,
subject to the terms of the
arbitration agreement, refer the
dispute to
(a)
any person or institution for
arbitration; or
(b)
the Alternative Dispute
Resolution Centre established
under Part IV to facilitate the
arbitration.
(2) Where reference is made to a
person or institution other than
the Centre the procedure and
rules shall be as the parties
and arbitrators determine.
(3) Where a reference
is made to the Centre, the Rules
set out in Regulations made
under this Act shall apply to
the arbitration.
Application to court
6.
(1) Where there is an
arbitration agreement and a
party commence an action in a
court, the other party may on
entering appearance, and 0
notice to the party who
commenced the action in court,
apply to the court to refer the
action or a part of the action
to which the arbitration
agreement relates, to
arbitration.
(2) The court on hearing an
application ·made under
subsection (1 shall, if
satisfied that the matter in
respect of which the application
ha been made is a matter in
respect of which there is an
arbitration agreement, refer the
matter to arbitration.
(3) The grant of an application
shall serve as stay of the
proceedings in the court.
(4) Unless otherwise agreed to
by the parties, where
proceedings in court are stayed
for the purpose of arbitration,
any security given, propcl1j
detained, injunction or
restraining orders imposed in
the original action shall apply
to the arbitration.
Reference by court
7.
(1) Where a court before which
an action is pending is of the
\'le\ that the action or a part
of the action can be resolved
through arbitration that court
may with the consent of the
parties in writing, despite that
there is no arbitration
agreement in respect of the
matter in dispute, refer the
action or any part of the action
for arbitration.
(2) A reference under
subsection (1) shall state
(a) the
reasons for the reference;
(b)
the nature of the dispute;
(c)
the monetary value of the claim;
and
(d)
the remedy sought
and shall have attached copies
of the pleadings and any other
documents the court considers
relevant to it.
(3) Where at the time of
reference under this section
pleadings are closed, the
pleadings shall be deemed to be
the claim, defense, reply,
counterclaim and defense to
counterclaim as the case may be
in the arbitration proceedings.
(4) For the purpose of a
reference under this section the
plaintiff in the original action
shall be the claimant and the
defendant shall be the
respondent in the arbitration.
(5) Where in any action before a
court the court realises that
the action is the subject of an
arbitration agreement, the court
shall stay the proceedings and
refer the parties to
arbitration.
Change in claim or counterclaim
8.
(1) A party may make a new claim
or counterclaim or change a
defence by writing to the other
party.
(2) The procedure in relation to
change in claim or counterclaim
shall be as determined by the
parties and the arbitrators or
the parties may adopt the Rules
set out in the Second Schedule
to this Act.
Modification
of time
9.
Where an arbitration agreement
or this Act fixes a time for
taking
any step in an arbitration or
other dispute resolution
proceedings,
(a) the
parties, by agreement;
(b)
the arbitrator, with the
agreement of the parties; or
(c)
the appointing authority, at the
request of a party for good
cause shown
may modify that period of time,
except that an arbitrator or the
appointing authority shall not
extend the time for making an
award.
Reckoning of time
10.
Parties to an arbitration may
agree on a method of reckoning
any period of time in relation
to the arbitration.
Place of arbitration
11.(1)
The parties are free to agree on
the place of arbitration.
(2) In the absence of an
agreement the place of
arbitration shall be determined
by the arbitral tribunal which
shall take into account the circumstances
of the case and the convenience
of the parties.
(3) Despite the other provisions
of this section, the arbitral
tribunal may, unless otherwise
agreed by the parties, meet at
any place it considers suitable
after consultation among its
members, for hearing witnesses,
the parties, experts or for the
inspection of documents, goods
or other items.
Qualification and appointment of
arbitrator
Qualification of arbitrator
12.
(1) An arbitrator shall be a
person appointed by the parties
or by a person or institution
acting under a power conferred
by the parties and may be a
person with the experience or
qualification that the parties
may agree on.
.
(2) A person without experience
or qualification relevant to the
subject of the dispute may be
appointed an arbitrator if the
parties so agree.
(3) A person of any nationality
may be appointed an arbitrator
unless otherwise determined by
the parties.
(4) In appointing an
arbitrator, the parties, the
person or the institution
vested with the power of
appointment shall have regard to
(a)
the personal, proprietary,
fiduciary or financial interest
of the arbitrator in the matter
to which the arbitration
relates;
(b)
the relationship of the
arbitrator to a party or counsel
of a party to the arbitration;
(c)
the nationalities of the
parties; and
(d)
other relevant considerations
to ensure the appointment of an
independent and an impartial
arbitrator.
(5) A person appointed an
arbitrator shall before
acceptance, disclose to the
parties or the appointing
authority any information likely
to affect the neutrality of the
arbitration, particularly with
regard to that arbitrator's
interest in any case involving
the parties.
Number of arbitrators
13.
(1) The parties are at liberty
to determine the number of
arbitrator’s except that the
number must be an uneven number.
(2) Failing the determination as
provided in subsection (1), the
arbitration shall consist of
three arbitrators.
Appointment of arbitrator
14.
(1) Except otherwise provided in
the arbitration agreement, the
parties are at liberty to agree
on the procedure for appointing
an arbitrator.
(2) Where
(a)
the arbitration agreement does
not provide for a procedure for
appointing an arbitrator; or
(b)
the parties fail to agree on a
procedure for appointing an
arbitrator and the arbitration
agreement does not provide for
the settling of the
disagreement,
each party, in an arbitration
which requires the appointment
of three arbitrators, shall
appoint one arbitrator and the
two appointed arbitrators, shall
appoint the third arbitrator who
shall be the chairperson.
(3) For the purposes of section
13 and subsection (2) of this
section where
(a)
a party fails to appoint an
arbitrator within fourteen days
from the receipt of a request to
do so from the other party; or
(b)
the two appointed arbitrators
fail to agree on the third
arbitrator within fourteen days
from the date of their
appointment,
the appointment shall be made by
the appointing authority upon a
request by a party.
(4) In an arbitration which
requires the appointment of a
sole arbitrator, if the parties
fail to agree on the arbitrator
within fourteen days after the
receipt of a request for
arbitration by one party from
the other party, the appointment
shall be made by the appointing
authority upon a request by a
party.
(5) Despite any provision in
this section, parties are free
to agree on what should happen
in the event of a failure of the
procedure to appoint
arbitrators.
(6) A party may for the purpose
of appointing an arbitrator
request for the register of
arbitrators maintained by the
Centre and the Centre shall
comply with the request.
(7) An appointing authority may
keep a register of arbitrators
and mediators which may be
accessed by the public.
Impartiality
and challenge of arbitrator
Impartiality
and challenge of arbitrator
15.
(1) Where a person is requested
to be an abitrator, that person
shall disclose in writing any
circumstances likely to give
reasonable cause to doubt as to
the independence or impartiality
of that person.
(2) An arbitrator, from the time
of appointment and throughout
the arbitral proceedings shall
without delay, disclose to the
parties in writing any
circumstances referred to in
subsection (1).
(3) An arbitrator's appointment
may be challenged only if
(a)
circumstances exist that give
rise to reasonable cause to
doubt as to the arbitrator's
independence or impartiality; or
(b)
the arbitrator does not possess
the qualification agreed on by
the parties.
(4) A party may not challenge an
arbitrator appointed by the
party or in whose appointment
that party participated, except
for reasons of which the party
becomes aware subsequent to the
appointment.
Challenge of appointment
procedure
16.
(1) Subject to subsection (2),
the parties are free to agree on
a procedure for challenging the
appointment of an arbitrator.
(2) Unless otherwise agreed upon
in accordance with subsection
(1), a party challenging the
appointment of an arbitrator,
shall within fifteen days of
becoming aware of the
constitution of the arbitral
tribunal or after becoming
aware of circumstances that
justify the challenge of the
appointment of an arbitrator,
submit a written statement of
the reasons for the challenge to
the arbitrator and any other
arbitrators.
(3) Unless the arbitrator whose
appointment is challenged,
withdraws from the arbitration
or the other party to the
arbitration agrees to the
challenge, the arbitral tribunal
shall decide on the challenge
but in the case of a sole
arbitrator
(a)
where the arbitrator is
appointed by an appointing
authority, the appointing
authority shall decide on the
challenge,
(b)
where the arbitrator is
appointed by a party the party
challenging the arbitrator may
apply to the High Court for [he
determination of the challenge.
(4) Where a sole arbitrator's
appointment is successfully
challenged the sole arbitrator
shall cease to be the arbitrator
for the case.
(5) Where the challenge of an
arbitrator is from both parties,
the appointing authority shall
replace the arbitrator.
Revocation of arbitrator's
authority
Revocation
of arbitrator's authority
17.
(1) The parties may agree on the
circumstances under which the
appointment of an arbitrator may
be revoked.
(2) Unless the parties
have agreed on the circumstances
for revocation, the authority
of an arbitrator terminates if,
(a)
the arbitrator withdraws from
office as an arbitrator;
(b)
the parties acting jointly or by
the appointing authority vested
by the parties with the power
for the purpose, terminates the
appointment; or
(c)
the arbitrator fails to sit
within a reasonable time.
(3) The revocation of the
authority of an arbitrator by
the parties acting jointly shall
be in writing.
Revocation of arbitrator's
authority by the High Court
18.
(1) The High Court may on an
application on notice by a party
to an arbitration remove an
arbitrator where it considers it
fit.
(2) The Court may make an order
to remove an arbitrator where
(a)
there is sufficient reason to
doubt the impartiality of the
arbitrator;
(b)
the arbitrator does not possess
the qualifications or
experience required under the
arbitration agreement or agreed
to by the parties;
(c)
the arbitrator is physically or
mentally incapable or there is
justifiable doubt as to the
arbitrator's capability to
conduct the proceedings;
(d)
the arbitrator has refused or
failed to
(i) conduct the arbitral
proceedings properly; or
(ii) use reasonable despatch in
conducting the proceedings or
making an award and substantial
injustice has or will be caused
to the applicant.
(3) Where the parties have by
agreement vested the power of
removal of an arbitrator in an
appointing authority, the Court
shall not entertain the
application unless it is
satisfied that the applicant has
prior to the application,
exhausted the available
recourse.
(4) An application under
subsection (2) shall operate as
a stay of arbitral proceedings.
(5) The arbitrator may make
representation to the Court in
respect of the application.
(6) Where the Court upon
conclusion of the hearing of the
application, removes the
arbitrator, it may make any
orders that it considers
appropriate for payment of fees
and expenses of the
arbitrator or the repayment by
the arbitrator of any fees or
expenses already paid to the
arbitrator.
Vacancy in the Arbitral Tribunal
Resignation
of arbitrator
19.
(1) The parties may agree with
the arbitrator, in the event of
the resignation of the
arbitrator, on the fees or
expenses and relief for any
liability incurred by the
arbitrator. .
(2) If there is no agreement
under subsection (1), an
arbitrator who resigns may on
notice to the parties, apply to
the appointing authority if any
or the High Court for
(a)
relief from any liability
incurred; and
(b)
an order in respect of
entitlement to fees or expenses.
(3) Where there is an appointing
authority, an application under
subsection (1) shall first be
made to the appointing
authority.
(4) If the Court or the
appointing authority finds the
resignation of the arbitrator
reasonable, it may grant relief
on such terms as it thinks
appropriate.
(5) An arbitrator who is
dissatisfied with a decision of
the Court or the appointing
authority in respect of an
application for a relief or an
order, may
(a)
in the case of an application to
the Court, appeal to the Court
of Appeal; or
(b)
in the case of an appointing
authority, apply to the Court
for judicial review.
(6) The parties may agree with
the arbitrator or the personal
representative of the arbitrator
on the fees or expenses and
relief for any liability
incurred by the arbitrator in
[he event of (l removal or death
of an arbitrator.
Death of arbitrator or person
who appointed the arbitrator
20.(1)
The authority of an arbitrator
ceases on the arbitrator's
death. (2) U nle5s the parties
otherwise agree, the death of
the person who appointed the
arbitrator does not revoke the
arbitrator's appointment.
Filling of vacancy
21. (1) If the position of an
arbitrator becomes vacant, the
parties may agree on
(a)
whether and how the vacancy is
to be filled, and
(b)
whether the previous proceedings
should be adopted.
(2) If there is no agreement
between the parties under
subsection (l)(a), the
appointing authority shall, on a
reference by a party, appoint
another arbitrator in accordance
with this Act.
(3) Where the parties fail to
reach an agreement under
subsection (l)(b) on the
appointment of an arbitrator to
fill a vacancy, the new
arbitrator shall decide whether
to adopt the previous
proceedings or to start afresh.
Fees and Immunity of arbitrators
Fees
for arbitrators
22.
(1) The parties and the
arbitrators shall agree on the
fees payable by the parties in
respect of the arbitration and
the parties are jointly and
severally liable for the payment
of the agreed fees and if a
dispute arises about the fees a
party may refer the issue to the
appointing authority or the High
Court for resolution.
(2) An arbitrator
shall be paid, based on
(a)
the value of the subject matter
of the arbitration;
(b) the complexity of
the case; and
(c)
the agreed hourly rate of fee.
(3) An arbitrator may
after consultation with the
parties request the parties to
make further payments in respect
of fees where the circumstances
so require.
(4) A party may,
within twenty-eight days after
the date of the determination of
the amount of fees, apply to the
appointing authority or the
Court upon notice to the other
party and the arbitrators, for
an order adjusting the amount of
fees upon conditions as the
appointing authority or the
Court shall determine and any
excess payment made ~s a result
of the adjustment may be ordered
to be repaid having regard to
all the circumstances.
(5) Subsection (3)
applies to an arbitrator who has
ceased to act. (6) Where there
is an appointing authority, a
matter shall not be referred to
the Court in this section unless
the matter has been first
referred to the appointing
authority.
Immunity of arbitrator
23.
(1) An arbitrator is not liable
for any act or omission in the
discharge of the arbitrator's
functions as an arbitrator
unless the arbitrator is shown
to have acted in bad faith.
(2) Subsection (1) applies to an
employee or an agent of an
arbitrator.
(3) This section does not
affect a liability incurred by
an arbitrator as a result of the
resignation of the arbitrator.
Jurisdiction of Arbitral
Tribunal
Competence
to nIle on jurisdiction
24.
Unless otherwise agreed by the
parties, the arbitral tribunal
may rule on its own jurisdiction
particularly in respect of
(a)
the existence, scope or validity
of the arbitration agreement;
(b)
the existence or validity of the
agreement to which the
arbitration agreement relates;
(c)
whether the matters submitted to
arbitration are in accordance
with the arbitration agreement.
Objection to jurisdiction
25.
(1) A party that intends to
object to the jurisdiction of an
arbitrator shall do so before
taking the first step in the
proceedings to contest the case
on its merits.
(2) The appointment or the
participation in the appointment
of an arbitrator by a party is
not a bar to that party raising
an objection on jurisdiction.
(3) Subject to subsection (1), a
party who in the course of
arbitral proceedings intends to
raise an objection that the
abitrator is exceeding the
arbitrator's jurisdiction shall
do so immediately after the
matter alleged to be beyond
jurisdiction is raised.
(4) Despite subsections (1) and
(3), the arbitrator may
entertain an objection made
later than the prescribed time
if the arbitrator considers that
there is sufficient
justification to do so.
Application to High Court on
jurisdiction
26. (1) A party dissatisfied
with the arbitrator's ruling on
Jurisdiction may on notice to
the arbitrator and the other
party apply to the appointing
authority or the High Court for
a determination of the
arbitrator's jurisdiction.
(2) An application under
subsection (1) shall be made
within seven days of the
arbitrator's ruling and shall
state the reasons for the
application.
(3) The appointing authority or
the Court may consider and grant
an application if it is
satisfied that
(a)
the application has been made
within the stipulated rime; and
(b)
there is justification for the
Court or the appointing
authority to intervene.
(4) Unless the parties otherwise
agree, an application to the
appointing authority or the
Court shall not serve as a stay
of the arbitral proceedings.
(5) An appeal, in the case of
the Court or a judicial review
in the case of an appointing
authority, does not lie from a
decision under subsection (3)
except with the leave of the
Court.
(6) The Court shall grant leave
for a judicial review or to
appeal
where it is satisfied that the
appeal or judicial review
(a)
involves a point of law which is
fundamental to the case; or
(b)
is one which for some special
reason deserves consideration by
the Court or the Court of
Appeal.
Waiver of right
27.
A party who takes part or
continues to take part in an
arbitral proceeding, knowing
that
(a)
the arbitrator does not have
jurisdiction;
(b)
the proceedings are improperly
conducted;
(c)
the arbitration agreement or
this Act has not been complied
with; or
(d)
there is an irregularity in
respect of the arbitrator or
proceedings
and who fails to promptly or
within the time specified in the
arbitration agreement or under
this Act to object to the
proceedings shall be deemed to
have waived the right to raise
the objection.
Rights of party not notified of
arbitral proceedings
28.
(1) A party to an agreement who
is not notified of arbitration
proceedings arising under that
agreement may, by an application
to the High Court,
(a)
question whether there is a
valid arbitration agreement;
(b)
question whether the panel is
properly constituted;
(c)
question whether the matters
submitted are in accordance with
the arbitration agreement;
(d)
challenge an award on the ground
of lack of jurisdiction in
relation to that party; and
(e)
challenge an award on the ground
of serious irregularity that
affects that party.
(2) A party whose application to
the Court is refused may, with
the leave of the Court appeal to
the Court of Appeal.
(3) The aggrieved party may
apply to the Court for a stay of
the arbitral proceedings pending
the determination of the
complaint under section 28 (1).
Arbitral processes
Arbitration management
conference
29.
(1) Unless the parties otherwise
decide, an arbitrator shall,
within fourteen days of being
appointed and upon giving seven
days written notice to the
parties, conduct an arbitration
management conference with the
parties or their representatives
in person or through electronic
or telecommunication media to
determine
(a)
the issue to be resolved by
arbitration;
(b)
the date, time, place and
estimated duration of the
hearing;
(c)
the need for discovery,
production of documents or the
issue of interrogatories and to
establish how this should be
done;
(d)
the law, rules of evidence and
the burden of proof that is or
are to apply to the proceedings;
(e)
the exchange of declaration
regarding facts, exhibits,
witnesses and related issues;
(f)
whether there is the need to
resolve issues of liability and
damages separately;
(g)
whether the summary of evidence
of parties should be oral
or in writing;
(h)
the form of the award;
(i)
costs and arbitrator's fees; and
(j) any other issue relating to
the arbitration.
(2) The decisions of an
arbitrator at an arbitration
manJgcn1 'ot conference shall be
in writing and shall be served
on the parties.
(3) An arbitrator may hold
further arbitration
management con· Ference
as is considered necessary upon
written notice to the parties.
Conciliation conference
30.
The appointing authority or any
institution or individual may,
with the consent of the parties
at any time during the
arbitration process, arrange a
conciliation conference to
facilitate the resolution of the
dispute, except that an
arbitrator in the dispute shall
not be a conciliator.
Duties and powers of arbitrator
in proceedings
31.
(1) An arbitrator shall
(a)
be fair and impartial to the
parties; and
(b)
give each party the opportunity
to present its case.
(2) Subject to this Act, an
arbitrator shall conduct the
arbitration m a manner that the
arbitrator considers
appropriate, shall avoid
unnecessary delay and expenses
and adopt measures that will
expedite resolution of the
dispute.
(3) Subject to the right of
parties to agree on any matter
of procedure, the arbitrator
shall decide on matters of
procedure and evidence.
(4) Matters of procedure and
evidence include
(a)
the time and place for holding
any part of the proceedings;
(b) the questions that
should be put to and answered by
respective parties and how the
questions should be put;
(c)
the documents to be provided by
the parties and at what stage of
the proceedings; and
(d)
the application or
non-application of the strict
rules of evidence as to
admissibility, relevance or
weight of any material sought to
be tendered and how the material
should be tendered.
(5) The arbitrator may determine
the time within which any
direction is to be complied
with.
(6) The parties may agree to
permit an arbitrator to
(a)
consolidate one arbitral
proceedings with other arbitral
proceedings; and
(d)
hold concurrent hearings.
(7) Unless otherwise agreed by
the parties, the arbitrator may
order a claimant to provide
security for the costs of the
arbitration whether the claimant
is an individual resident in
this country or a body
established or registered by
law in this country.
(8) The arbitrator may give
directions in respect of
property which is the subject
matter of the arbitration and
which is owned or is in the
possession of a party,
(a)
for the inspection,
preservation, photographing or
detention of the property by the
arbitrator, an expert or a
party; and (b) that
samples be taken or an
experiment be conducted of the
property.
(9) The arbitrator may
subpoena a witness and shall at
the request of a party subpoena
a witness.
(10) The arbitrator may direct a
party or a witness to give
evidence on oath or affirmation
and may for that purpose
administer the oath or
affirmation.
Language of proceedings
32.
(1) The parties are free to
agree on the language to be used
in the arbitral proceedings.
(2) In the absence of an
agreement, the arbitrator shall
determine the language of the
proceedings.
(3) The arbitrator may direct
that any documentary evidence
should be accompanied with a
translation into a language
agreed on by the parties or
determined by the arbitrator.
Statement of claim and defence
33.
(1) The parties are free to
agree on the time within which
the claimant should submit a
statement of claim and the
respondent a defence.
(2) In the absence of an
agreement under subsection (1)
the arbitrator shall determine
the time for the submission of a
statement of claim and a
defence.
(3) The claimant shall state
(a)
the claim and the facts that
support the claim;
(b)
the points in issue for
resolution; and
(c) the
relief sought.
(4) The respondent shall state
in the defence the particular~
of its
(5) The parties may submit their
statements together with
documents considered relevant to
the proceedings or provide
reference'> to other documents
or other evidence intended for
production at the proceedings.
(6) Unless otherwise agreed by
the parties, a party may amend
or add to the particulars of
claim or defence submitted,
except that the arbitrator may
refuse an amendment or addition
on the ground that it is
inappropriate to allow the
amendment or addition because
there has been undue delay on
the part of the party.
(7) A party may submit a
counterclaim or defence to
counterclaim and the arbitrator
shall in consultation with the
parties determine the applicable
period for doing so.
The arbitration hearing
34.
(1) An arbitrator shall give the
parties notice of the date of
hearing.
(2) A party shall
before the hearing give the
arbitrator and the other party
the personal particulars of
witnesses that the party intends
calling and the substance of the
testimony of each witness.
(3) A hearing
begins with the
(a)
recording of the date, time and
place of hearing;
(b)
recording the presence of the
arbitrator, the parties and
their representatives, if any;
and
(c)
receiving into the record the
claim, defence, counterclaim and
the answer as applicable.
(4) The arbitrator
may at the beginning of the
hearing ask for opening
statements from the parties to
clarify the issues involved in
the arbitration.
(5) Except as
otherwise agreed by the parties
or provided by law, the
arbitrator shall ensure the
confidentiality of the
arbitration.
(6) An arbitrator
has the authority
(a)
to exclude a witness who is not
a party from the hearing; and
(b)
to determine whether a person
who is neither a witness nor a
party should attend the hearing.
(7) Unless otherwise
agreed by the parties, the
hearing of the arbitration
proceeding shall be private.
(8) Unless
otherwise agreed by the parties,
the arbitrator shall determine
the time within which action
under subsections (1) and (2)
shall occur.
(9) Subject to the
discretion of an arbitrator to
vary the order of presentation,
the claimant shall first present
evidence in support of the
claimant's claim and this shall
be followed by the respondent.
(10) Except the
parties otherwise agree or the
arbitrator otherwise orders, a
claim, a notice or any written
communication may be served
(a)
personally on a party; or
(b)
by mail, courier, facsimile
transmission, telex, telegram or
other form of written electronic
communication addressed to the
party or its representative at
its last known address.
(11) Unless
otherwise agreed by the parties,
the arbitrator shall decide
whether to hold oral hearing for
the presentation of evidence or
for argument or whether the
proceedings are to be conducted
on the basis of documents and
other materials.
(12) Despite
subsection (11), the arbitrator
shall at the request of a party
at any point in the proceedings,
hold oral hearing unless the
parties have agreed that there
should be no oral hearing.
(13) A party shall
be given sufficient advance
notice of any hearing and (In
opportunity to inspect. document
and other property relevant to
the dispute.
(14) Statements,
documents or other information
supplied to the arbitrator and
applications made to the
arbitrator by one party shall be
communicated by the party to the
other party.
Taking of evidence in presence
of parties
35.
(1) Except where a party is
absent without good cause or has
waived the right to be present,
evidence shall be taken in the
presence of the arbitrator and
the parties.
(2) Evidence of
a witness may be presented by
affidavit and the arbitrator may
admit that evidence, after
considering any objection raised
against its admission.
(3) Where
evidence by affidavit or a
witness statement is admitted. a
party may cross examine the
deponent or the witness will
presented that evidence.
(4) An
arbitrator shall in taking
evidence take into account
applicable principles of legal
privilege.
Filing of documents and other
evidence after hearing
36.
(1) An arbitrator may direct or
parties may agree, that
documents or other evidence
should be submitted to the
arbitrator after the hearing.
(2) Documents or
other evidence in respect of
which there is an agreement or
direction under subsection (1)
may be submitted to the Centre
or the appointing authority for
transmission to the arbitrator.
Notice of investigation or
inspection
37.
(1) An arbitrator who decides to
conduct an inspection or
investigation in connection with
the arbitration shall
give notice to the
parties stating the date and
time of the inspection or
investigation.
(2) A party may
attend an inspection or
investigation.
(3) Whether or
not a party attends an
inspection or investigation,
the arbitrator shall present a
report to the party and afford
the party an opportunity to
comment on the report.
Interim reliefs
38.
(1) An arbitrator may at the
request of a party grant any
interim relief the arbitrator
considers necessary for the
protection or preservation of
property.
(2) An interim relief may be in
the form of ,in interim award
the arbitrator may require
the
(3) The
arbitrator may apportion costs
related to applications for
interim relief in an interim
award or in the final award.
Powers of the High Court to
support arbitral proceedings
39.
(1) Unless otherwise agreed by
the parties, the High Court has
power
in relation to an arbitral
proceedings to make an order
(a) for the taking of
evidence of witnesses;
(b)
for the preservation of
evidence;
(c)
in respect of the determination
of any question or issue
affecting any property right
which is the subject of the
proceedings or in respect of
which any question in the proceedings
arise
(i) for the inspection,
photographing, preservation,
custody or detention of
property; or
(ii) for the taking of samples
from or the observation of an
experiment conducted upon, a
property;
and for that purpose authorizing
any person to enter any premises
in the possession or control of
a party to the arbitration;
(d)
for the sale of any goods the
subject of the proceedings;
(e) for the granting of an
interim injunction or the
appointment
of a receiver.
(2) Where the case is one of
urgency, the Court may, on the
application
of a party to the arbitral
proceedings, make orders as it
considers necessary for the
purpose of preserving evidence
or assets.
(3) If the case is not one of
urgency, the Court shall act
only where the application to
the Court is upon notice to the
other party and to the
arbitrator and is made with the
permission of the arbitrator or
is supported by an agreement in
writing of the other party.
(4) In any case, the Court shall
act if the arbitrator or other
institution
or person vested by the parties
with power in that regard, is
unable for the time being to act
effectively.
(5) If the Court so orders, an
order made by it under this
section shall cease to have
effect in whole or in part upon
a decision to that effect by the
arbitrator or other institution
or person vested with power to
act in relation to the subject
matter of the order.
(6) Leave of the court is
required for any appeal from
decision of the Court under this
section. . .
Determination of preliminary
point of law
40.
(1) Unless otherwise agreed by
the parties, the High Court may,
on an application on notice to
the other party by a party to
arbitral proceedings, determine
any question of law that arises
in the course of the proceedings
if the Court is satisfied that
the question substantially
affects the rights of the other
party.
(2) The application shall
identify the question of law to
be determined,
and shall state the grounds
which requires that the question
should be decided by the Court.
(3) Unless otherwise agreed by
the parties, the arbitrator may
continue
the arbitral proceedings and
make an award while the
application to the Court under
this section is pending.
(4) The decision of the Court on
the question of law shall be
treated as a judgment of the
Court for the purpose of an
appeal; except that no
appeal1ies without the leave of
the Court, which leave shall not
be given unless the Court
considers that the question is
one of importance or is one
which for some other special
reason should be considered by
the Court of Appeal.
Mode and substance of evidence
by witness
41.
(I) The arbitrator may determine
the manner in which witnesses
are examined.
(2) A witness may only offer
evidence that is relevant and
material to the dispute.
(3) A witness must offer
evidence as the arbitrator
considers necessary for the
understanding and determination
of the dispute.
(4) The arbitrator shall be the
judge of relevance and
materiality of evidence and
shall conform to the rules of
natural justice in that regard.
Representation
42.
(l) Unless otherwise agreed by
the parties, a party may be
represented by counselor any
other person chosen by the
party.
(2) Unless a claim or an answer
is filed by a representative, a
party who intends to be
represented shall give notice
stating the name and address of
the representative
L0 the other party at least
seven days before the
commencement of the arbitral
proceedings.
Appointment of expert
43.
(1) The arbitrator may appoint
an independent expert to report
to the arbitrator in writing on
issues specified by the
arbitrator and this shall be
communicated to both parties.
(2) A party shall for this
purpose
(a)
provide relevant information;
and
(b)
produce for inspection, any
relevant document or material
that the expert may require.
(3) The arbitrator shall settle
any dispute between the parties
and the expert as to the
relevance of any information or
material demanded by the expert.
(4) The arbitrator shall send a
copy of the expert's report to
each party and give an
opportunity to each party to
comment in writing on the
report.
(5) The arbitrator shall give an
opportunity to the parties to
(a)
cross examine the expert at the
hearing; and
(b)
call their experts to testify on
the subject of the report and
the evidence of the expert
appointed by the arbitrator.
Postponement of hearing
44.
(1) An arbitrator may postpone a
hearing
(a)
at the arbitrator's own
instance; or
(b)
at the request of a party who
gives sufficient reason.
(2) The arbitrator shall
postpone a hearing if the
parties agree on a postponement.
(3) If a party without
sufficient reason fails to take
a required step in the
proceedings or to give evidence,
the arbitrator may proceed with
the arbitration, and on the
evidence before it, make an
award.
Closing of hearing
45. (1) An arbitrator may
declare a hearing closed after
specifically inquiring from the
parties whether they have any
further evidence to give and the
parties have answered in the
negative.
(2) If closing statements are to
be filed, a hearing shall be
declared closed as of the last
date for the submission of the
statements.
(3) If a document is to be filed
and the date for the filing of
the document is after the date
for the submission of
statements, the last date for
the filing of the document shall
be the date of the closing of
the hearing.
Re-opening of hearing
46. (1) An arbitrator may on
application by a party or for a
reason which the arbitrator
considers appropriate, re-open
the hearing at any time before
an award is made.
(2) A hearing shall not be
re-opened without the agreement
of the parties for an extension
of time, if re-opening the
hearing will prevent the making
of the award within the time
specified in the arbitration
agreement or the time agreed on
by the parties for making of an
award.
(3) Where the arbitration
agreement or the parties do not
specify the time for making the
award and hearing is re-opened,
the arbitrator shall make an
award within thirty days of
the closing of the re open
hearing.
Settlement before conclusion of
arbitration
47. (I) In an arbitral
proceeding the arbitrator may
encourage settlement of the
dispute with the agreement of
the parties.
(2) The arbitrator may for the
purposes of subsection (1), use
mediation or other procedures at
any time during the arbitral
proceedings.
(3) If during the proceedings
the parties settle the dispute,
the arbitrator shall termll1ate
the proceeding and with the
agreement of the parties, record
the settlement in the form of an
arbitral award on agreed terms.
(4) An arbitral award on agreed
terms shall contain in substance
the terms of an arbitral award
provided for under section 49.
Rules for the award
48. (1) An arbitrator shall
decide the dispute
(a)
in accordance with the law
chosen by the parties as
applicable to the substance of
the dispute, or
(b)
in accordance with such other
considerations as are agreed by
the parties or determined by the
arbitrator.
(2) For this purpose the choice
of the law of a country shall be
understood to refer to the
substantive laws of that country
and not conflict of laws rules.
(3) Where or to the extent that
no law has been chosen or agreed
on, the arbitrator shall apply
the law determined by the
conflict of laws rules which the
arbitrator considers applicable.
(4) In disputes relating to
contract, the arbitrator shall
apply the terms of the contract
taking into consideration the
usages of the trade to which the
contract relates.
(5) Where there are three or
more arbitrators any award or
decision of the tribunal shall
be made by majority of the
arbitrators.
(6) A monetary award shall be in
the currency of the contract
unless the arbitrator considers
another currency more
appropriate.
(7) The arbitrator may grant the
appropriate pre-award or post
award relief at simple or
compound interest under the
terms of the contract and the
applicable law.
(8) Subsection (6) does not
apply to damages awarded to
compensate for conduct of bad
faith or for time wasting.
Form and content of arbitral
award
49.
(1) The parties are free to
agree on the form of the award
and in the absence of such an
agreement this section shall
apply.
(2) The award shall be in
writing.
(3) The arbitrator shall
(a)
sign the award;
(b)
state the date and place where
the award was made; and
(c)
except the parties otherwise
agree, state in writing the
reasons for the award.
(4) Where there is more than one
arbitrator the signatures of the
majority of the arbitrators
shall be sufficient where the
reason for the omission of the
signatures of some of the
arbitrators is stated.
(5) A signed copy of the award
shall be delivered to each
party. (6) The mode of payment
and rate of interest on any sum
where applicable shall be
determined by the arbitrator.
(7) Unless
the
parties
otherwise
agree,
the
award
shall
not
be made
public
without
the
consent
of the
parties.
(8)
An
arbitral
award
may
be registered
with
the
High
Court,
or other
institution
as
the
parties
may
agree
upon.
Scope of award
50.
An
arbitrator
may
within
the
scope of the
arbitration
agreement
grant any
relief
that
the
arbitrator
considers just
and
equitable
including
specific
performance.
Assessment
of fees and compensation
51.
The
arbitrator
shall
assess
the
arbitration
fees,
expenses
and
compensation
in
the
award.
Effect
of
award
52.
Subject to the
right
of a party to
set
aside
an
award
under
section
58
of
this Act,
an
arbitration
award
is
final
and
binding
as
between
the
parties
and
any person
claiming
through
or
under
them.
Correction
of or
addition
to award
Effect of award
52.
Subject to the right of a party
to set aside an award under
section 58 of this Act, an
arbitration award is final and
binding as between the parties
and any person claiming through
or under them.
Correction of or addition to
award
53.
The arbitrator, at the request
of a party or on the
arbitrator's own volition, may
within twenty-eight days of
delivering all award or such
longer period as parties may
agree on. upon giving fourteen
days notice to the parties
(a)
correct any clerical,
typographical, technical or
computation error in the award;
and
(b)
make an additional award in
respect of a claim presented to
the arbitrator but omitted from
the award.
Liability and waiver
54.
(1) Except for the consequences
of deliberate wrong doing,
neither an appointing authority
nor an arbitrator is liable for
any act or omission ill
connection with an arbitration.
(2) A party's right to
arbitration is not waived
because the party has initiated
judicial proceedings in relation
to the subject matter of the
arbitration.
(3) An appointing authority or
the arbitrator is not a
necessary party in a judicial
proceeding relating to an
arbitration.
Expenses
.
55.
(1) A party shall pay the
expenses of a witness called by
the party.
(2) Unless the parties otherwise
agree or the arbitrator includes
an expense in the award against
a party, all expenses of the
arbitration shall be paid for
equally by the parties.
Power to withhold award in case
of non-payment
56.
(1) An arbitrator may refuse to
deliver an award to the parties
until there is full payment of
the fees and expenses of the
arbitrator.
(2) If the arbitrator refuses on
the ground specified in
subsection (1) to deliver an
award, a party to the
proceedings may, upon notice to
the other party and the
arbitrator, apply to the High
Court, which may, order that
(a)
the arbitrator shall deliver the
award on the payment into Court
by the applicant of the fees and
expenses demanded or such amount
as the Court may specify;
(b)
the amount of the fees and
expenses properly payable shall
be determined by such means and
upon such terms as the Court may
direct; and
(c)
out of the money paid into Court
there shall be paid out such
fees and expenses as may be
found to be properly payable to
the arbitrator and the balance
of the money, if any, shall be
paid out to the applicant.
(3) For the purposes of this
section, the amount of fees and
expenses properly payable is the
amount the applicant is liable
to pay under section 62 or any
agreement that relates to the
payment of the arbitrator.
(4) No application to the Court
may be made where there is an
available arbitral process for
an appeal against or review of
the amount of the fees or
expenses demanded.
(5) References in this section
to arbitrator include an
arbitrator who has ceased to
act.
(6) The provisions of this
section also apply to any
arbitrator or an appointing
authority with powers in
relation to the delivery of the
arbitrator's award and for that
purpose the references to the
fees and expenses of the
arbitrator shall be construed as
including the fees and expenses
of that appointing authority.
(7) The leave of the Court is
required for an appeal from a
decision of the Court under
this section.
Powers of the High Court in
relation to award
Enforcement of the award
57.
(1) An award made by an
arbitrator pursuant to an
arbitration agreement may, by
leave of the High Court, be
enforced in the same manner as a
judgment or order of the Court
to the same effect.
(2) Where leave is so given,
judgment may be entered in terms
of the award.
(3) Leave to enforce an award
shall not be given where, or to
the extent, that a person
against whom the award is sought
to be enforced shows that the
arbitrator lacked substantive
jurisdiction to make the award.
Challenge of award
58.
(1) An arbitral award may
subject to this Act be set aside
on an application by a party to
the arbitration.
(2) The application shall be
made to the High Court and the
award may be set aside by the
Court only where the applicant
satisfies the Court that
(a)
a party to the arbitration was
under some disability or
incapacity:
(b)
the law applicable to the
arbitration agreement is not
valid; (c) the applicant
was not given notice of the
appointment of the arbitrator or
of the proceedings or was unable
to present the applicant's case;
(d)
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:
(e)
there has been failure to
conform to the agreed procedure
by the parties;
(f)
the arbitrator has an interest
in the subject matter of
arbitration which the
arbitrator failed to disclose.
(3) The Court shall set aside an
arbitral award where it finds
that the subject-matter of the
dispute is incapable of being
settled by arbitration or the
arbitral award was induced by
fraud or corruption.
(4) An application to set aside
an award may not be made after
three months from the date on
which the applicant received the
award unless the Court for
justifiable cause orders
otherwise.
(5) On hearing the applicant,
the Court may make an order as
is just in the circumstances of
the case.
(6) An appeal from the Court
lies to the Court of Appeal.
Enforcement of foreign awards
59.
(1) The High Court shall enforce
a foreign arbitral award if It
is satisfied that
(a)
the award was made by a
competent authority under the
laws of the country in which the
award was made;
(b)
a reciprocal arrangement exists
between the Republic of Ghana
and the country in which the
award was made; or
(c)
the award was made under the
international Convention
specified in the First Schedule
to this Act or under any other
international convention on
arbitration ratified by
Parliament; and
(d)
the party that seeks to enforce
the award has produced
(i) the original award or has
produced a copy of the award
authenticated in the manner
prescribed by the law of the
country in which it was made;
(ii) the agreement pursuant to
which the award was made or a
copy of it duly authenticated in
the manner prescribed by the law
of the country in which it was
made or in any other manner as
may be sufficient according to
the laws of the Republic of
Ghana; and
(e)
there is no appeal pending
against the award in any court
under the law applicable to the
arbitration.
(2) A party who seeks to enforce
a foreign award and who relies
on a document which is not in
the English Language, shall
produce a certified true
translation of that document in
English to the Court.
(3) Despite subsection (1) the
court shall not enforce a
foreign award if
(a)
the award has been annulled in
the country in which it was
made;
(b)
the party against whom the award
is invoked was not given
sufficient notice to enable the
party present the party's case;
(c)
a party, lacking legal capacity,
was not properly represented;
(d)
the award does not deal with the
issues submitted to arbitration;
or
(e)
the award contains a decision
beyond the scope of the matters
submitted for arbitration.
Expedited arbitration
proceedings
60.
Parties to a dispute in respect
of which there is an arbitration
agreement may agree to the
resolution of the dispute by the
Centre through expedited
arbitration proceedings or by
the adoption by the arbitrator
of the Expedited Arbitration
Proceedings Rules of the Centre
set out in the Third Schedule to
this Act.
Modification of Centre Rules
61.
An agreement by the parties to
apply the- rules of the Centre
to their dispute is subject to
modifications as the parties may
agree upon in writing.
Effect of expedited proceedings
62.
An award made in expedited
arbitration proceedings shall
have the same effect as an
arbitration award made under
Part I of this Act.
Submission to mediation
63.
(1) A party to any agreement may
with the consent of the other
party submit any dispute arising
out of that agreement to
mediation by an institution or a
person agreed on by the parties.
(2) A submission to mediation
may be made by writing,
telephone, or other form of
verbal communication, fax,
telex, e-mail or any other
electronic mode of communication
and shall briefly state the
nature of the dispute.
(3) A submission co mediation
through telephone, or any other
verbal mode of communication
shall, unless the parties agree
otherwise, be confirmed in
writing and shall state the
names, addresses including
e-mail addresses and telephone
numbers of the parties and in
brief the nature of the dispute.
(4) Mediation proceedings
commence when the other party
accepts the invitation for
mediation.
(5) An acceptance of an
invitation for mediation may be
by a letter, telephone, or other
form of verbal communication,
fax, telex, or e-mail or other
mode of electronic
communication.
(6) An acceptance by telephone
or any other verbal means shall
be confirmed in writing but a
failure to confirm an acceptance
in writing shall not invalidate
the proceedings.
(7) Failure by the other party
to accept the invitation to
mediation within fourteen days
after receipt of the invitation
or within the period of time
specified in the invitation
shall be considered to be a
rejection of the invitation to
mediation.
Reference to mediation by court
64.
(1) A court before which an
action is pending may at any
stage in the proceedings, if it
is of the view that mediation
will facilitate the resolution
of the matter or a part of the
matter in dispute, refer the
matter or that part of the
matter to mediation.
(2) A party to an action before
a court may, with the agreement
of the other party and at any
time before final judgment is
given, apply to the court on
notice to have the whole action
or part of the action referred
to mediation.
(3) A reference under
subsections (1) or (2) shall
state
(a)
the nature of the dispute;
(b)
the monetary value of the claim,
if any;
(c) the reasons for the
reference; and
(d)
the remedy sought
and shall have attached copies
of the pleadings and any other
documents the court considers
relevant.
(4) A reference under this
section shall serve as a stay of
proceedings of the court action.
(5)
Where a reference leads to
settlement of the dispute or
part of the dispute the
settlement shall be
(a)
drawn up and filed in the court;
(b)
recorded by the court as a
judgment of the court: and
(c)
enforced by the court as its
judgment.
(6) Where the reference does not
lead to a settlement, the court
shall continue with the
proceedings from the point where
the reference was made.
(7) A reference by a court
shall. specify the time within
which a report on the reference
shall be submitted to the court.
Number of mediators
65.(1)
Unless the parties otherwise
agree, there shall be one
mediator. (2) Where there is
more than one mediator, the
mediators shall act jointly.
Appointment of mediator
66.
(1) The parties to a mediation
may appoint any person or
institution the parties consider
acceptable to serve as a
mediator.
(2) Parties may request the
assistance of a suitable
institution or person in the
appointment of a mediator and
may in so doing request the
institution or person
(a)
to recommend the names or
provide a list of Suitable
persons to serve as mediator; or
(b)
to conduct the mediation.
(3) Parties to a mediation may
adopt the Mediation Rule in the
Fourth Schedule to this Act.
Mediator with interest
67. (1) !n recommending a.
person to be a mediator an
institution or person shall
have regard to the independence
and impartiality of that
person, and take into
consideration the background of
the parties.
(2) An institution or person
that is requested to recommend a
mediator shall not recommend a
person to serve as a mediator if
that person has a financial or
personal interest in the outcome
of the dispute
Disclosure by mediator
68. (1) A person appointed a
mediator shall before accepting
the appointment. disclose any
circumstances relating to that
person that may
(a) create a like hood
of bias; or
(b)
affect the conduct of the
mediation.
(2) A mediator shall
promptly disclose to the parties
any circumstances that arises
during the mediation which is
likely to affect the
(a)
impartiality of the mediator; or
(b)
conduct of the mediation.
(3) Parties to a mediation may
replace a mediator who makes a
disclosure under subsection (1).
Termination of appointment for
delay
69.
The parties may replace a
mediator who without reasonable
cause fails to
(a)
start work within the period
agreed by the parties; or
(b)
operate within the ground rules
of the mediation.
Filling of vacancy in mediation
70.
The parties may appoint another
mediator to replace a mediator
who is unable to perform the
functions of a mediator.
Representation in mediation
71.
(1) A party to a mediation may
be represented by a lawyer, an
expert or any other person
chosen by the party.
(2) A party shall communicate in
writing to the mediator and the
other parties the name, address
and the extent of the authority
of any representative within
seven days of the
representative's appointment.
Date, time and place
of mediation
72.
(1) A mediator in consultation
with the parties shall determine
the date and time of each
mediation session.
(2) Subject to the mediator
choosing a convenient place, the
parties shall determine the
place for the mediation.
Identification of issues in
dispute
73.
(1) Not later than eight days
before the first mediation
session or within such period of
time as the parties may mutually
agree upon, each party shall
present to the mediator and the
other parties a memorandum
setting out the party's position
with regard to the issues which
require resolution.
(2) The mediator may request
each party to submit a written
statement of that party's
position and the facts and
grounds in support of that
position, supplemented by any
documents and other evidence
that the party considers
appropriate.
(3) At any stage of the
mediation proceedings, the
mediator may request a party to
submit additional information as
the mediator considers
necessary.
Powers of mediator
74.
(1) A mediator shall in an
independent and impartial manner
do everything necessary to help
the parties to satisfactorily
resolve their dispute.
(2) A mediator may conduct joint
or separate meetings with the
parties and make suggestions to
facilitate settlement.
(3) A mediator may where
necessary and if the parties
agree to pay the expenses,
obtain expert advice on a
technical aspect of the dispute.
(4) A request for the services
of an expert may be made by the
mediator or by one party with
the consent of the other party.
(5) A mediator shall be guided
by principles of objectivity,
fairness and justice, and shall
give consideration to, among
other things, the rights and
obligations of the parties, the
usages of the trade concerned
and the circumstances
surrounding the dispute,
including any previous business
practices between the parties.
(6) A mediator may conduct the
mediation proceedings in a
manner that the mediator
considers appropriate, but shall
take into account the wishes of
the parties including any
request by a party that the
mediator hear oral statements,
and the need for a speedy
settlement of the dispute.
(7) A mediator may end the
mediation whenever the mediator
is of the opinion that further
mediation between the parties
Will not help to resolve the
dispute between the parties.
Administrative assistance
75.
In order to facilitate the
conduct of mediation
proceedings. the parties, or the
mediator with the consent of the
parties, may arrange for
administrative assistance by a
suitable institution or
individual.
Communication between mediator
and parties
76.
The mediator may invite the
parties to meet the mediator and
may communicate with them orally
or in writing and may meet or
communicate with the parties
together or with each of them
separately.
Attendance at mediation
77.
Except where the parties agree
and the mediator consents, a
person who is not a party to the
mediation shall not attend a
mediation session.
Disclosure of information
78.
Except where a party gives
information to the mediator
subject to a condition of
confidentiality, when the
mediator receives factual
information concerning the
dispute from a party, the
mediator may disclose the
substance of that information to
the other party in order that
the other party may have the
opportunity to present any
explanation which that other
party considers appropriate.
Confidentiality of mediation
79.
(1) A record, a report, the
settlement agreement, except
where its disclosure is
necessary for the purpose of
implementation and enforcement,
and other documents required in
the course of mediation shall be
confidential and shall not be
used as evidence or be subject
to discovery in any court
proceedings.
(2) A mediator shall not
disclose information given in
the course of the mediation to a
person who is not a party to the
mediation without the consent of
the parties.
(3) Without limiting the effect
of subsection (1) a party to a
mediation shall not rely on
(a)
the record of the mediation;
(b)
statement made at the mediation;
or
(c)
any information obtained during
the mediation as evidence in
court proceedings.
End of mediation
80.
(1) A mediation ends when
(a)
the parties execute a settlement
agreement;
(b)
the mediator terminates the
mediation proceedings for
nonpayment of a deposit under
section 88.
(c)
the mediator after consultation
with the parties makes a
declaration to the effect that
further mediation is not
worthwhile;
(d)
the parties jointly address a
declaration to the mediator to
the effect that the mediation is
terminated; or
(e)
a party makes a declaration to
the mediator and the other party
to the effect that the mediation
is terminated.
(2) A declaration under
subsection (1) may be in writing
or oral but where a declaration
is not written the mediator
shall record the declaration.
Settlement agreement
81.
(1) Where it appears to the
mediator that there exist
elements of a settlement which
may be acceptable to the
parties, the mediator may
formulate the terms of a
possible settlement and submit
them to the parties for their
considerations and after
receiving the observations of
the parties, the mediator may
reformulate the terms of a
possible settlement in the light
of the observations. .
(2) If the parties reach
agreement on a settlement of the
dispute, they may draw up and
sign a written settlement
agreement and if requested by
the parties, the mediator may
draw up, or assist the parties
in drawing up, the settlement
agreement.
(3) When the parties sign the
settlement agreement, the
parties shall be deemed to have
agreed that the settlement shall
be binding on the parties and
persons claiming under them
respectively.
(4) The mediator shall
authenticate the settlement
agreement and furnish a copy of
the settlement agreement to each
of the parties.
Status and effect of settlement
agreement
82. Where the parties agree
that a settlement is binding,
the settlement agreement has the
same effect as if it is an
arbitral award under section 52.
Resort to arbitral or judicial
proceedings
83. The parties shall not
initiate, during the mediation
proceedings, any arbitral or
judicial proceedings in respect
of a dispute that is the
subject-matter of the mediation
proceedings.
Role of mediator in other
proceedings
84.Un!ess
otherwise agreed by the
parties or required by
law.
(a)
the mediator shall not act as an
arbitrator or as a
representative or counsel of a
party in any arbitral or
judicial proceeding in respect
of a dispute that is ['he
subject of the mediation
proceedings; and
(b)
the mediator shall not be
presented by the parties as a
witness in any arbitral or
judicial proceedings arising out
of or in connection with the
dispute mediated upon.
Admissibility of evidence in
other proceedings
85.
The parties shall nm rely on or
introduce JS evidence in
arbitral or judicial
proceedings, whether or not the
proceedings relate to the
dispute that is the subject of
the mediation proceedings,
(a)
views expressed or suggestions
made by the other party in the
mediation in respect of a
possible settlement of the
dispute;
(b)
admissions made by the other
party in the course of the
mediation proceedings; or
(c)
the fact that the other party
had indicated that party's
willingness to accept a
proposal for settlement made by
the mediator. .
Exclusion
of liability
86.
(1) A mediator shall not be a
party in any court proceedings
relating to a mediation under
this Act in which the mediator
participated.
(2) A mediator is not liable for
any act or omission in the
discharge of the functions of a
mediator unless the mediator is
proven to have acted in bad
faith.
Mediation expenses
87.
Unless the parties agree
otherwise, the parties shall
equally pay the expenses of the
mediation including the fees and
expenses of
(a)
the mediator;
(b)
any administrative assistance
received;
(c) experts called; and
(d)
any expenses incurred in
connection with the mediation
proceedings and settlement
agreement.
Deposits
88.
(1) The mediator may direct each
party to deposit an equal amount
as an advance for the expenses
of the mediation referred to in
section 87 which the mediator
expects will be incurred.
(2) During the course of
mediation proceedings, the
mediator may direct
supplementary deposits in an
equal amount from each party.
(3) If the required deposits are
not paid in full by both parties
within thirty days of the
direction, the mediator may
suspend the proceedings or may
make a written declaration of
termination of the proceedings
to the parties, effective on the
date of that declaration.
(4) On termination of the
mediation proceedings, the
mediator shall render an account
to the parties of the deposits
received and shall return any
unexpended balance to the
parties.
Submission to customary
arbitration
89.
(1) A party to a dispute may
submit the dispute to customary
arbitration under this Part.
(2) Except otherwise ordered by
a court and subject to any other
enactment in force, a person
shall not
(a)
submit a criminal matter for
customary arbitration; or (b)
serve as an arbitrator in a'
criminal matter.
(3) A person who contravenes
subsection (2) commits an
offence and is liable on summary
conviction to a fine not
exceeding two hundred and fifty
penalty units or a term of
imprisonment not exceeding
twelve months or to both.
(4) A conviction of a person
under subsection (3) is not a
bar to prosecution for an
offence under the Criminal
Offences Act, 1960 (Act 29) to
which that person is liable in
respect of the matter submitted
for customary arbitration.
Agreement to submit to customary
arbitration
90.
(1) A report of a dispute by a
party to that dispute to a
qualified person as provided in
section 92, followed by a
request to that qualified person
to help resolve the dispute
shall constitute a submission to
customary arbitration.
(2) A customary arbitrator to
whom a submission for customary
arbitration is made by a party
shall inform the other party of
the submission and invite that
other party and the party who
made the submission to pay a fee
or a token for the arbitration.
(3) The payment by the parties
of the arbitration fee or token
demanded by the arbitrator in
customary arbitration constitute
(a)
consent t0 submit to customary
arbitration and
(b)
the appointment of the
arbitrator.
(4) Customary arbitration shall
not commence where the other
party rejects the invitation by
failing to pay the fee or token
demanded by the arbitrator.
(5) Failure by the other party
to accept the invitation within
twenty-one days of receipt of
the invitation or within a
period of time specified by the
arbitrator shall be deemed to be
a rejection of the invitation.
(6) A person shall not be forced
or coerced by another person,
institution or authority to
submit to customary arbitration.
Reference by court to customary
arbitration
91.
A court may with the consent of
parties order a dispute pending
before it to be submitted by the
parties to customary
arbitration.
Qualification of customary
arbitrator
92.
(1) A person chosen by one of
the parties and accepted by the
other party or a person agreed
on by the parties to a dispute
qualifies to be an arbitrator.
(2) The Centre shall as far as
practicable prepare and maintain
at its offices a list of
customary arbitrators for the
area which the office of the
Centre oversees.
Rules of customary arbitration
93.
(1) A customary arbitrator shall
apply the rules of natural
justice and fairness and is not
obliged to apply any legal rules
of procedure in the arbitration.
(2) The parties may agree in
consultation with the arbitrator
to, (a) conduct the
arbitration under the auspices
of the Centre; or
(b)
adopt the Rules of arbitration
of the Centre subject to such
modifications as the parties and
the arbitrator consider
appropriate.
Registration of dispute with the
Centre
94.
(1) Where parties agree to
conduct a customary arbitration
under the auspices of the
Centre, they shall register the
dispute with the nearest local
office of the Centre.
(2)
For the purpose of subsection
(1) the Centre shall as far as
practicable have offices
attached to Unit Committees and
District Assemblies.
(3) A registration of a dispute
under this Part shall indicate
(a)
the names and addresses of the
parties and the arbitrator; and
(b) the nature of the
dispute.
(4) The parties are free to
appoint the person who should be
the arbitrator.
Number of customary arbitrators
95.
Unless the parties agree
otherwise, there shall be one
customary arbitrator for
customary arbitration
proceedings.
Appointment of customary
arbitrator by Centre
96.
(1) Parties to a dispute may
agree that the Centre should
appoint the arbitrator.
(2) Where parties agree as
provided under subsection (1),
the parties shall go to the
nearest Office of. the Centre;
register their dispute and pay
the required fee upon which the
Centre shall appoint an
arbitrator from the register of
arbitrators for that area for
the parties.
Notice of appointment of
customary arbitrator
97.
Where parties appoint an
arbitrator under section 101 (4)
or the Centre appoints the
arbitrator under section 103
(1), the Centre shall within
fourteen days after that
appointment inform the
arbitrator of the appointment.
Disclosure by a customary
arbitrator
98.
(1) A person requested to be a
customary arbitrator shall
disclose any circumstance likely
to give reasonable cause to
doubt as to the independence or
impartiality of that person.
(2) A customary arbitrator's
obligation to disclose under
subsection (1) subsists
throughout the arbitral
proceedings.
Challenge of a customary
arbitrator
99.
(1) A customary arbitrator may
be challenged if
(a)
circumstances exist that give
rise to reasonable cause to
doubt as to the arbitrator's
independence or impartiality; or
(b)
the arbitrator does not possess
a qualification agreed on by the
parties.
(2) A party may not challenge an
arbitrator who that party has
appointed or in whose
appointment that party
participate expect for reasons
which that party becomes aware
of subsequent to the
appointment.
(3) Subject to subsection (4),
parties may agree on a procedure
for challenging a customary
arbitrator.
(4) Unless the parties in
accordance with subsection (3)
agree otherwise, a party who
intends to challenge a customary
arbitrator shall within seven
days of appointment of the
arbitrator or after becoming
aware of the grounds of the
challenge, inform the other
party and the arbitrator of the
challenge and the reasons for
the challenge.
(5) A customary arbitrator who
is challenged shall step down
and the party who appointed the
challenged arbitrator shall
appoint another arbitrator to
replace the challenged
arbitrator.
Revocation of customary
arbitrator's appointment
100.
(1) The parties to a customary
arbitration may agree on the
circumstances under which the
appointment of a customary
arbitrator may be revoked, and
they may in any case acting
jointly. revoke the appointment.
(2) Without limiting subsection
(1), the parties may revoke the
appointment of a customary
arbitrator where
(a)
there is sufficient reason to
doubt the impartiality of the
arbitrator;
(b)
the arbitrator is physically or
mentally incapable of
conducting the proceedings or
there is reasonable cause to
doubt as to the arbitrator's
capability to conduct the
proceedings; or
(c)
the arbitrator has refused or
failed to
(i) conduct the arbitral
proceedings properly; or
(ii) use reasonable despatch in
conducting the proceedings or
making the award.
Resignation of customary
arbitrator
101.
(1) A customary arbitrator may
resign from the office of an
arbitrator at any time during
the arbitration, except that an
arbitrator who resigns shall
refund the remainder of any fees
paid as may be agreed on by the
parties and the arbitrator.
(2) Any dispute
as to the refund of fees upon
the resignation of a customary
arbitrator shall be settled by
(a)
a District Court on an
application to that District
Court by the arbitrator or any
of the parties; or
(b)
any person the customary
arbitrator and the parties agree
on and in the case where that
person fails to settle the
dispute, the dispute may be
referred to the District Court.
Death of customary arbitrator
102.
The authority of a customary
arbitrator ceases on the death
of the arbitrator.
Filling of vacancy in customary
arbitration
103.
(1) Where the position of a
customary arbitrator becomes
vacant by reason of revocation,
resignation or death, the
parties may appoint another
person to fill the vacancy.
(2) Where the customary
arbitration proceedings are
(a)
recorded, the parties may in
consultation with the new
arbitrator determine whether the
proceedings of the previous
arbitration should be adopted;
or
(b)
not recorded, the customary
arbitration shall start afresh.
Place, date and time of first
customary arbitration session
104.
Where the arbitration is
conducted under the auspices of
the Centre or where the Centre
appoints the arbitrator, the
arbitrator shall, within
twenty-one days after being
informed of the appointment,
inform the parties and the
Centre of the place, date and
time of the first arbitration
session and shall determine the
place, date and time of
subsequent arbitration session
and inform the parties
accordingly.
Withdrawal from customary
arbitration
105.
A party shall not withdraw from
customary arbitration.
Language of proceedings
106.
The parties may choose the
language for the proceedings.
Time for customary award
107.
Except the parties otherwise
agree in consultation with the
arbitrator or the complexity of
the issue requires, an award
shall be made within twenty-one
days after the first hearing.
Form of customary award
108.
Except where a party requests
for a written award and pay for
the written award or the
reference to arbitration is made
by the court. the award in a
customary arbitration need not
be in writing .
. Effect of customary award
109.
An award in a customary
arbitration
(a)
is binding between the parties
and a person claiming through
and under them; and
(b)
need not be registered in a
court to be binding.
Registration of customary award
110. (1) A customary arbitration
award may for the purpose of
record and enforcement be
registered at the nearest
District Court, Circuit Court or
High Court as appropriate.
(2) A customary arbitration
award intended for registration
at a court shall be in writing.
Enforcement of customary award
111.
An award may be enforced in the
same manner as a judgment of the
court. .
Setting aside customary award
112.
(1) A party aggrieved by an
award may apply to the nearest
District, Circuit or High Court
to set aside the award on the
grounds that the award
(a)
was made in breach of the rules
of natural justice,
(b)
constitutes a miscarriage of
justice, or
(c)
is in contradiction with the
known customs of the area
concerned.
(2) An application under
subsection (1) shall be made to
the court within three months of
the award, and on notice to the
other party to the arbitration.
Negotiation for a settlement
113.
The provisions on customary
arbitration as are appropriate
shall apply to the customary
dispute settlement procedure
known as negotiation for a
settlement except that in a
negotiation for a settlement,
(a)
the parties do not pay the
settlement fees, until the end
of the settlement, if they agree
with the terms of the
settlement;
(b)
the parties may withdraw from
the settlement proceedings at
any time;
(c)
the parties are not bound to
accept the settlement arrived at
in the proceedings; and
(d)
the payment of the settlement
fees by the parties at the end
of the proceedings constitutes
acceptance of the settlement and
makes the settlement binding on
the parties.
PART FOUR-ALTERNATIVE DISPUTE
RESOLUTION CENTRE
Establishment of Alternative
Dispute Resolution Centre
114.
(1) There is established by this
Act an Alternative Dispute
Resolution Centre.
(2) The Centre is a body
corporate with perpetual
succession and a common seal and
may sue or be sued in its
corporate name.
(3) The Centre may for the
performance of its functions
under this Act acquire and hold
movable or immovable property,
dispose of its property and may
enter into a contract or any
other transaction.
(4) Where there is a hindrance
to the acquisition of property,
the property may be acquired for
the Centre under the State
Property and Contracts Act, 1960
(C.A.6) or the State Lands Act,
1962 (Act 125) and the costs
shall be borne by the Centre.
Object and functions of the
Centre
115.
(1) The object of the Centre is
to facilitate the practice of
alternative dispute resolution.
(2) For the attainment of its
object, the Centre shall
(a)
provide facilities for the
settlement of disputes through
arbitration, mediation and other
voluntary dispute resolution
procedures;
(b)
exercise any power for
alternative dispute resolution
conferred on it by parties to a
dispute but shall not be
involved in actual resolution of
the dispute;
(c)
keep a register of arbitrators
and mediators;
(d)
provide a list of arbitrators
and mediators to persons who
request for the services of
arbitrators and mediators;
(e)
provide guidelines on fees for
arbitrators and mediators;
(f) arrange for the
provision of assistance to
persons as it considers
necessary;
(g)
from time to time examine the
rules of arbitration and
mediation under this Act and
recommend changes in the rules;
(h)
conduct research, provide
education and issue specialised
publications on all forms of
alternative dispute resolution,
(i) set up such regional
and district offices of the
Centre as the Board considers
appropriate;
(j)
register experienced or
qualified persons who wish to
serve as customary arbitrators
and keep a register of customary
arbitrators; and
(k)
request the traditional councils
to register and keep a register
of persons who wish to serve as
customary arbitrators.
Independence of Centre
116.
Subject to the Constitution and
unless otherwise provided in
this Act, and any other
enactment, the Centre shall not
be under the direction or
control of any person or
authority in the performance of
its functions.
Governing Board of the Centre
117.
(l) The Centre shall have a
governing Board composed of
(a)
a chairperson who is a lawyer of
not less than twelve years
standing; .
(b)
one member of each of the
following, nominated by the
respective body,
(i) Ghana Chamber of Commerce;
(ii) the Ghana Bar Association;
(iii) the Ghana Institute of
Surveyors;
(iv) the Judiciary;
(v) Institute of Chartered
Accountants; and
(vi) a woman nominated by the
President;
(c)
one representative of organised
labour;
(d)
one representative from
industry; and (e) the
Executive Secretary of the
Centre.
(2) The chairperson and members
of the Board shall be appointed
by the President in accordance
with article 70 of the
Constitution.
(3) The Board shall perform the
functions of the Centre.
Tenure of office of members of
the Board
118.
(1) A member of the Board shall
hold office for a period of
three years and is eligible for
re-appointment but a member
shall not hold office for more
than two terms in succession.
(2) Subsection (1) does not
apply to the Executive
Secretary.
(3) A member of the Board may by
a thirty day notice resign from
office in writing addressed to
the President, through the
Minister.
(4) A member of the Board who is
absent from three consecutive
meetings of the Board without
sufficient cause ceases to be a
member of the Board.
(5) The President may by letter
addressed to a member revoke the
appointment of that member.
(6) A person who is a member of
the Board by virtue of (a)
a professional qualification
held by that person; or
(b)
being an employee of an
institution, Ministry,
Department, Agency or other body
ceases to be a member of the
Board if that person in the case
of
(c)
a professional, is disqualified
or suspended from practice by an
order of the relevant competent
authority or for some reason
other than voluntary resignation
that person's name is struck off
the register of the professional
body; or
(d)
an employee is no longer
employed by the institution,
Ministry, Department, Agency or
other body.
(7) Where a member of the Board
is, for a reasonable cause,
unable to act as a member, the
Minister shall determine whether
the inability would result in
the declaration of vacancy.
(8) Where there is a vacancy
(a)
under subsection (3), (4), (5),
(6) or section 121 (2); (b)
as a result of a declaration
under subsection (7); or (c)
by reason of the death of a
member,
the Minister shall notify the
President of the vacancy and the
President shall appoint a person
to fill the vacancy.
Allowance of members of the
Board
119.
Members of the Board and members
of a Committee of the Board
shall be paid allowances
approved by the Minister in
consultation with the Minister
responsible for Finance .
. Meetings of the Board
120.
(1) The Board shall meet at
least once every three months
for the despatch of business at
the times and in the places
determined by the chairperson.
(2) The chairperson shall at the
request of at least one' third
of the members of the Board
convene an extraordinary meeting
of the Board
(3) The quorum at a meeting of
the Board is six members,
including the Executive
Secretary.
(4) The chairperson shall
preside at meetings of the Board
and in the absence of the
chairperson, a member of the
Board elected by the members
present from among their number
shall preside.
(5) Matters before the Board
shall be decided by a majority
of the members present and
voting and in the event of an
equality of votes the person
presiding shall have a casting
vote.
(6) The Board may co-opt a
person to attend its meetings
but a co-opted person is not
entitled to vote on a matter for
decision by the Board.
(7) The proceedings of the Board
shall not be invalidated by
reason of a vacancy among the
members or a defect in the
appointment or qualification
of a member.
(8) Subject to this section, the
Board may determine the procedure
for its meetings.
Disclosure of interest by Board
member
121.
(1) A member of the Board or of
a committee of the Board who has
an interest in a matter under
consideration by the Board shall
disclose in writing the nature
of that interest to the Board or
the committee and is
disqualified from participating
in the deliberations of the
Board or the committee in
respect of that matter.
(2) A member who contravenes
subsection (1) ceases to be a
member of the Board or
committee.
Committees of the Board
122.
The Board may establish
committees consisting of members
of the Board or non-members or
both to perform its functions.
Registration of arbitrators and
mediators
123.
(1) A person with the requisite
qualification may apply to
register with the Centre as an
arbitrator or a mediator.
(2) The Centre shall keep in a
register, the name, address and
other particulars of a person
registered as an arbitrator or
mediator by the Centre.
Regional and district offices
of the Centre
124.
The Centre may have regional and
district offices as the Board
considers appropriate.
PART FIVE-FINANCIAL,
ADMINISTRATIVE AND MISCELLANOUS
PROVISIONS
Establishment of Alternative
Dispute Resolution Fund
125.
(1) There is established by this
Act a Fund to be known as the
Alternative Dispute Resolution
Fund.
(2) The sources of money for the
Fund are
(a)
grants from the Government for
the development of alternative
dispute resolution;
(b)
charges and fees collected by
the Centre in the performance of
its functions; and
(c)
donations and gifts from the
general public, institutions and
organisations.
Objects of the Fund
126
Moneys of the Fund shall be
applied for
(a)
education of the general public
on alternative dispute resolution
(b)
research and studies relating to
the functions of the Centre;
(c) human resource
development for alternative
dispute resolution,
and
(d)
any other purposes as the Board
in consultation with the
Minister may determine.
Management of the Fund
127.
(1) The Fund shall be managed by
the Board which shall for this
purpose include the Controller
and Accountant-General or a
representative of the Controller
and Accountant-General.
(2) Moneys for the Fund shall be
paid into a bank account opened
by the Board with the approval
of the Controller and
Accountant-General.
(3) The provisions under
sections 132 and 133 of this Act
on accounts and audit and annual
reports shall apply to the Fund.
Functions of the Board in
relation to the Fund
128.
(1) The Board shall for the
purpose of managing the Fund
(a)
formulate policies to generate
money for the Fund;
(b)
determine the allocations to be
made towards the objects of the
Fund; and
(c)
determine annual targets of the
Fund.
(2) The Board may invest a part
of the Fund as it considers
appropriate in government
securities or in a manner as may
be approved by the Minister in
consultation with the Minister
responsible for Finance.
(3) Payments issued from [he
Fund shall be signed by any two
of the following:
(a)
the chairperson of the Board:
(b) the Executive Secretary;
and
(c)
one other member of the Board.
Executive Secretary
129.
(1) The President shall in
accordance with article 195 of
the Constitution appoint an
Executive Secretary for the
Centre.
(2) The Executive Secretary
shall hold office on the terms
and conditions specified in the
letter of appointment.
(3) Subject to the directions of
the Board, the Executive Secretary
is responsible for the day to
day administration of the
Centre.
(4) The Executive Secretary
shall maintain the register of
arbitrators
and mediators
(5) The Executive Secretary
shall perform any other
functions that the Board may
determine.
Appointment of other staff
130.
(1) The Centre shall have other
officers and staff as may be
necessary for the effective
performance of its functions.
(2) The President shall in
accordance with article 195 of
the Constitution
appoint other members of staff
who shall hold office on terms
and conditions specified in
their letters of appointment.
(3) Other public officers may be
transferred or seconded to the
Centre.
(4) The centre may engage the
services of advisers on the
recommendations
of the Board.
Delegation of power of
appointment
131.
The President may in accordance
with article 195(2) of the
Constitution, delegate the power
of appointment of public
officers under this Act.
Accounts and Audit
132.
(1) The Centre shall keep books
of account and proper records in
relation to them in a form
approved by the Auditor-General.
(2) The accounts of the Centre
shall be audited by the Auditor
General within three months
after the end of each financial
year.
(3) The Auditor-General shall
not later than three months
after the receipt of the
accounts, audit the accounts of
the centre and forward a copy of
the audit reports to the
Minister.
(4) The financial year of the
Centre is the same as the
financial year of the
Government.
Annual reports
133.
(1) The Centre shall within one
month after the receipt of the
audit report submit to the
Minister an annual report
covering the activities and the
operations of the Centre for the
year to which the report relate
. (2) The annual report shall
include the report of the
Auditor
General.
(3) The Minister shall, within
one month after the receipt of
the annual report submit the
report to Parliament with a
statement that the Minister
considers necessary.
(4) The Centre shall submit to
the Minister any other reports
which the Minister may require
in writing.
Regulations
134.
The Minister may on the advice
of the Board make Regulations by
legislative instrument to
prescribe for
(a)
conciliation, mediation,
arbitration and other voluntary
dispute resolution procedures;
(b)
qualifications of persons who
wish to be registered as arbitrators
and mediators;
(c)
the parameters for the
determination of fees of
conciliators,
mediators and arbitrators;
(d)
research, education and training
procedures as well as the
standards to be attained in
these with respect to all forms
of alternative dispute
resolution;
(e)
the functions of regional and
district offices of the Centre;
(j) the role of the
District Assemblies, Unit
Committees and traditional
customary institutions in
achieving the object of the
Centre;
(g)
matters relating to customary
arbitration; (h) the
arbitration rules of the Centre;
and
(;) matters generally to give
effect to the provision:; of
this Act.
interpretation
135. In this Act, unless the
context otherwise requires
"Alternative Dispute Resolution"
means the collective description
of methods of resolving disputes
otherwise than through the
normal trial process;
"appointing authority" means any
person or authority including
the Centre in whom parties to an
arbitration agreement vest power
to take any action for or on
behalf of the parties, in
relation to the arbitration;
"arbitration" means the
voluntary submission of a
dispute to one or more impartial
persons for a final and binding
determination;
"arbitration agreement" means an
agreement to submit to arbitration
present or future dispute;
"arbitration management
conference" means a meeting held
between the arbitrator and the
parties to the arbitration
under section 29 to
resolve preliminary issues and
set down a guideline for the
arbitration; .
"award" includes an arbitration
award on agreed terms.
"arbitrator" means one or more
impartial persons appointed or
who can be appointed to offer a
final and binding resolution to
a dispute;
"arbitral tribunal" means an
arbitration consisting of one or
more persons;
"Board" means the board of
Governors of the Centre referred
to in section 117;
"Centre" means the Alternative
Dispute Resolution Centre
established in section 114;
"conciliation" means the
submission by the parties of a
dispute which is the subject of
an arbitration during the cause
of the arbitration to an
impartial person who is not the
arbitrator
to facilitate the resolution of
the dispute between the parties;
"conciliator" means an impartial
person appointed to preside over
a conciliation conference;
"Court" means the High Court;
"customary arbitration" means
the voluntary submission of a
dispute, whether or not relating
to a written agreement for a
final binding determination
under Part Three of this Act;
"customary arbitrator" means an
impartial person appointed
or qualified to be appointed as
an arbitrator in customary
arbitration;
"expedited procedure" means the
fast track arbitration procedure
referred to in Part II;
"Fund" means the Alternative
Dispute Resolution Fund
established under section 125;
"mediation" means a nonbinding
process under Part Two in which
the parties discuss their
dispute with an impartial person
who assists them to reach a
resolution;
"mediator" includes an impartial
person appointed or qualified
to be appointed to assist the
parties to satisfactorily
resolve their dispute and
employees and persons hired by
that person;
"Minister" means the Minister
responsible for Justice.
Modification of court rules
136.
Upon the coming into force of
this Act, any existing rules of
court on arbitration shall apply
subject to the provisions of
this Act.
Repeals and savings
137.
(1) The Arbitration Act, 1961
(Act 38) is repealed (2) Despite
the repeal of the Arbitration
Act, 1961 (Act 38)
(a)
any instrument, agreement,
Regulations and order made under
that Act and in force
immediately before the
commencement of this Act shall
continue to be in force, until
otherwise legally altered, and
(b)
any action commenced or pending
before any court to which Act 38
applies shall continue and be
dealt with under this Act.
Transitional provisions
138.
Any body or association which is
not a party to an arbitration
agreement but which is
responsible for
(a)
appointing arbitrators;
(b)
setting up arbitration panels or
tribunals; or
(c)
managing arbitration generally
in existence before the coming
into force of this Act may upon
the appointment of the Board of
the Centre apply to be
affiliated to [he Centre.
SCHEDULES
FIRST SCHEDULE
CONVENTION ON THE RECOGNITION
AND ENFORCEMENT OF FOREIGN
ARBITRAL AWARDS 1958 (NEW YORK
CONVENTION)
(Section
59 (J)(c))
The United Nations Convention on
the Recognition and Enforcement
of Foreign Arbitral Awards
adopted at the Headquarters of
the United Nations in New York
on June 10, 1958.
Article I
1.This
Convention shall apply to the
recognition and enforcement of
arbitral awards made in the
territory of a State other than
the State where the recognition
and enforcement of such awards
are sought, and arising out of
differences between persons,
whether physical or legal. It
shall also apply to arbitral
awards not considered as
domestic awards in the State
where their recognition and
enforcement are sought.
2.The
term "arbitral awards" shall
include not only awards made by
arbitrators appointed for each
case but also those made by
permanent arbitral bodies to
which the parties have
submitted.
3.When
signing, ratifying or acceding
to this Convention, or notifying
extension under Article X
hereof, any State may on the
basis of reciprocity declare
that it will apply the
Convention to the recognition
and enforcement of awards made
only in the territory of another
Contracting State. It may also
declare that it will apply the
Convention only to differences
arising out of legal
relationships whether
contractual or not, which are
considered as commercial under
the national law of the State
making such declaration.
Article ll
1.Each
Contracting State shall
recognise an agreement in
writing under which the parties
undertake to submit to
arbitration all or any
differences which have arisen or
which may arise between them in
respect of a defined
legal-relationship, whether
contractual or not, concerning a
subject matter capable of
settlement by arbitration.
2.The
term" agreement in writing"
shall include an arbitral clause
in a contract or an arbitration
agreement, signed by the parties
or contained in an exchange of
letters or telegrams.
3.The
court of a Contracting State,
when seized of an action in a
matter in respect of which the
parties have made an agreement
within the meaning of this
article, shall, at the request
of one of parties the' parties
refer the' parties to
arbitration, unless it finds
that the said agreement is null
and void, inoperative or
incapable of being performed.
Article III
Each Contracting State shall
recognise arbitral awards as
binding and enforce them in
accordance with the rules of
procedure of the territory where
the award is relied upon, under
the conditions laid down in the
following articles. There shall
not be imposed substantially
more onerous conditions or
higher fees or charges on the
recognition or enforcement of
arbitral awards to which this
Convention applies than are
imposed on the recognition or
enforcement of domestic
arbitration s,
Article IV
1.To
obtain the recognition and
enforcement mentioned in the
preceding article, the party
applying for recognition and
enforcement shall, at the time
of the application, supply:
(a)
the duly authenticated original
award or a duly certified copy
thereof;
(b)
the original agreement referred
to in Article II or a duly
certified copy thereof.
2.If
the said award or agreement is
not made in an official language
of the country in which the
award is relied upon, the party
applying for recognition and
enforcement of the award shall
produce a translation of these
documents into such language.
The translation shall be
certified by an official or
sworn translator or by a
diplomatic or consular agent.
Article V
1.Recognition
and enforcement of the award may
be refused, at the request of
the party against whom it is
invoked, only if that party
furnishes to the competent
authority where the recognition
and enforcement is sought, proof
that:
(a)
The parties to the agreement
referred to in Article II were,
under the law applicable to
them, under some incapacity, or
the said agreement is not valid
under the law to which the
parties have subjected it or
failing any indication thereon,
under the law of the country
where the award was made; or
(b)
The party against whom the award
is invoked was not given proper
notice of the appointment of the
arbitrator or of the arbitration
proceedings or was otherwise
unable to present his case; or
(c)
The award deals with a
difference not contemplated by
or not falling within the terms
of the submission to
arbitration, or it contains
decisions on matters beyond the
scope of the submission to
arbitration, provided that, if
the decisions on matters
submitted to arbitration can be
separated from those not so
submitted, that part of the
award which contains decisions
on matters submitted to
arbitration may be recognised
and enforced; or
(d)
The composition of the arbitral
authority or the arbitral
procedure was not in accordance
with the agreement of the
parties, or, failing such
agreement, was not in accordance
with the law of the country
where the arbitration took
place;
or
(e)
The award has not yet become
binding on the parties, or has
been set aside or suspended by a
competent authority of the
country in which, or under the
law of which, that award was
made.
2.Recognition
and enforcement of an arbitral
award may also be refused if the
competent authority in the
country where recognition and
enforcement is sought finds
that:
(a)
The subject matter of the
difference is not capable of
settlement by arbitration under
the law of that country: or
(b)
The recognition or enforcement
of the award would be contrary
to the public policy of that
country.
Article VI
If an application for the
setting aside or suspension of
the award has been made to a
competent authority referred to
in article V (l)(e), the
authority before which the award
is sought to be relied upon may,
if it considers it proper,
adjourn the decision on the
enforcement of the award and may
also, on the application of the
party claiming enforcement of
the award, order the other party
to give suitable security.
Article VII
1.The
provisions of the present
Convention shall not affect the
validity of multilateral or
bilateral agreements concerning
the recognition and enforcement
of arbitral awards entered into
by the Contracting States nor
deprive any interested parry of
any right he may have to avail
himself of an arbitral award in
the manner and to the extent
allowed by the law or the
tTeatie5 ()f the country where
such award is sought to be
relied upon.
2 The Geneva Protocol
on Arbitration Clauses of 1923
and the Geneva Convention on the
Execution of Foreign Arbitral
Awards of 1927 shall cease to
have effect between Contracting
States on their becoming bound
and to the extent that they
become bound, by this
Convention.
Article VIII
1.This
Convention shall be open until
31 December 1958 for signature
on behalf of (my Member of the
United Nations and also on
behalf of any other State which
is or hereafter becomes a member
of any specialised agency of the
United Nations, or which is or
hereafter becomes a party to the
Statute of the International
Court of Justice, or any other
State to which an invitation has
been addressed by the General
Assembly f the United Nations.
2.This
Convention shall be ratified and
the instrument of ratification
shall be deposited with the
Secretary-general of the United
Nations.
Article IX
1.This
Convention shall be open for
accession to all States referred
to in Article VIII.
2.Accession
shall be effected by the deposit
of an instrument of accession
with the Secretary-General of
the United Nations.
Article X
1.Any
State may, at the time of
signature, ratification or
accession, declare that this
Convention shall extend to all
or any of the territories for
the international relations of
which it is responsible. Such a
declaration shall take effect
when the Convention enters into
force for the State concerned.
2.At
any time thereafter any such
extension shall be made by
notification addressed to the
Secretary-General of the United
Nations and shall take effect as
from the ninetieth day after the
day of receipt by the
Secretary-General of the United
Nations of this notification, or
as from the date of entry into
force of the Convention for the
State concerned whichever is the
later.
3.With
respect to those territories to
which this Convention extended
at the time of signature,
ratification or accession, each
State concerned shall consider
the possibility of taking the
necessary steps in order to
extend the application of this
Convention to such territories,
subject, where necessary for
constitutional reasons, to the
consent of the Governments of
such territories.
Article XI
1.In
the case of a federal S:H
non-unitary State, the following
provisions shall apply:
(a)
With respect to those articles
of this Convention that come
within the legislative
jurisdiction of the federal
authority, the obligations of
the federal Government shall to
this extent be the same as those
of Contracting States which are
not federal States;
(b)
With respect to those articles
of this Convention that come
within the legislative
jurisdiction of constituent
states or
provinces which are not, under
the constitutional system of the
federation, bound to take
legislative action, the federal
Government shall bring such
articles with a favourable
recommendation to the notice of
the appropriate authorities of
constituent states or provinces
at the earliest possible moment;
(c)
A federal State Party to this
Convention shall, at the request
of any other Contracting State
transmitted through the
Secretary-General of the United
Nations, supply a statement of
the law and practice of the
federation and its constituent
units in regard to any
particular provision of this
Convention, showing the extent
to which effect has been given
to that provision by legislative
or other action.
Article XII
1.This
Convention shall come into force
on the ninetieth day following
the date of deposit of the third
instrument of ratification or
accession.
2.For
each State ratifying or a ceding
to this Convention after the
deposit of the third instrument
of ratification or accession.
[!'is Convention shall enter
into force on the ninetieth day
after deposit by such State of
its instrument of ratification
or accession.
Article XIII
1.Any
Contracting State may denounce
this Convention by a written
notification to the
Secretary-General of the United
Nations. Denunciation shall take
effect one year after the date
of receipt of the notification
by the Secretary-General.
2.Any
State which has made a
declaration or notification
under Article X may, at any time
thereafter, by notification to
the Secretary-General of the
United Nations, declare that
this Convention shall cease to
extend to the territory
concerned one year after the
date of the receipt of the
notification by the
Secretary-General.
3.This
Convention shall continue to be
applicable to arbitral awards in
respect of which recognition or
enforcement proceedings have
been instituted before the
denunciation takes effect.
Article XIV
A Contracting State shall not be
entitled to avail itself of the
present Convention against other
Contracting States except to the
extent that it is itself bound
to apply the Convention.
Article XV
The Secretary-General of the
United Nations shall notify the
States contemplated in Article
VIII of the following:
(a)
Signature and ratifications in
accordance with article VIII;
(b) Accessions in accordance
with article IX;
(c)
Declarations and notifications
under articles I, X and XI;
(d) The date upon which this
Convention enters into force in
accordance with Article XII;
(e)
Denunciations and notifications
in accordance with Article XIII.
Article XVI
1.This
Convention, of which the
Chinese, English, French,
Russian and Spanish texts shall
be equally authentic, shall be
deposited in the archives of the
United Nations.
2.The
Secretary-General of the United
Nations shall transmit a
certified copy of this
Convention to the States
contemplated in Article VIII.
SECOND SCHEDULE
ALTERNATIVE DISPUTE RESOLUTION
CENTRE RULES ARBITRATION RULES
(Section
5(3), 8(2))
Application of Rules
1. (1) Where parties to an
agreement agree that a dispute
in relation to that agreement be
referred to arbitration by the
Alternative Dispute Resolution
Centre, the dispute shall be
settled in accordance with these
Rules subject to any
modifications of the Rules that
the parties may agree
upon in writing; except that
where any of these Rules is in
conflict with a provision of the
law applicable to the
arbitration from which the
parties cannot derogate, that
provision shall apply.
(2) Where parties to an existing
dispute file with the Centre a
written agreement to submit the
dispute to arbitration under
these Rules or by the Centre,
these Rules shall apply subject
to any modification agreed on by
the parties; except that where
any of these Rules is in
conflict with a provision of the
law applicable to the
arbitration from which the
parties cannot derogate, that
provision shall apply.
Arbitral tribunal
2. A sale arbitrator or a panel
constituted by the parties for
the settlement of a dispute
under these Rules shall be
called an Arbitral Tribunal.
Administrator
3. Where parties agree to
arbitration by the Centre, the
Centre is the administrator of
the arbitration.
Delegation of administrative
duties
4. The administrative duties of
the Centre under these Rules
shall be carried out through
officers or communities of the
Centre.
Administration by regional,
district offices of Centre
5. The Centre, may assign the
administrative function of an
arbitration to any of its office
in the regions or districts.
6. (1) For the purposes of these
Rules, any notice, including a
notification, communication or
proposal, is received if it is
physically delivered to the
addressee or if it is delivered
at the addressee's habitual
residence, place of business or
mailing address, or, if none of
these can be found after making
reasonable injury, then at the
addressee's last
known residence or place of
business d \ld notice is deemed
to have been received on the day
it is delivered.
(2) A notice required to be
given under these Rules may be
given by telephone, telex,
facsimile, e-mail or any other
means of electronic communication.
(3) A notice given through
telephone or any other verbal
mode permitted
under subrule (2) shall be
confirmed in writing which shall
state the names, addresses
(including e-mail addresses) and
telephone numbers of the
parties.
(4) Failure to confirm a notice
in Writing under sub rule(3)
does not invalidate the
proceedings.
Initiation of arbitration
7. (1) A party who intends to
initiate arbitration proceedings
with the Centre (the 'claimant')
shall give to the other party
(the 'respondent') a notice of
arbitration.
(2) The notice of arbitration
shall include (a) a copy
of the arbitration agreement;
(b)
a demand that the dispute be
referred to arbitration; (c)
the names and addresses of
the parties;
(d)
a reference to the arbitration
clause or the separate
arbitration agreement that is
invoked;
(e)
a reference to the contract out
of or in relation to which the
dispute arises;
(f)
the statement of claim, stating
the general nature of the claim
and an indication of the amount
involved, if any;
(g)
the relief or remedy sought; and
(h)
a proposal as to the number of
arbitrators if the parties have
not previously agreed on the
number of arbitrators.
(3) The notice of arbitration
may also include
(a)
the proposals for the
appointment of an arbitrator,
and (b) the notification
of the appointment of an
arbitrator referred to in rule
14.
(4) The claimant shall at the
time of service of the notice on
the respondent, file 2 copies of
the notice at an office of the
Centre upon paying the
appropriate administrative fee.
(5)
Arbitration proceedings commence
on the date on which the notice
is received by the
respondent.
(6) Within seven days after a
notice has been filed with the
Centre, the Centre shall inform
the other party of the filing of
the notice.
(7) The respondent shall within
fourteen days of being served
with a notice under subsection
(1), file an answer in duplicate
with the Centre and serve the
claimant with a copy of the
answer.
(8) Where an answer includes a
counterclaim, the notice of the
counterclaim,
the amount involved, if any, and
the remedy sought shall be
stated in the counterclaim.
(9) A respondent who makes a
counterclaim in an answer shall
pay the appropriate
administrative fee to the
Centre.
(10) The failure of a respondent
to file an answer within time
shall
(a)
be assumed to be a denial of the
claim; and
(b)
not stay the arbitration
proceedings.
(11) Unless the Centre in
consultation with the parties
determine otherwise, the
Expedited arbitration Procedure
provided for under Schedule III
of this Act shall be applied in
a case where the total sum
claimed, exclusive of interest
and arbitration costs, does not
exceed US$100,000 or its
equivalent in cedis.
Change or amendment of claim
8. (1) A party who after filing
a claim desires to make a new
claim or amend the claim shall
file the new claim or amended
claim with the Centre and serve
the other party with a copy.
(2) A party served with a new or
amended claim shall within seven
days from the date of being
served, file an answer with the
Centre.
(3) A new claim or an amendment
to a claim shall not be made
after the appointment of an
arbitrator, except with the
consent of the arbitrator.
Administrative conference
9. A party or the Centre may
before the appointment of an
arbitrator request for the
holding of an administrative
conference with representatives
of the Centre and the parties or
their representatives to
(a)
organise and expedite the
arbitration,
(b)
Study and discuss the
administrative issues involved
in the case,
(c)
determine the most suitable
means of appointing an
arbitrator, and
(d)
consider mediation as a means of
resolving the dispute.
Number of arbitrators
10. (1) The parties may agree on
the number of arbitrators and if
the parties within fourteen days
of the service of the notice of
arbitration on the respondent,
do not agree on the number of
arbitrators, three arbitrators
shall be appointed. (2) Where
the arbitration agreement
provides for the appointment of
an even number of arbitrators
(a)
the arbitrators shall within
fourteen days of their appointment
appoint an additional arbitrator
to be the umpire;
(b) if the arbitrators
are unable to appoint the
additional arbitrator within
the specified time, the Centre
shall appoint the additional
arbitrator to be the umpire.
Appointment of arbitrators
11. (1) If the parties in their
agreement name an arbitrator or
specify a method of appointment
of an arbitrator, that
designation shall be followed,
except that the parties shall
provide the Centre with the full
names, addresses, nationalities
and qualifications of the
arbitrators named by them.
(2) If the parties do not name
an arbitrator or provide a
method for the appointment of an
arbitrator, but have provided
for the appointment
of a sole arbitrator, either
party may propose to the other
party
(a)
the full names, addresses,
nationalities and qualifications
of one or more persons, one of
whom would serve as the sole
arbitrator, or
(b)
that the Centre should appoint
the sole arbitrator.
(3) If within fourteen days of a
proposal being made under
subrule (2)(a) the
parties are unable to reach an
agreement, the appointment of
the sole arbitrator shall be
made by the Centre.
(4) Where the arbitration
agreement requires the
appointment of three arbitrators
and the parties have not
specified the method of
appointment or where the parties
have not agreed on the number of
arbitrators,
(a)
each party shall appoint one
arbitrator; and
(b)
the appointed arbitrators shall
appoint the third arbitrator who
shall be the umpire.
(5) Where the arbitrators
appointed by the parties fail to
appoint an umpire, the umpire
shall be appointed by the
Centre.
(6) Where under subrule (4), a
party who is given notification
of appointment of arbitrator
does not within fourteen days of
the notification
appoint an arbitrator and notify
the other party of the
appointment, that other party
shall request the Centre to
appoint the second arbitrator.
(7) If the arbitration agreement
does not specify a period of
time for the appointment of an
arbitrator, the Centre shall
request the parties to make the
appointment within fourteen days
and if any party or all the
parties fail to make the
appointment the Centre shall
appoint the arbitrator.
(8) A party who has to appoint
an arbitrator may request from
the Centre a list of arbitrators
from the register of
arbitrators, from which the
party may make the appointment,
and Centre shall provide the
list.
(9) Where the Centre has to
appoint an arbitrator,
(a)
the Centre shall, after the
filing of the notice of
arbitration, submit to each
party at the same time an
identical list of five persons
from the register, and
(b)
each party shall within seven
days from the submission of the
list cross out any two names to
which the party objects and
number the remaining names in
order of preference and return
the list to the Centre.
(10) If a party fails to return
the list within the specified
time, all persons on the list
shall be considered acceptable
to that party and the Centre
shall be entitled to appoint any
of the persons on the list
(11) The Centre shall, in
accordance with the order of
preference' indicated on the
returned lists, appoint the
arbitrator and notify the arbitrator
and the parties within seven
days of the appointment.
(12) The appointed arbitrator
shall within seven days of being
notified, inform the Centre of
the acceptance or rejection of
the appointment.
(13) If
(a)
the parties fail to agree upon
a1 y of the persons named,
(b) the acceptable
arbitrator is unable to act, or
(c)
for any other reason the
appointment cannot be made from
the submitted list, the Centre
shall appoint the arbitrator
from among persons on the
register without the submission
of an additional list to the
parties.
Nationality of arbitrator in
international arbitration
12. In an international
arbitration, unless the parties
agree otherwise, the choice of
arbitrators shall reflect the
nationality of the parties,
except that a sole arbitrator
shall be of neutral nationality.
Considerations in the choice of
arbitrator by the Centre
13. The Centre in appointing an
arbitrator shall have regard
(a)
to any qualification required of
the arbitrator by the arbitration
agreement or agreed upon by the
parties,
(b)
to the independence and
impartiality of the person
intended to be appointed, and
(c)
in the case of a sole arbitrator
in an international arbitration,
to the neutral nationality of
the person intended to be
appointed.
Description of proposed
arbitrator
14. Where a party or the Centre
appoints an arbitrator, it shall
give the full name, address,
nationality and qualification of
the arbitrator to the other
party and the Centre or to both
parties as is appropriate.
Disclosure by proposed
arbitrator
15. (1) The Centre shall require
a person appointed as an
arbitrator to disclose in
writing any circumstances likely
to affect that person's
independence or impartiality
including any bias or any
financial or personal interest
in the result of the arbitration
or any past or present
relationship with any of the
parties or their counsel, and
the arbitrator shall make the
disclosure to the Centre and the
parties.
(2) The Centre shall notify the
parties of any disclosure made
under subrule (1).
Challenge of arbitrator
16. (1) A party may challenge
the appointment of an arbitrator
if (a) there are
circumstances that raise doubts
as to the independence
or impartiality of the
arbitrator, or
(b)
the arbitrator does not possess
the qualifications agreed on by
the parties.
(2) A party may only challenge
an arbitrator appointed by that
party or in whose appointment
that party has participated for
reasons which that party becomes
aware of after the appointment.
Challenge procedure
17.
(1) Parties to a dispute may
within fourteen days of the
appointment of the arbitrator
jointly challenge the arbitrator
by filing a written statement of
the reasons of the challenge
with the arbitrator and other
members of the arbitral tribunal
and the Centre.
(2) The Centre on receipt of a
challenge under subrule (1)
shall replace the challenged
arbitrator.
(3) A party may challenge an
arbitrator in writing with
stated reasons, to the
arbitrator, the other members of
the arbitral tribunal and the
Centre, within fourteen days of
the appointment of the
arbitrator.
(4) The Centre on receipt of a
challenge from a party shall
communicate the challenge to the
other party who shall within
seven days of the communication
send a response to the Centre.
(5) If the other party endorses
a challenge raised by one party,
the Centre shall replace the
challenged arbitrator.
(6) If the other party objects
to the challenge, and the
challenged arbitrator does not
resign, the Centre shall hold a
hearing with the parties and the
challenged arbitrator within
seven days of the objection, and
determine whether the challenged
arbitrator should be maintained
or replaced.
(7) The decision of the Centre
as to whether a challenged
arbitrator over whom there is no
agreement should be maintained
or replaced shall be binding on
the parties.
(8) An arbitrator who is
challenged may withdraw, but
the' withdrawal of an arbitrator
does not imply an acceptance of
the validity of the challenge.
Revocation of an arbitrator's
authority
18.
(1) The parties may agree on the
circumstances under which the
appointment of an arbitrator may
be revoked.
(2) Unless the parties have
agreed on the circumstances for
revocation,
the appointment of an arbitrator
shall only be revoked
(a)
by the parties acting jointly or
(b)
by the Centre acting on the
application of a party.
(3) A party may at any time
during arbitral proceedings
apply to the Centre on notice to
the other party for the
revocation of the arbitrator's
appointment on the grounds that
(a)
there is sufficient reason to
doubt the arbitrator's impartiality,
(b)
the arbitrator does not possess
the qualification required by
the arbitration agreement.
(c)
the arbitrator is physically or
mentally incapable or there is
justificable doubt as to the
arbitrator's capacity of
conducting the proceedings, or
(d)
the arbitrator has refused or
failed to
(i) properly conduct the
proceedings, or
(ii) use reasonable despatch in
conducting the proceedings or
making an award.
(4) If within seven days of the
submission of an application under
subrule (3) there is no
objection from the other party,
the Centre shall invite the
applicant and the arbitrator for
a hearing and if satisfied with
the grounds of the application
revoke the appointment of the
arbitrator.
(5) If the other party objects
to the application, the Centre
shall within seven days of the
receipt of the objection invite
the parties and the arbitrator
to a hearing to consider the
application and objection on
their merits.
(6) The Centre at a hearing
under this rule may maintain or
revoke the appointment of the
arbitrator.
(7) A party dissatisfied with
the decision of the Centre in
respect of an application under
this rule may with leave of the
Court repeat the application to
the Court, which may maintain or
revoke the appointment
as it finds appropriate.
(8) Unless the Centre or the
Court decides otherwise, an
application
under this rule shall not serve
as a stay of the arbitral
proceedings.
(9) If the Centre or the Court
revokes the appointment of an
arbitrator,
the Centre or the Court may make
an order as it considers
appropriate in respect of the
arbitrator's fees or expenses.
Termination of mandate of
arbitrator
19.
The mandate of an arbitrator
shall terminate if
(a)
the arbitrator's appointment is
revoked;
(b)
for any reason the arbitrator is
unable to perform the arbitrators
functions, or
(c)
the arbitrator withdraws from
office, resigns or dies.
Filling of vacancy
20.
(1) If the position of an
arbitrator becomes vacant the
parties may agree on .
(a)
whether and how the vacancy
is to be filled; and
(b)
whether the previous proceedings
should stand.
(2) Where there is no agreement
between the parties under
subrule (1), the Centre shall
appoint another arbitrator in
accordance with these Rules.
(3) Upon the appointment of an
arbitrator under subrule (2), to
fill a vacancy in an arbitration
which has
(a)
a sole or a presiding
arbitrator, the appointed
arbitrator shall in consultation
with the parties decide whether
to adopt the previous
proceedings or to start afresh;
or
(b)
more than one arbitrator, the
previous proceedings may be
adopted or the proceedings may
start afresh where the tribunal
and the parties agree.
Duties and powers of arbitral
tribunal
21.
(1) An arbitral tribunal shall
(a)
be fair and impartial to the
parties; and
(b)
give each party the opportunity
to present its case.
(2) Subject to this Act, an
arbitral tribunal may conduct
the arbitration in a manner that
the arbitrator considers
appropriate but shall avoid
unnecessary delay and expense
and adopt measures that will
expedite the resolution of the
dispute.
(3) Subject to the fight of
parties to agree on any matter
the arbitral tribunal shall
decide on matters of procedure
and evidence.
(4) Matters of procedure and
evidence include but are not
limited
(a)
the time and place for holding
any part of the proceedings;
(b)
the questions that should be put
to and answered by respective
parties and how the questions
should be put: and
(c)
the application or
non-application of the strict
rules of evidence as to
admissibility, relevance or
weight of any material sought to
be tendered and how such
material should be tendered.
(5) The arbitral tribunal may
determine the time within which
directions are to be complied
with.
(6) The parties may agree to
permit an arbitrator to
(a)
consolidate one arbitral
proceedings with other arbitral
proceedings;
(b)
hold concurrent hearings. (7) An
arbitral tribunal may admit as
evidence, an affldavit or
statutory declaration concerning
the matters in evidence (whether
the affidavit or statutory
declaration was made in any
other proceeding or in
contemplation of the matter in
reference) except that a copy of
the affidavit
or statutory declaration shall
be given to the party against
whom it is made, three days
prior to its admission and the
person whose evidence is so
taken may at any time be
cross-examined by the party
against whom the evidence is
given.
(8) An arbitral tribunal may
employ an accountant to examine
accounts connected with the
matters in reference, and act
upon any statement
of accounts given by the
accountant without being obliged
to verify it.
(9) An arbitral tribunal may
engage a legal assessor to sit
with the arbitrator and may act
on the advice of the assessor.
(l0) An arbitral tribunal may at
any stage of the proceedings
obtain the opinion of counsel
upon any question of law arising
in the course of the reference
and act upon the opinion.
(11) An arbitral tribunal may
cause maps, plans and
measureme1tS to be made and
taken as the arbitral tribunal
considers necessary or expedient
and the costs and expenses of
making the maps, plans and
measurements shall be at the
discretion of the arbitrator.
(12) An arbitral tribunal may
from time to time make an award
upon any question in dispute
between the parties, that may
have arisen in the proceeding,
and the tribunal shall not by so
doing terminate the authority
of the tribunal until all
matters relating to the
questions in dispute have been
finally disposed of and any
separate award shall be observed
and performed without waiting
for another award.
(13) An arbitral tribunal may
order the execution of any document
by a party to the arbitration
for the purpose of giving effect
to the award of the tribunal and
to direct by whom and at whose
expense that document must be
prepared and executed.
Powers of umpire
22.
(1) An umpire may
(a)
sit with the arbitrators and·
may from time to time examine
witnesses, and
(b)
decide any question as to the
admissibility of evidence upon
which the arbitrators differ or
are in doubt
and except as provided in this
subrule the umpire shall not
interfere with the arbitration
until a matter is referred to
the umpire.
(2) Unless the arbitration is
deadlocked, the arbitral
tribunal shall make decisions,
orders and awards.
(3) If the arbitration is
deadlocked, the arbitral
tribunal shall give notice of
the deadlock in writing to the
parties and the umpire shall
then make decisions, orders and
awards as a sale arbitrator.
(4) If when the arbitration is
deadlocked, the arbitral
tribunal fail to give notice, or
if one arbitrator fails to join
the others in giving the notice,
a party may upon notice in
writing to the other party and
the arbitral tribunal request
the Centre to order that the
umpire replace the arbitrators
to make decisions, orders and
awards.
Arbitration management
conference
23.
(1) An arbitral tribunal shall
within fourteen days of being
appointed and upon giving seven
days written notice to the
parties, conduct an arbitration
management conference with
the parties or :heir
representatives in person or
through electronic or other :
telecommunication media to
determine
(a)
the issues to be resolved by
arbitration;
(b)
the date, time, place and
estimated duration of the
hearing;
(c) the need for
discovery, production of
documents or the is-
sue of interrogatories and to
establish how this should be
done;
(d)
the law, rules of evidence and
the burden of proof that is to
apply to the proceedings;
(e)
the exchange of declaration
regarding facts, exhibit, witnesses
and other related issues:
U)whether
there is the need to resolve
issues of liability and damages
separately;
(g)
whether the summary of evidence
of parties should be oral or in
writing;
(h)
the form of the award;
(L)
costs and arbitrator's fees
bearing in mind the relevant
fees of the Centre; and
(j) any other issue relating to
the arbitration.
(2) The decisions of an
arbitration conference shall be
in writing and shall be served
on the parties and Centre within
two days immediately
after the conference.
(3) An arbitral tribunal may
hold further arbitration
conferences as are considered
necessary upon four days written
notice to the parties.
Conciliation conference
24. (1) The Centre may with the
consent of the parties at any
time during the arbitration
process, arrange a conciliation
conference to facilitate the
resolution of the dispute,
except that an arbitrator in the
action shall not be the con
cilia tor.
(2) A conciliation conference
shall be informal and unless the
parties
otherwise agree only the parties
and the conciliator shall be
present at the conference.
(3) A conciliation conference
shall not, unless the parties
decide otherwise, last for more
than seven days.
(4) The conciliator shall be a
person appointed jointly by the
parties or where the parties are
unable to make the appointment,
appointed by the Centre.
(5) The parties may request the
Centre to provide them with a
list of conciliators from which
to make an appointment.
(6) The conciliator shall take
every necessary step to resolve
the differences between the
parties.
General provisions governing
proceedings
25. (1) Subject to these Rules,
an arbitral tribunal may conduct
the arbitration in such manner
as it considers appropriate,
provided that the parties are
treated fairly and at every
stage of the proceedings. each
party is given a full
opportunity for presenting that
party's case
(2) If a party so requests at
any stage of the proceedings,
the arbitral tribunal shall hold
hearings for the presentation of
evidence by witnesses, including
expert witnesses, or for oral
argument.
(3) In the absence of a request
by a party, the arbitral
tribunal shall decide whether to
hold such hearings or whether to
conduct the proceedings on the
basis of documents and other
materials.
(4) Documents or information
supplied to the arbitral
tribunal by one party shall at
the same time be communicated by
that party to the other party
Place of arbitration and place
of award
26. (1) Unless the parties have
agreed upon the place where the
arbitration is to be held, the
place shall be determined by the
arbitral tribunal, having regard
to the circumstances of the
arbitration.
(2) Where the parties agree only
on the country in which arbitration
is to be held, the arbitral
tribunal may hear witnesses and
hold meetings for consultation
among its members at any place
it considers appropriate in the
country, having regard to the
circumstances of the
arbitration.
(3) The arbitral tribunal may
meet at any place it considers
appropriate
for the inspection of goods,
other property or documents,
except that the parties shall be
given sufficient notice to
enable them to be present at an
inspection.
(4) The award shall be made at
the place of arbitration.
Language
27.
(1) Except as otherwise agreed
by the parties, the arbitral
tribunal shall, promptly after
its appointment, determine the
language or languages to be used
in the proceedings.
(2) The determination shall
apply to the claim, the answer
and (lny furthel written
statements and, if oral hearings
take place, ro the 1;:1 ngllage
or languages to be used in the
hearings.
(3) The arbitral tribunal may
order any document annexed to
the claim or answer and any
supplementary documents or
exhibits submitted in the course
of the proceedings, to be
delivered in their original
language, to be accompanied by a
translation into the language or
languages agreed upon by the
parties or determined by the
tribunal.
Plea to the jurisdiction of the
arbitral tribunal
28. (1) An arbitral tribunal
shall rule on objections to its
jurisdiction, including any
objections with respect to the
existence or validity of the
arbitration clause or of the
separate arbitration agreement.
(2) An arbitral tribunal shall
determine the existence or the
validity
of the contract of which the
arbitration clause forms a part.
(3) For the purposes of this
rule, an arbitration clause
which forms part of a contract
and which provides for
arbitration under these Rules
shall be treated as an agreement
independent of the other terms
of the contract.
(4) A decision by an arbitral
tribunal that the contract is
void shall not invalidate the
arbitration clause.
.
(5) A plea that an arbitral
tribunal does not have
jurisdiction shall be raised not
later than in the answer or,
with respect to a counterclaim,
in the reply to the
counterclaim.
(6) An arbitral tribunal shall
rule on an objection to its
jurisdiction
as a preliminary question and
where the objection is rejected.
the tribunal shall proceed with
the arbitration and make an
award.
Further written statements
29. (1) An arbitral tribunal
shall decide which further
written statements, in addition
to the claim and the answer are
required from or may be
presented by the parties and
shall fix the periods of time
for communicating these
statements.
(2) The periods of time fixed by
the arbitral tribunal for the
communication
of further written statements
shall not exceed twenty-one
days, except that the arbitral
tribunal may extend the time
limits if it concludes that an
extension is justified.
Evidence and hearings
30. (1) A party has the burden
of proving the facts relied on
to support the claim or answer
of the party.
(2) An arbitral tribunal may, if
it considers it appropriate,
require a party to deliver to
the tribunal and to the other
party. within a period of time
specified by the arbitral
tribunal, summary of the
documents and other evidence
which that party intends to
present in support of the facts
in issue set out in that party's
claim or answer.
(3) At any time during the
arbitral proceedings the
arbitral tribunal may require
the parties to produce
documents, exhibits or other
evidence within a period of time
determined by the tribunal.
(4) In the event of oral
hearing, the arbitral tribunal
shall give the parties adequate
advance notice of the date, time
and place of the hearing.
(5) If witnesses are to be
heard, each party shall, at
least fourteen days before the
hearing, communicate to the
arbitral tribunal and to the
other party the names and
addresses of the witnesses that
party intends to present, the
subject upon, and the languages
in which, the witnesses will
give their evidence.
(6) An arbitral tribunal shall
make arrangements for the
translation
of oral statements made at a
hearing and for a record of the
hearing if either is considered
necessary by the tribunal under
the circumstances of the case,
or if the parties have agreed to
this and have communicated that
agreement to the tribunal at
least fourteen days before the
hearing.
(7) Hearings shall be in private
unless the parties agree
otherwise. (8) The arbitral
tribunal may require a witness
to retire during the testimony
of other witnesses and the
tribunal is free to determine
the manner in which witnesses
are examined.
Interim measures of protection
31. (1) At the request of either
party, an arbitral tribunal may
take any interim measures it
considers necessary in respect
of the subject-matter of the
dispute, including measures for
the conservation of goods that
form the subject-matter in
dispute, such as ordering their
deposit with a third person or
the sale of perishable goods.
(2) Interim measures may be in
the form of an interim award and
the arbitral tribunal shall be
entitled to require security for
the costs of the measures.
Experts
32.
(1) An arbitral tribunal may
appoint one or more experts to
report to it, in writing, on
specific issues to be determined
by the tribunal and a copy of
the expert's term of reference,
established by the tribunal
shall be communicated to the
parties. "
(2) The parties shall give the
expert any relevant information
or produce for the expert's
inspection any relevant
documents or 800uS that the
expert may require of them and
any dispute between a party and
an expert as to the relevance of
the required information or
production shall be referred to
the arbitral tribunal for
determination.
(3) Upon receipt of the expert's
report, the arbitral tribunal
shall send copies of the report
to the parties, who shall be
given the opportunity
to express their opinion on the
report; and a party may examine
any document on which the expert
has relied upon in the report.
(4) An expert, after delivery of
a report, may at the request of
either party, be heard at a
hearing where the parties shall
have the opportunity to be
present and to cross-examine the
expert, and at this hearing
either party may present expert
witnesses in order to testify on
the points in issue.
(5) The provisions of rule 30
(Evidence and hearings) are
applicable
to a hearing under this rule.
Default
33.
(1) If one of the parties, duly
notified under these Rules,
fails to appear at a hearing,
without showing sufficient cause
for the failure, the arbitral
tribunal may proceed with the
arbitration.
(2) If one of the parties, duly
invited to produce documentary
evidence,
fails to do so within the
specified period of time, and
without showing sufficient cause
for the failure, the arbitral
tribunal may make the award on
the evidence before it.
Closure of hearings
34.
(1) An arbitral tribunal may
inquire of the parties if they
have any further proof to offer
or witnesses to be heard or
submissions to make and, if
there are none, it may declare
the hearings closed.
(2) An arbitral tribunal, if it
considers it necessary owing to
exceptional
circumstances, may on its own
motion or upon application of a
party, re-open the hearings at
any time before the award is
made.
Waiver of Rules
35.
A party who knows that any
provision of, or requirement
under, these Rules has not been
complied with and yet proceeds
with the arbitration without
promptly stating the objection
to the non-compliance, shall be
deemed to have waived the right
to object.
Decisions
36.
(1) When there are three or more
arbitrators, any award or
decision of the arbitral
tribunal shall be made by a
majority of the arbitrators.
(2) The provisions of rule 22
shall apply where the
arbitration is deadlocked.
Form and effect of the award
37.
(1) The arbitral tribunal in
addition to making a final
award, may make interim,
interlocutory, or partial
awards.
(2) An award shall be in writing
and shall be binding on the
parties. (3) Except as otherwise
provided under these Rules or as
the parties
otherwise agree, the arbitral
tribunal shall state the reasons
upon which the award is based.
(4) An award shall be signed by
the arbitrators and it shall
contain the date on which and
the place where the award was
made.
(5) Where there are three
arbitrators and any of them
fails to sign, the award shall
state the reason for the absence
of the signature.
(6) Copies of the award signed
by the arbitrators shall be
communicated
to the parties by the arbitral
tribunal and the award may be
made public only with the
consent of both parties.
(7) If the law of the
arbitration agreement requires
that the award be filed or
registered by the arbitral
tribunal, the tribunal shall
comply with this requirement
within the period of time
required by the law.
Applicable law
38.
(1) An arbitral tribunal shall
apply the law designated by the
parties as applicable to the
substance of the dispute and
failing such designation by the
parties, the arbitral tribunal
shall apply the law determined
by the conflict of laws rules it
considers applicable.
(2) In all cases, the arbitral
tribunal shall decide in
accordance with the terms of the
contract and shall take into
account the usages of the trade
applicable to the transaction.
Settlement or other grounds for
termination
39.
(1) If before the award is made,
the parties agree on a
settlement of the dispute, the
arbitral tribunal shall either
issue an order for the
termination of the arbitral
proceedings or, if requested by
both parties and accepted by the
tribunal, record the settlement
in the form of an arbitral award
on agreed terms and the arbitral
tribunal is not obliged 10 give
reasons for such an award.
(2) If, before the award is
made, the continuation of the
arbitration proceedings becomes
unnecessary or impossible for
any reason not mentioned in
subrule (1), the arbitral
tribunal shall inform the
parties of its intention to
issue an order for the
termination of the proceedings
and the arbitral tribunal may
issue the order unless a party
raises justifiable grounds of
objection.
(3) Copies of the order of
termination of the arbitral
proceedings or of the arbitral
award on agreed terms, signed by
the arbitrators, shall be
communicated by the arbitral
tribunal to the parties.
(4) The provisions of rule 37
subrules (2), (4) and CI)
shall apply to an arbitral award
on agree terms.
Interpretation of the award
40. (1) Within thirty days after
the receipt of an award, either
party, with notice to the other
party, may request the arbitral
tribunal to give an
interpretation of the award.
(2) The interpretation shall be
given in writing within fourteen
days after the receipt of the
request and shall form part of
the award.
Correction of the award
41. (1) Within thirty days after
the receipt of an award,
either party, with notice to
the other party, may request the
arbitral tribunal to correct in
the award any errors in
computation, any clerical or
typographical error, or any
errors of similar nature.
(2) The arbitral tribunal may
within thirty days after the
communication
of the award, make such
corrections on its own
initiative.
(3) Corrections shall be in
writing, and the provisions of
rule 37 subrules (2) to (7),
shall apply.
Additional award
42. (1) Within thirty days after
the receipt of the award, either
party, with notice to the other
party, may request the tribunal
to make an additional award in
respect of claims presented in
the arbitral proceedings but
omitted from the award.
(2) If the arbitral tribunal
considers the request for an
additional award to be justified
and considers that the omission
can be rectified without any
further hearings or evidence, it
shall complete its award within
thirty days after the receipt of
the request.
(3) When an additional award is
made, the provisions of Rule 37
subrules (2) to (7), shall
apply.
Costs and fees
43. (1) An arbitral tribunal
shall fix the costs of the
arbitration in its award; and
the term 'costs' for this
purpose means
(a)
the fees of the arbitrators and
umpire to be stated separately
as to each arbitrator and to be
fixed by the arbitral tribunal
itself in accordance with this
rule;
(b)
the travel and other expenses
incurred by the arbitrators;
(c)
the costs of expert advice and
of other assistance required by
the arbitral tribunal;
(d)
the travel and other expenses of
witnesses to the extent that
those expenses were approved by
the arbitral tribunal;
(e)
the costs for legal
representation and assistance of
the successful party if these
costs were claimed during the
arbitral
proceedings, and only to the
extent that the arbitral
tribunal determines that the
amount of these costs is
reasonable; and .
(f)
any fees and expenses of the
Centre(2) The fees of the
arbitral tribunal shall be
reasonable in amount, taking
into account the amount in
dispute, the complexity of the
subject
matter, the time spent by the
arbitrators and any other
relevant circumstances of the
case.
(3) An arbitral tribunal in
fixing its fees shall take into
account any list of fees issued
by the Centre.
(4) Where the Centre has not
issued a list of fees for
arbitrators in international
cases, a party may at any time
request the Centre to furnish a
statement that sets out the
basis for establishing fees
which is customarily followed in
international cases in which the
Centre appoints arbitrators and
if the Centre consents to
provide that statement, the
arbitral tribunal in fixing its
fees shall take the information
into account.
(5) Except as provided in
subrule (6), the costs of
arbitration shall be borne by
the unsuccessful party, except
that the arbitral tribunal may
apportion each of the costs
between the parties, if it
determines that apportionment is
reasonable taking into account
the circumstances of the case.
(6) With respect to the costs of
legal representation and
assistance referred to in
subrule (1)(e), the
arbitral tribunal, taking into
account the circumstances of the
case, may determine which party
shall bear the cost or any
apportion of the costs betwefl1
the parties, if it determines
that apportionment is
reasonable.
(7) When an arbitral tribunal
issues an order for the
termination of arbitral
proceedings or makes an award on
agreed terms, it shall fix the
costs of arbitration.
(8) No additional fees shall be
charged by an arbitral tribunal
for interpretation or correction
or completion of its ward under
rules 40, 41 and 42.
Deposits of costs
44. (1) An arbitral tribunal, on
its appointment, may request
each party to deposit an equal
amount as an advance for the
costs referred to in rule 43
(1)(a), (b) and (c).
(2) During the course of the
arbitral proceedings the
arbitral tribunal may request
supplementary deposits from the
parties.
(3) Where a party requests, and
the Centre consents to provide a
list of fees, the arbitral
tribunal shall fix the amounts
of any deposits or supplementary
deposits only after consultation
with the Centre which may make
any comments it considers
appropriate to the arbitral
tribunal concerning the amount
of deposits and supplementary
deposits.
(4) If the required deposits are
not paid in full within thirty
days after the receipt of the
request, the arbitral tribunal
shall inform the parties in
order that one or the other
party may make the required
payment.
(5) If payment is not made, the
arbitral tribunal may order the
suspension or termination of the
arbitral proceedings.
(6) After the award has been
made, the tribunal shall render
an account to the parties of the
deposits received and return any
unexpended balance to the
parties.
THIRD SCHEDULE
EXPEDITED .ARBITRATION
PROCEEDINGS RULES OF THE CENTRE
(Section 60)
Notice
1. (1) Notice to a party and
the Centre may be by telephone,
fax, email,
or other mode of electronic
communication.
(2) A notice by telephone shall
be confirmed in writing but a
failure to confirm the notice in
writing shall not invalidate
proceedings.
Appointment of arbitrator in
expedited arbitration
2. (1) If the claim or
counterclaim does not exceed
US$100,OOO or its cedi
equivalent, the Centre shall
upon the submission of the
dispute by a party appoint a
sole arbitrator from the
register of arbitrators of the
Centre upon the payment of the
applicable fee.
(2) Where the claim or
counterclaim in issue exceeds
US$100,OOO or its cedi
equivalent; or whatever the
claim or subject matter, the
parties agree to the resolution
of the issue by expedited
arbitration procedure, the
Centre shall upon the
notification under subrule 1(1)
submit to the parties at the
same time an identical list of
five arbitrators upon payment by
the applicant of the prescribed
fee.
(3) Where a list is submitted to
the parties as provided under
subrule (2) each party shall
peremptorily strike out two
names on the list and number the
arbitrators left on the list in
order of preference and return
the list to the Centre within
seven days of receipt of the
list.
(4) The Centre shall upon the
receipt of the list appoint a
single arbitrator from the
returned list.
(5) If an arbitrator cannot be
appointed from the list, the
Centre shall without further
reference to the parties appoint
an arbitrator from the register.
(6) The Centre shall, whatever
the claim to which the expedited
procedure is applied, give
notice of the appointment of an
arbitrator to the parties who
shall within three days of
receipt of the notice communicate
their objection to the
appointment, if any, to the
Centre.
(7) An objection to an
arbitrator by telephone shall be
confirmed in writing to the
Centre with copies to the other
party.
(8) If the appointment of an
arbitrator is objected to, the
Centre shall decide whether to
retain that arbitrator or
appoint a new arbitrator.
Date, time and place of hearing
3.(1)
The arbitrator shall determine
the date, time and place of
hearing.
(2) he Centre shall give
notice of the time of hearing to
the parties not later than seven
days before the hearing date.
(3) Except where the dispute is
to be resolved by the submission
of documents, the hearing shall
be completed within one day.
(4) Where thee is sufficient
reason for doing so, the
arbitrator schedule an
additional hearing to he held
within three day’s of the end of
hearing.
Time for award
4. Except the parties otherwise
decide, the arbitrator shall
make an award within seven days
from the close of hearing.
FOURTH SCHEDULE
MEDIATION RULES OT THE CENTRE
Submission of dispute for
mediation
(Section 66 (33) )
1. (1) A party to a dispute
whether or not there is a
mediation agreement in respect
of that dispute may initiate
mediation with the Centre by
(a)
filing 2 copies of a submission
for mediation with the
Centre;
(b)
paying the prescribed fee; and
(c)
serving each of the parties to
the dispute with a copy of the
submission.
(2) A submission shall contain
(a)
a statement of the nature of the
dispute, and
(b)
the names, addresses and
telephone numbers of the parties
to the dispute.
Reference to mediation by court
2. (1) A court before which an
action is pending may at any
stage in the proceedings,
if it is of the view that
mediation will facilitate
resolution of the matter or part
of the matter in dispute, and
the parties desire mediation by
the Centre, refer the matter or
that part of the matter to the
Centre for mediation.
(2) A reference under rule (1)
shall state (a) the
nature of the dispute;
(b)
the monetary value of the
claim; and
(c)
the remedy sought
and shall have attached copied
of the pleadings and any other
documents the court considers
relevant.
(3) A reference under this rule
shall serve as a stay of
proceedings of the court action.
(4) Where a reference leads to a
settlement of the dispute or a
part of the dispute, the
settlement shall be
(a)
filed in the court;
(b)
recorded by the court as a
judgment of the court; and
(c) enforce by the court as
its judgment.
Submission of dispute for
mediation
1. (1) A party to a dispute
whether or not there is a
mediation agreement in respect
of that dispute may initiate
mediation with the Centre by
(a)
filing 2 copies of a submission
for mediation with the Centre;
(b)
paying the prescribed fee; and
(c)
serving each of the parties to
the dispute with a copy of the
submission.
(2) A submission shall contain
(a)
a statement of the nature of the
dispute, and
(b)
the names, addresses and
telephone numbers of the parties
to the dispute.
Reference to mediation by
court
2. (1) A court before which an
action is pending may at any
stage in the proceedings, if it
is of the view that mediation
will facilitate resolution of
the matter or part of the matter
in dispute, and the parties
desire mediation by the Centre,
refer the matter or that part of
the matter to the Centre for
mediation.
(2) A reference under rule (1)
shall state (a) the
nature of the dispute;
(b)
the monetary value of the claim;
and (c) the remedy sought
and shall have attached copied
of the pleadings and any other
documents the court considers
relevant.
(3) A reference under this rule
shall serve as a stay of
proceedings of the court action.
(4) Where a reference leads to a
settlement of the dispute or a
part
of the dispute, the settlement
shall be (a) filed in the
court;
(b)
recorded by the court as i;l
judgment of the court; and
(c)
enforce by the court as its
judgment.
(5) Where the reference does not
lead to a settlement, the court
shall continue with the
proceedings from the point where
the reference was made.
Appointment of mediator
3. (1) The Centre on receipt of
a submission shall appoint a
qualified person registered with
the Centre to serve as a
mediator in the dispute.
(2) Where the parties name a
mediator or specify a method of
appointing a mediator in an
agreement, the Centre shall
appoint the person named or
follow the specified method.
(3) Unless the parties agree
otherwise, the Centre shall
appoint only one person to serve
as mediator.
Mediator with interest
4. Except by the written consent
of the parties, the Centre shall
not appoint a person to serve as
a mediator in it dispute if that
person has a financial or
personal interest in the outcome
of the dispute.
Disclosure by mediator
.5.
(1) A person appointed a
mediator shall disclose any
circumstance relating to that
person that is likely to
(a)
create a presumption of bias: or
(b)
affect the conduct of mediation
before accepting the
appointment.
(2) Where a disclosure is made
under subruIe (1), the Centre
shall within seven days of the
disclosure inform the parties.
(3) If a party upon being
informed of a disclosure objects
to the proposed mediator, the
Centre shall appoint another
mediator in substitution.
Termination of appointment for
delay
6. The Centre may replace a
mediator who falls to start work
promptly.
Filling of vacancy in mediation
7. Unless the parties otherwise
agree, the Centre s hall appoint
another mediator to replace a
mediator who is unable to
perform or vacates the post.
Powers of mediator
8. (1) A mediator shall do
everything necessary to help the
parties to satisfactorily
resolve their dispute.
(2) The mediator may conduct
joint or separate meetings with
the parties and make
recommendations for settlement.
(3) The mediator may where
necessary and if the parties
agree to pay the expenses,
obtain expert advice on
technical aspects of the dispute.
(4) A request for the services
of an expert may be made by the
mediator
or by a party with the consent
of the mediator.
(5) A mediator may end the
mediation whenever the mediator
is of the opinion that further
mediation between the parties
would not help resolve the
dispute between the parties.
Representation in mediation
9. (1) A party may be
represented by a lawyer, an
expert or any other person
chosen by the party.
(2) A party shall communicate in
writing to the Centre and the
other party the name and address
of any representative within
seven days of the
representative's appointment.
Date, time and place
of mediation
(1) The mediator shall
determine the date and time of
each mediation session.
(2) Subject to the mediator
choosing a convenient place, the
Centre
with the agreement of the
parties, shall determine the
place for the mediation.
Identification of issues in
dispute
11. Not later than eight days
before the first mediation
session, each party shall
present to the Centre and the
other party, a memorandum
setting out the party's position
with regard to the issues which
require resolution.
Presentation of relevant
documents and information
12. A party shall present
documents and information
required for the resolution of
the dispute to the mediator at
the first mediation session.
Attendance at mediation
13. Except where the parties
agree and the mediator consents,
a person who is not a party
to the mediation shall
not attend a mediation
session
Confidentiality of mediation
14. (1) Records, reports and the
rather documents required in the
course of mediation shall be
confidential.
(2) A mediator shall not
disclose confidential
information given in the course
of the mediation.
(3) A party to a mediation shall
not rely on
(a)
the record of the mediation;
(b)
any evidence adduced at the
mediation; or
(c)
information obtained during the
mediation
as evidence in court
proceedings.
Suggestions by parties for
settlement of dispute
15. Each party may, on that
party's own initiative or at the
invitation of the mediator,
submit to the mediator
suggestions for the settlement
of the dispute.
End of mediation
16. (1) A mediation ends when
(a)
the parties execute a settlement
agreement;
(b)
the mediator makes a written
declaration to the effect that
further mediation is not
worthwhile; or
(c)
a party makes a written
declaration to the effect (hat
the mediation is terminated.
(2) The settlement at a
mediation is binding on the
parties only where the parties
so agree.
Exclusion
of liability
17. (1) The Centre or a,
mediator is not a necessary
party in any court proceedings
relating to the mediation.
(2) The Centre or a mediator is
not liable to a party for an act
or omission in respect of a
mediation under this Act.
Mediation expenses
18.(1)
A party to a mediation shall pay
the expenses of its witnesses.
(2) The parties shall
equally pay the expenses of the
mediation including the expenses
of
(a)
the mediator;
(b)
the representative of the Centre
(if any); and
(c) witnesses and experts called
by the mediator.
FIFTH
SCHEDULE
ARBITRATION CLAUSES OR
AGREEMENTS (SAMPLES)
(Section
2 (3))
Clause referring future disputes
to arbitration
1. Any dispute or difference
between the parties in
connection with this agreement
shall be referred to
arbitration.
Clause referring future disputes
to a single arbitrator to be
appointed by an appointing
authority
2. Any dispute or difference
between the parties in
connection with this agreement
shall be referred to and
determined by a sole arbitrator
to
be
appointed by
........................ (name
of the appointing authority).
Arbitration agreement referring
future disputes to a single
arbitrator
3. (1) Any dispute or difference
between the parties in
connection with this agreement
shall be referred to and
determined by a sole
arbitrator ...................
(name of the arbitrator) and the
arbitration shall
be held
in ..................... (place
of arbitration).
(2) The arbitrator shall be
appointed by agreement between
the parties or in default of
agreement by the parties, be
determined by the appointing
authority.
(3) In the event of default by
either party in respect of any
procedural
order made by the arbitrator,
the arbitrator may proceed with
the arbitration in the absence
of that party and deliver the
arbitration award.
Clause referring future disputes
to two arbitrators
4. Any dispute or difference
between the parties in
connection with this agreement
shall be referred to and
determined by two arbitrators,
one to be appointed by each
party.
Arbitration agreement referring
future disputes to two
arbitrators and an umpire
5. (1) Any dispute or difference
between the parties in
connection with this agreement
shall be referred to and
determined by two arbitrators,
and the
arbitration shall be held in:."
.................. (place of
arbitration). (2) Each party
shall appoint one arbitrator,
and the arbitrators so
,appointed shall appoint an
umpire. The umpire shall attend
all hearings, including
preliminary meetings, but shall
not be called upon to act unless
the arbitrators appointed by the
parties fail to agree.
(3) If either party fails to
appoint an arbitrator within
seven clear days after the other
party has appointed an
arbitrator and has served the
defaulting party with a notice
to make the appointment, the
party who has appointed an
arbitrator is entitled to
appoint that arbitrator to act
as sole arbitrator.
(4) The procedure to be followed
in the arbitration shall be
agreed upon by the parties or,
in default of agreement,
determined by the arbitrators
or, if necessary, by the umpire.
(5) In the event of default by
either party in respect of any
procedural
order made by the arbitrators or
umpire, the arbitrators or
umpire may proceed with the
arbitration in the absence of
that party and to deliver the
award.
Clause referring future disputes
to a tribunal of three
arbitrators
7(1) any dispute or difference
between the parties in
connection with this agreement
shall referred
to and determined by the
arbitrator
in (place of
arbitration) by a tribunal of 3
arbitrator Each party shall
appoint one arbitrator and the
third arbitrator shall be
appointed by agreement so
appointed , or in default of
agreement between them
by………………(the· appointing
authority).
(2) The arbitral tribunal shall
consist of three arbitrators and
shall be constituted as follows:
(a)
the claimant shall nominate an
arbitrator and may by notice in
writing
call on the other party to
nominate an arbitrator within
days of the notice, failing
which the second within
days of the notice,
failing which the second
arbitrator shall at the request
of the claimant be appointed by
………………….(the appointing
authority).
(b)
the third arbitrator [who shall
serve as umpire of the tribunal]
shall be appointed by agreement
between the two arbitrators
appointed under (a) or,
in default of agreement within
... ………… days of the appointment
of the second arbitrator, on the
nomination of.. ………… (the
appointing authority) at the
written request of either or
both of the parties,
(c)
where a vacancy arises because
any arbitrator dies or resigns,
refuses to act, or [in the
opinion of the other arbitrators
or the appointing authority]
becomes incapable of performing
the functions of office, the
vacancy shall be filled by the
method by which that arbitrator
was originally appointed.
(3) The procedure to be followed
in the arbitration shall be
agreed by the parties or, in
default of agreement, determined
by the tribunal.
(4) In the event of default by
either party in respect of any
procedural order made by the
tribunal, the tribunal shall
have power to proceed with the
arbitration in the absence of
that party and to deliver its
award.
(5) Any award or procedural
decision of the tribunal shall
if necessary be made by a
majority vote. In the absence of
a majority vote the umpire shall
make an award or procedural
decision as if the umpire were a
sole arbitrator.
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