Ghana

Ghana’s court system for commercial claims operates within a structured hierarchy that promotes efficiency, fairness and specialisation in handling business disputes.

The High Court has original jurisdiction in all commercial matters and a specialised commercial division of the High Court has been established to deal with high-value commercial matters. This division operates under specific rules. Appeals in commercial matters travel from the High Court to the Court of Appeal as of right and then to the Supreme Court, which is the final appellate court in all cases. Beneath the High Court are the District and Circuit Courts, which deal with low-value and less complex commercial disputes.

A case is classified as commercial when it arises from trade or business activities such as contracts, banking, insurance, import and export and similar transactions. In all cases, commercial actions generally begin by a writ of a summons, although in some cases they may be commenced by an originating motion. There is a commercial division of the High Court with its special rules (the “Rules”) which deals with commercial matters.

In the Commercial Court, once a writ of summons is served, the defendant has eight days to enter an appearance. After that period expires, the defendant has a further 14 days to file a statement of defence. The plaintiff may file a reply within eight days after being served with the statement of defence.

Within three days after the time for filing a reply has expired, the court administrator must assign the case to a judge for a pre-trial settlement conference. The assigned judge is required, within 30 days of the assignment, to invite the parties to explore settlement. Where there is a reasonable prospect of settlement, this period may be extended for a further period not exceeding 30 days.

If settlement fails, the judge must direct the parties back to the court administrator, who shall immediately place the matter before another judge for hearing. Under the rules, the hearing should not last more than 21 days. The court may, where appropriate, call upon the assistance of assessors during the trial. The trial is required to proceed in accordance with the High Court (Civil Procedure), Rules 2024 C.I. 47 (the “Rules”).

The Rules also make provision for parties to exchange documents, comply with disclosure requirements and respond to requests for information to help narrow down the issues for trial. These procedures are designed to ensure expedition, reduce delays and promote efficient resolution of commercial disputes.

There are no mandatory pre-action considerations in commercial claims. However, certain statutory pre-conditions must be satisfied in specific cases. For example, a party intending to initiate civil action against the state must serve on the Attorney General a written notice of their intention at least 30 days before the commencement of the action. Likewise, where a lawyer seeks to recover unpaid fees from a client, proceedings may only be commenced 30 days after service of an invoice on the client. Nonetheless, in all cases, parties must consider capacity, limitation periods, contractual notice or pre-conditions, and questions of jurisdiction and forum before commencing proceedings.

In Ghana, ADR is governed by the Alternative Dispute Resolution Act, 2010 (“Act 798”). The main ADR mechanisms used to resolve large commercial disputes are negotiation, mediation and arbitration. These mechanisms are adopted by agreement between the parties. There is no mandatory ADR requirement unless expressly agreed in a contract or voluntarily elected by the parties.

Negotiation is often the first step and involves direct discussions between the parties to reach a voluntary settlement without third-party involvement.

Mediation may follow failed negotiations or be used as an initial option. Act 798 expressly requires the consent of the parties to submit a dispute to mediation and a party’s failure to accept an invitation to mediate amounts to a rejection. An independent and impartial mediator facilitates discussions to help the parties reach an agreement. Mediation under Act 798 is confidential and non-binding; however, where the parties agree that a settlement is binding, the settlement agreement is final, binding and enforceable in courts. Although the courts are empowered to refer matters to settlement by mediation, the process remains voluntary and can only be initiated with party consent.

Arbitration is the voluntary submission of a dispute to one or more impartial persons for a final and binding determination. Arbitrators have a duty to be independent and impartial and the outcome of an arbitration is an award that is final and binding. This can be enforced through the High Court.

Many commercial contracts adopt a multi-tier process requiring negotiation and/or mediation prior to arbitration.

The time it takes for commercial disputes in Ghana to reach trial depends significantly on complexity, interlocutory activity, and judicial case management.

Ideally and under the rules, a well-managed case can move from Writ of Summons to trial listing in approximately nine months. However, administrative delays, adjournments, interlocutory applications, and delays in compliance with directions often extend timelines.

Parties in commercial litigation are required to disclose documents in their possession, custody, or control that are relevant to the dispute, including documents that are unfavourable to the disclosing party, not only those they intend to rely on.

Where a party fails to comply with a rule or court order requiring the discovery or production of documents, the court may make any orders it considers just, including dismissing the action, striking out the defence and entering judgment, barring the party from relying on favourable documents at trial without leave, or committing the party for contempt where the document is unfavourable.

Importantly, the rules also allow parties to agree to dispense with or limit discovery obligations that would otherwise be required. In addition to documents disclosure, the rules also provide for interrogatories and requests to admit facts or documents, allowing parties to obtain information or documents to narrow issues for trial.

Witnesses in commercial litigation are required to attend trial and are subject to cross-examination. Under Ghanaian law, a witness can only testify if they are available for cross-examination by the parties to the action.

The courts also have the power, either on their own motion or at the request of a party, to compel a witness to attend and give evidence or produce documents at any stage of the proceedings.

Costs of and incidental to proceedings in courts are at the discretion of the court, and the court has full power to determine by whom and to what extent the costs are to be paid.

In assessing the amount of costs to be awarded to any party, the court has regard to:

• the amount of expenses (including travel expenses) reasonably incurred by that party in relation to the proceedings;
• the amount of court fees paid by that party in relation to the proceedings;
• the length and complexity of the proceedings;
• the conduct of the parties and their lawyers during the proceedings; and
• any previous order as to costs made in the proceedings.

The main interim remedies available under Ghanaian law include injunctions and preservation orders. These may be granted when it appears to the court that it is “just or convenient” to do so.

The most common remedy is an interlocutory injunction, usually to preserve the status quo, prevent irreparable harm, or avoid dissipation of assets. These may take various forms, including freezing orders (Mareva-type relief) and orders to allow limited access and preservation of evidence or property (Anton Piller-type relief).

Other interim remedies include orders for preservation or interim custody of property, orders for the sale of perishable goods, stays of proceedings or execution, and provisional attachment or security orders.

Ghanaian courts adopt a strongly pro-arbitration approach. Where the parties have agreed to arbitration, the courts are required to stay proceedings and refer the matter to arbitration upon application by a party. Thus, the role of the courts is supportive rather than interventionist, assisting the process when necessary. The court has the power to stay proceedings where a party commences a court action despite the pendency of arbitration agreement and to enforce arbitral awards. The court may also grant interim measures, such as preserving evidence or determining preliminary points of law.

Arbitration in Ghana is governed by Act 798. This Act is broadly modelled on the UNCITRAL Model Law and incorporates key Model Law principles including:

• competence–competence — the power of the arbitral tribunal to rule on its own jurisdiction, (consistent with Article 16 of the UNCITRAL Model law);
• interim measures — the arbitral tribunal may grant interim measures to preserve assets (consistent with Article 17 of UNCITRAL Model Law); and
• enforcement of awards — arbitral awards are final and binding and enforceable by the High Court (consistent with Article 17H of UNCITRAL Model Law).

Act 798 also recognises customary arbitration, reflecting local practice.

The Ghanaian arbitration framework emphasises party autonomy, minimal court interference, enforceability of awards and procedural efficiency. The courts may assist by granting interim relief, staying proceedings and enforcing awards, and may hear applications to set aside awards on limited statutory grounds under section 58 of Act 798.

Arbitrators in Ghana are empowered to grant interim relief. At the request of a party, an arbitrator may grant any interim relief considered necessary for the protection and preservation of property pending the final determination of the dispute.

In Ghana, arbitral awards are final and binding and there is no appeal on the merits. However, an award may be challenged on limited grounds under Act 798.

The court may, on application by a party, set aside an arbitral award. The award may be set aside by the court only where the applicant satisfies the court that:

• a party to the arbitration was under some incapacity or disability;
• the law applicable to the arbitration agreement is invalid;
• the applicant was not given notice of the proceedings or of the appointment of the arbitrator or of proceedings or was otherwise unable to present his/her case;
• the award deals with a dispute not within the scope of the arbitration agreement or outside the agreement (provided, however, that any part of the award falling within the submission shall not be set aside);
• there has been failure to conform to the agreement procedure by the parties;
• the arbitrator failed to disclose an interest in the subject matter; or
• the dispute was not arbitrable or the award was induced by fraud or corruption.

Ghana is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Section 59 of Act 798 states that the High Court shall enforce a foreign arbitration award in a number of instances. One of them is if the award was made under the New York Convention.

With the exception of the above, Ghana is not signatory to any international convention on enforcement of judgments or arbitral awards in Ghana. However, on the grounds of reciprocity, Ghana recognises a list of countries whose judgments will be enforced in Ghana under the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (L.I. 1575).

In Ghana, all final, valid and conclusive commercial judgments issued by a court of competent jurisdiction are enforceable. These include:

• Monetary judgments: orders for the payment of money, including debts, damages, compensation.
• Injunctions: orders restraining or compelling conduct.
• Orders for specific performance, compelling a party to fulfil a contractual obligation.
• Consent judgments and settlement orders: once entered, enforceable as judgments of the court.
• Arbitral awards: domestic awards and foreign awards registered/recognised under Act 798, enforceable as High Court judgments.

Foreign judgments

Foreign judgments may be enforced in Ghana if the judgment is final and conclusive and issued by superior court of a reciprocating country. These judgments may be registered in the manner set out by the rules and once registered, have the same force as a High Court judgment.

A foreign judgment from a non-reciprocating country cannot be directly registered and may only be enforced by instituting fresh proceedings at common law to recognise and enforce the judgment.

Foreign judgments

Registration of foreign judgments is governed by the Courts Act, 1993 (“Act 459”), the Foreign Judgments and Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (L.I. 1575) and High Court (Civil Procedure) Rules, 2004 (C.I. 47).

Key requirements

A foreign judgment may be registered where it is:

• from a superior court of a reciprocating country under in L.I. 1575;
• final and conclusive, with no pending appeal;
• enforceable in the country of origin; and
• has not been wholly satisfied.

The judgment must be registered within six years of delivery.

Procedure

Applicants seeking to register a foreign judgment must:

• File a motion at the High Court with an affidavit exhibiting a certified copy of the judgment (translated if necessary) and stating the particulars of the judgment debtor and creditor, the sum payable under the judgment, among other details.
• If the court grants the application, the debtor is given time to apply to set it aside.
• Once registered, it has the same effect as a High Court judgment and may be enforced accordingly.

Foreign arbitral awards

Foreign arbitral awards can be enforced directly under section 59 of Act 459.

Key requirements

The High Court will enforce a foreign award where the applicant satisfies the court that:

• the award was made by a competent authority under the law of the country in which it was made;
• a reciprocal arrangement exists between Ghana and the country in which the award was made, or the award was made under the New York Convention or any other international convention on arbitration ratified by parliament;
• the applicant produces the original award (or an authenticated copy) and the arbitration agreement (or an authenticated copy); and
• there is no appeal pending against the award in any court under the law applicable to the arbitration.

Procedure

A foreign arbitral award may be enforced by leave of court by filing an originating motion on notice to the debtor supported by an affidavit exhibiting the award and the agreement. If satisfied, the court gives the award the force of a High Court judgment. Enforcement is by the usual execution methods, and actions to enforce an arbitral award that was not made under the act must be initiated within six years, or within 12 years if the award is issued under an agreement under seal.

Once a foreign judgment is registered, or once leave is granted to enforce a foreign arbitral award, it is enforceable in the same manner as a judgment of the High Court. Execution may proceed by writ of fieri facias for seizure and sale of movable property, writ of possession to recover immovable property, garnishee proceedings to attach funds in the hands of third parties, charging orders over land, shares or securities, or appointment of a receiver to collect income. Where the judgment debtor is insolvent, the creditor may also initiate winding up or bankruptcy proceedings.

Pending enforcement, the High Court may grant interim measures to preserve and or prevent dissipation of assets. These measures include interlocutory injunctions to restrain dealings with property, orders for preservation of assets or bank accounts, and garnishee proceedings to intercept funds owed to the judgment debtor. The court may also grant charging orders over land, shares, or securities, require security for costs, or order discovery and production of financial information to assist in identifying assets. In appropriate cases, the court may appoint a receiver to take control of and manage income-producing property pending enforcement.

Proceeding on the assumptions outlined in the Model Answer, would a court in this jurisdiction recognise and enforce the arbitral award under the New York Convention?

In particular:

• Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?
• Is the subject matter of the dispute capable of settlement by arbitration under domestic law for the purposes of Article V(2)(a)?
• Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

Response

Recognition and enforcement

From the perspective of enforcement, a Ghanaian court would closely view an arbitral award arising from such a clause, particularly where the underlying judgment is a judgment of a Ghanaian court. Ghanaian law provides a comprehensive statutory regime for the enforcement of domestic judgments, and the courts retain inherent supervisory control over that process. An arbitral mechanism which effectively duplicates or supplants that regime without involving any substantive adjudication may be viewed as an impermissible attempt to privatise the enforcement of a domestic court judgment and may be resisted on public policy grounds under Article V(2)(b) of the New York Convention.

Arbitration is fundamentally a consensual process for the resolution of disputes. Once a final judgment is entered by a court of competent jurisdiction, the original dispute is extinguished and replaced by a judgment debt. Under the clause described, the arbitrator is expressly confined to verifying the finality of the court judgment and is prohibited from examining or determining any substantive issue.

However, whether a judgment of a Ghanaian court is final is itself a legal issue governed by Ghanaian procedural law, involving consideration of appeal rights, stays of execution and pending applications. That determination lies within the exclusive competence of the courts. An arbitral award founded on an arbitrator’s assessment of the finality of a Ghanaian judgment would therefore engage a substantive judicial function rather than a purely mechanical exercise. In those circumstances, a Ghanaian court may question whether the clause gives rise to a genuine arbitration agreement or merely establishes a process for converting a domestic court judgment into an arbitral award for enforcement purposes. That characterisation would weigh against enforcement where the judgment in question is domestic.

Under sections 1, 57, 58 and 59 of the Alternative Dispute Resolution Act, 2010 (Act 798), recognition and enforcement may be refused on grounds mirroring Article V of the New York Convention. In this context a few potential grounds may be relevant.

Firstly, Art V(1)(c) where the award deals with matters not contemplated by or falling outside the submission to arbitration. If the arbitrator remains strictly within the mandate of confirming the existence of a final judgment and non-payment, without purporting to revisit liability or quantum, this ground may not be engaged.

Secondly, Art V(2)(a) where the subject matter of the difference is not capable of settlement by arbitration under Ghanaian law. Ghanaian law recognises arbitration as a consensual process grounded in agreement, subject to limits where matters involve constitutional interpretation, public interest or other non-arbitrable areas. While debt disputes are ordinarily arbitrable, the enforcement of a domestic court judgment engages the judicial power vested in the court under the Constitution. A court may therefore scrutinise whether the subject matter is truly a private dispute or an aspect of judicial enforcement.

Thirdly Article V(2)(b) where the recognition or enforcement would be contrary to public policy. Public policy in Ghana encompasses respect for the finality of judgments, res judicata and the constitutional allocation of judicial power. Where an award is perceived to intrude upon the court’s exclusive jurisdiction in respect of its own decree, this ground would present a realistic basis for resistance by the courts.

The position differs where the underlying judgment is foreign. In that context enforcement of the arbitral award would not interfere with the authority or enforcement machinery of a Ghanaian court over its own decree. An award confirming the finality of a foreign judgment and giving effect to agreed payment, interest and security provisions would fall within the ordinary enforcement framework of the Convention. In such circumstances, the public policy objections linked to domestic judicial sovereignty would not arise in the same manner, and recognition and enforcement in Ghana would be more likely, subject to the procedural requirements of Act 798.

Accordingly while a Ghanaian Court may be reluctant to enforce such and award where it concerns the enforcement of a domestic court judgment, it is more likely to recognise and enforce where it relates to a foreign judgment and does not purport to open determined issues

Enforcement of security orders

In principle a provision requiring the paying party to provide security and to pay interest on unpaid sums fall within the scope of party autonomy. Act 798 permits the recognition and enforcement of arbitral awards imposing final and binding monetary or performance obligations.

In addition, section 38 of Act 798 expressly empowers an arbitrator, at the request of a party, to grant any interim relief considered necessary for the protection or preservation of property. Such relief may be granted in the form of an interim award. A direction requiring a party to pay a defined sum into escrow, provide a bank guarantee, or otherwise furnish security may therefore fall within the statutory powers of a tribunal seated in Ghana. As a matter of jurisdiction and competence, the granting of security is not foreign to Ghanaian arbitration law.

The critical issue is not whether a tribunal has power to order security but how such an order is characterised for purposes of recognition and enforcement.

The enforceability of a security order depends on its characterisation. If the award orders payment of a defined sum into a specified account or escrow as a final and binding obligation, it may be treated as a monetary award capable of enforcement under Act 798

If the security obligation is framed as interim relief pending a further determination, enforcement may present practical complexity, particularly in cross-border contexts. Ghanaian courts are more accustomed to enforcing final awards than provisional measures, and foreign courts may scrutinise whether such relief is sufficiently final and binding for purposes of the New York Convention.

By contrast, where the award orders payment of a defined sum by way of security as part of the final and binding determination of the tribunal, the obligation is more readily characterised as a monetary or performance award. In that circumstance, it falls within the enforcement framework of sections 57 and 59 of Act 798 and may be recognised and enforced in the same manner as any other final arbitral award.

The analysis again differs depending on whether the underlying judgment is domestic or foreign. Where the award relates to a domestic Ghanaian judgment, the inclusion of coercive security mechanisms may reinforce public policy concerns if the award is perceived as circumventing or duplicating the court’s established execution procedures. Where the award relates to a foreign judgment and the security obligation is structured as a final and binding consequence of non-payment, a Ghanaian court is more likely to treat it as an enforceable contractual performance obligation under Act 798.

Accordingly, the enforceability of a security requirement will depend on its structure. Security framed as provisional preservation is more vulnerable to procedural resistance. Security framed as a final and binding monetary obligation embedded within the award is significantly more likely to be recognised and enforced under Ghanaian law and the New York Convention.

Ghanaian law places strong emphasis on finality of judgments, res judicata and judicial control over enforcement of domestic decrees. For that reason an arbitral award structured as a mechanism for enforcing a domestic court judgment would face meaningful scrutiny and potential resistance.

However where the award relates to a foreign judgment and carefully confined to confirming finality and non-payment, without reopening the merits, it is likely to fall within the ordinary enforcement framework of Act 798. The enforceability of any security requirement will depend on whether it is framed as a final and binding monetary obligation.

Therefore the viability of the clause under Ghanaian law turns on its structure. As a collateral contractual enforcement mechanism it may operate consistently within Ghana’s arbitration framework, As a device that supplants or conditions judicial enforcement of domestic judgments it would encounter significant obstacle.