Presentation on theme: "Mediating Corporate Governance Disputes An international Experts Workshop organised by the Global Corporate Governance Forum Mediation and Arbitration."— Presentation transcript:
Mediating Corporate Governance Disputes An international Experts Workshop organised by the Global Corporate Governance Forum Mediation and Arbitration Centres: The Ghanaian case Marian Barnor LL.B.BL; MBA MRB Consult Member, Ghana Arbitration Centre Member, Commonwealth Association of Corporate Governance 12 th February 2007
The Context - Ghana Ghana, the ‘Golden Age’ of business Private sector; the engine of growth Window of business in the West African region. Ghana Investment Promotion Centre - GIPC
Corporate Governance in Ghana Waking up to Principles of Corporate Governance Legal framework for CG: Companies Code Stock Exchange Listing regulations SEC Act /CG Guidelines Specific industry laws Internal measures
Corporate Governance - Conflict Areas Business relationships bring conflicts and disagreements Areas of conflicts: Interpretation of agreements that underpin the relationship Bad drafting Conflict of interest situations Calibre of managers and directors Lack of transparency Accountability
Resolving Conflicts Litigation is the traditional conflict resolution method Litigation kills investment and is counterproductive Commercial ‘Fast Track’ courts. Need for an alternative dispute resolution process has been established even by the courts.
Using ADR to resolve CG disputes In Ghana ADR has been in the form of Mediation and Arbitration Legal Framework recognises and promotes ADR Ghana Arbitration Act, 1961; Act 38 is the principal law governing Arbitration in Ghana Ghana Investment Promotion Centre Act 1994 (ACT 478) – provides as one of the options open to an investor involved in a dispute with the government arbitration in accordance with the rules of the procedure for UNCITRAL.
Using ADR to resolve CG disputes Same Act refers to arbitration under the Ghana Arbitration Centre rules. S.29 of Act 478 or S32 of the Free Zone Act- suggest negotiation as the first step in resolving disputes between the investor and government. Labour Act, 2003 (Act 651) has provision on the settlement of industrial disputes. It has provisions on settlement of industrial disputes by negotiation, mediation, voluntary arbitration and compulsory arbitration. Order 58 (6) of the High court (Civil Procedure) rules 2004 incorporates ADR into the normal judicial process. Banks practicing ADR through re-structuring of loans
Ghana Arbitration Centre (GAC) GAC is an autonomous, non-profit-making institution, incorporated in Oct.1996 As a company limited by guarantee.
Ghana Arbitration Centre (GAC) GAC is the foremost institutional arrangement established in Ghana which provides the forum and system for dispute resolution through arbitration and Other ADR mechanisms Institutional infrastructure for investment promotion Centre has Rules that govern the conduct of dispute settlement Public education initiation Publication of proceedings of the centre and papers on ADR Study and research in ADR Affiliate and co-operate with any other centres Provide accreditation for members of the centre National panel of 15 arbitrators.
Activities of the Centre (GAC) Handled approximately 30 cases so far Suggested Arbitration clause: ‘Any dispute, controversy, claim or interpretation arising out of or relating to this contract, or the breach of this contract, shall be finally settled by arbitration under the auspices and Rules of the Ghana Arbitration Centre by one or more arbitrators appointed in accordance with the Rules of the Ghana Arbitration Centre.’ Provides administrative support for arbitration proceedings Training Sensitization seminars
Challenges of the Centre (GAC) Slow conversion to ADR: Suspicion about non-adversarial approach Resistance from Lawyers Lack of training Bad drafting techniques Lack of funding Number of arbitrators
Enhancing role of Ghana Arbitration Centre to offer CG mediation services Educate general public especially corporate institutions Train lawyers to convert from litigation to mediation Train arbitrators Institute capacity building for the centre Funding for the Centre Effective co-operation agreements with other arbitration centres.
Conclusion Confidence and Credibility for the Ghana Arbitration Centre in the best interest of Corporate bodies to ensure sustainability of companies. ‘It is in the light of these realities that the Ghana Arbitration Centre should be embrased by corporate Ghana as a welcome addition to the institutional infrastructure for dispute settlement in Ghana.’ Ruth Nyakotey Ag. Chief Executive GIPC 2004 Ghana Club 100 Magazine