International Commercial Court, Ghana - Lessons from Singapore

Imagine a case within the context of the African Continental Free Trade Area (AfCFTA), where a Liberian company negotiates a contract with a Kenyan business in South Africa, and finally concludes the contract in Nigeria for the of supply coffee, payment to be effected by Ecobank, Ghana to suppliers account at Kenya Commercial Bank (KCB), and given that, Ghana is a host to an International Commercial Court (ICC) for Africa’s geo-political region. 

Would you advise submission to the jurisdiction of a forum in Europe, the Golf region, Asia or the Americas to resolve any dispute that arises between these African businesses?

Disputes are inherently part of commerce. At the core of commercial disputes are mostly disagreements between parties on issues including the rights and obligations of parties, what is deemed performance, and the consequence of non-performance, amongst others.

For these reasons, the principle of party autonomy allows parties of cross-border transactions to structure their contracts and regulate the future of their transactions.

Under this principle, parties are given the power to customise their transactions, including an agreement to confer jurisdiction on a court or forum in so far as such provisions do not contravene any overriding mandatory rules or public policy.

Parties are allowed to choose a court and not necessarily the laws of that state.

This is usually influenced by the speed of resolution and expertise of the court.

According to the Chicago Journal of International Law, the decision on choice of forum in most cases is influenced by proximity and the demand for competitive and user-friendly service offerings provided by these specialised courts.  

ICCs are specialised tribunals within the domestic court hierarchy tailored for the adjudication of complicated cross-border commercial disputes.

ICCs are region-centric niche courts, equipped with optimised procedural rules with specific geopolitical focuses.        

One common thread that is seeking to bind African commercial law is the region’s rapid economic growth and increasing integration into the global economy.

As domestic and multinational corporations expand their operations across Africa, the patchwork of regulatory regimes and legal frameworks keeps posing severe challenges that demand conscious efforts towards consolidating laws and regulations and building infrastructure and ancillary services, including a forum for enforcement of rights that accrue to parties. 

Ghana stands more suitable for establishing an ICC for the African geo-political region. Ghana is non-aligned, and has long been regarded as one of Africa’s rising economies; Ghana is identified as one of the most stable countries in Sub-Saharan Africa and offers, in addition, a more peaceful environment for business.

Ghana prides itself on available and accessible infrastructure, strong statutory institutions and a progressively expanding legal system. 

Court

The Singapore International Commercial Court (SICC) is recognised as the gold standard of a new and novel type of hybridised litigation model, spurring competition across Europe and Asia.

The SICC is inclined towards alternative dispute resolution mechanisms.

This is visible from its authority to compel parties to participate in mediation before litigation proceedings can be initiated.

Under the rules exclusive to commercial dispute resolution in Ghana, parties are required to arrange a settlement conference to facilitate the resolution of their dispute and the court may proceed to litigation only when settlement breaks down.

It, therefore, appears that the Singaporean system is already practised in Ghana, and a model ICC can seamlessly adjust to the standard of SICC.

The SICC exercises Jurisdiction to hear and try any action that is international and commercial in nature.

In Africa, the continent is made up of a mixture of states belonging to different legal systems, with some differences in legal positions with respect to substantive and procedural rules of Private International Law.

However, jurisdiction can be exercised by the choice made by the parties or on grounds of reasonability in some cases.

At the SICC, registered foreign advocates and solicitors who are granted full registration status may represent parties in an “offshore case, and within this grant lies an application to punish for contempt in connection with proceedings in which foreign representation was permitted.

Registered foreign lawyers and registered law experts may represent parties solely to submit on matters of foreign law where the SICC has ordered a question of law to be determined based on submissions instead of proof.

Singapore has ratified the Hague Convention on Choice of Court Agreements, which permits that a judgment or order of the SICC may be recognised and enforced in states that are parties to the Convention.

In addition, within states that have a reciprocal framework with Singapore for the Enforcement of foreign judgments, SICC’s judgments are given the same effect and directly enforced as if it was a judgment issued by a national court of the country of enforcement, save for certain limited exceptions. 

In Singapore, all decisions of the SICC can be appealed at the General Court of Appeal of Singapore. What this means is that the SICC is directly integrated into the Singapore judicial system, and not standing outside of it.

The SICC also honours the agreement by parties to waive, limit or restrict the right to appeal. In some other jurisdictions, for example, Dubai, the second instance court is a regular court outside the Dubai International Financial Centre (DIFC).

Ghana can choose from multiple variations of the competencies of a court and create a tailor-made solution that can be properly implemented in its internal judicial system.

To balance the imperative of openness and consistent jurisprudence, however, Ghana can select an option where the specialised commercial court would be a self-reliant individual tribunal that is separate from the regular trial and appellate court instances of the judicial system.

In addition, the model court in Ghana can ensure effectiveness and international attractiveness by ratifying relevant conventions; and adopting flexible and party-autonomy-focused mechanisms, such as the selection of foreign judges.

The introduction of online dispute resolution can also ensure expedited and cost-effective procedures.

A facility that accommodates all official languages in Africa with a special interpretation system for some widely spoken local languages can also ensure a more efficient justice delivery. 

E-mail: e.koranteng@oakandwuudslaw.com