ARBITRATION AND STAY OF PROCEEDINGS
Reference is made to the Alternative Dispute Resolution Act, 2010.
Where parties to an agreement agree to refer disputes to arbitration, reference is made to the Alternative Dispute Resolution Act 2010, which regulates these disputes, proceedings , the making of arbitral awards and subsequent enforcement.
Section 5 of the Act states that a person to a dispute in respect of which there is an arbitration clause may, subject to the terms of the Arbitration agreement, refer the dispute to arbitration.
Section 6 of the Act says that where there is arbitration clause and a party commences an action in court, the other party may on entering appearance, and on notice to the other party who commenced the action in court, apply to the court to refer the matter or part of the action to which the arbitration agreement relates, to arbitration.
The court, if satisfied shall refer the matter to arbitration. The grant of such an application shall serve as a stay of execution.
In Kusi vrs Shell Company of Gh Ltd 1973 (1) GLR 173, it was held that sec 5 of the Arbitration Ordinance gave the court the discretion to decide whether an arbitration should come on at all, and where a party sought to rely on an arbitration clause in an agreement, he had to apply to the court for a stay of proceeding.
In BCM Ghana Ltd. Vrs Ashanti Goldfields Ltd. 2006 5 M.L.R.G , on what a question whether a dispute falls within an arbitration clause in a contract depends on, it was held that “an arbitration clause can only have effect as its terms warrant. In Hayman vrs Darwins Ltd. (1942) AC 356 H.L at 360, Viscount Simon L.C said: “the answer to the question whether a dispute falls within an arbitration clause in a contract must depend on (a) what is the dispute and (b) what disputes the arbitration clause covers. The question is not whether it will be more satisfactory that the case should proceed in court but whether there is sufficient reason why the matter should not be referred in accordance with the submission because, in a sense, the person opposing the stay is seeking to get out of his contract to refer the dispute to arbitration. To refuse stay on this ground would in effect neutralise the contract the parties agreed upon at https://www.paydayloansnow.co.uk/loans/5000-pound-loan/.
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In Klimatechnic vrs Jensen International [2005-2006] SCGLR it was held per Georgina Wood JSC that “there were two different written general law peter hsiao regulating the reference to arbitration. First, an arbitration founded on or arising out of an arbitration agreement, otherwise known as a written agreement or reference, under the Arbitration Act, 1961 (Act 38), which was the code regulating, inter alia the settlement of differences and the enforcement and setting aside of awards. Under sec 5 (1), Act 38 might be invoked to regulate the conduct of the entire arbitral proceedings where there had been in existence the written contract or agreement between the parties to refer present or future differences to arbitration, whether an arbitrator had been named therein or not. The second method was as provided under the High Court (Civil Procedure) Rules. Thus under order 72 rule 1 of the old High Court Civil Procedure Rules, parties in an action pending before the High Court might apply to the court to refer matters in difference between them to arbitration for the final decision of one or more arbitrators”.
Section 72 of the Courts Act, 1993, Act 459, states that a court with civil jurisdiction and its officers shall promote reconciliation, encourage and facilitate settlement of disputes in an amicable manner between and among persons over whom the court has jurisdiction.
The Courts may also arbitrate,
- before arbitration, when the court appoints an arbitrator,
- during arbitral proceedings where the court makes orders for the taking of evidence, for interim reliefs such as injunctions,
- after arbitration, when the court makes arbitral awards.