Gulf Offshore Logistic v. Bluefone Marine GH.
2021
COURT OF APPEAL
GHANA
CORAM
- WELBOURNE (MRS), J.A. (PRESIDING)
- AMMA GAISIE (MRS), J.A.
- BAAH, J.A.
Areas of Law
- Alternative dispute resolution
- Civil Procedure
- Conflict of Laws
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Before the Ghana Court of Appeal, an award debtor sought a stay of execution pending appeal of a foreign arbitral award. The applicants counsel argued that the sole arbitrator for the underlying dispute lacked substantive jurisdiction and that the award creditor had not complied with Ghanaian statutory procedures when seeking leave to enforce. The applicant tried to distinguish the parties dispute-resolution frameworks, noting LMAA rules for a time charter and ICC Rules for an operational agreement, and raised concerns about reciprocity between Ghana and the UK. The award creditor opposed, pointing to Section 59(1)(b) of the ADR Act and Ghanas obligations under the New York Convention, as well as the parties deliberate choice of English law and lex arbitri remedies under the English Arbitration Act 1996, which the applicant had not used. Stressing hardship, the respondent noted that escrowed funds overwhelmingly belonged to them. The Court of Appeal found no exceptional circumstances and dismissed the stay application, awarding costs against the applicant.
WELBOURNE, J.A
The Respondent/Applicant/Appellant/Applicant counsel moved an application on Notice for stay of execution pending appeal, to wit for an order to stay the execution of a foreign arbitial award.
Counsel for the Applicant anchored his arguments on two main grounds:
1. That the appeal has a high chance of success based on the lack of substantive jurisdiction of the Sole Arbitrator that granted the award.
2. The Non-compliance of the Respondent with the provisions of the statute when it applied for leave to enforce the arbitral award.
The Applicant also sought to draw a distinction between the parties agreeing to dispute resolution by the LMAA with respect to the Time Charter and resolving disputes regarding the operational agreement under the Rules of the ICC.
Further that there is no reciprocal agreement between the Government of Ghana and the U.K. in the enforcement of Arbitral Awards and therefore the Respondent could not seek leave to enforce such an award within the jurisdiction of the court.
Finally, if the execution is allowed to proceed, it will render the appeal nugatory as a third party would have acquired the subject property by way of judicial sale.
Counsel referred the court to the following cases: Boyefio vrs NTHC Properties Ltd. [1995-96] SCGLR and Republic vrs High Court Ex Parte Khoury [1991] 2 GLR 333 on the point of ensuring that where a statute prescribed a procedure for doing something it should be complied with.
The Respondents opposed the arguments made. They referred the court to Section 59 (1) (b) of the ADR Act. They stated that as Ghana is a signatory to the New York Convention, the issue of reciprocity as referred to by the Applicant does not arise, and therefore arguments made by counsel for the Applicant does not hold.
Furthermore, the patties themselves chose to be governed by English Law with regards to the arbitration.
Indeed, the parties had the right under the lex arbitri to challenge any ruling/decision of the Sole arbitrator under Section 70 of the English Arbitration Act, 1996.
However, the Applicant failed to avail themselves of this right. They therefore by failing to challenge the award on the grounds of lack of jurisdiction had lost their rights to object to the award.
In any case the Respondent argued that they stood to suffer more hardship than the Applicant because they are entitled to 95% of the funds in the Escrow account, while the Applicant was entitled to 5% - which funds have