2012
SUPREME COURT
CORAM
AI Generated Summary
This Supreme Court reference resolved the meaning of Article 181(5)’s phrase “international business or economic transaction to which the Government is a party” in the context of a Government–Balkan Energy power project. Balkan Energy (Ghana) Limited, a Ghanaian company wholly owned and managed by foreign interests, entered a 27 July 2007 Power Purchase Agreement with the Government to rehabilitate and operate a power barge. After non-performance, Balkan commenced PCA arbitration in The Hague under clause 22.2; the Government argued the PPA required parliamentary approval and was unconstitutional absent such approval. Adopting a purposive, substance‑over‑form approach, the Court held Article 181(5) applies to only major transactions and that internationality requires a qualitative assessment of significant foreign elements or party foreignness. On the cumulative facts—foreign ownership and control, international arbitration and sovereign immunity clauses—the PPA was an international business transaction; the arbitration clause itself was not. The case was remitted to the High Court to apply the interpretation.
J U D G M E N T
OPINION ON A REFERENCE
DR. DATE-BAH JSC:
The task of this Court in this case is to interpret the phrase or term “international business or economic transaction to which the Government is a party” as it is used in article 181(5) of the 1992 Constitution. The responsibility to interpret this phrase has arisen as a result of this Court deciding to refer to itself constitutional issues that had arisen in proceedings before the High Court (Commercial Division). The learned High Court judge refused an application from the plaintiff to refer the said constitutional issues to this court. The plaintiff accordingly invoked our supervisory jurisdiction to quash the decision of the learned High Court judge not to refer the issues to this Court. This Court, in a unanimous ruling delivered on 2nd November, 2011, quashed the decision of the High Court judge not to refer the constitutional issues. To avoid a multiplicity of suits and to save time, this Court decided to exercise the powers of the High Court, which it has under Article 129(4) of the Constitution, to refer the following questions to this Court:
1. “Whether or not the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.
2. Whether or not the arbitration provisions contained in clause 22.2 of the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution”.
The reference itself is, of course, made under article 130(2) of the Constitution. Article 130 provides as follows:
“(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.
(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer