ATTORNEY GENERAL v. BALKAN ENERGY GHANA LTD & OTHERS

The Supreme Court of Ghana, per Dr. S. K. Date-Bah JSC, issued an Opinion on a Reference interpreting article 181(5) of the 1992 Constitution to determine what constitutes an international business or economic transaction involving the Government. The dispute arose from a 2007 Power Purchase Agreement between the Government of Ghana and Balkan Energy (Ghana) Limited, a Ghana-incorporated company wholly owned and controlled by foreign entities, concerning the urgent rehabilitation and operation of a Government power barge. After the High Court refused to refer constitutional questions, the Supreme Court quashed that refusal and referred the issues to itself under article 130(2). Using a purposive, substance-over-form approach aligned with constitutional values of probity and accountability, the Court held that article 181(5) covers only major transactions, and that international is determined by significant foreign elements or foreign parties/management. Applying this test, the PPA is an international business transaction, but the arbitration clause itself is not. The case was remitted to the High Court, and Parliament was urged to enact clarifying modifications.