International Arbitrability and Domestic Arbitrability In International Arbitration: A Ghanaian View from Comparative Perspectives

Abstract

This article examines the Ghanaian approach to international arbitrability and domestic arbitrability in international arbitration from comparative perspectives. Ghana enacted the Alternative Dispute Resolution Act 2010 (Act 798) to attract international arbitration amongst other reasons. Arbitrability in Act 798 is a fundamental factor that potentially affects the recognition of arbitration agreements and the recognition and enforcement of arbitral awards in international arbitration. Therefore, arbitrability is important to making Ghana an attractive seat and a conducive enforcement forum. This is based on a premise that the effectiveness of any approach to arbitrability in international arbitration is measured by whether it enhances or restricts the recognition of arbitration agreements and the recognition and enforcement of arbitral awards. The Ghanaian approach to arbitrability is comparatively examined by considering a prevalent theme on arbitrability in international arbitration, the criteria for international arbitrability and domestic arbitrability in international arbitration. The analysis of the criteria for international arbitrability and domestic arbitrability in international arbitration starts with a focus on the Ghanaian approach.  This is followed by an examination of approaches in Singapore and the USA which have separate criteria for international arbitrability and domestic arbitrability and Tunisia and England and Wales, which have the same criteria for international arbitrability and domestic arbitrability. The article concludes by recommending that Ghana should have separate legislation for international arbitration and domestic arbitration with separate criteria for international arbitrability and domestic arbitrability. Alternatively, Ghana may amend Act 798 and have the courts distinguish between international and domestic arbitrability.