A forum of senior Judges and Lawyers has justified the need for environmental disputes to be resolved through arbitration, saying that ensures both economic and social benefits.
At a colloquium in Accra on Arbitration in Ghana, the panel of members of the Bench and Bar were unanimous in their opinion that arbitration has to be mandated to cover environment-related disputes as is done in most jurisdictions across the world.
Section 1(b) of Ghana’s Alternative Dispute Resolution Act 2010 (Act 798), bars mediation and arbitration from being used to resolve disputes that relate to the environment.
But with experience, the Judges and Lawyers believe that provision has become obsolete and that it is causing more harm to the society that it seeks to protect.
Chaired by Justice Nene Amegatcher, a Supreme Court Judge, the panel unanimously recommended an amendment to that provision to enable arbitration to cover issues of the environment.
The panel members were Sir Justice Dennis Adjei, Justice of the Court of Appeal, Justice Mrs Justice Gertrude Torkornoo, Supervising Judge, Commercial Courts,
Ace Annan Ankomah, Vincent Kizito Beyuo, Ms Diana Asonaba Dapaah and Emmanuel Amofa, all distinguished legal practitioners.
Organised by the Ghana ADR Hub, the colloquium assessed “the proper degree of court interventions in arbitral proceedings under the ADR Act,” with incisive discourse on many of the provisions that have been found to be inhibiting effective arbitration practise in Ghana.
The panelists were also of the view that the clause on the environment has to be clarified because forbidding the resolution of disputes relating to the environment through arbitration is retrogressive, describing the clause as vague.
They indicated that although Parliament, in inserting that clause, may have had in mind the need to for the State to control matters relating to the environment, it has been found to be counterproductive in restricting such cases to court litigation, with the attendant delays and high costs.
For instance, Justice Nene Amegatcher, indicated that Ghana appears to be the only country with such a provision barring arbitration from environmental matters, adding that most jurisdictions have adopted arbitration as an option in effectively dealing with environmental cases.
He explained that matters such as environmental pollution and degradation could be easily dealt with through arbitration since both investors and affected communities desire early resolution.
Mrs Justice Gertrude Torkornoo, for her part, described the clause as a “very harmful provision,” to Ghana, adding that there are many instances where many complex environmental cases in other countries have been settled through arbitration.
She urged the Ghana ADR Hub to develop a position paper on that provision to Parliament to consider its amendment.
“It is too critical to be left in the Act,” she stressed.
Sir Justice Dennis Adjei, justifying the need for an urgent amendment, noted that countries around the world are achieving maximum benefits in using arbitration to resolve environmental disputes, and that Ghana needs to do same.
He recalled that at a recent summit he attended outside Ghana, the international community of Judges was surprised to know that Ghana, which prides herself as supportive of ADR, has such a provision.
Vincent Kizito Beyuo, Managing Partner of Beyuo & Co, contributing, said experience shows that many organisations that flout environment regulations are willing to resolve quietly through arbitration, rectify the situation, pay the required compensations and penalty, and move on.
But when it goes for litigation, he said, the firms hire the best lawyers to defend their case and their image, adding that aggrieved or affected communities often lose in the long run.
While Emmanuel Amofa, Administrator of the Ghana Arbitration Centre described the clauses on the environment, national and public interest in the Act which forbids arbitration, as an “unruly horse,” Ms Diana Dapaah, Vice President of the Ghana ADR Hub, noted that the provisions in section one have already been covered in the Constitution.
“There is no need for it in the Act,” she stressed.