An Analysis of Judicial Intervention and Assistance for Arbitral Proceedings: A Look at the Courts of Ghana

Abstract

Without the support of national courts, arbitral tribunals are unable to function properly, particularly in situations involving the  enforcement of arbitration agreements, procedural orders, and arbitral awards, among other things. The arbitral tribunal cannot compel  a party to carry out a task, or obligation, or fulfil an obligation. The court has the authority to order a party to carry out an order and can  also impose harsh consequences for contempt of court, such as fines, imprisonment, or other punishments. Unless the issue(s) before  the court are non-arbitrable pursuant to section 1 of the Alternative Disputes Resolution Act, 2010. The courts of Ghana have the capacity  and jurisdiction to enforce applications by a party for arbitration. The New York Convention, which also grants national courts of  contracting states authority to hear cases involving the enforcement of arbitration agreements, has been ratified and domesticated by  Act 798 under the First Schedule. The paper argues that even though national courts are permitted by statutory laws and international conventions to assist in arbitral proceedings, courts must exercise some restraint and must not be in a hurry to inherit jurisdiction and  interfere with disputes before arbitration, since arbitration proceedings are considered alternative methods of resolution of disputes to  litigation, and unless expressly provided for and in obvious instances devoid of any controversy. A purported judicial assistance should  not be used to whittle away the function of arbitral tribunals and render nugatory the benefits that are to be derived from these  proceedings as it would defeat the concept of Alternative Dispute Resolution (ADR). The paper concludes by suggesting that unnecessary  interventions by some national courts including Ghana appear to be interfering with party autonomy as well as the competence of the  arbitral tribunal, hence, hindering the purpose for which the Alternative Dispute Resolution Act 2010 was enacted and other supporting  legislations and conventions as an alternative to litigation which is non-voluntary, expensive, acrimonious and complicated.