PRINCE KANOKANGA & REGINA APALOO
In Ghana as elsewhere, the practice of arbitration is recognized. The Alternative Dispute Resolution Act, 2010 (“the ADR Act”) provides not only for the resolution of arbitration disputes but also for mediation and customary arbitration. It is not the purpose of this article to discuss issues about mediation and customary arbitration. There is an increase in arbitration disputes, hence, the need for arbitration. The article analyses section 29 of the ADR Act which provides for the holding of an ‘arbitration management conference’. The analysis contained herein will define arbitration and an arbitration management conference. It also seeks to answer the question of whether an arbitration management conference is mandatory or directory in Ghana. In answering this critical question, an exploration of the concept of “party autonomy” will be made. Taken together, it will be observed that in practice, it is rare for an arbitration to proceed without the holding of an arbitration management conference to determine the nature of the claims and counterclaims, the date, time, place and estimated duration of any hearings as well as issues relating to discovery, production of documents, the rules of evidence, and the communication and receipt of the facts, exhibits, witnesses and related issues. Additionally, the issues of costs and the arbitrator’s remuneration, the applicable arbitration rules, the language(s) to be used, the place of arbitration, and interim relief are also discussed.
Beginning with an introduction on the subject, we proceed to define what arbitration is and more importantly what an arbitration management conference is. After this, the focus of the article shifts to the conduct of an arbitration management conference. It discusses what happens during an arbitration management conference, such as, a tribunal imposing its authority on the arbitral process, becoming acquainted with the parties, and making disclosures to the parties regarding issues that may give rise to doubts about independence and or impartiality. The nitty-gritty issue of whether an arbitration management conference is mandatory or directory remains the crux of this treatise. A discussion on this pertinent question is answered in the conclusion.
