Bentsi-Enchill, Letsa & Ankomah.

9 August 2022

Dispute resolution practices vary in many respects from one African country to another, although some significant similarities are apparent. The latter includes a predominance of preference for litigation in handling disputes, for various reasons, although arbitration is gaining increasing acceptance, while mediation is lagging.

In Ghana, a majority of commercial disputes are resolved through court litigation. However, businesses are increasingly resorting to arbitration and arbitration clauses are routinely incorporated into commercial contracts. The Commercial Division of the High Court in Ghana is duty-bound to promote the resolution of commercial disputes.

The courts thus conduct a pre-trial review conference after pleadings have closed to enquire whether parties are amenable to out-of-court settlement. The Ghanaian courts are only permitted to intervene in the arbitral process in limited circumstances, as set out in the Alternative Dispute Resolution Act.

Mediation in commercial disputes is not very popular in Ghana. When used, it is usually adopted as a first step by the parties to attempt settlement. Parties to commercial disputes prefer arbitration or court litigation to settle disputes because of the binding nature of the decisions, which can be directly enforced against the losing party. Also, litigation and arbitration provide an avenue for parties to obtain interim relief to protect their interests and prevent dissipation of assets while the proceedings are ongoing.

Parties exchange written factual and expert witness statements, which reduces the trial length, and assists practitioners in their preparation ahead of the trial.

With respect to expert witness statements, the matters to be submitted to the expert are usually agreed between the parties and the court, or set down by the court where they cannot agree.

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