Godfred Yeboah Dame
The Attorney General, Godfred Yeboah Dame, has filed an application seeking an order of interim injunction restraining Cassius Mining Limited, an Australian-owned mining company from instituting or pursuing any arbitration outside the jurisdiction of Ghana under the Prospecting Licence Agreement between it and the Government of Ghana.
The application, filed before the Commercial Division of the Accra High Court and scheduled for July 12, is also seeking an order restraining the mining company from taking any step in international arbitration proceedings against the Government of Ghana until the arbitration instituted by Cassius Mining Limited against Ghana at the Ghana Arbitration Centre in 2018 has been heard and determined.
Prospecting Licence
The Attorney General, in an affidavit in support of the application, states that on October 12, 2016, Cassius Mining Limited applied for a prospecting licence from the Government of Ghana covering 13.791 km2 of the Gbane/Datoko area in Talensi, Upper East Region of Ghana, which was granted on December 28, 2016, for a term of two years expiring in December, 2018.
Mr. Dame contends that clause 21 of the Prospecting Licence Agreement specifically required any question or dispute that arises regarding the rights, powers, duties and liabilities of the parties thereto, to be referred to arbitration in accordance with the Alternative Dispute Resolution Act, 2010 (Act 798) of Ghana.
In this regard, following allegations by Cassius Mining of what it considered to be unlawful and arbitrary actions by the Government of Ghana, the company on June 26, 2018, referred the dispute to arbitration at the Ghana Arbitration Centre pursuant to clause 21 of Act 798 and proceeded to file a Statement of Claim and sought a number of reliefs.
Ghana, on January 9, 2019, filed an Answer to Cassius Mining’s arbitration and a three-member arbitral tribunal comprising Mr. Emmanuel Amofa, Mr. Kizito Beyuo, and Professor Albert Fiadjoe was duly constituted for the hearing of Cassius Mining’s claim.
International Arbitration
Notwithstanding the pendency of its own arbitration filed before the Ghana Arbitration Centre, Cassius Mining on February 3, 2023, instituted international arbitration at the Permanent Court of Arbitration at The Hague (PCA) against the Government of Ghana claiming about US$300 million, which was suspended following objections by the Attorney General.
The Attorney General’s main argument against that international arbitration was that Cassius Mining knew that the Permanent Court of Arbitration is not mentioned in the Prospecting Licence Agreement and that, the Ghana Arbitration Centre has been administering the arbitration between the parties regarding the same Prospecting Licence Agreement as far back as 2019.
The Government of Ghana, in its response to the notice of arbitration, raised objections to the institution of the international arbitration by the Australian-owned mining firm and requested the tribunal to declare the proceedings instituted by Cassius Mining a legal nullity and the arbitration terminated.
The Permanent Court of Arbitration on March 20, 2023, invited Ghana to confirm whether it agrees to the PCA administering this arbitration, as proposed by the claimant, Cassius Mining.
The Attorney General raised vehement objections to the jurisdiction of the PCA and asked it to determine as a preliminary matter, whether it has jurisdiction in the matter or any role to play in the dispute between the parties.
The PCA subsequently terminated Cassius Mining’s claims on ground that no agreement had been reached between it and the Government of Ghana for the PCA to appoint a panel to arbitrate on the issues raised.
New Move
Rather than returning to Ghana to pursue its ongoing arbitration at the Ghana Arbitration Centre, Cassius Mining instituted another international arbitration proceeding by purporting to file what it described as an “Amended Notice of Arbitration”.
Mr. Dame says that he has refused to respond to the Amended Notice of Arbitration as same is a nullity, consequently, no arbitral tribunal has been constituted for the hearing of this new international arbitration.
The Attorney General observes that in both cases, Cassius Mining has proposed that “the seat of arbitration be London,” and this in the view of Mr. Dame means Cassius Mining clearly is keen on enabling the High Court of England & Wales to have supervisory jurisdiction over the arbitration instead of the courts of Ghana, as stated in Act 798 of the agreement between the parties.
The AG submits that, by Clause 21 of the Prospecting Licence Agreement entered into between Cassius Mining and the Government of Ghana, the arbitration law governing the resolution of disputes between the parties is the Alternative Dispute Resolution Act, 2010 (Act 798), which grants the High Court of Ghana the power to supervise the arbitral proceedings, and not the High Court of England and Wales.
The Attorney General, therefore, prays for an injunction to restrain the Australian-owned mining firm from pursuing any fresh international arbitration on the ground that this amounts to forum shopping, an act he contends also constitutes an attempt to strip the High Court of Ghana of its statutory jurisdiction to supervise arbitration instituted domestically.
Mr. Dame finally contends that unless restrained by the High Court of Ghana, Cassius Mining will continue searching for an international forum that will support its breach of Clause 21 of the Prospecting Licence Agreement and undermine the domestic proceedings currently pending before the Ghana Arbitration Centre, which the company itself instituted way back in 2018.
BY Gibril Abdul Razak