Godfred Yeboah Dame
An Accra High Court has restrained Cassius Mining Limited from filing another international arbitration against the Government of Ghana until the final determination of an arbitration the company filed at the Ghana Arbitration Centre.
Justice Akua Sarpomaa Amoah, the presiding judge, yesterday granted an application filed by the Attorney General (AG), Godfred Yeboah Dame seeking an interim injunction against the company to restrain it from instituting or pursuing any arbitration outside the jurisdiction of Ghana contrary to the Prospecting Licence Agreement between it and the Government of Ghana.
The court granted the application after it dismissed preliminary objection raised by Joseph Kwadwo Konadu, counsel for the company who averred that the application was not one of urgency as required by 39:3 of the Alternative Dispute Resolution Act (Act 798), which he claimed was the basis of the AG’s application.
The preliminary objection was objected to by Mr. Dame who had argued that it was baseless and sought to distort the nature of the application before the court.
He said assuming there was a requirement for urgency, the case before the court clearly showed the need for urgency, for the court to impose an interim injunction to restrain the company from embarking on its abusive process of forum shopping in other jurisdictions.
Application
Mr. Dame contended in the application that clause 21 of the Prospecting Licence Agreement between the mining company and the Government of Ghana 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.
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.
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”.
It was this move that the Attorney General referred to as “forum shopping” by the company, which he sought the court to restrain the company from embarking on.
Mr. Dame added that “sanctioning the conduct of the respondents to proceed on arbitration under rules alien to the mining agreement between the parties would have the consequential effect of subjecting the parties to the jurisdiction of foreign courts and not this honourable court, and that must be jettisoned by this court and protect our sovereignty as a nation.”
Ruling
Justice Amoah, in her ruling on the preliminary objection, said an application for injunction whether interim or interlocutory has the intent of urgency in nature hence she was not persuaded by argument canvassed by counsel for the company in support of the preliminary objection and same was dismissed.
Ruling on the substantive arguments for and against the application, the court held that argument by the company that it is not a citizen of Ghana hence has the luxury to resort to international arbitration was untenable as evidence shows that the company was incorporated under the laws of Ghana despite the fact that its mother company is incorporated in Australia. “The two companies are separate.”
Justice Amoah indicated that arbitration agreements are like any other contract which are by law binding and enforceable, and the company cannot now be heard to say that a proper neutral avenue be chosen because it involves the Government of Ghana when it had not shown that continuing with arbitration in this jurisdiction is arbitrary.
The court said the Attorney General succeeded in showing that his application is not frivolous and that the balance of convenience also tips in favour of the applicant as allowing the respondent to resort to international arbitration is not only arbitrary but will incur costs on the Ghanaian tax payer.
The court added that the company failed to demonstrate that it stands to suffer greater inconvenience if the injunction was granted, and also held that it was because the company considered that it will not suffer any inconvenience by the matter being determined in this jurisdiction that it submitted the first arbitration to the Ghana Arbitration Centre.
It was the considered view of the court that allowing Cassius Mining Limited to embark on another international arbitration infringes on the sovereignty of Ghana and cannot be remedied.
BY Gibril Abdul Razak