APRIL 5, 2023
The Permanent Court of Arbitration, has, in a letter to the parties dated 30th March 2023, refused to constitute an arbitration panel for the hearing of an international arbitration instituted by Cassius Mining Limited against the Government of Ghana, following an objection in that regard raised by the Attorney-General of Ghana, Mr. Godfred Yeboah Dame. On February 3, 2023, Cassius Mining Limited, a fully-owned subsidiary of an Australian mining firm, Cassius Mining Limited, filed a UNCITRAL arbitration against Ghana, accusing the state of unfair treatment and breaches of Ghana's mining laws and due process in failing to extend the term of the company's Prospecting Licence Agreement, after Cassius Mining exercised its contractual right of extension. The company claimed compensation in excess of US$300 Million. In its Notice of Arbitration, Cassius Mining asserted that "in accordance with Article 6.1 of the UNCITRAL Rules, the Claimant proposes that the Secretary-General of the Permanent Court of Arbitration at The Hague (PCA) serve as the appointing authority for this arbitration. The Claimant further proposes that this arbitration be administered by the PCA". The company, therefore, prayed for the PCA to assume jurisdiction. Ghana raised a plethora of objections to the jurisdiction of the Permanent Court of Arbitration in its Response to the Arbitration dated 17thMarch, 2023, noting in particular, that, the Claimant's arbitration “is a legal nullity because the UNCITRAL Rules is not cognisable under the Arbitration Agreement between the parties”. Ghana stated further that Clause 21 of the Prospecting Licence Agreement granted to the claimant provided that the arbitration is to be in “accordance with the Alternative Dispute Resolution Act, 2010 (Act 798)". Section 5(1) of Ghana's ADR Act is expressly “subject to the terms of the arbitration agreement”. The UNCITRAL Rules clearly is neither a “person” nor an “institution for arbitration" contemplated by Section 5 of the ADR Act, for the dispute between the parties to be determined under them. Ghana finally submitted that the arbitration is an abuse of the process as there is currently pending at the Ghana Arbitration Centre, another arbitration filed by Cassius Mining Limited aqainst the Government of Ghana. The PCA on 20th March 2023, noted that the Respondent in its Response, had stated that “[it] will raise a preliminary objection to the jurisdiction of the PCA in a bifurcated phase of the Arbitration to avoid unnecessary expenditures of time and costs for the Parties and the Tribunal. For the sake of good order, the Respondent is invited to confirm that it agrees to the PCA administering this arbitration, as proposed by the Claimant.” Ghana responded with a vehement objection to the jurisdiction of the PCA and asked the PCA in a letter dated 27th March, 2023 to determine as a preliminary matter, whether the PCA has any jurisdiction or role to play in the dispute between the parties. To make this determination, Ghana invited the PCA to consider the following points:
1. The Respondent's lack of consent to the PCA administering this arbitration, as proposed by the Claimant.
2. The fact that the parties
arbitration agreement is express and explicit that the arbitration shall be “in
accordance with the Alternative Dispute Resolution Act, 2010 (Act 798)",a
legislation of the Republic of Ghana.