RESOLVING OIL AND GAS DISPUTES: EXPERIENCES FROM THE OIL RICH NIGER DELTA
Address by the Guest of Honour, the Chief Justice, Her Ladyship Mrs Georgina Theodora Wood
Delivered at British Council Hall, Accra on Tuesday January 18th at 5:00pm
ORGANISED UNDER THE AUSPICES OF GHANA ASSOCIATION OF CERTIFIED MEDIATORS AND ARBITRATORS (GHACMA) www.ghacma.org
Mr. Chairman - Odeneho Gyapong Ababio, Omanhene of Sefwi Bekwai, Vice President of GHACMA, Your Lordships, Judges and Magistrates, members of GHACMA, distinguished invited guests, the press, ladies and gentlemen;
Some fifteen years ago under the auspices of the Centre for African Peace and Conflict Resolution, California State University, Sacramento, Professor Uwaziee, who happens to be the guest speaker for this evening, invited a group of Judges, academics and legal practitioners from the sub-region for training in conflict management and Alternative Dispute Resolution (ADR). I was privileged to be nominated by the Chief Justice at the time, as the judiciary’s representative. It was indeed a gruelling one month Trainer of Trainers programme as anyone who has ever had a taste of a US State Department sponsored study or Visitors programme would readily attest to. He has since then shown considerable interest in the growth of ADR in Ghana, and has made several visits to Ghana to offer support and guidance in our quest to entrench ADR in Ghana.
It is with great delight that some fifteen years thereafter, today we are all honoured here to welcome Professor Uwaziee into our country and hear him speak on a subject area most dear to his heart. The topic could not have been more appropriate considering the realisation the world has come to, that co-operation, interdependence and mutual respect are some of the values to adopt in confronting the common problems of oil producing countries on our continent in this age. The world today as most people say has become a global village; it is becoming much more harmonised and borderless. It is fairly easy therefore to say that our destinies are now inextricably intertwined and our ambitions and goals of securing the dignity of man, peace and security in the world have merged.
What makes the topic “Resolving Oil and Gas Dispute through ADR-Experiences from the Oil Rich Niger Delta of Nigeria” very appropriate is the fact that upstream Oil and Gas production, being a new economic activity in Ghana will certainly pose challenges to stakeholders and industry practitioners.
The oil and gas industry definitely will open new legal frontiers in legal practice in Ghana. The Legal Community in Ghana will deal with disputes inherent in the oil and gas industry such as preparation of petroleum agreements, contracts for the warehousing and storage of goods and equipment, haulage of such goods and equipment, leasing of equipment, negotiations for and preparation of sub-contracts, labour, environment and human rights.
The advantage of ADR cannot be over-emphasized. Apart from being private and confidential, thus preserving industry secrets, it is also faster and very efficient since the parties have control over the process. The other importance of ADR as a method of resolving disputes in the industry is the opportunity accorded the parties to use Experts in the industry as arbitrators or mediators. This brings Industry practices to bear on the process of settling the disputes.
ADR has been promoted in Ghana since the 1990’s and it has taken roots in the Ghanaian Judicial process leading to the enactment of the ADR Act (ACT 798) of 2010. It is expected that players in the oil and gas industry would resort to ADR as the appropriate method of resolving disputes rather than litigation.
I am happy to report that our courts have of late been enforcing such Dispute Resolution clauses in such contracts. I must emphasise the importance of legal practitioners acquainting themselves with the theory and practice of ADR so that they can opt for its use in appropriate cases. There is thus the need for lawyers to study the nature and effect of such Dispute Resolution Clauses in contracts in order to avoid litigation whenever appropriate May I gently remind legal practtiioners of the importance courts in other jurisdictions attach to ADR. Two cases will suffice. First, in Malkins Nominees Ltd v Societe Financiere Mirelis SA (2002) it was held that one part had made a genuine offer to resolve the matter by ADR, it was incumbent on the other party to return at an appropriate time to take up that suggestion. In this case, the successful party unreasonably refused to resolve the matter by ADR and so was awarded 85% of the costs.
Further, in Frank Cowl and others v. Plymouth County Council [2001] Lord Woolf criticized the claimants for failing to take up an offer to settle their dispute through a statutory complaints panel that held that “Today sufficient should be known about ADR to make the failure to adopt it indefensible.”
This lecture coming from no other person than Professor Ernest Uwaziee and which will be based on experiences from nearby Niger Delta of Nigeria will undoubtedly provide useful lessons for each one of us here.
I warmly welcome you all to this lecture.
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