Try Cassius Mining Case In Ghana – Int’l Tribunal

Godfred Yeboah Dame

 

An international arbitration tribunal has ruled that the seat of the international arbitration instituted by Cassius Mining Company Limited against the Republic of Ghana shall be Ghana, and not London, as claimed by the company.

The Tribunal, in a decision delivered on February 28, 2024, on preliminary issues argued by Ghana’s Attorney General, Godfred Yeboah Dame and lawyers for Cassius Mining, upheld Ghana’s contention that the High Court of Ghana retains supervisory jurisdiction over the multi-million-dollar arbitration between the company and the Government of Ghana (GoG).

The decision means that the High Court in Ghana can grant reliefs regarding the arbitration.

Also, any resulting award or ‘judgement debt’ from the Tribunal is subject to the laws of Ghana and can be set aside by the High Court under the Alternative Dispute Resolution Act, 2010 (Act 798).

This is the first time since 2003 that an international arbitration tribunal has ruled that the High Court retains jurisdiction in an international arbitration to which the GoG is a party.

In the past, tribunals have determined that courts in the UK, France, the Netherlands, and Washington DC exercises such jurisdiction and can enforce processes for execution of any award by international tribunals.

This has been very costly for the GoG, with Ghana’s assets seized in foreign courts and Ghana hiring foreign lawyers to seek remedies in those foreign courts.

In yet another fatal blow to Cassius, the tribunal held that the UNCITRAL Arbitration Rules shall not apply to the international arbitration, and that the arbitration is subject to the rules of Ghana’s Alternative Dispute Resolution Act.

This is a resounding vindication of the position Mr. Dame took right from the start of Cassius’ arbitration against the government.

Whilst refusing to stay proceedings, the tribunal also upheld Ghana’s contention that Cassius is not entitled to invoke the arbitration provisions contained in section 27(3) of the Minerals and Mining Act, 2006 (Act 703).

Ghana had argued that Cassius was not a holder of mineral rights under Ghanaian law, casting grave doubt on Cassius’ allegation that the GoG breached the Minerals and Mining Act.

The tribunal held that it was not in a position to determine whether the licence of Cassius was invalid for lack of ratification by the Parliament of Ghana, and that Ghana may pursue that objection in the next phase of the proceedings.

Cassius Mining Limited, an Australian-owned mining company, has been fighting Ghana in various international arbitration forums since February 2023, seeking compensation amounting to about $300 million over what it claims were breaches of contract and Ghana’s mining laws when the GoG did not extend the term of the company’s Prospecting Licence Agreement (PLA) which allowed it to prospect for gold.

The PLA was signed on December 28, 2016 – a few days before the John Mahama administration handed power to President Nana Addo Dankwa Akufo-Addo.

The Attorney General, Godfred Yeboah Dame, has indicated that with the tribunal upholding its contention that the international arbitration was subject to the jurisdiction of Ghanaian courts, he intends to seek a determination of the constitutionality of the PLA using the power of the High Court to determine any question of law that arise during an arbitration proceeding.

Cassius has made various attempts to avoid the High Court’s supervisory jurisdiction, including arguing that the arbitration should be held under the auspices of the Permanent Court of Arbitration in the Hague, Netherlands, that the Alternative Dispute Resolution Act, 2010 (Act 798) should not apply to the arbitration, and that the High Court in London should have jurisdiction over the arbitration.

Mr. Dame has successfully resisted Cassius’ forum shopping attempts, with a High Court in Accra restraining the company from instituting any international arbitration against Ghana, but this was ignored by the company.

The latest ruling from the international arbitration tribunal comes after multiple rounds of written submissions and an oral hearing held on December 4, 2023, at which the Attorney General personally conducted Ghana’s defence.

BY Gibril Abdul Razak

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