Abstract
This article examines the legal and procedural architecture for shifting commercial disputes in Ghana from court litigation into institutional arbitration. It argues that Ghanaian law does not treat litigation and arbitration as hermetically sealed systems; rather, the Alternative Dispute Resolution Act, 2010 (Act 798), read together with the High Court’s commercial procedure rules and modern institutional arbitration rules, permits calibrated movement from one forum to the other. The article identifies three principal migration routes: enforcement of an existing arbitration agreement through a stay-and-referral application; consensual court referral to arbitration where no prior arbitration clause exists; and post-dispute submission agreements through which parties place an already crystallized dispute before an arbitral institution. It further contends that the practical barriers to such movement are often professional and tactical rather than doctrinal, including counsel’s attachment to familiar litigation procedures, anxiety over interim relief, and uncertainty about institutional case administration. Particular attention is given to the Accra International Arbitration and Mediation Rules 2025, which expressly apply to a written “agreement, submission or reference” made before or after a dispute has arisen, thereby providing a direct institutional pathway for converting court-borne commercial disputes into administered arbitral proceedings.
Keywords
Ghana; arbitration; commercial procedure; institutional arbitration; stay of proceedings; submission agreement; Act 798; High Court commercial procedure; Accra Arbitration Rules; dispute resolution.
I. Introduction
Commercial disputes in Ghana often begin in court for reasons that are as practical as they are legal. Some contracts contain no arbitration clause. Others contain defective or incomplete clauses. In many cases, parties seek the immediate coercive force of the court, including interlocutory protection, publicity, or procedural familiarity. Yet the eventual needs of the dispute may point elsewhere: confidentiality, decision-makers with sector expertise, procedural flexibility, enforceability, or insulation from prolonged appellate layers. The result is a recurring procedural question in Ghanaian commercial practice: when a dispute has already entered the judicial system, how may it be moved into institutional arbitration without sacrificing legal coherence or procedural protections?
The answer lies in a combination of statute, court procedure, and institutional design. The Alternative Dispute Resolution Act, 2010 (Act 798) supplies the central statutory framework. The High Court (Civil Procedure) Rules, 2004 (C.I. 47), as amended, provide a case-management environment in which external settlement and ADR-oriented stays are not alien to court process. Institutional rules, including the Accra International Arbitration and Mediation Rules 2025, then provide the procedural machinery by which a dispute can be received, constituted, managed, and resolved outside the court system.
This article advances three propositions. First, Ghanaian law affirmatively permits migration from litigation to arbitration in more than one form. Secondly, institutional arbitration is especially suitable for migrated disputes because it reduces uncertainty over commencement, tribunal formation, emergency relief, and procedural continuity. Thirdly, the Accra Arbitration Rules are unusually explicit in accommodating post-dispute submissions and therefore deserve special attention in Ghanaian commercial practice.
II. Statutory Basis: The Architecture of Act 798
The statutory point of departure is section 1 of Act 798, which defines arbitrability by exclusion. The Act applies to matters other than those relating to national or public interest, the environment, the enforcement and interpretation of the Constitution, and other matters that by law cannot be settled by ADR. Commercial disputes ordinarily fall within the arbitrable field unless a specific statutory or public-law obstacle displaces that conclusion.
Section 2 is foundational to the conversion question because it adopts a broad understanding of what counts as an arbitration agreement. It recognizes both an arbitration clause in a contract and a separate agreement to arbitrate; it also accepts a wide range of written forms, including communications that record the agreement. This breadth matters because it means that arbitrability need not be confined to the original contract stage. A dispute that reached court without an arbitration clause may still be redirected into arbitration through a later written submission agreement.
Section 3 strengthens that possibility through separability. Unless otherwise agreed, an arbitration agreement forming part of another agreement is treated as distinct from the underlying contract and does not automatically fail because the main agreement is alleged to be invalid or ineffective. Section 24 complements this by recognizing competence-competence: the arbitral tribunal may rule on its own jurisdiction, including the existence, scope, and validity of the arbitration agreement. Together, these provisions reduce the doctrinal fragility that sometimes discourages counsel from attempting conversion once pleadings and substantive allegations are already in play.
III. Route One: Stay and Referral Where an Arbitration Agreement Already Exists
The first and most orthodox migration route is section 6 of Act 798. Where court proceedings are commenced despite an arbitration agreement, the defendant may, on entering appearance and on notice to the claimant, apply to the court for the action or part of it to be referred to arbitration. If the court is satisfied that the dispute falls within the arbitration agreement, the matter is referred, and the effect is a stay of the court proceedings. The structure is pro-arbitration but also disciplined: the application is intended to be made promptly, before the party opposing the court action has taken procedural steps inconsistent with insistence on arbitration.
A key practical feature is continuity. Section 6 also preserves, unless the parties otherwise agree, existing court-based securities, detentions of property, injunctions, and restraining orders for the purposes of the arbitration. This is an important answer to the familiar objection that moving a matter out of court necessarily means losing urgent protective advantages already obtained there. Ghanaian law instead contemplates that court-granted protection can accompany the dispute into arbitration.
Recent Ghanaian judicial materials reinforce the stay-and-referral orientation. GhaLII’s March 2025 Supreme Court digest states, in relation to Kumi v Yiadom and Others (J5/37/2025) [2025] GHASC 21, that where arbitration is mandated, the proper judicial course is to stay proceedings and refer the parties to arbitration rather than dismiss the action. While that case arose in a particular setting, the procedural message is broader: the role of the court is to preserve and redirect the controversy, not to destroy it through a jurisdictional dead end.
IV. Route Two: Court Referral by Consent Where No Prior Clause Exists
The most underrated mechanism is section 7 of Act 798. It allows a court, with the written consent of the parties, to refer an action or part of it to arbitration even where there is no pre-existing arbitration agreement. This provision is critical because it severs the possibility of arbitration from the happenstance of contractual drafting at the inception of the commercial relationship. Once a dispute has matured and the parties conclude that arbitration is preferable, section 7 allows the court to become the bridge rather than the obstacle.
Section 7 is also carefully designed to avoid waste. The court’s reference is to state the reasons for referral, the nature of the dispute, the monetary value of the claim, and the remedy sought, and it is to attach pleadings and relevant documents. Closed pleadings can stand in the arbitration as the statement of case, defence, reply, counterclaim, and defence to counterclaim. The plaintiff becomes claimant and the defendant becomes respondent. In practical terms, this means that the migration does not require the parties to start conceptually from zero. A dispute that has already been crystallized in court can be transplanted into arbitration with much of its procedural anatomy intact.
This mechanism is especially attractive in complex commercial cases where the court proceedings have already performed issue-definition work. It can preserve effort, shorten the arbitral ramp-up period, and reduce incentives for purely tactical resistance to a forum change.
V. Court Procedure and Commercial Case Management
The High Court’s procedural framework also matters. The High Court (Civil Procedure) Rules, 2004 (C.I. 47), as amended, especially in their commercial action architecture, provide for pre-trial and settlement-oriented case management. Judicial and commentary materials indicate that commercial cases in Ghana are embedded in a procedural culture where mediation and ADR-oriented stays are recognized features rather than foreign intrusions. GhaLII’s publication of the High Court (Civil Procedure) (Amendment) Rules, 2020 (C.I. 133) shows that Order 58 was amended, and contemporary practitioner materials note that proceedings may be stayed while parties attempt settlement by ADR or other means.
This does not make the court system subordinate to arbitration, but it does mean that Ghanaian commercial procedure has enough flexibility to support controlled forum shifts. That is important for litigators who wrongly assume that once a writ is filed, arbitration has become a practical impossibility.
VI. Institutional Resolution: Why Forum Shift Often Needs an Institution
Moving from litigation to “arbitration” in the abstract is rarely sufficient. The parties need a functioning procedural home. Institutional arbitration solves this by supplying commencement rules, appointment mechanisms, administrative supervision, fee structures, and emergency relief procedures. That is why institutional rules are particularly valuable in migrated disputes, where uncertainty and mistrust are often already high.
The Ghana Arbitration Centre Rules provide one established route. Their published rules expressly contemplate “Initiation under Submission,” enabling an existing dispute to be commenced under the institution’s rules by filing a written agreement to arbitrate under those rules. That mechanism is important because it demonstrates, at the level of local institutional practice, that post-dispute conversion is not an anomaly but a recognized procedural technique.
VII. The Accra Arbitration Rules as a Conversion Framework
The Accra International Arbitration and Mediation Rules 2025 are particularly significant because they say so in unmistakable terms. Rule 3(1) provides that the Rules apply where any agreement, submission, or reference, whether entered into before or after a dispute has arisen, provides in writing for arbitration under the Accra Arbitration Rules. That text directly accommodates the migration of a live court dispute into institutional arbitration by later written agreement.
The uploaded Rules also contain model drafting guidance for parties who either have no existing arbitration clause or wish to substitute an existing clause with one referring to the Accra Arbitration Rules. The Rules expressly state that parties without an existing arbitration clause intending to commence arbitration under the Rules, and parties with an existing clause intending to substitute it, may adopt the model clause by agreement. That feature is unusually useful for practitioners who want a clean drafting bridge from litigation to arbitration.
The Accra Rules therefore do more than administer arbitrations that were planned in advance. They furnish a deliberate framework for post-dispute institutionalization. That makes them especially apt for commercial disputes that were initially filed in court but are later seen, by both parties or by the court and the parties together, as better candidates for arbitral resolution.
VIII. How the Move Can Be Made Under the Accra Arbitration Rules
The first step is a written submission agreement. Where the original contract contains no arbitration clause, the parties may execute a post-dispute agreement providing that the identified dispute be determined under the Accra Arbitration Rules. Where there is an existing clause but the parties want the administrative structure of the Center for International Mediators and Arbitrators, they may substitute the earlier clause with an Accra Rules clause. The Rules’ own notes expressly support both situations.
The second step is commencement. Under Rule 5, the claimant must submit a written request for arbitration to the Registrar. The request must specify the parties’ details, include the relevant contract or separate arbitration agreement, briefly describe the nature and circumstances of the dispute and the relief sought, state the seat and language as agreed or proposed, identify any party nominee if the arbitration agreement requires nomination, confirm service, and be accompanied by the filing fee. The arbitration is deemed commenced on the date the complete request is received by the Registrar.
The third step is response. Rule 6 allows the respondent thirty days from service of the request to submit a written response, including admissions or denials, any counterclaim, observations on conduct of the arbitration, and any nomination where party nomination applies. Failure to respond does not bar denial of the claim or the advancement of a counterclaim, but where party nomination is required it may forfeit the opportunity to nominate an arbitrator.
The fourth step is tribunal formation. Rule 7 provides for a sole arbitrator unless the parties agree to three. The Center may appoint where parties fail to nominate or where they have not agreed on number. Rule 10 goes further by allowing expedited formation in exceptional circumstances or due to an emergency, and the Registrar may reduce relevant time limits relating to constitution of the tribunal. For a court-borne dispute where urgent restructuring of the forum is needed, this is a particularly useful feature.
The fifth step concerns seat and applicable arbitration law. Rule 18 allows the parties to agree in writing on the seat of arbitration; absent agreement, the default seat is Accra, Ghana. Rule 19 then provides that the law applicable to the arbitration is the arbitration law of the seat unless the parties have validly agreed otherwise. For most Ghana-seated commercial disputes, this means Act 798 continues to supply the governing legal framework for the arbitral process even after the move out of court.
The sixth step is interim protection. Rule 27 empowers the tribunal to order interim and conservatory measures, including security, preservation or disposal of property, and provisional relief. Rule 28 adds an emergency arbitrator mechanism before tribunal formation. The emergency arbitrator may issue an order or award, and the schedule contemplates rapid handling, including a schedule for emergency relief within two days of appointment and an order or award within fifteen days from appointment, subject to agreed extension. This considerably weakens the common argument that one must remain in court to preserve urgent commercial interests.
The seventh step is procedural consolidation where the court action has exposed a wider commercial matrix. Rule 16 permits joinder of an additional party, subject to timing and consent constraints. Rule 17 permits consolidation with other pending arbitrations under the Rules or other Rules administered by the Center where the parties agree, where claims are made under the same arbitration agreement, or where compatible agreements involve the same parties and legal relationship. These are highly useful features for disputes that entered court in fragmented form.
The eighth step is resolution. Rule 29 requires the award to be in writing and final and binding, and it expressly permits a consent award where the parties settle and request that the settlement be recorded as an award. This is significant because many court-filed commercial disputes are moved not only for adjudication but to create a more structured path toward settlement with enforceable finality.
IX. Practitioner Resistance and Commercial Reality
Why is this route still underused? One answer is habit. Court litigation remains the native procedural language of many commercial lawyers. Another is strategy: some parties prefer the publicity, delay, or leverage that court proceedings can generate. A third is uncertainty about arbitral administration, costs, and emergency powers. Yet current Ghana-focused practitioner materials indicate that arbitration in Ghana is increasingly common, mostly institutional and domestic, and typically used for corporate and commercial disputes. Those materials also describe Ghana’s arbitration law as applying to both domestic and international arbitrations and as being based on the UNCITRAL Model Law tradition.
The practical objections are therefore increasingly overstated. Institutional rules now provide much of the structure litigators fear losing: managed tribunal formation, deposits, document exchange powers, confidentiality, emergency measures, joinder, consolidation, cost allocation, and consent awards. The real difficulty is often not absence of legal authority but a deficit of procedural imagination.
X. Practice Directions
Three practice directions follow.
First, where there is an existing arbitration agreement, counsel should act immediately on appearance to seek a stay and referral under section 6. Delay risks both waiver arguments and poor forensic optics.
Secondly, where there is no prior clause but both parties now prefer arbitration, counsel should use section 7. The written consent should be paired with a carefully drafted submission agreement naming the institution, rules, seat, language, tribunal size, and treatment of interim court orders and existing pleadings.
Thirdly, where the Accra Arbitration Rules are chosen, counsel should proceed in sequence: execute the submission agreement; file the Rule 5 request; secure the Rule 6 response; constitute the tribunal under Rule 7 or Rule 10; address urgent relief under Rule 27 or Rule 28; and consider joinder, consolidation, or consent-award closure where appropriate.
XI. Conclusion
Ghanaian commercial procedure does not force parties to remain in court merely because they started there. Act 798 permits a dispute to move into arbitration through both mandatory stay-and-referral under an existing arbitration agreement and consensual referral where no earlier clause exists. Institutional rules then transform that legal possibility into a functioning procedural route. The Accra Arbitration Rules are particularly notable because they expressly apply to agreements, submissions, or references made before or after a dispute has arisen and because they contain model clause language for parties without an existing arbitration clause or parties seeking to substitute one. In that respect, they offer one of the clearest available frameworks for converting litigation into institutional resolution in Ghana.
The future of Ghanaian commercial dispute resolution is therefore not simply a choice between court and arbitration at the outset of a transaction. It is a more dynamic procedural landscape in which forum correction remains possible after litigation has begun. The challenge is not legal possibility. It is professional willingness to use the available tools with precision.
Footnotes
1. Alternative Dispute Resolution Act, 2010 (Act 798), Judicial Service ADR page and GhaLII source PDF.
2. High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended, Judicial Service PDF.
3. High Court (Civil Procedure) (Amendment) Rules, 2020 (C.I. 133), GhaLII source.
4. Ghana Arbitration Centre Rules, official PDF and institution rules page.
5. Accra International Arbitration and Mediation Rules 2025, Rule 3(1).
6. Accra International Arbitration and Mediation Rules 2025, model clause notes for parties without an existing arbitration clause and for substitution of an existing clause.
7. Kumi v Yiadom and Others (J5/37/2025) [2025] GHASC 21 (12 March 2025), GhaLII March 2025 judgment listings.
8. IBA Arbitration Guide: Ghana (updated October 2023), on prevalence of institutional domestic arbitration and commercial disputes as typical arbitral subject matter.
9. Accra Rules, Rules 5 and 6 on request for arbitration and response.
10. Accra Rules, Rule 7 on appointment of tribunal and Rule 10 on expedited formation.
11. Accra Rules, Rule 18 on seat and Rule 19 on applicable arbitration law.
12. Accra Rules, Rule 27 on interim and conservatory measures and Rule 28 with the emergency arbitrator schedule.
13. Accra Rules, Rules 16 and 17 on joinder and consolidation.
14. Accra Rules, Rule 29 on award, consent award, and finality.
15. Ghana-focused practitioner commentary noting ADR stays and supportive court practice.