Alternative Dispute Resolution Bill

ONE OF the Bills before Parliament is the Alternative Dispute Resolution Bill. This Bill has generated a lot of interesting conversations because of the opportunities it presents to citizens, who, due to various reasons, are reluctant to appear before the courts.  

The main aim of this Bill is to replace the Arbitration Act, 1961 (act 38).

It is also to bring the law governing arbitration into harmony with international conventions, rules and practices in arbitration, provide the legal and institutional framework that will facilitate and encourage the settlement of disputes through alternative dispute resolution procedures; and provide, by legislation, for the subject of customary arbitration which we as a country have been practicing for years.   

It is expected that when this Bill comes into force it will ease congestion in the courts by reducing the number of cases, and that it will further create a congenial environment for investors.   

This Bill was necessitated by the Law Reform Commission's realization of the inadequacies of Act 38 and their subsequent submission of a report together with a draft bill on arbitration to the Attorney-General for consideration.

The Arbitration Bill relied extensively on the court to resolve misunderstanding or disagreements arising out of arbitration.

Considering that one of the aims of arbitration is to avoid the formality frustration and the protracted nature of the court process, the purposes of arbitration would appear to be defeated if that line is pursued.   

This led to the realization that what was needed was not just a new law on arbitration but one that will establish the institutional framework for arbitration, provide for other forms of voluntary dispute settlement procedures in addition to arbitration, permit the use of modern electronic communication media to speed up proceedings and to incorporate customary arbitration without unduly changing its nature.   

The Bill is divided into five parts. The first part deals with arbitration. This part provides, in essence, for parties in dispute to make an arbitration agreement after the dispute has arisen.

An arbitral tribunal has the power to subject to the agreement of the parties to rule on its own jurisdiction.

A party has the right to object to the jurisdiction of an arbitral tribunal, and that party may pursue the objection in a higher court.

Matters relating to national or public interest, the environment, the constitution or any other matter that by law cannot be settled by an alternative dispute resolution method.   

Anyone can be an arbitrator, so far as the parties involved in the dispute agree. As well, the disputing parties are at liberty to determine the number of arbitrators; however, should they fail to agree on a number, the Bill provides that the number of arbitrators be three.

Arbitrators are required to be impartial. As a result, they are required on appointment to disclose any reason that could lead to the deferring to any party in the dispute.

The Bill also deals with other issues such as the revocation of an arbitrator's authority, resignation, death, and the filling of vacancies, fees, immunity, among others.   

The second part deals with mediation of disputes encapsulating such issues as submission of mediation, reference to mediation by the court, number of mediation, appointment of mediators, etc. issues relating to the power of the mediator, duration and location of the mediation communication and confidentiality.   

Part three of the alternative Dispute Resolution Bill makes provisions for the submission of customary arbitration, agreement to submit to customary arbitration, reference by court to customary arbitration, qualification of a customary arbitrator, rules of customary arbitration and notice of appointment of customary arbitrator.

Provisions are also made for disclosure by a customary arbitrator language of proceedings time, form enforcement and effect of customary award. There is also a provision for a settlement.   

The fourth part of the Bill provides for the establishment of an alternative dispute resolution centre, and deals with related issues like the object and function of the centre, independence of the centre and the governing board of the centre.

Other provisions in this part of the Bill include the tenure of office of members of the board, allowance of members of the board, meetings disclosure of interest by board members regional and district offices of the center etc.   

The concluding part of the Bill (part five) deals with the establishment of alternative Dispute Resolution, objects and management of the fund, functions of the board in relation to the fund, executive secretary and appointment of other staff. 

The benefit of this bill to the ordinary man is that people will not have to, as a matter of necessity, go to the court on any small issue.

People will have the opportunity to handle issues in a more amicable and familiar setting rather than the officious atmosphere that the courts present. As well, those who by their circumstances are not able to access the courts are able to have an alternative.   

At the moment this Bill is still before Parliament. Therefore, citizens who are interested can actually follow debates on it in the chamber or contribute by way of written communication to the relevant committee in Parliament.

•    The writer is the deputy director or public affairs of the Parliament of Ghana

By Kate Addo