PART 2/2 10. The experience of other jurisdictions is instructive. The UK Government, for example, does not need to intervene simply because a British company has lost an arbitration against another sovereign state. The commercial dispute belongs to the parties and the agreed process. That separation between the interests of the State and the commercial fortunes of individual companies is part of what gives established arbitration centres their credibility. 11. This is why I was concerned by the PDS case. What was fundamentally a commercial and contractual relationship between PDS and ECG became criminalised by the State, without the public case clearly demonstrating how the alleged criminality arose from the underlying contractual dispute. Whatever ECG believed it was owed could have been subjected to reconciliation, contractual remedies, arbitration or the courts. A commercial disagreement should not automatically become a criminal matter simply because the State has the power and agencies to make it one. 12. Of course, where there is evidence of criminal conduct, the appropriate institutions must investigate and prosecute. But there must be a clear demonstration of what the criminal conduct is and how it arises, rather than allowing a contractual disagreement to become criminalised by default. 13. Ghana has had occasions where commercial disputes have travelled through our judicial system, including to the Supreme Court, and favourable domestic judicial outcomes have subsequently been overturned or displaced through international arbitration. We should ask ourselves why. 14. There was a time when some argued that Ghana was losing arbitration cases simply because they were being heard outside Ghana. But that misses the bigger question: why should businesses sometimes have greater confidence in an external forum? 15. A seat of arbitration is not created by proclamation. It earns credibility over time through the confidence of businesses in the independence, predictability and integrity of its institutions. 16. I have discussed some of these institutional issues with the Attorney General, who has acted on similar issues raised through public commentary. I am hopeful that these conversations will contribute to the necessary reforms to strengthen Ghana’s commercial dispute resolution and arbitration framework. 17. The judiciary also has an important role. Our judgments must be sufficiently rigorous, predictable and durable to withstand scrutiny, irrespective of where they are reviewed. This is not simply a judicial issue. It is also an investment and economic governance issue. 18. Perhaps this is also something for the constitutional review process: how do we build institutions that give commercial actors confidence that their rights and obligations can be fairly determined in Ghana? 19. I remain hopeful that Ghana can, over time, become a credible seat of international commercial arbitration, at least for the subregion. That credibility will be earned through institutional practice, not political declaration. 20. Winning an arbitration should not be treated as winning a war against a company. It is simply the conclusion of a process through which the parties agreed to resolve a disagreement. That, ultimately, is the culture of governance and institutional maturity Ghana needs to build. And, finally, a confession: I just remembered that I have a certificate in International Commercial Arbitration that somehow never made it onto my CV. 😂

PART 1/2 A few observations on the Tullow arbitration: 1. First, congratulations to the Ministry of Finance, the GRA, the Attorney General’s Office and the legal team on the outcome. The Tribunal dismissed Tullow’s claims and upheld the GRA’s US$393.09 million assessment. 2. But what is equally important is the tone of Government’s statement. It is firm on Ghana’s fiscal interests while being notably conciliatory towards Tullow. 3. Commercial relationships will inevitably produce disagreements. Where those disagreements cannot be resolved between the parties, independent mechanisms such as arbitration exist to determine them. Losing an arbitration should not turn a commercial partner into an enemy of the State. 4. Government’s recognition that Tullow remains a vital partner, and that the continued operation and investment in Jubilee and TEN matter to Ghana, is therefore commendable. Ghana needs its revenues, but it also needs the investment and production that generate those revenues. 5. Tullow’s response is equally instructive. Although disappointed with the outcome, the company has indicated that it will engage Government on the implications and next steps. That is how civil and commercial matters should work: make your case, submit to the agreed process and pursue whatever lawful remedies remain. 6. There is a bigger institutional lesson here for Ghana. We need to better distinguish commercial and civil disputes from criminal conduct. A company challenging the State through arbitration is not, by that fact alone, an adversary of the State. 7. Civil remedies may not always be politically satisfying, but they exist to protect rights, resolve disagreements and eliminate unnecessary fear and uncertainty from the investment ecosystem. 8. Companies do not have the police, EOCO, FIC and the other instruments of state power. Their protection is the confidence that the courts and agreed dispute resolution mechanisms will provide an independent and credible avenue for resolving disputes. 9. This is why becoming a credible seat of international arbitration cannot be achieved simply by declaring Ghana one. Trust is built over time through predictable courts, independent adjudication, respect for contractual processes and confidence that political or state power will not be used to circumvent civil processes.