Accra, July 11, GNA – The Attorney General has filed an application at the High Court to retrain Cassius Mining Limited from pursuing any arbitration outside the jurisdiction of Ghana under the Prospecting License Agreement.
The application, filed at the Commercial Division of the High Court, has been fixed for hearing on Wednesday, July 12, 2023.
Mr Godfred Dame, the Attorney-General is seeking to stop the company from instituting or pursuing international arbitration proceedings against Ghana until the matter instituted by Cassius Mining Limited against Ghana at the Ghana Arbitration Centre in 2018 has been heard and determined.
Earlier this year, Cassius Mining, an Australian-owned mining company, instituted international arbitration against Ghana at the Permanent Court of Arbitration to claim some US$300 Million over disputes with the Government of Ghana on its prospecting license.
The arbitration was suspended following objections by the Attorney-General.
That notwithstanding, Cassius Mining Limited made attempts to institute international arbitration against Ghana at other international arbitration forums.
Backing his application with voluminous documents, the AG stated that, on October 12, 2016, Cassius Mining Limited applied for a prospecting license from the Government covering 13.791 km2 of the Gbane/Datoko area in Talensi, Upper East Region of Ghana.
This was granted by the Government on December 28, 2016, for two years expiring in December 2018.
The A-G contended that clause 21 of the Prospecting License Agreement specifically required any question or dispute that arises regarding the rights, powers, duties, and liabilities of the parties thereto, to be referred to arbitration in accordance with the Alternative Dispute Resolution Act, 2010 (Act 798) of Ghana.
In this regard, following allegations by the company of what it considered to be unlawful and arbitrary actions by the Government, Cassius Mining Limited by a letter dated June 14, 2018, notified the AG of its referral of the dispute between the parties to arbitration under the auspices of the Ghana Arbitration Centre in accordance with the Minerals and Mining Act, 2006 (Act 703) and clause 21 of the Agreement between the parties.
On June 26, 2018, the Australian-owned company, referred the dispute to arbitration at the Ghana Arbitration Centre pursuant to clause 21 of the Prospecting Licence Agreement and the Alternative Dispute Resolution Act, 2010 (Act 798).
It proceeded to file a Statement of Claim at the Ghana Arbitration Centre claiming several reliefs.
The AG said that on January 9, 2019, Ghana filed an answer to Cassius Mining’s Arbitration at the Ghana Arbitration Centre.
Following this, a three-member arbitral tribunal comprising Mr Emmanuel Amofa, Mr Kizito Beyuo, and Professor Albert Fiadjoe was duly constituted for the hearing of Cassius Mining’s claim.
Mr Dame noted that despite the pendency of the arbitration proceedings at the Ghana Arbitration Centre and in the face of the clear provisions of the arbitration provisions under the Prospecting Licence Agreement and Ghana’s Alternative Dispute Resolution Act, Cassius Mining Limited on February 3, 2023, instituted international arbitration proceedings against Ghana in respect of the same subject matter.
The company was claiming a total amount of almost US$ 300 Million, under Article 3.1 of the UNCITRAL Arbitration Rules as adopted in 2021 (UNCITRAL Rules).
The AG observed Cassius Mining “quite curiously” titled the originating process “IN THE MATTER OF AN ARBITRATION UNDER A PROSPECTING LICENCE AGREEMENT DATED DECEMBER 28, 2016”.
He said Cassius Mining proposed in that Notice of Arbitration, that the Secretary-General of the Permanent Court of Arbitration (PCA) at The Hague serve as the appointing authority for the said arbitration and that, the arbitration be administered by the PCA.
The AG submitted that Cassius Mining instituted the international arbitration proceedings even though the “UNICTRAL Rules” was not referred to in the Prospecting License Agreement.
Furthermore, he said Cassius Mining knew that the Permanent Court of Arbitration was not mentioned in the Prospecting License Agreement and that the Ghana Arbitration Centre had been administering the arbitration between the parties regarding the same Prospecting License Agreement as far back as 2019.
Mr Dame said in a response to the notice of arbitration dated March 17, 2023, Ghana raised objections to the institution of the international arbitration by the Australian-owned mining firm and requested the tribunal to declare the proceedings instituted by Cassius Mining “a legal nullity and the arbitration terminated”.
The AG further indicated that he would raise a preliminary objection to the jurisdiction of the PCA in a bifurcated phase of the Arbitration to avoid unnecessary expenditures of time and costs for the Parties and the Tribunal.
The PCA on March 20, 2023, invited Ghana to confirm whether it agreed to the PCA administering the arbitration, as proposed by Cassius Mining Limited.
The AG, by a letter dated March 27, 2023, raised vehement objections to the jurisdiction of the PCA and asked the PCA to determine as a preliminary matter whether it has the authority or any role to play in the dispute between the parties.
The AG said, “the clear abuse of process and reprehensible attempt at forum shopping was not lost on the Secretary-General of the Permanent Court of Arbitration,” as, by a letter to the parties dated March 30, 2023, the PCA decided that “the PCA Secretary-General may act as appointing authority under the UNCITRAL Rules if all parties so agree. The PCA understands that no such agreement has been reached in this matter”.
The PCA further decided that there is no arbitral tribunal for the dispute constituted since the parties have not agreed.
The AG asserted that the effect of the decision of the PCA is that the international arbitration commenced by Cassius Mining Limited under the UNCITRAL Rules could not proceed unless the parties, including the Government of Ghana, had agreed for the Permanent Court of Arbitration to appoint a tribunal.
Given that the parties had not agreed (either in the Prospecting Licence Agreement or in any document) to submit the dispute between the parties to the jurisdiction of an international arbitration tribunal under the UNICTRAL Rules, it was clear that a dispute between the parties could never be submitted for determination by such a forum.
“Faced with this legal stumbling block in the pursuit of international arbitration against Ghana, Cassius Mining instead of returning to Ghana to continue with the ongoing arbitration at the Ghana Arbitration Centre that the company itself had earlier instituted, instituted another international arbitration proceeding by purporting to file what it described as an “Amended Notice of Arbitration” this time entitled “IN THE MATTER OF AN ARBITRATION UNDER THE UNCITRAL ARBITRATION RULES (2021)”.
The AG said he had refused to respond to the Amended Notice of Arbitration because it was a nullity.
Consequently, no arbitral tribunal has been constituted for the hearing of the new international arbitration.
The AG argued that the recourse by Cassius Mining to international arbitration was a gross abuse of process and most oppressive of the Government of Ghana because, in Clause 21 of the Prospecting License Agreement, the parties have agreed that their dispute “shall be referred to arbitration in accordance with the Alternative Dispute Resolution Act, 2010 (Act 798).”
“Nowhere have the parties agreed that their disputes would be resolved “UNDER THE UNCITRAL ARBITRATION RULES (2021)”.
The AG observed that in both the original international Notice of Arbitration and Amended Notice of Arbitration, Cassius Mining had proposed that “the seat of arbitration be London.”
He said Cassius Mining “clearly is keen on enabling the High Court of England & Wales to have supervisory jurisdiction over the arbitration instead of the courts of Ghana, as stated in Act 798 the agreement between the parties.”
The AG submitted that by Clause 21 of the Prospecting License Agreement entered between Cassius Mining and the Government of Ghana, the arbitration law governing the resolution of disputes between the parties is the Alternative Dispute Resolution Act, 2010 (Act 798) which grants the High Court of Ghana the power to supervise the arbitral proceedings, and not the High Court of England and Wales.
He prayed for an injunction to restrain the Australian-owned mining firm from pursuing any fresh international arbitration on the ground that it amounted to forum shopping.
Mr Dame submitted that Cassius Mining’s forum shopping efforts also constituted an attempt to strip the High Court of Ghana of its statutory jurisdiction to supervise arbitration instituted domestically.
He contended that unless restrained by the High Court of Ghana, the Australian-owned company would continue searching for an international forum that would support its breach of Clause 21 of the Prospecting License Agreement and undermine the domestic proceedings currently pending before the Ghana Arbitration Centre, which the company itself instituted back in 2018.
The AG contended the company’s forum-shopping activities would result in unnecessary cost and expense to the Government of Ghana.
GNA