The Permanent Court of Arbitration has, in a final award dated January 30, 2023, dismissed an investor-state arbitration instituted by a Chinese-based construction company, Beijing Everyway Traffic & Lighting Tech. Co. Ltd. against the Government of Ghana.
This was after it upheld a preliminary objection by the Attorney-General acting as counsel for the Government of Ghana.
The construction company dragged Ghana to the International Court for cancelling a contract it was awarded to develop an intelligent traffic management system for the country.
In 2020, the contract for the project was terminated with Beijing Everyway and re-awarded to Huawei under the supervision of the National Security Ministry.
Beijing Everyway invoked the jurisdiction of the tribunal under a Treaty between the government of the People’s Republic of China and the government of the Republic of Ghana concerning the Encouragement and Reciprocal Protection of Investments concluded on October 12, 1989, seeking the award of damages amounting to “not lower than US$55 million”.
The notice of arbitration was served on the Ghana government under the China-Ghana bilateral investment treaty on Wednesday, February 10, 2021.
Tribunal’s decision
The Tribunal, upon an application of relevant principles of international investment law, came to the final decision that it does not have jurisdiction to decide the Claimant’s claims for expropriation under Article 10(1) of the Treaty.
The Tribunal further considered that there is nothing in the China-Ghana Treaty to suggest that an investor would be precluded from referring the question of quantum to arbitration under Article 10(1) of the Treaty, once it had referred the question of lawfulness of expropriation to determination by a nation’s domestic court.
It held that the examination of the provision of Article 10(1) within the context of the China-Ghana Agreement suggested that the phrase “concerning the amount of compensation for expropriation” cannot be interpreted as vesting an arbitral tribunal with jurisdiction to decide the question of whether the expropriation is lawful or unlawful.
The Members of the Arbitral Tribunal who delivered the final award are Professor Stavros Brekoulakis (presiding arbitrator), Mr. V.K. Rajah SC, and Professor Richard Oppong.
The Government of Ghana was represented by the Attorney-General and Minister for Justice, Godfred Yeboah Dame. Other Counsels listed as part of Ghana’s team include Ms. Diana Asonaba-Dapaah (Deputy Attorney-General); Mrs. Helen Akpene Awo Ziwu (Solicitor-General); Dr. Sylvia Adusu; Mrs. Grace Mbrokoh Ewoal and Ms. Yvonne Bannerman, all state attorneys.