Ghana wins preliminary ruling in Cassius Mining's $300 million International Arbitration

An international arbitration tribunal has ruled that the seat of the international arbitration instituted by Cassius Mining Company Limited against the Republic of Ghana shall be Ghana, and not London, as claimed by Cassius Mining.

The Tribunal on February 28, 2024, delivered its decision on the main preliminary issues argued by Ghana’s Attorney-General, Godfred Yeboah Dame, and lawyers of Cassius Mining in December 2023 and upheld Ghana’s contention that the High Court of Ghana retains supervisory jurisdiction over the multi-million-dollar arbitration between Cassius Mining Limited and the Government of Ghana (GoG).

The ruling means that the High Court can grant reliefs regarding the arbitration. Also, any resulting award or “judgment debt” from the Tribunal is subject to the laws of Ghana and can be set aside by the High Court under the Alternative Dispute Resolution Act, 2010 (Act 798).

This is the first time since 2003 that an international arbitration tribunal has ruled that the High Court retains jurisdiction in an international arbitration to which the GoG is a party.

In the past, tribunals have determined that courts in the UK, France, the Netherlands, and Washington D.C. exercise such jurisdiction and can enforce processes for the execution of any award by international tribunals. This has been very costly for the GoG with Ghana’s assets seized in foreign courts and Ghana hiring foreign lawyers to seek remedies in those foreign courts.

In yet another fatal blow to Cassius, the tribunal held that the UNCITRAL Arbitration Rules shall not apply to the international arbitration and that the arbitration is subject to the rules of Ghana’s Alternative Dispute Resolution Act. This is a resounding vindication of the position the Attorney-General of Ghana took right from the start of Cassius’ arbitration.

Whilst refusing to stay proceedings, the tribunal also upheld Ghana’s contention that Cassius is not entitled to invoke the arbitration provisions contained in section 27(3) of the Minerals and Mining Act, 2006 (Act 703). Ghana had argued that Cassius was not a holder of mineral rights under Ghanaian law. This ruling cast grave doubt on Cassius’ allegation that the GoG breached the Minerals and Mining Act.

The tribunal held that it was not in a position to determine whether the Licence of Cassius was invalid for lack of ratification by the Parliament of Ghana, and that Ghana may pursue that objection in the next phase of the proceedings.

Cassius Mining Limited has been fighting Ghana in various international arbitration forums since February 2023, seeking compensation amounting to about USD300 Million over what it claims were breaches of contract and Ghana’s mining laws when the GoG did not extend the term of the company’s Prospecting Licence Agreement (PLA) which allowed it to prospect for gold.

The PLA was signed on 28 December 2016 – a few days before the John Mahama administration handed over power to His Excellency Nana Addo Dankwa Akufo-Addo. The Attorney-General, Godfred Yeboah Dame, has indicated that with the tribunal upholding its contention that the international arbitration was subject to the jurisdiction of Ghanaian courts, he intends to seek a determination of the constitutionality of the PLA using the power of the High Court to determine any question of law that arise during an arbitration proceeding.

Cassius has made various attempts to escape the High Court's supervisory jurisdiction. These attempts include arguing that the arbitration should be held under the auspices of the Permanent Court of Arbitration in the Hague, Netherlands, that the Alternative Dispute Resolution Act, 2010 (Act 798) should not apply to the arbitration, and that the High Court in London should have jurisdiction over the arbitration.

The Attorney General and Minister of Justice, Godfred Yeboah Dame (the “AG”), has successfully resisted Cassius’ forum shopping attempts. The latest ruling from the international arbitration tribunal comes after multiple rounds of written submissions and an oral hearing held on 4 December 2023, at which the Attorney-General personally conducted Ghana’s defence.

Cassius Mining was represented by both an international law firm, Quinn Emanuel Urquhart & Sullivan LLP and a Ghanaian law firm ENS Africa. It would be recalled that the High Court in July 2023, issued an injunction restraining the international arbitration from proceeding which Cassius ignored. This ruling by the international arbitration tribunal, however, affirms the jurisdiction of Ghana’s High Court.

The international tribunal’s decision is a significant boost to the Government of Ghana’s valiant efforts to resist Cassius’ claim. The Attorney-General has stated that his Office remains resolute in fighting unmeritorious international arbitration claims against the Government and negotiating dispute resolution agreements that protect the state's interest.

KOD