Ghana too late to challenge power plant

award
Sebastian Perry
11 June 2021

UPDATED: The Commercial Court in London has refused to allow Ghana to

bring a belated challenge to an UNCITRAL award worth over US$134 million
in favour of a power contractor, ruling that national elections and covid-19
did not make the state's delay reasonable.

In a ruling on 8 June, Mr Justice Butcher refused to grant the government a time

extension to apply to set aside the award – adding that the state’s grounds
for challenging it were “intrinsically weak”.

While the parties are not identified in the judgment, GAR has previously reported
on the award in favour of Ghana Power Generation Company (GPGC)
against Ghana.

GPGC was represented before the court by Charles Kimmins QC and Mark Tushingham
of Twenty Essex, instructed by Three Crowns. Ghana used Khawar Qureshi QC of
Serle Court and Volterra Fietta, having initially retained Omnia Strategy.

In the arbitration, GPGC used Three Crowns and Ghanaian firm Kimathi &
Partners, along with damages experts from FTI Consulting. Ghana was
represented by lawyers from the attorney general's office and Amofa &
Partners in Accra.

The underlying dispute concerned the government’s alleged wrongful

repudiation in 2018 of a contract for a “fast-track power generation solution”
– involving the relocation of two aeroderivative gas turbine power plants to
the government’s territory.

A London-seated UNCITRAL tribunal composed of former ICC Court

president John Beechey as chair, J William Rowley QC and Ghanaian academic Albert
Fiadjoe issued its final award in January, ordering the government to pay a
contractually defined “early termination payment” of more than US$134.3
million plus interest and costs. It also dismissed the government’s
counterclaim. The award is said to be worth around US$170 million.

Under English law, the government had 28 days to bring a challenge to the
award. Three days before the expiry of that deadline, the government’s then
solicitors Omnia Strategy applied to the court for a 56-day extension.

Omnia said it had only just been instructed and that bureaucratic processes
had been delayed because of national elections in the country and because
key members of the attorney general’s office had contracted covid-19.

The court agreed to extend the deadline for any challenge to 8 March but
the government only brought its set-aside application on 1 April, now
represented by Volterra Fietta.

The law firm explained that the new attorney general had only been sworn
in on 5 March and the firm had been instructed 10 days later.

In the latest ruling, Butcher J said the government’s delay was “significant
and substantial”, as its request for a second time extension had come 38
days after the statutory deadline and 27 days after the first extension
expired. The fact that a large sum was at stake in the arbitration was not a
reason for the challenge taking longer to make.

The fact that the attorney general had not been sworn until 5 March in did
not mean the government was unable to act in the meantime, the judge
said. The government had still managed to instruct Omnia during this
period and the new AG, who was previously deputy attorney general, had
been among the counsel in the arbitration.

Echoing a ruling in the P&ID v Nigeria case, the judge said the fact that a party is
a foreign state is a matter of “little significance” when it comes to
compliance with court directions. That an entity may have “bureaucratic
decision-making processes” does not justify delay.

As for arguments about covid-19, the judge said the evidence as to the way
in which the pandemic had affected the government was “wholly
inadequate”. There needed to be a detailed explanation of how it had
affected “particular people or particular processes”.

The judge also said that the grounds of the government’s proposed
challenge to the award were “intrinsically weak”. One argument that the
tribunal failed to be “guided by the terms and conditions” of the contract
was a “clear case of an attempt to present alleged errors of law as errors of
procedure”.

Butcher J was likewise sceptical of the government’s other complaint that

the tribunal failed to deal with all issues put to it. The judge said that the
tribunal had dealt with the issue raised, and that the government was in
fact arguing that the tribunal’s reasons were inadequate.

He said there was no unfairness in denying an extension, as the government

had already been granted one extension and was solely responsible for
having missed the deadlines. This followed delays in the arbitration for
which the government was also apparently solely responsible.

STA v OFY [2021] EWHC 1574 (Comm) (08 June 2021)

Before the English Commercial Court

Mr Justice Butcher

Counsel to Ghana

Khawar Qureshi QC of Serle Court

Volterra Fietta

Partners Robert Volterra and Peter Flint and associates Tisungane Makato and Jehad Mustafa in
London

The government previously used Ania Farren at Omnia Strategy

Counsel to Ghana Power Generation Company

Charles Kimmins QC and Mark Tushingham of Twenty Essex

Three Crowns

Gaëtan Verhoosel, Manish Aggarwal, Jonathan Fernandes and Holly Pelham-Stewart

In the arbitration

Ghana Power Generation Company v Ghana (PCA Case No. 2019-05)

Tribunal

John Beechey (UK) (chair)

J William Rowley QC (UK) (appointed by GPGC)

Albert Fiadjoe (Barbados) (appointed by Ghana)

Counsel to Ghana Power Generation Company

Three Crowns

Partners Gaëtan Verhoosel and Manish Aggarwal, associates Maanas Jain, Jonathan Fernandes
and Ahmed Al Far and paralegal Holly Pelham-Stewart in London
Kimathi & Partners

Partner Kimathi Kuenyehia, counsel Augustine Kidisil* and lawyer Paa Kwame Larbi Asare in
Accra

*has left the firm

Counsel to Ghana

Ministry of Justice

Gloria Afua Akuffo, Godfred Yeboah Dame, Helen Akpene Awo Ziwu, Anna Pearl Akiwumi Siriboe and Grace
Oppong Dolphy in Accra
Amofa & Partners

Emmanuel Amofa, Afia Korankyewaa Ntim and Gloria Osei-Nyame in Accra

Experts for Ghana Power

Ellen Smith of FTI Consulting

 Pat Dunne

Julian Delamer

James Wong

Experts for Ghana

Richard Oppong-Mensah

Documents

STA v OFY [2021] EWHC 1574 (Comm) (08 June 2021)

Related Topics

Coronavirus Ghana Enforcement and set-aside Investor-state arbitration

Sebastian Perry
Author | Acting Editor
sebastian.perry@globalarbitrationreview.com

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