$300m dispute: Court places injunction on mining firm
The Commercial Division of the Accra High Court has placed an injunction on Australian mining firm, Cassius Mining Limited, from going for international arbitration over a $300 million dispute with the Government of Ghana (GoG).
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Cassius Mining has been fighting the government in international arbitration forums since February this year, seeking compensation for what, it claimed, were unfair treatment and breaches of mining laws by the GoG’s failure to extend the term of the company’s Prospecting Licence Agreement (PLA) after exercising its contractual right of extension.
The court, presided over by Justice Akua Sarpomaa Amoah, imposed the injunction yesterday after it upheld an application by the Attorney-General (A-G), Godfred Yeboah Dame.
The A-G had argued that per the PLA, any dispute between the mining firm and the GoG ought to be settled by arbitration in Ghana in accordance with the Alternative Dispute Resolution Act, 2010 (Act 798), and not by an international arbitration panel.
Court’s decision
In upholding the application for injunction, Justice Amoah held that Cassius Mining failed to convince the court that it would suffer greater hardship, if the arbitration was done in the country.
On the other hand, the judge was of the view that the GoG stood to suffer greater hardship, if the arbitration was done outside the country.
“The balance of convenience also tips in favour of the applicant (A-G) as allowing the respondent to resort to international arbitration is not only arbitrary but will incur costs on the Ghanaian tax payers,” Justice Amoah held.
Again, the court was of the considered view that the dispute settlement clause in the PLA, which enjoined the parties to resort to arbitration in Ghana, was an enforceable contract which was binding on the two parties (Cassius Mining and GoG).
“The respondent (Cassius Mining) is restricted from instituting any international arbitration or taking any steps to initiate an international arbitration until the arbitration initiated at the Ghana Arbitration Centre by the respondent is determined,” Justice Amoah ordered.
Challenge
This is not the first time the A-G has successfully challenged Cassius Mining’s decision to go for international arbitration over the dispute.
In March this year, the A-G successfully challenged the jurisdiction of the Permanent Court of Arbitration (PCA) in The Hague, Netherlands, to hear the dispute after Cassius Mining had filed for arbitration under the UNCITRAL Arbitration Rules before the PCA.
Raising a preliminary legal objection, Mr Dame argued that the GoG had not consented to the PCA administrating the arbitration and also per the PLA, any dispute between the two parties must be resolved in Ghana in accordance with Act 798.
The PCA upheld the objection by Mr Dame, declined jurisdiction over the dispute and refused to constitute a panel to hear the dispute.
“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 said in a letter dated March 20 this year to the parties.
Background
Per court records, on October 12, 2016, Cassius Mining Limited applied for a prospecting mining licence to explore minerals in Talensi in the Upper East Region.
On December 28, 2016, the government, through the then Minister of Lands and Natural Resources, granted the mining firm a prospecting licence for two years, which was to expire in December 2018.
On June 14, 2018, Cassius Mining alleged that the government had failed to uphold its part of the contract by not renewing the prospecting licence which was set to expire in December 2018.
The mining firm, therefore, dragged the government to the Ghana Arbitration Centre on June 26, 2018, in accordance with the dispute settlement clause of the Prospecting Licence Agreement, which enjoins the parties to settle their disputes in Ghana in accordance with Act 798.
An arbitral panel, which comprised Emmanuel Amofa, Kizito Beyuo and Professor Albert Fiadjoe, was formed to hear and determine the dispute.
However, per the court documents, on January 23, 2019, Cassius Mining applied for a stay of proceedings for three months in order to explore settlement with the government.
After the expiration of the three months, the mining firm applied for an extension which was granted but nothing was heard about the arbitration, although it was still pending.
In February 2023, Cassius Mining instituted fresh arbitration at the PCA, which declined to hear the matter following the objection raised by the A-G.
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