Top International Engineering wins $8 million arbitration award

BY: Emmanuel Ebo Hawkson

An Accra High Court has ordered Euroget De-Invest S.A, the firm building a number hospitals for the government, to abide by an arbitration award and pay more than $8 million to one of its subcontractors, Top International Engineering Ghana Limited.

The $8 million represents outstanding balance owed by Euroget De –Invest S.A to Top International Engineering Limited for projects executed by the latter for the former, as well as interest on the amount.

The court, presided over by Justice Ernest Yao Gaewu, gave the order after it adopted as final judgment, the arbitration award from the International Court of Arbitration of the International Chamber of Commerce (ICC) in London, UK.

Also, the court further gave Top International Engineering Limited the green light to go ahead and enforce the arbitration award.

The decision by the court followed a motion filed by lawyers for Top International Engineering Limited, urging the court to adopt the arbitration award as its final judgment to settle the dispute between the two parties.

“The motion filed on August 8 for an order to incorporate the arbitration award as the final judgment is hereby granted as prayed,” Justice Gaewu ruled.

Motion

Moving the motion counsel for Top International Engineering Limited, Mr. Seth Agyapong-Mensah, prayed the court to grant his client’s motion.

“We pray that the arbitration award should be incorporated to have full force and effect as the final judgment. We also seek leave from the court to enforce the arbitration award,” counsel submitted.

In response, counsel for Euroget De-Invest, Mr. Mcaeown Omanwo-Besa, did not oppose the motion.

He, however, indicated that his client had initiated processes to have discussions with Top International Limited on how to enforce the award.
“We have engaged counsel for the other side for us to come to an agreement on the arbitration award,” he said.

Amount

About $5.4 million of the amount represents outstanding balance that Euroget has to pay Top Engineering, while $1.06 million relates to interest on the outstanding balance from September 29, 2017, when the dispute between the two companies began, to June 29, 2021, the date of the arbitration award.

The rest of the arbitration award is in relation to the legal fees and other costs expended by Top Engineering during the arbitration.

Dispute

The dispute between the two firms is connected to two hospitals being constructed by Euroget — the 500-bed military hospital at Afari, Kumasi, and the 60-bed hospital in Konongo, both in the Ashanti Region.

Top Engineering had argued that it provided some engineering services at the military hospital at a contract sum of more than $12 million, but Euroget paid it $7.5 million.

With regard to the hospital in Konongo, Top Engineering said the contract sum was more than $7.5 million, but Euroget paid it $4.8 million.

Euroget also made a counter-claim against Top Engineering and argued that the engineering firm delayed in completing its services, as agreed between the two parties.

The arbitration tribunal upheld the counter-claim and ordered Top Engineering to pay Euroget $710,000 in relation to the military hospital contract and $1,117,746.37 in relation to the Konongo project.

It was after deducting the amount to be paid by Top Engineering from what is supposed to be paid by Euroget that the arbitration tribunal arrived at the final arbitration award.

Background

In 2017, Top Engineering dragged Euroget to the Accra High Court, claiming breach of contract and seeking payment of the balance of the contract sum.

On October 2017, the High Court stayed proceedings and ordered the case sent to an arbitration panel of the Ghana Institution of Engineering for determination.

In September 2018, the arbitration panel of the Ghana Institution of Engineering gave an arbitration award in favour of Top Engineering.
Euroget rejected the decision of the Ghana Institution of Engineering arbitration panel and served Top Engineering with a notice of dissatisfaction.

Court ruling

In 2019, Top Engineering filed an application at the High Court praying the court to adopt the Ghana Institution of Engineering arbitration award as its final judgment, but that was dismissed by the court as premature.

The court, presided over by Justice Novisi Afua Aryene, ruled that per the contract between Euroget and Top Engineering, the two parties had resolved to settle their dispute by rules set out by certain international rules.

The rules, it held, stipulated that disputes shall be settled by an international arbitration tribunal when a party filed a notice of dissatisfaction against a local arbitration panel.

According to the court, since Euroget had filed a notice of dissatisfaction against the decision of the arbitration panel of the Ghana Institution of Engineering, the next stage was arbitration by an international arbitration tribunal.

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