THE ATTORNEY GENERAL vs. BALKAN ENERGY GHANA LTD & 2ORS.

The Government of Ghana entered into a Power Purchase Agreement (PPA) dated 27 July 2007 with Balkan Energy Ghana Ltd, a Ghana-incorporated company formed shortly before execution of the agreement for a power generation project. The broader investment initiative was promoted by foreign investors connected to Balkan Energy LLC and Mr. Phillip David Elders, resident in Texas, USA. A dispute later arose when the Government alleged misrepresentation as to the investors’ ability to make a power barge operational within 90 working days. Balkan Energy commenced arbitration at The Hague under clause 22.2 of the PPA. The Attorney-General then sought, among other reliefs, a declaration that the PPA and its arbitration clause were international business transactions requiring parliamentary approval under article 181(5) of the 1992 Constitution and were unenforceable for want of such approval. Portion indicating this in the judgment: under “The Facts”, where the Court recounts the MOU, the incorporation of the 1st defendant, the execution of the PPA, the subsequent dispute, the Notice of Arbitration dated 23 December 2010, and the Attorney-General’s writ in the Commercial Division of the High Court.

JUDGMENT OPINION ON A REFERENCE DR. DATE-BAH JSC: The task of this Court in this case is to interpret the phrase or term “international business or economic transaction to which the Government is a party” as it is used in article 181(5) of the 1992 Constitution. The responsibility to interpret this phrase has arisen as a result of this Court deciding to refer to itself constitutional issues that had arisen in proceedings before the High Court (Commercial Division). The learned High Court judge refused an application from the plaintiff to refer the said constitutional issues to this court. The plaintiff accordingly invoked our supervisory jurisdiction to quash the decision of the learned High Court judge not to refer the issues to this Court. This Court, in a unanimous ruling delivered on 2nd November, 2011, quashed the decision of the High Court judge not to refer the constitutional issues. To avoid a multiplicity of suits and to save time, this Court decided to exercise the p...