Ghana's High Court reasserts the limits of arbitral autonomy: lessons from the Boankra Inland Logistics Terminal dispute

Prince Eli Fornyikpor, MCIArb, Esq
Solvere Consult, Accra
elikofi.pf@gmail.com

Arbitration has long been promoted in Ghana and the world at large as an efficient and final mechanism for resolving commercial disputes, with judicial intervention intended to remain exceptional. 

However, the decision of the High Court of Ghana in Justmoh Construction Limited v. Ashanti Port Services Limited¹ (May 2026), setting aside a US$33.3 million arbitral award arising from the Boankra Inland Logistics Terminal project, serves as a significant reminder that arbitral autonomy is neither absolute nor immune from judicial scrutiny. 

The Court identified three fundamental defects: the claimant's lack of corporate capacity to commence arbitration, the improper constitution of its board of directors, and its failure to comply with mandatory contractual pre-arbitration dispute resolution procedures. 

This article considers the significance of the decision for commercial litigation and arbitration in Ghana and examines its implications for parties engaged in cross-border disputes.

Introduction

Ghana has, over the past decade, cultivated a reputation as an arbitration-friendly jurisdiction. The enactment of the Alternative Dispute Resolution Act,² reflected the country's commitment to modern dispute resolution principles, limiting judicial interference while promoting party autonomy and the enforceability of arbitral awards. Investors, commercial partners and the like have increasingly viewed Ghana as a favourable venue for resolving commercial disputes.

The High Court's recent decision to set aside a US$33.3 million arbitral award in favour of Ashanti Port Services Limited (APSL), however, demonstrates that judicial restraint does not equate to judicial abdication. Instead, the judgment reinforces the principle that arbitration derives its legitimacy from valid corporate authority, adherence to agreed contractual procedures, and procedural fairness.

Rather than signalling hostility towards arbitration, the decision reinforces the rule that arbitral proceedings remain subject to fundamental legal and contractual requirements.

The Boankra Inland Logistics Terminal dispute

The dispute arose from the development of the Boankra Inland Logistics Terminal, one of Ghana's flagship infrastructure projects intended to improve freight movement between the country's ports and inland commercial centres.

Following disagreements between APSL and Justmoh Construction Limited, arbitration proceedings culminated in an award in December 2025 in favour of APSL exceeding US$33 million.

Justmoh subsequently applied to the High Court to set aside the award.

On 6 May 2026, Justice John-Mark Nuku Alifo allowed the application, setting aside the award in its entirety and awarding costs of GHS100,000 against APSL. The Court relied on three principal grounds, each of which has wider significance for commercial dispute resolution.

Corporate capacity as a jurisdictional requirement

The first ground concerned APSL's corporate authority to commence arbitration.

The Court concluded that APSL lacked the requisite corporate capacity because the decision to institute arbitral proceedings had not been authorised through properly constituted corporate governance processes.

This aspect of the judgment is particularly significant because it emphasises that an arbitration agreement does not operate independently of company law. While arbitration agreements bind contracting parties, the decision to invoke those agreements must nevertheless comply with the internal governance requirements of the corporate entity.

For multinational businesses, state-owned enterprises, and joint ventures, this serves as an important reminder that arbitral jurisdiction may be undermined where corporate decision-making procedures are defective.

Comparable principles are evident in England and Singapore, where courts have consistently recognised that the authority of those purporting to act on behalf of a company remains an essential prerequisite to valid legal proceedings. Arbitration is no exception.

The Ghanaian decision therefore aligns with broader international practice by reaffirming that party autonomy cannot override deficiencies in corporate authority.

The importance of proper corporate governance

The Court also found that APSL's board meetings had been improperly constituted because representatives of the Ghana Shippers' Authority and the Ghana Ports and Harbours Authority were absent.

This finding extends beyond corporate governance into the legitimacy of arbitral proceedings themselves.

Infrastructure projects frequently involve public-private partnerships, state-owned enterprises and entities with complex governance structures. Decisions authorising dispute resolution often require compliance with statutory constitutions, shareholder agreements or board composition requirements.

The judgment illustrates that failures in corporate governance may ultimately invalidate the legal steps that follow, including the commencement of arbitration, to put it lightly one cannot seek to benefit from the fruit of the forbidden tree.

For international investors, this serves as an important lesson. Due diligence should not focus solely on the validity of arbitration clauses but should also consider whether counterparties possess the internal and requisite authority to invoke them and further that these clauses have been properly and legally invoked.

Contractual dispute resolution clauses matter

Perhaps the most significant aspect of the decision concerns APSL's failure to comply with the contract's agreed dispute resolution mechanism before commencing arbitration.

The contract required disputes to pass through intermediate stages, including referral to a Dispute Adjudication Board, before arbitration could be initiated.

The Court held that APSL failed to exhaust these mandatory procedures.

Escalation clauses have become increasingly common in international construction and infrastructure contracts, particularly those based on FIDIC and other internationally recognised standard forms. Such provisions are intended to encourage early settlement, preserve commercial relationships and reduce unnecessary arbitral proceedings.

International courts have increasingly treated mandatory escalation procedures as enforceable contractual obligations rather than aspirational provisions.

The Ghanaian judgment therefore reflects an emerging international consensus that parties must honour every stage of the dispute resolution mechanism they negotiated. Arbitration cannot be used to bypass agreed contractual processes simply because they may appear inconvenient or time-consuming.

For litigators, this aspect of the decision reinforces the importance of examining contractual preconditions before commencing arbitration or enforcement proceedings.

Implications for international commercial litigation

Although decided within the context of domestic arbitration, the implications of the judgment extend well beyond Ghana.

First, the decision is likely to influence litigation strategy where parties seek either to resist or enforce arbitral awards.

Challenges based upon corporate authority, board approval and contractual compliance may now receive greater judicial attention in Ghana, particularly in disputes involving public entities and infrastructure projects.

Secondly, parties negotiating commercial contracts should carefully review dispute resolution clauses.

Multi-tier dispute resolution mechanisms are often drafted as boilerplate provisions with limited attention during contract negotiations, this makes it a one-size fits all arbitration clause, often ignoring the fact that situation-styled clauses tend properly to cover all the required nitty-gritties. This judgment demonstrates that such clauses may determine whether an arbitral tribunal possesses jurisdiction in the first place.

Thirdly, legal advisers acting for companies should ensure that internal corporate approvals are properly documented before arbitration is commenced.

In cross-border disputes involving joint ventures or state-owned enterprises, defects in corporate authority may ultimately jeopardise otherwise successful claims.

Finally, the decision may encourage arbitral tribunals seated in Ghana to scrutinise jurisdictional objections relating to contractual preconditions more closely at an earlier stage of proceedings, thereby reducing the risk of subsequent judicial intervention.

Does the decision make Ghana less arbitration-friendly?

Some observers may question whether setting aside a high-value arbitral award signals increasing judicial intervention.

That conclusion would be premature.

International arbitration has never operated free from judicial supervision. The UNCITRAL Model Law, upon which many arbitration statutes are based, expressly recognises limited judicial oversight where jurisdictional defects, procedural irregularities or public policy considerations arise.

The High Court did not revisit the substantive merits of the dispute or substitute its commercial assessment for that of the arbitral tribunal.

Instead, it examined whether the arbitration itself had been validly commenced and conducted in accordance with both the parties' contract and applicable legal principles.

Viewed in that light, the judgment reinforces rather than weakens confidence in Ghana's arbitration framework.

Predictability, procedural integrity and respect for contractual bargains remain essential characteristics of every mature arbitration jurisdiction.

Conclusion

The decision in Justmoh Construction Limited v. Ashanti Port Services Limited represents one of the most significant litigation developments in Ghana over the past year.

Its importance lies not in the monetary value of the award that was set aside but in the principles it reaffirms.

Corporate authority matters. Sound governance matters. Contractual dispute resolution procedures matter.

For litigators and arbitration practitioners engaged in international commercial disputes, the case illustrates that successful arbitration begins long before the tribunal is constituted. It begins with ensuring that the parties possess the legal authority to arbitrate, that corporate governance requirements have been satisfied, and that every contractual precondition has been respected.

As Ghana continues to position itself as a regional centre for commercial dispute resolution, this judgment demonstrates that its courts remain committed to supporting arbitration while ensuring that the integrity of the arbitral process is preserved. Far from undermining arbitration, the decision strengthens confidence that the finality of arbitral awards will be protected only where the foundations upon which they rest are legally sound.

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Notes

1  Unreported May 2026 (High Court Commercial Division 2
2  2010 (Act 798) of Ghana