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Lawyers, other representatives, expert(s), tribunal’s secretary

Award Save as to Costs

1. THE PARTIES

1.1.
The following paragraphs set out the names and addresses of the parties to the arbitration ("Parties").
1.2.
The Claimant, BANKSWITCH GHANA LTD. (GHANA) (the "Claimant" or "Bankswitch"), is a company organised and existing under the laws of Ghana. Bankswitch is registered with the Ghana Investment Promotion Centre (Registration No CA-23,099/2116) and consequently enjoys certain privileges granted to Ghanaian companies under foreign ownership. The address of Bankswitch is 3 Templesi Lane, Airport Residential Area, P.O. Box 600, Kanda, Accra, Ghana.
1.3.
Bankswitch is represented by Prof. Dr Marielle E. Koppenol-Laforce of Houthoff Buruma, P.O. Box 1507, 3000 BM Rotterdam, the Netherlands, and, Mr Ace Anan Ankomah of Bentsi-Enchill, Letsa & Ankomah, 1st Floor Teachers Hall Complex, Education Loop (Off Barnes Road), Adabraka, P.O. Box GP 1632, Accra, Ghana.
1.4.
The Respondent is THE REPUBLIC OF GHANA ACTING AS THE GOVERNMENT OF GHANA (the "Respondent" or "Ghana" or the "Government").
1.5.
Ghana is represented by Representatives of the Attorney-General's Office, Ministry of Justice, P.O. Box M60, Accra, Ghana.
1.6.
From 3 April 2012 until 3 December 2012, Ghana was represented by Messrs Ronnie King and Tom Cummins of Ashurst LLP, Broadwalk House, 5 Appold Street, London, EC2A 2HA, United Kingdom.

2. THE ARBITRATION AGREEMENT

2.1.
Bankswitch and Ghana (acting through the Ministry of Finance and Economic Planning ("MOFEP") and the Revenue Agencies Governing Board ("RAGB") entered into the Ghana Customs, Excise and Preventive Service Secure Document Management System Agreement on 12 December 2007 ("Agreement").
2.2.
Clause 19 of the Agreement (the "Arbitration Clause") provides:

"Clause 19. SETTLEMENT OF DISPUTES

The parties shall endeavour to settle any and all disputes, differences, or disagreements under this contract through conciliation in the first instance. In the event that the parties cannot settle such disputes or differences, the aggrieved party may refer that matter for arbitration under the UNCITRAL rules."

2.3.
Applicable Rules: Pursuant to the Arbitration Clause, the Arbitration Rules of the United Nations Commission on International Trade Law ("UNCITRAL Rules") apply to this arbitration. While the Arbitration Clause does not specify the applicable version of the Rules, the Claimant cited the 1976 version of the UNCITRAL Rules in its Notice of Arbitration. The Tribunal has from the time of its constitution applied the 1976 version without objection from the Respondent.
2.4.
Seat of Arbitration: Pursuant to Article 16(1) of the UNCITRAL Rules, and having regard to the factors involved in this arbitration – including, inter alia, (i) the Permanent Court of Arbitration ("PCA") as the administering body; (ii) the decision of the Parties in the Arbitration Clause to use the UNCITRAL Rules; and (iii) their agreement on the PCA as the Appointing Authority – the Tribunal designated the Netherlands as the seat of arbitration on 24 May 2012. The law of the Netherlands is therefore the lex arbitrii.
2.5.
Applicable Law: Clause 22 of the Agreement states that the "Agreement shall be governed by the Laws of the Republic of Ghana." Pursuant to Article 33 of the UNCITRAL Rules and Clause 22 of the Agreement, the laws of Ghana shall therefore apply to the disputed claims, counterclaims, and defences in this arbitration.
2.6.
Venue of Arbitration: Pursuant to Article 16(1) of the UNCITRAL Rules, and having regard to the respective suggestions of the Parties and the circumstances of this arbitration, the Tribunal, in Paragraph 3 of Procedural Order No 3, fixed The Hague, the Netherlands as the venue for the Hearing.
2.7.
Language: Pursuant to Article 17 of the UNCITRAL Rules and the Claimant's request in Section 5 of the Notice of Arbitration, the Tribunal fixed English as the language of the proceedings.

3. THE ARBITRAL TRIBUNAL

3.1.
The Tribunal Members were appointed pursuant to Article 5 of the UNCITRAL Rules, as described below.
3.2.
On 21 March 2011, Judge Stephen M. Schwebel accepted the Claimant's appointment as co arbitrator. Judge Schwebel's address is 1501 K Street, N.W., Suite 410, Washington, D.C. 20005, United States of America.
3.3.
On 9 June 2011, the Secretary-General of the PCA, acting as Appointing Authority for this arbitration, appointed Mr Gary Born of Wilmer Cutler Pickering Hale and Dorr LLP, 49 Park Lane, London, W1K 1PS, United Kingdom as co-arbitrator. The full details of the designation of the Secretary-General of the PCA as Appointing Authority, as well as the appointment of Mr Born as co-arbitrator, are set out in Paragraphs 4.2 to 4.7 below.
3.4.
Pursuant to the joint nomination of the two co-arbitrators under Article 7(1) of the UNCITRAL Rules, Mr Michael Hwang S.C. of Michael Hwang Chambers, 8 Marina Boulevard, #06-02 Marina Bay Financial Centre Tower 1, Singapore 018981 was appointed as the Chairman of the Tribunal.
3.5.
The draft Terms of Appointment of the Tribunal were transmitted to the Parties by the PCA on 11 July 2011, and the Parties were given until 22 July 2011 to respond to the draft with their comments and/or approval. Bankswitch signed the Terms of Appointment on 20 July 2011 without comments, and transmitted them to the PCA by letter dated 21 July 2011. The Government has not to date signed the Terms of Appointment.
3.6.
The Parties have not submitted any challenge to any member of the Tribunal.

4. PROCEDURAL HISTORY AND HEARING

4.1.
The Claimant sent a Notice of Arbitration dated 4 March 2011 to the Government, requesting that (i) the dispute be referred to a three-member tribunal under the UNCITRAL Rules 1976, (ii) the Secretary-General of the PCA serve as Appointing Authority, and (iii) The Hague, the Netherlands be designated as the arbitral seat.
4.2.
On 21 April 2011, the Claimant requested the Secretary-General of the PCA to designate an Appointing Authority to appoint an arbitrator on behalf of the Respondent. The PCA invited the Respondent to comment on the Claimant's request by 12 May 2011.
4.3.
On 18 May 2011, the Claimant reiterated its request that the Secretary-General of the PCA proceed with the designation of an Appointing Authority.
4.4.
The Secretary-General of the PCA designated Mr Neil Kaplan as Appointing Authority on 20 May 2011. On 26 May 2011, the PCA, on behalf of the Appointing Authority, invited the Government to provide its comments on the appointment of the second arbitrator by 6 June 2011.
4.5.
On 26 May 2011, the Government proposed that the Secretary-General of the PCA act as Appointing Authority, to which the Claimant agreed on 1 June 2011. On 3 June 2011, therefore, the PCA informed the Parties that the PCA Secretary-General would act as Appointing Authority in the proceedings henceforth.
4.6.
On 6 June 2011, the Respondent requested an extension of time for the nomination of the second arbitrator, to which the Claimant objected.
4.7.
Upon the Respondent's failure to nominate its own arbitrator timeously, the SecretaryGeneral of the PCA appointed Mr Born as the second arbitrator on behalf of the Government on 9 June 2011, in accordance with the powers accorded to the Secretary-General by Article 7.2 of the UNCITRAL Rules, as set out in Paragraph 3.3 above.
4.8.
Judge Schwebel and Mr Born jointly appointed Mr Hwang as the Chairman of the Tribunal and the Terms of Appointment were submitted to the Parties for comment and executed pursuant to the facts laid out in Paragraph 3.5 above. The Tribunal was duly constituted on 24 June 2011, the date of Mr Hwang's appointment.

1. REQUESTED ORDER FOR ANSWER TO THE NOTICE OF ARBITRATION

4.9.
The facts set out in the preceding Paragraphs 4.1 to 4.8 are repeated.
4.10.
On 4 October 2011, the PCA conveyed the Claimant's request that the Respondent be ordered to file an Answer to the Notice of Arbitration before the Claimant filed a Statement of Claim.
4.11.
On 7 October 2011, the Tribunal noted that the UNCITRAL Rules 1976 do not require the service of an Answer to the Notice of Arbitration and declined the Claimant's request on this basis.

2. APPLICATION FOR BIFURCATION

4.12.
In letters dated 11 August 2011 and 29 September 2011, respectively, and in a telephone conference call on 4 October 2011, Bankswitch requested that the proceedings be bifurcated into liability and quantum phases.
4.13.
By way of letters dated 30 September 2011 and 7 October 2011,1 respectively, the Tribunal notified the Parties that it would defer its decision on bifurcation until after the Respondent filed its Statement of Defence. Additionally, the Tribunal noted that Article 18(2)(d) of the UNCITRAL Rules 1976 merely requires a statement of the "relief or remedy sought" rather than a detailed explanation on or an indication of the quantum of the monetary relief claimed in the Statement of Claim.
4.14.
By letter dated 25 May 2012, the Tribunal informed the Parties that it would be proceeding on the basis that the request for bifurcation made by the Claimant had been superseded by its filing of evidence on damages. The Claimant did not make a further request for bifurcation.

3. PROCEDURAL ORDERS

4.15.
The Tribunal issued (i) Procedural Order No 1 dated 25 October 2011; (ii) Procedural Order No 2 (Terms of Appointment) dated 6 February 2012; (iii) Procedural Order No 3 dated 23 March 2012; (iv) Procedural Order No 4 dated 22 June 2012; and (v) Procedural Order No 5 dated 8 January 2013.
4.16.
Procedural Order No 1 (25 October 2011) : On 29 July 2011, the Tribunal transmitted a draft of Procedural Order No 1 on which it requested the Parties' comments by 12 August 2011.

4.16.1 On 11 August 2011, Bankswitch requested the bifurcation of the proceedings (discussed in Paragraphs 4.12 to 4.14 above). Ghana failed to submit its comments on draft Procedural Order No 1 by 12 August 2011. On 20 September 2011, therefore, the Tribunal extended the deadline for comments to 21 October 2011, and notified the Parties that it would be issuing a modified version of draft Procedural Order No 1 – which it attached for their consideration – if the Respondent did not provide its comments by this date.

4.16.2 As no communication was received from the Respondent regarding the modified draft Procedural Order No 1, the Tribunal issued Procedural Order No 1 on 25 October 2011, which included, inter alia, a timetable for written submissions and provisions for documentary evidence.

4.16.3 On 1 December 2011, in response to a request for clarification from the Claimant, the Tribunal amended Paragraph 2.3 of Procedural Order No 1 regarding the transmission of written submissions.

4.17.
Procedural Order No 2 - Terms of Appointment (6 February 2012) : On 19 January 2012, the Tribunal transmitted a draft of Procedural Order No 2 to the Parties – which was based on the Terms of Appointment signed by the Claimant on 20 July 2011 – and invited the Respondent to provide comments on it by 2 February 2012. The Tribunal reiterated this deadline on 31 January 2012, but the Respondent provided no comments by 2 February 2012. On 6 February 2012, therefore, the Tribunal issued Procedural Order No 2, which set out provisions regarding (i) the Tribunal Members' fees and expenses; (ii) the Legal Assistant to the Tribunal; (iii) the exclusion of liability for the Tribunal; (iv) case administration by the PCA; and (v) deposits.
4.18.
Procedural Order No 3 (23 March 2012) : On 27 February 2012, the Tribunal transmitted a draft of Procedural Order No 3 to the Parties, and requested them to comment on the procedural time schedule and the designation of the place of arbitration by 29 February 2012. It noted that Ghana was now in default under Article 28(1) of the UNCITRAL Rules 1976. On 28 February 2012, the Tribunal transmitted a version of draft Procedural Order No 3 with an amendment to Paragraph 1.1, and requested the Parties to refer to the revised version.

4.18.1 On the deadline, 29 February 2012, the Tribunal received a proposed procedural time schedule from the Claimant, but did not hear from the Respondent. In a facsimile dated 2 March 2012, the Respondent requested an extension of three months to the procedural timetable set forth in draft Procedural Order No 3. By letter dated 5 March 2012, the Claimant objected to the proposed extension, noting that (i) the Respondent's comments were received after the deadline set by the Tribunal; (ii) the Respondent had ample opportunity to review the merits of the case as the Notice of Arbitration was filed on 4 March 2011; and (iii) the Respondent had already received several extensions of time.

4.18.2 By a letter dated 9 March 2012, which was corrected by a letter dated 14 March 2012 and incorporated in Paragraph 2.1 of Procedural Order No 3, the Tribunal – "in the view of the desirability of facilitating the Respondent's participation in the case"– granted the Respondent an additional four weeks to submit its Statement of Defence. The Tribunal also provided a detailed procedural time schedule, and clarified that The Hague would remain the seat of arbitration pending receipt of the Respondent's Statement of Defence.

4.18.3 Owing to the Respondent's recurrent failures to participate in the arbitration, the Tribunal stated the following at Paragraph 1 of Procedural Order No 3:

"[The] Respondent having failed to submit a Statement of Defence by 10 February 2012, the proceedings will continue under Article 28(1) of the UNCITRAL Rules 1976.

If [the] Respondent fails to appear at the Main Hearing, the Tribunal will proceed under Article 28(2) of the UNCITRAL Rules 1976 which provides that '[i]f one of the parties, duly notified under these Rules, fails to appear at a hearing, without showing sufficient cause for such failure, the arbitral tribunal may proceed with the arbitration.'

If [the] Respondent fails to produce documentary evidence, the Tribunal will proceed under Article 28(3) of the UNCITRAL Rules 1976 which provides that '[i]f one of the parties, duly invited to produce documentary evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.'"

4.18.4 At Paragraph 5.1 of Procedural Order No 3, the Tribunal notified the Respondent of the adverse consequences of non-conformance to the procedural time schedule, as follows:

"Considering that the Tribunal has accommodated [the] Respondent with multiple extensions of time and ample opportunity to be heard; and in the interests of fairness, to prevent undue surprise, and for the purposes of Article 28(2) of the UNCITRAL Rules 1976]; the Tribunal shall construe the time schedule set forth in Paragraph 4.1 strictly. The Tribunal shall consider implementing adverse inferences, allocation of costs due to further delays, and/or other penalties for deviation from, or non-conformance with, the Schedule of paragraph 4 above."

4.18.5 At Paragraph 3.2 of Procedural Order No 3, the Tribunal set The Hague, the Netherlands as the hearing venue.

4.19.
Procedural Order No 4 (22 June 2012) : After the Respondent had retained external counsel (Ashurst LLP) for this arbitration, the Tribunal issued a revised procedural timetable to provide the Respondent with a full opportunity to present its case.

4.19.1 On 4 April 2012, the Respondent requested an extension until 20 April 2012 to indicate a date by when it could file its Statement of Defence. On 6 April 2012, the Tribunal requested that the Respondent submit its Statement of Defence on or before 20 April 2012 along with its Reply Submission on the Seat of Arbitration. The Tribunal amended the procedural time schedule to reflect the extended deadlines.

4.19.2 On 20 April 2012, the Respondent submitted its Statement of Defence and Reply Submission on the Seat of Arbitration. The Respondent also requested the Tribunal to allow it to serve its Counter Memorial by 11 September 2012 and to vacate the July and August 2012 hearing dates. The Tribunal gave the Claimant until 24 April 2012 to comment on this request.

4.19.3 On 24 April 2012, the Claimant requested that the Tribunal "strictly enforce the schedule dates in [Procedural Order No 3] and the Tribunal's letter dated 6 April 2012 and deny the Respondent's requests". By letter dated 9 May 2012, the Tribunal offered to postpone the hearing to the week of 14 January 2013, with the consent of the Parties, provided that the Respondent pay its arrears on deposits. On the same date, the Claimant rejected the proposal. For its part, by letter dated 15 May 2012, the Respondent's counsel agreed with the Tribunal's proposal.

4.19.4 By letter dated 16 May 2012, the Tribunal clarified that it meant only to solicit comments regarding practical impediments to the hearing being set for the week of 14 January 2013, and asked the Claimant to inform the Tribunal of any such impediments and their nature.

4.19.5 On 23 May 2012, the Respondent reiterated its request that the submission of the Counter Memorial be postponed until 11 September 2012. On the same day, the Claimant requested for the strict enforcement of the dates set out in Procedural Order No 3 and the Tribunal's letter of 6 April 2012.

4.19.6 By letter dated 25 May 2012, the Tribunal postponed the hearing to the week of 14 January 2013, and attached a draft of Procedural Order No 4, which incorporated a revised procedural agenda and time schedule, on which the Parties' comments were requested by 31 May 2012.

4.19.7 By letter dated 31 May 2012, the Claimant informed the Tribunal of its agreement with Procedural Order No 4, insofar as the Tribunal wished to maintain the procedural time schedule set out therein. By letter of the same date, the Respondent proposed a revised procedural time schedule and requested an additional month to file its Counter Memorial, suggesting that the second round of document requests be foregone in order to accommodate the change.

4.19.8 On 31 May 2012, the Tribunal requested the Claimant to respond to the Respondent's request by 4 June 2012. On that date, the Claimant requested the Tribunal to enforce the scheduled dates strictly.

4.19.9 On 5 June 2012, the Tribunal noted that the Parties had not yet reached consensus on the procedural time schedule and requested that the Respondent explain why it needed an additional month to file its Counter Memorial (which the Respondent did on 7 June 2012). On 8 June 2012, the Claimant reiterated its request for the strict enforcement of the procedural time schedule contained in draft Procedural Order No 4.

4.19.10 By letter dated 14 June 2012, the Tribunal granted the Respondent's request for the amendment of the draft procedural time schedule, and set 6 August 2012 as the deadline for the submission of the Counter Memorial. The Tribunal indicated its willingness to work with a single round of document production, and provided a procedure for the ad hoc resolution of contested document requests, if any. Transmitted with its letter was an updated draft Procedural Order No 4, on which the Tribunal requested the Parties to comment by 18 June 2012.

4.19.11 As the Parties provided no further comments on this matter, the Tribunal issued Procedural Order No 4 on 22 June 2012. This procedural order contained provisions regarding (i) the place of arbitration and the venue of the hearing; (ii) the IBA Rules on the Taking of Evidence in International Arbitration ("IBA Rules"); (iii) an Agreed List of Issues; (iv) the Sequence of the Proceedings; (v) the Documentary Evidence and Evidence of Fact and Expert Witnesses; (vi) the Hearing, Hearing Bundles, and Timetable; and (vii) the Rulings by the Chairperson.

4.20.
Procedural Order No 5 (8 January 2012) : Pursuant to Paragraph 5.1(q) of Procedural Order No 4, the Tribunal held a Pre-Hearing Telephone Conference on 7 December 2012 in which the full Tribunal, the Claimant's counsel, Mr Appenteng, and two representatives from the Respondent (led by Ms Sylvia Adusu) participated.

4.20.1 During the telephone conference itself, the Respondent requested the postponement of the Pre-Hearing Telephone Conference to accommodate the Ghanaian national elections. With the consent of the Claimant, the Tribunal gave the Parties until 21 December 2012 to provide written answers to its Questionnaire for the Pre-Hearing Telephone Conference ("Questionnaire") (see Paragraph 4.52 below). The Questionnaire was re-sent to Ms Adusu to ensure receipt by the Respondent.

4.20.2 On 21 December 2012, the Claimant provided its answers to the Questionnaire. Despite the accommodation made for it, however, the Respondent failed to provide answers to the Questionnaire by either the original deadline of 21 December 2012 or the revised deadline of 4 January 2013, which the Tribunal granted on its own motion.

4.20.3 On 8 January 2013, therefore, the Tribunal issued Procedural Order No 5, which was based solely on the Claimant's answers to the Questionnaire. While Procedural Order No 5 dealt primarily with Hearing Directions, it also reiterated the provisions on default of which the Respondent was initially made aware at Paragraph 1 of Procedural Order No 3 (reproduced at Paragraph 4.52 below).

4.20.4 Although the Respondent had not requested the presence of any of the Claimant's fact witnesses, the Tribunal directed the Claimant by letter dated 28 December 2012 to "proceed on the basis that all of its witnesses should be present for the Evidentiary Hearing in The Hague as the Tribunal will likely want to hear from all of the Claimant's witnesses in any event". The Tribunal altered this direction in Procedural Order No 5, where Paragraph 4.3 stated that the Tribunal was not committing itself to calling any of the witnesses in case of the Respondent's absence at the Evidentiary Hearing and Paragraph 6.1 allowed the Claimant, in response to its 5 January 2013 application, to produce certain witnesses by videoconference.

4.20.5 Although the Respondent had represented that it would participate in this arbitration, it did so to only a limited extent, failing to meet deadlines and to file submissions, in breach of the Tribunal's directions. To address the lack of participation of the Respondent, the Tribunal reissued the following direction at Paragraph 1.1 of Procedural Order No 5:

"1.1.1 If [the] Respondent fails to appear at the Main Hearing, the Tribunal will proceed under Article 28(2) of the UNCITRAL Rules 1976 which provides that '[i]f one of the parties, duly notified under these Rules, fails to appear at a hearing, without showing sufficient cause for such failure, the arbitral tribunal may proceed with the arbitration.'

1.1.2. If [the] Respondent fails to produce documentary evidence, the Tribunal will proceed under Article 28(3) of the UNCITRAL Rules 1976 which provides that '[i]f one of the parties, duly invited to produce documentary evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.'"

4.21.
Owing to the Respondent's failure to file a Second Counter Memorial, the Tribunal further directed the Respondent "to consolidate the points that would have been made in its Second Counter Memorial into its Responsive Written Opening Statement". The Respondent neither provided a Responsive Written Opening Statement nor explained its failure to do so.

4. DEPOSITS

4.22.
By letter dated 27 July 2011, the PCA confirmed receipt of the EUR 17,500 that the Claimant submitted as an initial deposit pursuant to Article 41(1) of the UNCITRAL Rules 1976 and Paragraph 13 of Procedural Order No 2 (Terms of Appointment).

4.22.1 Owing to the failure of Ghana to pay for its share of the initial deposit, the Tribunal requested, by letter dated 12 August 2011, that the Claimant provide a substitute payment pursuant to Article 41(4) of the UNCITRAL Rules 1976. As noted by the 12 August 2011 letter, this substitute payment under Article 41 of the UNCITRAL Rules 1976 is to either be refunded or accounted for in this Award. In response to this request, the Claimant provided an additional EUR 17,500, receipt of which was acknowledged by the PCA by letter dated 17 August 2011.

4.22.2 The Respondent failed to reimburse the Claimant for the substitute payment by the deadline of 19 March 2012.

4.23.
By letter dated 27 February 2012, the Tribunal requested supplementary deposits of EUR 100,000 from each Party, pursuant to Article 41(2) of the UNCITRAL Rules 1976 and Paragraph 15 of Procedural Order No 2 (Terms of Appointment) to be paid by 30 March 2012.

4.23.1 By letter dated 2 April 2012, the PCA acknowledged receipt of the EUR 100,000 from the Claimant.

4.23.2 As the Tribunal did not receive the Respondent's supplementary deposit by the 30 March 2012 deadline, on 6 April 2012, it notified Ashurst LLP (which the Respondent had engaged on 3 April 2012) of the outstanding deposit balance of the Respondent – consisting of both the substitute payment of EUR 17,500 owed to the Claimant and the EUR 100,000 owed to the PCA – and requested payment as soon as possible.

4.23.3 By letter dated 24 April 2012, and in view of the absence of any indication from the Respondent as regards its efforts to pay its arrears on deposits, the Tribunal requested "(i) confirmation [from the Respondent] that it intend[ed] to contest this arbitration in accordance with the directions of the Tribunal; and (ii) advice as to when payment of its overdue deposits will be made."

4.23.4 By letter dated 26 April 2012, the Respondent (i) confirmed that it intended to contest the arbitration and (ii) notified the Tribunal that it was awaiting client's instructions on the payment date of the outstanding deposits. On 3 May 2012, the Respondent informed the Tribunal that the Ghanaian Ministry of Finance was processing the payments. On 15 May 2012, the Respondent's counsel indicated that it had received the outstanding EUR 117,500 from the Government, and would be transferring the whole sum to the PCA the next day.

4.23.5 By letter dated 18 May 2012, the Tribunal acknowledged receipt of EUR 117,500 from the Respondent. The PCA subsequently refunded EUR 17,500 of the Respondent's deposit to the Claimant.

4.24.
On 30 November 2012, pursuant to Article 41(2) of the UNCITRAL Rules 1976 and Paragraph 15 of Procedural Order No 2, the Tribunal requested a supplementary deposit of EUR 125,000 from each Party to be made by 31 December 2012. The Tribunal reiterated this request on 11 January 2013, and notified the Claimant that it would once again be requested to make a substitute deposit if the Respondent failed to pay its share. In response to this request, the Claimant stated that its share of EUR 125,000 was being held in a third party account at its counsel's law firm and was ready for disbursement.
4.25.
By letter dated 5 February 2013, the Tribunal acknowledged receipt of the Claimant's share of the supplementary deposit and directed the Claimant to make a substitute deposit of EUR 125,000 in accordance with Article 41(4) of the UNCITRAL Rules 1976 by 4 March 2013. On that date, the PCA confirmed receipt of the Claimant's substitute payment of the Respondent's share.

5. WRITTEN PLEADINGS AND SUBMISSIONS

4.26.
Following the Request for Arbitration, the Parties filed the following submissions as ordered by the Tribunal: (i) the Claimant's Statement of Claim and Request for Interim Relief dated 16 December 2011; (ii) the Claimant's Submission on the Seat of Arbitration dated 29 March 2012; (iii) the Respondent's Statement of Defence and Reply Submission on the Seat of Arbitration dated 20 April 2012; (iv) the Claimant's First Memorial dated 11 May 2012; (v) the Respondent's Counter Memorial dated 6 August 2012; (vi) the Claimant's Second Memorial dated 8 October 2012; (vii) the Claimant's Opening Statement dated 17 December 2012; (viii) the Claimant's Post-Hearing Submission dated 6 February 2013; (ix) the Respondent's Post-Hearing Submission dated 6 February 2013; (x) the Claimant's Second Post-Hearing Submission dated 25 February 2013;(xi) the Respondent's Second PostHearing Submission dated 25 February 2013; (xii) the Claimant's Third Post-Hearing Submission dated 29 March 2013; (xiii) the Respondent's Third Post-Hearing Submission dated 5 April 2013; and (xiv) the Claimant's Supplemental Third Post-Hearing Submission dated 30 April 2013

4.26.1 Response to the Request for Interim Relief: The Respondent was given 56 days to respond to the Claimant's Request for Interim Measures, including two extensions amounting to 28 additional days. At the end of this extended period, however, the Respondent had yet to submit a response. The Tribunal therefore proceeded to deal with the Claimant's request based on the Claimant's submission alone (discussed in Paragraphs 4.37 to 4.43 below).

4.26.2 Statement of Defence : Paragraph 1.1(b) of Procedural Order No 1 gave the Respondent eight weeks from the filing of the Statement of Claim to serve its Statement of Defence. The Respondent failed to meet this deadline. By letter dated 16 February 2012, therefore, the Tribunal declared the Respondent to be in default, stating:

"Under Article 28 of the UNCITRAL Rules, the Respondent is currently in default and the Tribunal is authorized to proceed to the Main Hearing. If [the] Respondent fails to appear at the Main Hearing or present evidence, Article 28 provides that the Tribunal proceed with the arbitration in their absence and make the award on the evidence before it."

4.26.3 In Procedural Order No 3, and "in the view of the desirability of facilitating the Respondent's participation in this case," the Tribunal granted the Respondent additional time to serve its Statement of Defence, extending its deadline to 6 April 2012.

4.26.4 On 4 April 2012, the Tribunal received its first correspondence from the external counsel retained by the Respondent. In this communication, the Respondent requested a further two-week extension to file its Statement of Defence, or until 20 April 2012, stating that it had only begun representing the Government on 3 April 2012.

4.26.5 By letter dated 6 April 2012, the Tribunal granted the Respondent's request, while stating that "(i) the Statement of Claim was submitted on 16 December 2011; (ii) the Tribunal has granted numerous extensions to the Respondent in the past; (iii) there has only been one request for an extension that was supported by any justification for the delay (see the Respondent's communication of 27 January 2012 in which it cites the appointment of a new Attorney-General); and (iv) the fact that [the] Claimant's First Memorial was scheduled to be submitted on or before 20 April 2012." The Tribunal also noted that the Statement of Defence should "consist of a full written submission including factual and legal arguments and corresponding exhibits rather than a mere statement of position."

4.26.6 The Statement of Defence and the Respondent's Reply Submission on the Seat of Arbitration were filed concurrently on 20 April 2012.

4.26.7 First Memorial : Pursuant to Paragraph 5.1(a) of Procedural Order No 4, the Claimant submitted its First Memorial, together with factual exhibits, written witness statements and authorities on 11 May 2012.

4.26.8 First Counter Memorial : In response to the Claimant's First Memorial, the Respondent submitted its First Counter Memorial on 6 August 2012 pursuant to Paragraph 5.1(b) of Procedural Order No 4 along with the Respondent's single written witness statement.

4.26.9 Second Memorial : Addressing the Respondent's First Counter Memorial, the Claimant submitted its Second Memorial with responsive written witness statements pursuant to Paragraph 5.1(i) of Procedural Order No 4.

4.26.10 Second Counter Memorial : The Respondent failed to submit either its Second Counter Memorial or a Responsive Witness Statement in this arbitration, even though it was given the opportunity to do so.

4.26.11 The Claimant's Opening Written Submission : The Claimant submitted its Opening Written Submission and corresponding authorities on 17 December 2012 pursuant to Paragragh 5.1(s) of Procedural Order No 4.

4.26.12 Responsive Opening Written Submission : In Paragraph 9.1 of Procedural Order No 5, and on its own motion, the Tribunal granted the Respondent an extension to file its Responsive Written Opening Submission, which was due on 7 January 2012, and directed the Respondent to incorporate the points it would have made in its Second Counter Memorial into its Responsive Written Opening Statement.

4.26.13 The Claimant's Aide Memoire : Before completing the Evidentiary Hearing, the Tribunal invited the Claimant to file an aide memoire on the issues raised by the Tribunal during the course of the hearing.2 The Claimant stated, however, that the Tribunal's letter of 21 January 2013 referred to all of the issues covered by the Tribunal at the Evidentiary Hearing, rendering an aide memoire unnecessary.

4.26.14 Post-Hearing Submissions : As discussed at Paragraphs 4.77 to 4.78 below, the Respondent requested the Tribunal to adjourn the proceedings for a few weeks and applied for leave to make submissions "on the constitutional and other legal issues." The Tribunal denied the Respondent's application for an adjournment, but directed the Parties to file two rounds of simultaneous Post-Hearing Submissions on a limited number of legal issues by 5 February 2013.

4.26.15 The Respondent notified the PCA on 4 February 2013 that the Solicitor-General would be unable to sign the Respondent's Post-Hearing Submission until 6 February 2013. By letter dated 5 February 2013, therefore, the Tribunal extended the deadline for the Post-Hearing Submissions of both Parties to 6 February 2013.

4.26.16 On 6 February 2013, both Parties submitted their Post-Hearing Submissions. The Respondent was delayed in submitting hard copies of its Post-Hearing Submission and supporting documents but, once received, the documents were transmitted to the Claimant and Tribunal. On 24 February 2013, the Tribunal requested the Respondent to reproduce pages from its supporting documents that were illegible in the copies of the Tribunal, but the Respondent never complied with this request.

4.26.17 By letter dated 14 February 2013, the Respondent requested a one-week extension to the deadline for its Second Post-Hearing Submission, citing "challenges" faced by the Ministry of Justice. Although the Claimant objected to this request, the Tribunal granted the requested extension and set a new deadline for 25 February 2013.

4.26.18 On 25 February 2013, the Parties transmitted their Second Post-Hearing Submissions.

4.26.19 On 14 March 2013, the Tribunal requested a further Post-Hearing Submission on two questions:

• Do the Parties accept the description of the Doctrine of Incorporation (i.e., the incorporation of principles of customary international law into their domestic law) under principles of Ghanaian law as it is set out in TIYANJANA MALUWA, INTERNATIONAL LAW IN POST-COLONIAL AFRICA at 37 (Kluwer Law International 1999) (including the citations of Lardan v Attorney-General & Others (No. 1) ; Lardan v AttorneyGeneral & Others (No. 2), West Afr. L.R. (1958) at pp 55 and 114; and The State v Schumann, 39 I.L.R. 433)?

• May a tribunal apply principles of national law to the exclusion of principles of customary international law in light of Article 3 of the International Law Commission's Articles on State Responsibility and the Norwegian Loans Case (France v Norway), ICJ Reports 1957 (Separate Opinion of Judge Lauterpacht)?

4.26.20 The Claimant transmitted its Third Post-Hearing Submission on 29 March 2013. But on 30 March 2013, the Respondent requested additional time for its submission on the basis that it did not receive the Tribunal's 14 March 2013 letter. On 1 April 2013, the Tribunal granted the Respondent's request and extended the deadline to 5 April 2013.

4.26.21 On 5 April 2013, the Respondent submitted its Third-Post Hearing Submission. The Claimant requested that the Respondent produce as soon as possible the authorities referenced in this submission, which were not initially provided. On 10 April 2013, the Respondent transmitted its authorities to the PCA, which then forwarded the same to the Claimant and the Tribunal.

4.26.22 On 18 April 2013, the Claimant applied to the Tribunal for the opportunity to submit a five-page response to the Respondent's Third Post-Hearing Submission due to the submission of several new documents related to the Respondent's position that customary international law is not part of the law of Ghana. On 24 April 2013, the Tribunal received an objection from the Respondent to the Claimant's application, and on 26 April 2013, the Tribunal granted the Claimant's request and set 30 April 2013 as the deadline for such submission. The Claimant submitted its Submission on the Respondent's Third Post-Hearing Submission on 30 April 2013.

4.26.23 On 10 July 2013, the Respondent, without prior application, submitted two letters to the Tribunal along with three Ghanaian Supreme Court cases for the Tribunal's attention. The Claimant responded to the Respondent's letters on 13 July 2013 and addressed the three cases submitted by the Respondent. As the Tribunal has determined that neither Party would be prejudiced by the consideration of these three cases, it has taken them into consideration in this Award.

4.26.24 Statements of Costs : On 29 July 2013, pursuant to Articles 38 and 40 of the UNCITRAL Rules, the Tribunal requested the Parties to submit their respective statements on the quantification and allocation of the costs incurred in this arbitration by 12 August 2013. Although the Claimant submitted its Statement of Costs on 12 August 2013, the Respondent requested, and was granted, a one-week extension to file its own statement until 21 August 2013. The Respondent submitted its Statement of Costs on 21 August 2013.

6. LISTS OF ISSUES

4.27.
Preliminary List of Issues : Paragraphs 4.2 and 5.1(c) of Procedural Order No 4 directed the Parties to submit an Agreed Preliminary List of Issues, or, failing agreement between the Parties, their respective Preliminary Lists of Issues by 17 August 2012. The Claimant submitted its Preliminary List of Issues on 17 August 2012. The Respondent submitted its Preliminary List of Issues only on 20 August 2012. The Tribunal issued a Preliminary List of Issues consolidating both Parties' respective submissions on 22 August 2012.
4.28.
Final List of Issues : On 5 December 2012, the Claimant requested that the Tribunal treat its Preliminary List of Issues as its Final List of Issues. The Tribunal granted the Claimant's request through Paragraph 3.2 of Procedural Order No 5. The Respondent did not submit a Final List of Issues.

7. DOCUMENT PRODUCTION

4.29.
Paragraphs 5.1(e) and (f) of Procedural Order No 4 required the Parties to respond to the opposing Party's Request to Produce and, in the event of a dispute over document production, submit the first Redfern Schedule to the Tribunal by 31 August 2012.
4.30.
On 31 August 2012, the Respondent requested – and the Claimant agreed to – a five-day extension to the deadline of the same date. On 7 September 2012, however, the Claimant informed the Tribunal that it had not received a response from the Respondent on its Request to Produce and requested directions on how to proceed. On 10 September 2012, the Tribunal informed the Parties that it would be considering the Redfern Schedule without input from the Respondent and required submission of the same from the Claimant. Further, the Tribunal stated that if no response was received from the Respondent by close of business on 10 September 2012, any Request to Produce subsequently submitted by the Respondent would be deferred to the ad hoc process specified in Paragraph 7.10 of Procedural Order No 4.
4.31.
On 13 September 2012, the Tribunal issued Redfern Schedule No 1. On 14 September 2012, the Claimant requested an amendment to the Tribunal's decision for Request C4. The Tribunal granted this request and issued the Amended Redfern Schedule No 1 on 17 September 2012.
4.32.
On 27 September 2012, the Claimant informed the Tribunal that the Respondent had failed to produce the requested documents even after the Claimant had granted it a further extension to the deadline specified in the Amended Redfern Schedule No 1, and therefore requested that the Tribunal take "appropriate measures."
4.33.
By letter to the Parties dated 1 October 2012, the Tribunal reminded the Respondent of its 26 April 2012 acknowledgment that it would "contest this arbitration in accordance with the directions of the Tribunal" and directed the Claimant to file its Second Memorial and Responsive Fact Witness Statements and Expert Reports irrespective of whether the Respondent produced the documents requested of it. The Tribunal noted that the Claimant was at liberty to file a supplemental Second Memorial in the event that the Respondent produced the requested documents. In this letter, the Tribunal again ordered the Respondent to produce all responsive documents, and reiterated the adverse consequences that could result from failure to comply with the directions of the Tribunal. The 1 October 2012 letter stated that "[i]f the Respondent continues to delay, or refuses to produce responsive documents, the Tribunal shall take all such measures as it deems appropriate under the circumstances, including, but not limited to the adverse consequences mentioned above."
4.34.
While the Respondent confirmed receipt of the 1 October 2012 letter, its failure to produce the requested documents went unrectified.

8. WRITTEN TESTIMONY

4.35.
The Parties filed witness statements pursuant to the order of the Tribunal as follows:

4.35.1 For the Claimant: (i) First Witness Statement of Kwabena Appenteng dated 12 March 2012; (ii) First Witness Statement of Francis Darlington Kwashie dated 7 May 2012; (iii) First Witness Statement of Derek David Mensah Asamoah dated 7 May 2012; (iv) First Witness Statement of Paul Osei-Kwabena dated 7 May 2012; (v) First Witness Statement of Harry Owusu dated 22 March 2012; (vi) First Witness Statement of Dr Anthony Akoto Osei dated May 2012; and (vii) Responsive Witness Statement of Kwabena Appenteng dated 5 October 2012.

4.35.2 For the Respondent: First Witness Statement of William Kofi Larbi dated 6 August 2012. The Respondent did not submit any responsive witness statement.

4.36.
As for expert testimony, the Claimant submitted a written expert report as follows: KPMG Ghana Expert Opinion on Quantum dated March 2012 ("KPMG Report I") and a revised report following the Evidentiary Hearing dated February 2013 ("KPMG Report II"). The Respondent did not submit a written expert report.

9. APPLICATION FOR INTERIM RELIEF

4.37.
In its Statement of Claim, the Claimant included a Request for Interim Measures.3 By letter dated 20 December 2011, the Tribunal requested the Respondent to respond to the Claimant's Request for Interim Relief by 13 January 2012.
4.38.
By letter dated 12 January 2012, the Respondent indicated that it needed an additional two weeks for its response to the Request for Interim Relief because of settlement consultations with Bankswitch and various government departments and agencies. Over the Claimant's objection, the Tribunal granted the Respondent's request on 18 January 2012 and extended the deadline for the response to 27 January 2012.
4.39.
By facsimile letter dated 27 January 2012 (received by the PCA on 30 January 2012), the Government requested a further extension of the deadline on the basis of the changing political situation following the removal of Attorney-General Martin Amidu on 19 January 2012 by President John Evans Atta Mills.
4.40.
By letter dated 31 January 2012, and in consideration of the "extenuating political circumstances cited by the Respondent," the Tribunal requested comments from the Claimant on the proposal of making the submission of the Government's Response to the Request for Interim Measures coterminous with that for the Statement of Defence on 10 February 2012. The Claimant agreed to the extension. The Tribunal therefore granted the requested extension but noted that "this shall be the last extension granted, and if no response is received by the deadline proscribed, the Tribunal will proceed to deal with [the] Claimant's Request for Interim Measures."
4.41.
In spite of its requested extension being granted, on 10 February 2012, the Respondent failed to submit either its (i) Response to the Request for Interim Measures or (ii) Statement of Defence. The Tribunal therefore considered the Claimant's Request for Interim Measures in the absence of an opposing submission from Ghana.
4.42.
By letter dated 16 February 2012, the Tribunal notified the Parties that it was "at present disinclined as a matter of law to grant the interim measures requested by [the] Claimant," but was willing to consider further submissions and/or a full hearing on this issue. Alternatively, and in consideration of the financial hardships cited by the Claimant in its Request for Interim Measures, the Tribunal invited the Parties to proceed directly to the Main Hearing, filing "any Witness Statements and other evidence deemed relevant to fully explain their financial and other claims in order to enable the Tribunal to fully understand and decide the issues raised."
4.43.
On 21 February 2012, the Claimant indicated its preference to proceed as expeditiously as possible to the Main Hearing, reserving its rights with regard to its Request for Interim Measures. Accordingly, the Tribunal did not reach a decision on Interim Measures.

10. ADJOURNMENT OF THE HEARING DATES UNTIL THE WEEK OF 14 JANUARY 2013

4.44.
On 20 April 2012, the Respondent requested the vacation of the hearing dates in July and August 2012 so as to allow its counsel, who had only been instructed on 3 April 2012, sufficient time to prepare its case. By letter dated 24 April 2012, the Claimant objected to any further delay in this arbitration on the basis that (i) the Respondent had already been given ample opportunity to respond on the merits; (ii) the Respondent was at fault for the delay in instructing its counsel; and (iii) the procedural time schedule was also meant to protect the legitimate interests of the Claimant.
4.45.
By letter dated 24 April 2012, the Tribunal requested a positive statement of the Respondent's participation as follows:

"Before ruling on [the] Respondent's application for a deferral of the Hearing dates, the Tribunal would like to have [the] Respondent's (i) confirmation that it intends to contest this arbitration in accordance with the directions of the Tribunal; and (ii) advice as to when payment of its overdue deposits will be made."

4.46.
On 26 April 2012, the Respondent responded as follows: "on behalf of the Respondent, that the Respondent intends to contest this arbitration in accordance with the directions of the Tribunal." The Tribunal notes that this statement was made on behalf of the Respondent and did not merely refer to Counsel's intentions.
4.47.
On 16 May 2012, over the reiterated objection of the Claimant, the Tribunal ruled on the Respondent's application to postpone the hearing, as follows:

"The Tribunal has given careful consideration to all the circumstances of the case. It believes that the best interests of the arbitration as a whole will be served by a consolidated hearing in one sitting at a date after July and August which will enable both parties to better assist the Tribunal to conduct a fair and efficient arbitration.

4.48.
Accordingly, the Tribunal fixed the hearing for the week of 14 January 2013.
4.49.
In the same letter, the Tribunal noted that the Respondent had previously confirmed its availability for this week. But as the Claimant had, by letter dated 9 May 2012, previously objected to that week, the Tribunal requested the Claimant to indicate whether "there was any practical impediment that would prevent the Claimant from presenting its case in the week of 14 January 2013 and, if so, the nature of that impediment."
4.50.
On 23 May 2012, the Claimant requested that the Tribunal reconsider the postponement of the hearing. On 25 May 2012, and after considering the correspondence of the Parties, the Tribunal confirmed its earlier decision, explaining:

4.50.1 First, although the original schedule complied with due process in the circumstances of this case, the Tribunal believed that there would be a better arbitration if the hearing were conducted in a single session and at a date later than both the July or August dates.

4.50.2 Second, the Tribunal wished to avoid prejudging the complexity of the issues to be tried or the evidence to be presented before reviewing both Parties' Memorials and Witness Statements. It also wished to avoid any late applications for adjournments and/or the admission of new evidence, which might disrupt the hearing schedule. The Tribunal noted that the Claimant had filed six Witness Statements and one Expert Opinion, and was unaware of how many witnesses the Respondent would be calling for cross-examination.

4.50.3 Third, as the Claimant had not indicated that it would be unavailable for a hearing on the week of 14 January 2013, the Tribunal was not aware of any logistical reasons for why the hearing could not take place at that time.

4.51.
The hearing was accordingly deferred to 14-18 January 2013 by way of Procedural Order No 4, which the Tribunal issued on 22 June 2012 after receiving comments from both Parties on the revised draft procedural time schedule.
4.52.
On 30 November 2012, the Tribunal issued a Questionnaire for the Pre-Hearing Telephone Conference. By e-mail dated 21 December 2012, the Claimant provided its answers to this Questionnaire. In response to the failure of the Respondent to provide answers to the Questionnaire, the Tribunal noted, in Procedural Order No 5, that "[a]lthough the Respondent has made positive statements that it will participate in this Arbitration, it has only done so to a limited extent." It also reiterated the following statements on default positions that it had made in Procedural Order No 3:

"If [the] Respondent fails to appear at the Main Hearing, the Tribunal will proceed under Article 28(2) of the UNCITRAL Rules 1976 which provides that '[i]f one of the parties, duly notified under these Rules, fails to appear at a hearing, without showing sufficient cause for such failure, the arbitral tribunal may proceed with the arbitration.'

If [the] Respondent fails to produce documentary evidence, the Tribunal will proceed under Article 28(3) of the UNCITRAL Rules 1976 which provides that '[i]f one of the parties, duly invited to produce documentary evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.'"

11. APPOINTMENT AND REMOVAL OF THE RESPONDENT'S COUNSEL

4.53.
By letter dated 4 April 2012, Ashurst LLP notified the Tribunal that it was retained by the Government as counsel on 3 April 2012, and requested an extension to the 6 April 2012 deadline for its Statement of Defence, noting that "we are mindful that the Tribunal has accommodated the Government with extensions of time previously." By letter dated 6 April 2012, the Tribunal granted the requested extension. It also amended the procedural time schedule set out in Paragraph 4.1 of Procedural Order No 3 to account for the extended deadlines (see Paragraph 4.19 above).
4.54.
While represented by Ashurst LLP, the Respondent submitted its (i) Statement of Defence dated 30 April 2012; (ii) Reply Submission on the Seat of Arbitration dated 30 April 2012; and (iii) Counter Memorial dated 7 August 2012.
4.55.
During the course of scheduling the Pre-Hearing Telephone Conference, and by letter dated 4 December 2012, Ashurst LLP informed the Tribunal that it (i) "no longer represent[s] the Respondent in this matter" and (ii) was unaware of whether the Respondent intended to instruct legal counsel. On 5 December 2012, the Tribunal requested Ashurst LLP to indicate (i) when it was removed as counsel and (ii) whether a representative of the Government had been made aware of the Tribunal's communication regarding the Pre-Hearing Telephone Conference. By letter of the same day, Ashurst LLP stated that its retainer with the Respondent terminated on 3 December 2012, and that it had transmitted the Tribunal's 30 November 2012 letter regarding the Pre-Hearing Telephone Conference to the Respondent.

12. WITNESSES

4.56.
Fact Witnesses : As discussed at Paragraph 4.35 above, the Claimant submitted seven fact witness statements, and the Respondent submitted a single fact witness statement. Pursuant to Articles4(7) and 8(1) of the IBA Rules, the Pre-Hearing Questionnaire for the Pre-Hearing Telephone Conference required an indication from each of the Parties as to the names of all the witnesses they intended to cross-examine at the Evidentiary Hearing.
4.57.
In Paragraph 3.1 of its Answer to the Pre-Hearing Questionnaire for the Pre-Hearing Telephone Conference, the Claimant stated that it wished to cross-examine the Respondent's sole fact witness, Mr William Kofi Larbi ("Mr Larbi"). The Respondent failed to provide a list of witnesses it wished to cross-examine.
4.58.
The Tribunal directed the Claimant "to proceed on the basis that all of its witnesses should be present for the Evidentiary Hearing in The Hague as the Tribunal will likely want to hear from all of the Claimant's witnesses in any event." As discussed at Paragraph 4.20.4 above, the Tribunal amended this direction and stated that it was not committing itself to calling any of the witnesses in the event that the Respondent were absent from the Evidentiary Hearing.
4.59.
On 5 January 2013, the Claimant applied for leave to have certain fact witnesses testify by video-conference from Accra, Ghana on the grounds that (i) these witnesses could not be physically present in The Hague; (ii) the Claimant was in financial hardship owing to the Respondent's failure to make monthly payments to it; (iii) the transportation and accommodation costs that would be incurred by live testimony were substantial; and (iv) there would be an increased chance of the participation of the Respondent if the Respondent were allowed to appear at the Evidentiary Hearing via video-conference. The Tribunal granted the Claimant's request in Paragraph 6.1 of Procedural Order No 5.
4.60.
Also in its 5 January 2013 letter, the Claimant stated that at least one of its counsel – namely, Ace Ankomah of Bentsi-Enchill, Letsa & Ankomah – would be present in Accra, Ghana to examine the following witnesses who would be testifying via video conference:

4.60.1 Francis Darlington Kwashie (Chief Operating Officer, Bankswitch);

4.60.2 Derek David Mensah Asamoah (Chief Financial Officer, Bankswitch);

4.60.3 Paul Osei-Kwabena ("Mr Osei-Kwabena") (former Chairman, Ghana Revenue Agencies Governing Board);

4.60.4 Harry Owusu ("Mr Owusu") (former Executive Secretary, Ghana Revenue Agencies Governing Board);

4.60.5 Anthony Akoto Osei (former Minister of State, Ministry of Finance and Economic Planning); and

4.60.6 Andy Akoto (Engagement Partner, Project Team, KPMG).

4.61.
The Claimant also confirmed that the following of its representatives would be attending the Evidentiary Hearing in The Hague:

4.61.1 Kwabena Appenteng ("Mr Appenteng") (Managing Director, Bankswitch);

4.61.2 Sheila Reindorf (Bankswitch); and

4.61.3 Richard Darko (Bankswitch).

4.62.
By letter dated 7 January 2013, the Tribunal ordered the Respondent to respond to the Claimant's application and state whether it intended to cross-examine any of the Claimant's witnesses that were to be made available to it by video-conference. The Respondent failed to comply with the Tribunal's direction, and on 15 January 2013, the Tribunal excused Messrs Kwashie, Asamoah and Osei-Kwabena from testifying at the hearing, but requested that Mr Appenteng be present at the hearing and that Messrs Osei and Owusu be available by teleconference for examination by the Tribunal.
4.63.
Expert Witnesses : Although neither Party put forth an expert witness in this arbitration, the Claimant submitted a KPMG Report along with its First Memorial in order to "only independently assess[] the calculations and the quantum of claims rather than their merit as presented to [KPMG] by Bankswitch in the light of the Agreement between Bankswitch and the Government of Ghana" and "[i]ssues such as the legality of the claims or laws and regulations governing claims against the Government of Ghana were not required to be addressed."4
4.64.
At Paragraph 5.2 of Procedural Order No 5, the Tribunal stated that "[w]hile the Claimant has not put forward an expert witness, the Tribunal directs the Claimant to produce one of the members of the Project Team (i.e., Andy Akoto and David Boateng) who made the KPMG Report at the Evidentiary Hearing so that the Tribunal might question them on its contents." However, based on the limited scope of the KPMG Report (i.e., verification of the Claimant's calculations), on 15 January 2013, the Tribunal excused Andy Akoto from testifying and determined that it would only refer to the Claimant's counsel on certain issues arising in the quantification of damages.

13. EVIDENTIARY HEARING

4.65.
As discussed in detail at Paragraphs 4.18 and 4.19.8 above, the Tribunal had informed the Respondent that it would be treated as a defaulting party under Article 28 of the UNCITRAL Rules 1976 if it did not participate in the arbitration. Despite such statements, the Respondent failed to (i) submit several written submissions or (ii) appear at the Evidentiary Hearing. Pursuant to Article 28, the Tribunal has therefore proceeded with the Evidentiary Hearing without the Respondent's participation.
4.66.
By letter of 7 January 2013, and as reiterated in Paragraph 15.1 of Procedural Order No 5, the Tribunal requested that the Respondent provide "a definitive answer on whether it will appear at the Evidentiary Hearing" and explain how it would make up for its defaults in submitting its (i) Second Counter Memorial; (ii) document production; (iii) responses to the Pre-Hearing Questionnaire for the Pre-Hearing Telephone Conference; and (iv) Responsive Opening Written Submissions. The Respondent did not respond to this request.
4.67.
By e-mail dated 13 January 2013, the Claimant informed the Tribunal of a draft Award on Agreed Terms that was prepared by the Claimant with the Respondent's input ("Award on Agreed Terms") which was attached for the Tribunal's review and consideration. In order to allow the Respondent's representatives to sign the Award on Agreed Terms, the Claimant requested that the Tribunal postpone the Evidentiary Hearing until Tuesday, 15 January 2013. The Tribunal determined that it was more expeditious to proceed with the Evidentiary Hearing on 14 January 2013 as scheduled in order to discuss and finalise the terms of the draft Award on Agreed Terms, and then to hold a short formal hearing on 15 January 2013 in order to record the finalised Award on Agreed Terms.
4.68.
The Evidentiary Hearing commenced on Monday, 14 January 2013. Mr Born noted for the record that the representatives of the Government of Ghana were not present at the Evidentiary Hearing and asked the Claimant whether it had any knowledge of whether the Respondent would be attending the hearing during the course of the week.5 The Claimant's counsel indicated that the Respondent would not be attending in person, but informed the Tribunal that "[e]verything is being done in Ghana to make that happen, but unfortunately I can't tell you when that moment will arrive".6
4.69.
Upon application by the Claimant, the Tribunal adjourned the Evidentiary Hearing to allow the Parties to discuss the suggested amendments to the draft Award on Agreed Terms and await the final signatures from the Respondent's representatives.
4.70.
On the evening of 15 January 2013, the Claimant informed the Tribunal by email that "against all promises [it] did not receive any signed award on agreed terms from the Respondent." As a result of the failure to obtain the requisite signatures, the Claimant requested that the Evidentiary Hearing resume, and amended its claim pursuant to Article 20 of the UNCITRAL Rules 1976 (see Paragraph 7.2 below).

4.70.1 The Claimant requested the Tribunal to sign the revised Award on Agreed Terms in lieu of all signatures because the Respondent had evidenced its acceptance of the award without any reservation, and the Claimant had accepted the position on the amount of damages, which was the last outstanding disputed issue (see the Tribunal's analysis at Paragraphs 11.8 to 11.22 below).

4.70.2 In the event that the Tribunal denied the Claimant's request to sign the draft Award on Agreed Terms in lieu of the Respondent's signatures, the Claimant alternatively withdrew its claims for relief as set out under Chapter 13 of its Statement of Claim except for (i) Prayer Alternative A(iv) and (ii) Primary and Alternative Prayers B, C and D. This meant that the Claimant (i) withdrew the claim for specific performance [Chapter 13 of the Statement of Claim, A(i) and A(ii)]; (ii) requested that the Tribunal declare or find that the Respondent had breached the Agreement [Chapter 13 of the Statement of Claim, A(iv)(1)]; (iii) requested that the Tribunal order the Respondent to pay "Breach Damages" and "Extra Costs" up to the date of the final Arbitral Award, within 14 days after the date of the final Arbitral Award [Chapter 13 of the Statement of Claim, A(iv)(2)], and (iv) request the Tribunal to grant all that was claimed under Sections B, C and D [Chapter 13 of the Statement of Claim, B, C, and D]. A full discussion of the amended claims for relief is found at Paragraph 7.2 below.

4.70.3 The Claimant also requested leave to submit new evidence (Exhibit C-97) on the FOB Import Values predicted by the KPMG Report I and calculated in Exhibits C-59 and 67.

4.71.
In the early morning of 15 January 2013, Ms Amma A. Gaise, Ghana's Solicitor-General, informed the Tribunal that it had "realised, quite late, that [it] would need the final authority of the President to sign off on the agreement" and that discussions were currently underway with the Executive Secretary of the President. The Respondent requested, however, that the hearing be adjourned until Wednesday, 16 January 2013 to afford it time to consider the Award on Agreed Terms, owing to the transition in government following Ghana's elections. In response to the Respondent's transmission, the Claimant noted that it had originally been informed that the necessary approvals would arrive by the latest at 1000 hours (Dutch time) on 15 January 2013, but expressed surprise that the Respondent would need a full day to transmit its approvals.
4.72.
The Tribunal granted the Respondent's request to postpone the Evidentiary Hearing until 1000 hours on 16 January 2013, expecting "in light of today's communications, that this additional time will be utilized to complete any remaining steps necessary under national law to conclude the Final Award on Agreed Terms, and that there will be a definitive agreement between the Parties by the end of today." The Tribunal notified the Parties that it would proceed with the Evidentiary Hearing, to be completed in a single day, if the Award on Agreed Terms was not finalised and signed. It further requested an update on the status of the agreement by the close of business. The Respondent assured the Tribunal in the afternoon of 15 January 2013 "that urgent steps are being taken to conclude the settlement," and requested that the Evidentiary Hearing resume at 1200 hours instead of 1000 hours on Wednesday, 16 January 2013.
4.73.
The Tribunal rejected the Respondent's request for a further two-hour extension to the resumption of the Evidentiary Hearing and encouraged the Respondent to participate by telephone conference.
4.74.
Additionally, and as discussed at Paragraphs 4.62 and 4.64 above, the Tribunal excused all of the Claimant's witnesses from testifying at the hearing except for Mr Appenteng (who would be testifying in person) and Messrs Osei and Owusu (who would be testifying by telephone conference), all of whom would be available to answer the Tribunal's questions. If the Respondent chose to appear, it would be able to cross-examine the said witnesses. The Tribunal reiterated its intention to conclude the Evidentiary Hearing by the close of business on 16 January 2013.
4.75.
On the morning of 16 January 2013, the Respondent notified the Tribunal that it had been unable to finalise the draft Award on Agreed Terms, and would "be in the position to intervene with our final settlement and would communicate with the tribunal by 12:00 pm (GMT)". The Tribunal never received any further communication from the Respondent within the time prescribed.
4.76.
At 1021 hours on 16 January 2013, the Tribunal reopened the Evidentiary Hearing and invited the Claimant to proceed with its opening submissions.7 Owing to constraints in both time and the availability of the Claimant's witnesses, the Tribunal asked the Claimant to present its witnesses prior to the completion of its opening submissions, and proceeded to question Messrs Osei and Owusu via telephone conference and Mr Appenteng in person. Once the examination of witnesses was completed, the Claimant was invited to complete its opening submissions and finish answering the Tribunal's questions. Before the close of the Evidentiary Hearing, the Tribunal requested that the Claimant produce an aide memoire on the issues raised by the Tribunal during the course of the hearing (see Paragraph 4.26.13 above).8
4.77.
After the close of the Evidentiary Hearing, by e-mail dated 17 January 2013, the Respondent stated that it faced "insurmountable constitutional problems in relation to the proceedings" as the Agreement had not been approved by Parliament under Article 181(5) of the Ghanaian Constitution. It requested the Tribunal to adjourn the proceedings for a few weeks to enable the Respondent to make submissions "on the constitutional and other legal issues."9 The Claimant objected to the adjournment of the proceedings on the ground that no "exceptional circumstances" for the Respondent's failure to participate had been pleaded, as required by Article 29 of the UNCITRAL Rules 1976, but consented to the Tribunal affording the Respondent an opportunity to submit post-hearing submissions on a limited number of issues raised at the Evidentiary Hearing.
4.78.
The PCA distributed the Transcript of the Evidentiary Hearing on 18 January 2013, and on 21 January 2013, the Tribunal denied the Respondent's request to adjourn the proceedings, but granted the request for Post-Hearing Submissions to be filed:

"After considering the correspondence of the Parties and all of the circumstances of the Arbitration, the Tribunal has determined that a further tranche of the Evidentiary Hearing will not be necessary, but that Post-Hearing Submissions on a limited number of issues would assist the Tribunal in its deliberations. Such Post-Hearing Submissions shall discuss the following issues:

1. Whether Article 181 of the Ghanaian Constitution applies, and if so, whether the Agreement was valid and enforceable under Ghanaian law;

2. The meaning of the phrase "with the necessary modifications by Parliament" in Article 181(5), and whether there has been any such "modification" made by Parliament to extend the application of Article 181 beyond the issuance of loans out of any public fund or public account to "international business transactions";

3. The (i) legal duration of the Agreement, (ii) legal duration of the period during which the Claimant was entitled to charge the Service Fee, and (iii) when such period commenced;

4. Whether, under Ghanaian law, the requirement of a Certificate of Satisfaction could be waived, and if so, what acts are to be relied on for such waiver;

5. The applicable rate of interest to be applied to an award of damages, if any, both pre- and post-Award;

6. The appropriate calculation of damages, taking into account the Tribunal's questions from the Evidentiary Hearing on 16 January 2013 (e.g., discounting of future lost profits)."

4.79.
As set out at Paragraph 4.26 above, the Parties submitted their Post-Hearing Submissions on the issues left outstanding at the end of the Evidentiary Hearing.

14. THIRD-PARTY REQUEST FOR DOCUMENTS

4.80.
On 4 September 2013, the Tribunal, through the PCA, received a request from GET Group FZE for copies of all pleadings in this Arbitration. The Tribunal, on 12 September 2013, requested comment from the Parties on the transmission of such documents. Although no comment from either Party was received by the stated deadline, on 7 October 2013, Bankswitch sent a letter stating that it "has no issue with providing GET Group with the documents of the arbitration" and would forward the arbitration file to GET Group in due course.
4.81.
On 14 November 2013, the PCA received an additional letter from GET Group FZE requesting a stay of proceedings while it considered whether it should intervene. The Parties were instructed to provide their comments by no later than 25 November 2013. Bankswitch opposed GET Group FZE's request to stay the proceedings in its letter of 25 November 2013. GET Group FZE was then provided the opportunity to respond to Bankswitch's comment by 6 December 2013. On 10 December 2013, the PCA received a letter from GET Group FZE stating that it was not in a position to request intervention, reserving its rights with respect to the arbitration.

5. THE SCOPE OF THIS AWARD

5.1.
This Award Save as to Costs is limited to deciding the liability relating to the Claimant's claims for relief as set out at Paragraph 7.2 below and the quantum of damages for past and future lost profits. The Tribunal addresses those issues raised by the Parties in their written submissions and at the Evidentiary Hearing. While the Tribunal considered all of the factual and legal issues raised with regard to liability and past lost profits, it considers it unnecessary to decide all such issues for the purpose of this Award Save as to Costs. The Tribunal therefore explains its reasoning for only those issues necessary for this Award Save as to Costs. That the Award Save as to Costs may not expressly address any particular issue or submission by any Party is not, however, an indication that the Tribunal has not considered such issues or submissions during this arbitration proceeding.
5.2.
As to costs, having considered all the circumstances, the Tribunal has decided that it would

not be appropriate to decide finally any issue of assessment or allocation of costs in this Award Save as to Costs without affording the Parties a further opportunity to address the Tribunal in light of its decisions in this Award Save as to Costs. Accordingly, this is an Award Save as to Costs on the issues specifically mentioned except legal and arbitration costs. The Tribunal will issue the necessary orders for the Parties to submit their arguments on the assessment and allocation of costs and will determine the costs of the arbitration and legal costs at a later date by a further Award or Order.

6. THE PARTIES' DISPUTE

1. THE AGREEMENT

6.1.
Pursuant to the Agreement entered into with the Government on 12 December 2007, Bankswitch agreed to provide the Government with the Ghana Customs, Excise and Preventative Service Secure Document Management System ("Ghana Customs System" or "GCS"). Under Clause 2 of the Agreement, the GCS was to be "a secure internet portal" that would provide, inter alia, for (i) "[a]n intelligent price evaluation software to assist customs officers in the price evaluation process"; (ii) an "[e]lectronic committee management software for the secure price evaluation process"; (iii) an "[e]lectronic data interchange system to enable secure data interchange between customs, importers and carriers"; and (iv) a "[p]ortal web site that allows the upload of documents from importers" (the "Project").10
6.2.
Clause 4 defines the obligations of Bankswitch as "Consultants", stating

"Clause 4: OBLIGATIONS OF CONSULTANTS

(i) [Bankswitch] shall submit quarterly reports to the [Government] on the operation of the systems to include both performance of the systems and all other reports requested by the [Government].

(ii) [Bankswitch] hereby agree and undertake to provide the services and implementation activities applying the best industry practices and the highest possible professional standards.

(iii) [Bankswitch] shall develop a software and hardware system out of their menu of patents to achieve the development, implementation and keeping of an up-to-date Transaction Price Data Base on prices of all sea and air imports into Ghana to be used by Customs Excise and Preventive Service, Ghana for the Customs valuation of imports.

(iv) In addition, [Bankswitch] shall develop electronic solutions to facilitate the following:

(a) The secure acquisition of shipping documents such that the electronic copies of original documents from carriers can be used to aid in the identification of declarations made by shippers and individuals.

(b) Provision of a Risk Management System to facilitate the identification of consignments requiring inspection based on the blacklisted importers identified through the document auditing process.

(v) [Bankswitch] shall establish a Portal platform and Development of a system that will enable:

(a) The presentation and evaluation of prototypes

(b) Documentation consistent with the systems to be deployed to facilitate easy adaptation for trouble shooting

(c) The integration of the deployed system to existing systems and extension thereof to other entities to be agreed between the parties

(d) The establishment of a hosting platform of servers and hardware to accommodate portal solutions for the agreed institutions to be served by the system

(e) [Bankswitch] shall supply the hardware and servers required to operate the system.

(f) [Bankswitch] shall employ high value professionals for management of the systems. The names and CVs of the these [sic] persons shall be submitted to the [Government] for approval

Any replacements shall be of comparable professional status and subject to approval by the [Government].

(g) [Bankswitch] shall be responsible for updating and maintaining integrity of the Price Data Base

(h) [Bankswitch] shall provide external backup facilities at different locations to reduce risk of any failure of the systems."

6.3.
Clauses 6 (Training and Transfer of Know-How) and 14 (Support, Maintenance and Audit of Systems) of the Agreement impose obligations on Bankswitch, in addition to those provided under Clause 4:

"Clause 6. TRAINING AND TRANSFER OF KNOW-HOW

[Bankswitch] shall provide training to identified staff to the [Government] for such periods and frequency as shall be mutually agreed for the effective operation of the system and for the transfer of know how to [the Government]'s staff.

Clause 14. SUPPORT, MAINTENANCE AND AUDIT OF SYSTEMS

[Bankswitch] and the [Government] shall carry regular audits of the systems under an audit programme to be established

[Bankswitch] shall provide the requisite maintenance support to ensure the uninterrupted operation of the system."

6.4.
Clause 5 of the Agreement (Obligations of the Client) defines the obligations assumed by the Government as the "Client" as follows:

"Clause 5. OBLIGATIONS OF THE CLIENT

(a) The [Government] shall make available all the physical facilities required for the deployment of the systems to be provided by [Bankswitch]. These shall include sites for work stations.

(b) The [Government] shall grant and hereby grants [Bankswitch] exclusive rights on the provision of the services and development of the systems outlined herein for a period of five years subject to any extensions that may be agreed by the parties on mutually agreed terms.

(c) The [Government] shall consult with [Bankswitch] on any additional services to be provided at cost to be agreed between the parties.

(d) The [Government] shall issue the necessary administrative and policy instructions to shippers and industry operators to ensure that all shipments are captured within the data base to ensure optimization of revenues."

6.5.
In consideration for the system design of Bankswitch and the employment of its own resources to develop the software and products, the Government agreed under Clause 7 of the Agreement (Fees and Terms of Payment) to compensate Bankswitch in the following way:

"Clause 7. FEES AND TERMS OF PAYMENT

(i) The parties agree that [Bankswitch] shall employ their own resources to develop the software and products to be deployed in accordance with specifications to be provided by the [Government] in annexure 'A' of this Agreement.

(ii) [Bankswitch] shall prefinance the procurement of all required hardware and related equipment in accordance with specifications provided by the [Government] in annexure 'B' to this Agreement.

(iii) In consideration of services to be provided by [Bankswitch], the [Government] shall pay the equivalent of 2/3 of 0.7% of the final invoice FOB value of all import transactions which pass through the Ghana Customs Document Management System (GCSDMS).

(iv) [Bankswitch] shall submit an invoice to the [Government] within five working days of the end of each month or such other period as may be agreed by the parties. The [Government] undertakes to make payment to [Bankswitch] within thirty (30) working days of receipt of the invoice."

6.6.
Clause 9 of the Agreement (Pilot Phase) provides:

"Clause 9. PILOT PHASE

The parties agree that because the systems would have to be developed at cost to enable the deliverables outlined in Clause 8 for the initial phase (Pilot) involving in particular the phasing in of the price data base, an oversight project management team comprising MOFEP/RAGB, and GETGroup/BankSwitch Ghana shall oversee the operationalization of the systems.

The GETGroup/Bankswitch Ghana shall file an inception report for review by MOFEP/RAGB being the [Government] parties who shall issue a 'Certificate of Satisfaction' following which other components of the implementation plan for the project shall kick in.

The basis for issuance of the Certificate of Satisfaction shall be the demonstrated potential of the deployed systems to increase revenues exponentially by a factor satisfactory to the [Government].

The joint project management team of MOFEP/RAGB/GETGroup BankSwitch Ghana shall take steps to resolve all implementation bottlenecks that may be identified at the initial phase of the project if feasible.

The initial phase (pilot) shall be completed within three (3) months of effectiveness."

6.7.
Clause 10 of the Agreement (Contract Term and Review) provides:

"Clause 10. CONTRACT TERM AND REVIEW

[Bankswitch is] hereby granted a term of five (5) years for performance of the services subject to satisfactory performance under the pilot phase and fulfilment of all obligations outlined herein. The Contract may be renewed for further terms as the parties shall agree on mutually acceptable terms.

To ensure efficient management, monitoring and optimisation of the systems, a biannual review of the contract shall be undertaken by the joint project management team of MOFEP/RAGB and GETGroup BankSwitch Ghana."

6.8.
Clause 11 of the Agreement (Ownership of Deployed Systems) provides:

"Clause 11. OWNERSHIP OF DEPLOYED SYSTEMS

The systems once deployed shall become the property of Government of Ghana.

In the event that any third party requires deployment of the system due to Ghana Customs' efficient use of the facilities, the parties agree that they shall meet to discuss a formula for the sharing of revenues that may accrue from the deployment of the system to such third parties."

Article 1.1(h) defined the term 'Effective Date' as 'the date of performance of all actions necessary for coming into force of the Agreement. '"

6.9.
Clause 12 of the Agreement (Penalties) provides:

"Clause 12. PENALTIES

[Bankswitch] warrant[s] and undertake[s] that [its] deployed systems will generate revenues of up to 30% over the current rate of increase of 25% under existing systems.

The [Government] shall deduct and withhold 10% of fees for collections falling below the agreed threshold and warranted by [Bankswitch] all things being equal particularly where the under collections are solely attributable to defaults and non performance by [Bankswitch]."

6.10.
Clause 13 of the Agreement (Warranty) provides:

"Clause 13. WARRANTY

[Bankswitch] warrant[s] that they own the proprietary rights including intellectual property rights to all the software systems to be deployed and that the integrity of the systems are competent for the delivery of the contracted services and for the period or periods for which they will be required."

6.11.
The Agreement also includes a liquidated damages provision in Clause 15 (Liquidated Damages) which states:

"Clause 15. LIQUIDATED DAMAGES

[Bankswitch] shall be liable for the payment of liquidated damages at the rate of 0.1% of the contract sum for each day of delay on the implementation of any component of the system solely attributable to defaults by [Bankswitch] up to a maximum of 5% of the total contract sum."

6.12.
Clause 20 of the Agreement (Termination) gives each Party different scenarios enabling each Party to terminate the Agreement. These scenarios are as follows:

"Clause 20. TERMINATION

By [Bankswitch]

This Agreement may be terminated by [Bankswitch] if the [Government] defaults in the performance of its obligations after due notice of such default is filed by [Bankswitch] and the [Government] persists in the default for 30 days.

By [the Government]

The [Government] may terminate this Agreement by giving 30 days notice if any of the following events occur and [Bankswitch] fails or refuses to provide a remedy.

If [Bankswitch] becomes bankrupt or enters into accommodation or agreement with its creditors for debt relief or goes into liquidation or receivership.

If [Bankswitch] is unable to perform a material part of the services for a period exceeding 7 working days and fails or refuses to provide any remedies provided such inability is not caused by any action or default of the [Government]."

2. FACTUAL BACKGROUND TO THE PARTIES' DISPUTE

A. The Government's Gateway Project

6.13.
In January 1997, the Government launched the Trade and Investment Gateway Project ("Gateway Project") which comprised a series of initiatives intended to attract investment to Ghana, to accelerate export-led growth and to remove constraints on the development and facilitation of trade.11 The implementation of the Gateway Project was overseen by the Ghanaian Ministry of Trade and Industry,12 and resulted in reforms to the processes and procedures of the Ghana Customs, Excise and Preventive Service ("CEPS") (later to become known as the Ghana Revenue Authority – Customs Division ("GRA")) aimed at increasing efficiency in processing customs documentation, preventing fraud and increasing revenue collection.13
6.14.
In December 2009, under the Ghana Revenue Authority Act 2009, Act 791, the provision of the three tax revenue services – namely the (i) CEPS; (ii) Internal Revenue Service; and (iii) Value Added Tax Service – was taken over by the RAGB Secretariat.14

B. Ghana Customs Network

6.15.
On 2 October 2000, the Government entered into an agreement with SGS Société Générale de Surveillance SA ("Société Générale") on behalf of the Ghana Customs Network Services Ltd ("GCNet"), a public-private partnership between CEPS, the Ghana Shippers Council, Ecobank (Ghana) Ltd, Development Finance Holdings, and Société Générale.15
6.16.
GCNet was engaged by the Government to perform the following tasks.

6.16.1 Develop, customise and maintain the Ghana Customs Management System(used by CEPS to validate and process customs and trade documents) and record the results of the validation and processing;

6.16.2 Deploy the Ghana Customs Management System to assist CEPS in capturing electronically all customs duty and tax payments made by declarants and to reconcile the payments against their respective bills of entry/single administrative documents, and, where applicable, the Final Customs Valuation Report (issued by a Destination Inspection Company ("DIC") with respect to a particular consignment);

6.16.3 Introduce risk sensitivity features into the Ghana Customs Management System to secure the system and assist CEPS to execute an effective risk management process;

6.16.4 Develop the "TradeNet System" as a platform for accessing the Ghana Customs Management System and promoting the exchange of trade information between businesses and the Government; and

6.16.5 Ensure that the Ghana Customs Management System generated necessary statistical data, including data on foreign trade and revenue accounting reports that would interface with the TradeNet System.16

6.17.
Unless the Government specifically excluded any transactions for the import and export of goods, all such transactions were subject to the services of GCNet.17 To ensure the effective deployment of GCNet's platform, the CEPS Automation Regulations 2002 (L.I. 1704) were passed and specified the procedures to be followed when conducting business through the TradeNet System.18 The GCNet systems came into operation in January 2003 and remain in use today, connected to a range of Government agencies.19
6.18.
One of the objectives of the Gateway Project was to address efficiency problems with the historic practice of "pre-shipment inspection," which was seen as cumbersome and inefficient. To address this issue, the "Destination Inspection Scheme" was introduced with the objectives of (i) facilitating trade by introducing more efficient verification of imports; (ii) enabling price verification and assessment of customs valuation and classification of imported goods to be undertaken prior to clearance in Ghana; and (iii) eliminating opportunities for fraud, fiscal evasion and price discrimination by identifying and deterring over-invoicing, undervaluation, and false declarations.20
6.19.
To implement the Destination Inspection Scheme, the Government enacted Section 9 of the Export and Import Act of 1995 (Act 503), later amended by the Export and Import (Amendment) Act 2000 (Act 585) as follows:

"The Principal enactment is amended by the substitution for section 9 of the following sections:

9. For the purpose of ensuring that the quality, quantity, price and other specifications of import goods are in conformity with the particulars on the Import Declaration Form, Invoice and any other document relevant to the goods, all commercial imports shall be subject to destination inspection of the goods at the port or point of clearance in the country.

10. The Minister may in writing appoint inspectors to conduct the destination inspection of commercial imports at the port or point of clearance of the goods."

6.20.
The Government contracted with three independent commercial organisations to serve as DICs which were to advise CEPS on the correct duty and tax rates to be applied to goods. From the information supplied to CEPS from the DICs, the taxes were calculated and levied on the respective carriers.21
6.21.
The DICs were contracted to (i) develop, implement, and maintain a computerised risk management system ("CRMS") used by the DICs and CEPS to determine the level of risk posed to revenue collection by particular consignments, and, correspondingly, the need for physical inspection; (ii) develop and update a "transaction price database" containing the prices of goods imported to Ghana in order to identify declarants' undervaluation of imports by allowing the DICs and CEPS to compare the valuations submitted by declarants with historic valuations recorded in respect of similar imports; and (iii) verify imports for price, customs value and classification and, on the basis of the results of the CRMS, identify which imports required physical inspection on arrival in Ghana.22
6.22.
Under its agreement with the Government, GCNet received a fee calculated at 4% of the total customs paid on goods coming into Ghana through its system, and the DICs received an additional percentage of the total figure.23
6.23.
On 12 November 1999, the Government entered into a contract with Gateway Services Ltd which would become the first DIC upon the termination of the prior scheme in 2000.24 Later, on 14 November 2002, the Government engaged three more DICs – (i) BIVAC International (Bureau Veritas) BV of Holland; (ii) Inspection and Control Services Ltd; and (iii) Ghana Link Network Services.25 With the exception of Ghana Link Network Services, all of the DICs were international organisations with specialist expertise in the field of classification and valuation services.26
6.24.
The four DICs were assigned to perform their functions at different points of entry into Ghana, and from 2000 to 2006 were solely responsible for providing the import data to CEPS for the issuance of customs duties.27 In 2006, media reports regarding customs revenue leakages in Ghana began to question the effectiveness of the GCNet, reporting that these leakages were brought on primarily by the falsification of trade documents which under-reported the quantity and nature of the imported items. Being connected to the customs system in place at that time, the DICs were seen as being a part of the problem.

C. Ghanaian Customs Infrastructure

6.25.
The infrastructure of the Ghanaian customs network is based on shared roles between CEPS, GCNet and the DICs. These roles are broken down as follows:

6.25.1 GCNet : Primarily responsible for providing the communications network used by governmental and commercial participants involved with Ghanaian customs.

6.25.2 DICs : Provide database, classification and valuation services to CEPS in order to assist CEPS in its primary functions.

6.25.3 CEPS : Classify, value and inspect consignments; assess the appropriate amount of duty on consignments; and ensure that appropriate duties are paid before the goods are released.

6.26.
Mr Larbi conceded in his witness statement that there are issues of customs leakage in the current customs infrastructure, and opined that "one of the primary causes of revenue leakage is the improper performance by CEPS officers of their duties, " noting, however, that "[t]he Government is committed to trying to find solutions to the problems associated with the existing customs infrastructure. "28

D. Memorandum of Understanding

6.27.
On 31 July 2006, Bankswitch invited CEPS to open discussions on the possibility of implementing the "Bankswitch System" in Ghana as a means of solving the perceived customs revenue leakage problem. The terms of the eventual Agreement were negotiated between Bankswitch and the Government of Ghana through representatives from MOFEP and RAGB.
6.28.
In September 2006, Bankswitch presented its software capabilities to the Government,29 and the Executive Secretary and selected members of the RAGB made a visit to Dubai the following month to view the site where the Bankswitch System was operating in the United Arab Emirates.30
6.29.
On 21 December 2006, the Parties signed the first Memorandum of Understanding ("First MOU").31 The First MOU provided for cooperation between the Parties in the (i) design; (ii) customisation; and (iii) deployment of the GCS.32 The First MOU expressly states that "the objectives of the programme include the need to eliminate opportunities for fraud, false declarations and tariff code distortion."33
6.30.
Further technical requirements for the GCS were laid out and agreed to by the Parties in the Business Requirements Specification ("BRS") on 9 April 2007.34 The purpose of the BRS was stated as follows:

"1. [The BRS] describes a particular business issue as identified as a result of a requirements gathering process. The document is an agreed statement of what a future system is required to do. Its intended audience is the business sponsor and the Project Steering Committee.

2. The purpose of this document is to capture the complete set of business requirements in order to validate the existing documented requirements and scope of CEPS.

3. This document does not reflect a commitment to deliver all these requirements.

4. The decision on what will be delivered will be taken once the requirements have been agreed and their impact relative to scope has been determined. This will be a joint decision between the Project team and the business.

5. Additional inclusion to scope will be determined assessing the impact on the functionality, decision of the CCB, time & effort.

6. Solution Design (Internal document) would include comprehensive illustrated examples, sample screen/outputs etc."35

6.31.
In September 2007, Bankswitch tested the individual modules of the GCS for representatives of MOFEP and the CEPS Commissioner36 and, on 3 October 2007, the Government issued the Guidelines for Electronic Submission of Manifests and Connectivity to the Ghana Customs Secure Document Management System (GCSDMS) by Carriers/Agents ("First Guidelines") to be sent to its carriers and agents pursuant to Clause 3.1 of the First MOU.37 The Government's guidelines stated that "[t]he deadline for the completion of the connection to the system is 1st November, 2007. All Carriers/Agents are enjoined to make every effort to meet the target date."38
6.32.
Following the issuance of the First Guidelines, a public notice period was set in September 2007, by which self-declarants, custom house agents and consolidators were requested to submit various trade documents to the GCS so as to allow Bankswitch to review and assess the system and demonstrate its benefits to the Government.39

E. The Agreement

6.33.
After the GCS was deployed in a limited capacity and tested by the Government,40 Bankswitch gave a demonstration of the software to CEPS management on 20 November 2007, and, on 12 December 2007, the Parties entered the Agreement which set the contract term at 60 months, with a three-month Pilot Phase.41
6.34.
As the dispute relating to the Agreement arose in 2010, Dr Kwabena Duffour, Minister of MOFEP asked Ghana's then Attorney-General and Minister for Justice to review the Agreement. The Attorney-General and Minister for Justice expressly confirmed that Ghana regarded the Agreement as valid and legally binding, stating that she, "[h]aving carefully examined the above mentioned-Agreement, [was] of the opinion that there is a valid [and] legally binding contract between the parties" and recommended two possible options: (i) the abrogation of the existing Agreement or (ii) the renegotiation under Clause 22 of the Agreement.42

F. Pilot Phase

6.35.
The commencement of the Pilot Phase was triggered by the signing of the Agreement on 12 December 2007 and was scheduled to last for three months, until 12 March 2008.43 This phase was intended to further test the effectiveness and functionality of the GCS developed by Bankswitch and allow the Parties to make all other preparations necessary for full implementation. At the end of the Pilot Phase – and before the operation of the Implementation Phase – the Agreement provided for the issuance of an Inception Report from Bankswitch to MOFEP/GRA as representatives of the Government.44 If the Government, through its representatives, is satisfied with the GCS or otherwise convinced by the "demonstrated potential of the deployed systems to increase revenues exponentially by a factor satisfactory to [Ghana], " then the "other components of the implementation plan for the project shall kick in. "45
6.36.
During the Pilot Phase, Bankswitch applied the developed software to the Government's computers, performed systems exercises, and trained the Government staff on the use of the GCS.
6.37.
On 20 November 2007, GETGroup, on behalf of Bankswitch, made a presentation to CEPS officials, after which suggestions were made by CEPS to improve the efficiency of the software and provide solutions for valuation challenges.46 As a follow-up to the 20 November 2007 meeting, from 10 to 15 February 2008, a CEPS team visited Dubai to (i) review the status of the GCS software; (ii) ensure that the 20 November 2007 suggestions were executed; (iii) ensure that the software was compliant with the requirements of the World Trade Organisation; (iv) study the functional and technical configuration of the software; (v) study the functionality of the model; and (vi) propose further amendments where necessary.47
6.38.
The CEPS/Bankswitch team that examined the software in Dubai from 10 to 15 February 2008 issued its report, which was then discussed at the 18 March 2008 Project Implementation Team ("PIT") meeting. The report arrived at positive conclusions about the functionality and potential of the GCS software to achieve the Government's goal of increasing revenue generation. The report expressed the following conclusion:

"The valuation software tested in Dubai was found to be efficient and useful in performing Customs valuation functions. The team found it to be user-friendly and fashioned to solve most of the current problems in valuation. It encapsulates the entire clearance procedure from submission of documents to releasing goods out- of-Charge. It is a potent tool for monitoring, risk management and post audit scrutiny. [....] In the opinion of the team, the use of the software will greatly impact on the efficiency of the valuation officer as well as enhance the revenue generation capacity of CEPS. For these capabilities, the team highly recommends the software for use by CEPS."48

6.39.
The Claimant submits that following the Dubai visit, it had completed almost all of its obligations under that phase of the Agreement by 19 February 2008, four weeks before the scheduled end of the Pilot Phase.49 The only functionality then left to be delivered was the Valuation Module, and Bankswitch states that it requested GRA to arrange a meeting with the joint project management team to evaluate the Pilot Phase and discuss the issuance of the Certificate of Satisfaction and the start of the Implementation Phase, which would trigger the start of Bankswitch's compensation.50
6.40.
On 18 March 2008, the joint project management team (later renamed the PIT) provided for in Clause 9(iv) of the Agreement met for its inaugural session to (i) review the design of the systems and procedures for the efficient delivery of the services; (ii) develop strategies for and supervise the implementation of the GCS; and (iii) monitor and evaluate the implementation process.51 At the inaugural meeting, Bankswitch presented the Inception Report, as required by Clause 9(ii) of the Agreement to the PIT which was made up of representatives from MOFEP, GRA, CEPS and Bankswitch.52
6.41.
From 17 to 20 March 2008, the PIT representatives and CEPS Commissioner held several meetings where they were given a full demonstration of the GCS53 and where the CEPS Commissioner and senior managers confirmed that the full functionality up to the Valuation Module had been delivered (see Bankswitch's letter discussed at Paragraph 6.45 below) and, according to Mr Appenteng, "that they were satisfied with it, and that the system had the potential to increase revenue collections."54 Further, the RAGB Executive Secretary and MOFEP Chief Director congratulated Bankswitch for getting the buy-in of stakeholders and delivering the system in the face of non-cooperation from the DICs and GCNet.55 The minutes of the 18 March 2008 PIT meeting stated:

"[A] combined CEPS and BANKSWITCH team went to Dubai for a review of the Valuation software and the visiting team's report is positive. All changes recommended to upgrade the GCSDMS had been effected."56

6.42.
Additionally, the following responses to the Chairman of the PIT's question as to why the GCS was superior to the customs system in place were recorded in the minutes:

"[The CEPS Commissioner, Emmanuel Doku stated]... this system has been designed largely with consultation and collaboration with CEPS thus making it more viable. The Commissioner added that unlike previous projects, this one is more focused and user friendly especially the valuation module which was not a component of existing modules.

[CEPS Assistant Commissioner of Valuation, Wallace Akondor stated that]... the BANKSWITCH team had faithfully acted upon comments and criticisms from CEPS to modify and update the Valuation Software. He was therefore confident the Valuation software could make a lot of difference in terms of revenue mobilization for CEPS and the country at large. He further assured the Chief Director that the Valuation module has the capacity to replace the current functions of DICS. He however cautioned that there was the need to introduce a mechanism that would verify the credibility of importers' documents from the source of supply as this was a prerequisite to the successful implementation of the WTO Agreement on Valuation. Dr Appenteng pledged to collaborate with CEPS to get this issue resolved.

The Chief Director [of MOFEP] sought information about when the DICS' contract expired and what CEPS would be doing with the valuation software in the interim. In response, the Commissioner said three (3) of the contracts would expire at the end of 2008 and the 4th one in May 2010. He indicated the software would be used by the Valuation Department to valuate import[s] alongside the DICs as well as used to handle petitions from aggrieved importers. This would afford CEPS an opportunity to acquire the requisite skills and experience in managing the software to ensure a smooth take over from the DICs.

The Executive Secretary of RAGB [Harry Owusu] said he was satisfied with the current development. He indicated that initially, other complementary organizations such as GCNet and the DICs were not cooperative to the success of the project. It was therefore a relief for him to learn that the beneficiary of the project (CEPS) was satisfied. He stressed that valuation is key to CEPS' revenue generation capacity since it serves as the base of duties and taxes collectible on imports. He also commended BANKSWITCH for using the buy-in approach in developing the software. He hoped at the end of it all CEPS and indeed, Ghana would be the beneficiaries.

[....]

The [MOFEP] Chief Director congratulated CEPS and assured the [CEPS] Commissioner of the full support of the Ministry of Finance and Economic Planning.

He also acknowledged that such projects involve heavy financial commitments and asked the Commissioner not to hesitate in submitting financial demands that might be involved in the project. He also appealed to the PIT, RAGB, MOFEP to jointly ensure the success of the project."57

6.43.
The Claimant submitted that, from 19 March 2008, it was fully ready to launch the GCS and receive all data from all carriers and importers.58 At a 20 March 2008 PIT meeting, a live demonstration of the Valuation Module was conducted for the Government.59 At the meeting, Mr Akondor "praised the valuation software and said that this is the best software CEPS had seen because the software used a systematic approach in determining the value of items using both WCO and WTO principles. "60 Several suggestions were made to integrate into the GCS software including (i) requiring heterogeneous containers to be valued by a single officer; (ii) requiring a minimum number of words for valuation comments; and (iii) adding a field to flag consignments being valued by more than one officer.61 In its 19 March 2008 letter, Bankswitch referred to statements made by the CEPS Commissioner at the previous day's PIT meeting in which it noted that:

"[T]he [CEPS] Commissioner confirmed verbally that [Bankswitch] had indeed provided software with the functionality given above and furthermore, that CEPS had found the software satisfactory. When pressed to explain what he meant by satisfactory, the Commissioner stated that CEPS had rejected software presented by other companies and so the use of the phrase satisfactory could be taken as a positive endorsement. The Commissioner further pointed out that the software provided would add value to the current systems in place and CEPS [was] prepared to use the software."62

6.44.
The Respondent did not issue a Certificate of Satisfaction in spite of the Claimant's request that it do so. Implementation actions continued however, and no explanation for the lack of a Certificate of Satisfaction was ever provided to Bankswitch.
6.45.
Following a Project Implementation Committee meeting that was held from 18 to 20 March 2008, the Claimant sent a letter to the Respondent, requesting a meeting to discuss the issuance of the Certificate of Satisfaction.63 In its letter, the Claimant stated the following, in relevant part:

"At the meeting of[] 18th March 2008, the Commissioner confirmed verbally that we had indeed provided software with the functionality given above and furthermore, that CEPS had found the software to be satisfactory. When pressed to explain what he meant by satisfactory, the Commissioner stated that CEPS had rejected software presented by other companies and so the use of the phrase satisfactory could be taken as a positive endorsement. The Commissioner further pointed out that the software provided would add value to the current systems in place and CEPS [was] prepared to use the software."64

6.46.
At the 20 March 2008 PIT Meeting, the PIT was given a live demonstration of the valuation software and recommendations were made to Bankswitch for updates to the GCS to further customise the software for CEPS' needs.65 The minutes of the meeting reflect that Mr Akondor, the CEPS Assistant Commissioner of Valuation, made the following statement:

"Mr Aknondor praised the valuation software and said this is the best software CEPS had seen because the software used a systematic approach in determining the value of items using both WCO and WTO principles. He added that the remarks feature in the software also makes the valuation software [] better as [] the officer has to state his reasons for choosing a particular value."66

6.47.
The PIT Classification and Valuation Processes Sub-Committee held its first meeting on 28 March 2008 to discuss the status of the Government-requested revisions and the implementation of the GCS.67 Mr Abeyieh, the Bankswitch Valuation Support Manager, informed the sub-committee members that all of the Government-requested revisions had been finished, and Mr Kanda, the Client Services Manager at Bankswitch, was asked to find a location to house 80 to 100 valuation officers once the GCS was "live."68
6.48.
On 22 May 2008, CEPS and Ghana Link Network Services entered into an agreement to create a joint venture called the Ghana Customs Inspection Company Ltd ("GCIS"), formed to manage and perform DIC services for a period of eight years.69 On 2 June 2008, the Ministry of Trade and Industry sent a letter to three of the four DICs to notify them that the Government would be exercising its right to terminate their respective contracts upon expiration on 31 December 2008.70 Combined with the notice of termination of the DIC contracts, the formation of GCIS was a clear step towards the removal of the DICs from the customs process in anticipation of the implementation of the GCS.
6.49.
At the RAGB Sub-Committee Meeting of 4 June 2008,71 several additional statements were made that further indicated the Respondent's satisfaction with the "demonstrated potential" of the GCS, including the following:

"[T]he [RAGB Sub-Committee] members agreed that the Group [was] indeed doing a good job and had so far put workable systems in place. For this reason it will be fair to make payments to them whilst waiting for final integration with the GCNET system.

[....]

The Chairman said that members were privy to what the Group had started and were confident that it would yield results. He said they also appreciated that CEPS had to be in a state of readiness before the [DICs] are out so that the clearing process will not grind to a halt. Thus to ensure that this important issue is addressed, there was the need to have a 'stand-by' system which the Service can fall on at the crucial hour. This he said meant that it will be important to see to the survival of the Group until such time. He said there was therefore the need to iron out the payment issues and asked the Group to justify why they should be paid.

In his response, Dr. Kwabena Appenteng told members that the reality is that the DICs will be out of the system by the beginning of the last quarter. He said this raised very crucial issues including efficiency and level of commitment of the DICs as they fold up, readiness of CEPS to take over the function and most importantly the need to protect Government revenues for the last quarter of the year. He said the Group had an operational cost of [GH¢]2.0 million per month, which they had been paying since June 2007, but were flexible to payment arrangements terms that would be agreed on. In breaking down the costs the Finance Director of the Group told members that the figure included their communication link costs, staff costs, license and other fees.

A member in response said that costs such as license and other fees, communication link costs etc must be borne by the Group because that should be part of what the company is made of. Such costs should therefore not be seen as costs which have to be recovered through their direct operations.

At this point, the Chairman asked that members retire to another room to deliberate on the proposal.

Upon return, a member asked the Group when they thought the 'effective date' mentioned in the Agreement was and also the stage of the implementation of the system.

In response, Dr. Kwabena Appenteng said that in his opinion the effective date of the Agreement meant when the Group had delivered their part of the Agreement which he thought had been done. He said their system was ready to undertake aspects of the clearing process they had been asked to develop. Linking the stage of implementation to interaction with stakeholders, he said it was a two-way issue but was certain that that had advanced. He added that this was a crucial aspect and the progress of it determined the success of the project since the stakeholders played a very important role in the process.

The Commissioner of CEPS in his contribution to the matter said that the involvement of stakeholders was just to test whether the systems being put in place would inure to their benefit and not to determine the success of it.

The Chairman at this stage asked the Commissioner of CEPS if the Valuation Module which is one basis of payment to the Group was ready for use.

In his response, the Commissioner of CEPS said that the Valuation Module was complete and ready for use. He said however that the only thing needed was the aspect of foreign verification and an office to house the CEPS Valuation staff. He added however that on the Foreign Verification aspect, Dr. Kwabena Appenteng had come to his office the previous day with representatives from [Intertek] Government Services to inform them that they had partnered [with] them to undertake the foreign verification of the Valuation Module. He said as a matter of caution, taking the payment issues into consideration, he advised that since [Intertek] Government Services were third parties the Group must inform the Ministry about their new venture."72

6.50.
The following day, on 5 June 2008, another meeting was held to discuss the status of the GCS.73 At that meeting, Mr Osei-Kwabena, the Chairman of the RAGB, made statements regarding the delay in the implementation of the GCS:

"[T]he issue of integration [of the GCS] had been lingering for over a year. He explained that this was indirectly thwarting the efforts of [the] Government to put in place appropriate mechanisms to enhance its revenue collections. He added that the position of the Board was that the problem had been allowed to linger on for much too long and there was the need to find a lasting solution and curtail the delays. A solution was therefore needed to allow systems that had been put in place to be effectively used and maximized. He said the Board had anticipated that integration took place immediately and live operations of the fully integrated system start by September 1, 2008. He said this would give enough time for the system to be tested online before the DICs are phased out. With this background he invited the two companies to outline any reservations they had on the integration process."74

6.51.
In response to the RAGB Chairman's questions, Bankswitch confirmed that it was ready to integrate to any system at any time, and that the integration process could be completed in three weeks if it were given the signal to integrate.75 Dr Akoto Osei, the Minister of State, made the following statement:

"[F]rom the submissions made by the two companies it was clear that the objectives and importance government puts to its revenue enhancing collections had been understood. He said with the readiness of the two companies to cooperate through integration, the Board must meet the parties as soon as possible and come up with concrete timelines for the integration process. He added that he did not envisage any further delays since the parties had reached a common ground.

[....]

[....] He said as pointed out by the representative of RAGB, the introduction of the new system will indeed help to uncover a lot of these fraudulent acts. He mentioned that the introduction of any new venture is bound to be met with resistance especially when it tramples on old but bad habits. He added however that this does not have to serve as a stumbling block to the new system that is to be introduced especially when confirmation had been given that it would serve the right purpose."76

6.52.
When discussing the appropriateness of pre-implementation down payments, the Chairman of the RAGB stated that "taking the work done by the company so far and the fact that even before the valuation module of the system kicks in, a lot can be derived from the system" and that "since the system would have to be utilized in full to realize the benefits, it was important that [the] Government ensured that the company did not collapse before the actual take-off".77
6.53.
At the 5 June 2008 meeting, the Minister of State requested that the RAGB put together a proposal for the payment of advance down payments to Bankswitch that should be "backed with appropriate data to confirm the viability or otherwise."78 On 18 July 2008, the RAGB sent a letter to MOFEP supporting its request to begin making down payments:

"With regards to funds for the payment of Services provided by Messrs Bankswitch, the Board is proposing that monies that hitherto went to the [DICs] as service charge (1%) paid by importers will now accrue to CEPS upon assumption of the valuation function of the clearing process. Currently, the annual amounts earned by the DICs at an average growth of 30% is around [GH¢]50 million. A portion of this is what will be ceded to Bankswitch. In addition measures put in place anticipate up to 30% increment in revenue over projected revenue for the period."79

6.54.
CEPS issued an undated Valuation and Classification Project Report ("CEPS Report") which addressed the testing and assessment of the GCS which supported the viability of the GCS.80 CEPS' "Technical Assessment" of the GCS stated:

"The [GCS] was subjected to a rigorous technical assessment and was found to be:

(i) compliant with WTO Valuation;

(ii) Fast and therefore reduce processing period for valuation and classification;

(iii) Trade documents are electronically submitted to CEPS. All prior approvals of applications currently given manually are automated. These minimizes [sic] to a large extent human contacts, thereby reducing the tendency for rent seeking in Customs clearing;

(iv) Eliminate forged documents and seal off revenue leakages from the clearance system. This is made possible because of the electronic submission of cargo manifests directly into the [GCS] by the carriers and the ability to automatically match individual Bills of lading from importers against manifests;

(v) The system sits on the internet and can therefore be accessed by any individual or entity who/which is registered with [the] system irrespective of location;

(vi) The system has a user-friendly reporting module;

(vii) Document wear and tear is reduced;

(viii) Potentially capable of sharpening the professional skills of officers in valuation and classification;

(ix) Wrong description of goods for purposes of cheating on revenue is eliminated with the introduction of the extended attributes in the system;

(x) Completed Customs Classification and Valuation reports (CCVC) are electronically sent to the importers' front–end screen. This makes the system a complete[ly] paperless one[;]

(xi) Opportunity to doctor information on document[s] is lessened;

(xii) The [GCS] mode of manifest rotation by Customs, removes the opportunity for illegal integration of undocumented/suspicious cargo onto manifests for the evasion of prescribed CEPS controls, and the manipulation of fees/penalties for overstay and demurrage[; and]

(xiii) The [GCS] will resolve the fragmentation of automation in the current system. This will result in less opportunity for manipulation of cargo particulars because information once introduced upstream is automatically supplied wherever/whenever it is required to be provided downstream, without further human intervention."81

6.55.
Additionally, in the CEPS Report, CEPS noted that the GCS had been found suitable for the Government's objectives in the project and opined that the testing of the software had proven its efficacy in increasing revenue collection significantly, stating:

"(i) The [GCS] has been tested and found suitable. The good thing about this system is that it is not an imposition on CEPS. Instead this is a system that has been developed largely with inputs from CEPS. It can therefore be adjusted to accommodate any future development in the clearance procedure without any difficulty.

(ii) It is without doubt that judging from the data obtained during the testing of the system, revenue from import duties and taxes could increase significantly."82

6.56.
On 6 September 2008, CEPS issued a press release notifying the public that "[t]he [MOFEP] in collaboration with the [RAGB] and the [CEPS] has started implementing a major project that will enhance the ability of CEPS to securely acquire and manage electronic information submitted and exchanged with its stakeholders".83 The press release also stated that the GCS "will be integrated into the existing GCNet/GCMS, to add value to the current system" which "will enable CEPS to continue to improve its service to the general public and to further secure revenue for national development".84
6.57.
Between April and August 2008, the PIT requested that Bankswitch make twenty-nine revisions to the GCS, many of which fell outside the scope of the BRS.85 These requested revisions required further deployments and tests of the GCS. Bankswitch accepted the task of implementing the proffered revisions while continuing to request the issuance of the Certificate of Satisfaction.86
6.58.
During the training and testing of its officers, the Respondent recognised the need to create a Central Valuation Office for CEPS ("Valuation Office"). To implement the Valuation Office, CEPS instructed Bankswitch to look for a suitable location to accommodate the officers.87 The task of acquiring and refurbishing the Valuation Office was assigned to Bankswitch with the proviso that the pre-financing it provided would be ultimately recouped under the Service Fee in Clause 7(iii) of the Agreement.88
6.59.
In 2008, Bankswitch rented, renovated, and refurbished a building located at plot 81 behind the Mobil Filling Station, Ring Road, Accra for a lease term of five years beginning on 24 July 2008.89 The building was renovated and equipped with modern office facilities to make it suitable to serve as the Valuation Office.90 The Valuation Office was commissioned and handed over to CEPS for its full use on 16 October 2008 and an itemised report of the assets procured by Bankswitch was sent to CEPS.91
6.60.
In connection with the acquisition of the Valuation Office, the Parties entered into a second Memorandum of Understanding ("Second MOU").92 The Second MOU provided that CEPS would take over the cost of running the premises and exercise responsibility for all security issues on the premises, while Bankswitch would continue its payments of the reserved and recoverable rent, maintenance, and insurance of all assets on the premises.93
6.61.
Pursuant to Clause 6 of the Agreement, Bankswitch continued to bear the costs for all the training programs which were to be recouped through the accrual of its Service Fee under Clause 7. By the end of 2008, Bankswitch had provided employees of 541 stakeholder companies (e.g., shipping lines and carriers) hands-on training in the use of the GCS.94 In December 2008, Bankswitch provided training to CEPS officers, and the then Chairman of the Technical Committee on Valuation of the World Customs Organisation was trained on the GCS.
6.62.
In October and November 2008, CEPS announced to all stakeholders that, starting in January 2009, it would be performing a formal System Integration Test ("SIT") that would confirm whether the GCS would actually capture potential customs revenue losses and whether CEPS could meet the deadline for the taking over of the DICs.95 Sixteen companies were initially asked to take part in the SIT with an additional 69 companies participating in further SITs.96 At that time, CEPS was effectively in charge of the GCS, controlling access to the system and running the SIT, with Bankswitch remaining responsible for the further training of CEPS staff.
6.63.
During the SIT, an Interim SIT Report set forth certain recommendations – such as mandating the submission of all trade documents through the GCS to allow Ghana to store all data related to consignments, with attachments – and ultimately concluded that the SIT was successful in all respects.97 Up to the Interim SIT Report, there was a 100% submission rate of documents with 41.33% being sent for external verification of price, freight, insurance data and Harmonized System Codes and the remaining 58.67% being assessed entirely by CEPS officers in Ghana.98 The conclusion of the Interim SIT Report was that "[t]he System Integrated Test for GCSDMS has been successful in all respects".99 The Interim SIT Report also suggested that CEPS officials should conduct site surveys and recommend better internet connectivity options at the offices of the clearing agents as the SIT revealed shortcomings in the document submission made on behalf of these agents.100

"Lastly and most importantly [t]he SIT has enabled CEPS to perform their core function of classification and valuation and build the relevant capacity before the actual GO LIVE date of 1st Jan 2009. On this day CEPS will take over their role of classification and valuation from majority of the Destination and Inspection companies. This exercise has also helped build strong support/working relations between External Price verification entity (Intertek) and CEPS."101

6.64.
On 5 March 2009, and following the Interim SIT Report, Bankswitch sent correspondence setting out the under-declarations under the DIC system as compared to the GCS' performance during the SIT, and finding that 41.3% of consignments were under-declared.102 The letter included the following chart of under-declarations:103

Range of Declared FOB as % of Assessed FOB % of Sample Cumulative % of Sample
0%, CORRECT DECLARATION 58.7 58.7
> 0% < 25% 8.7 67.4
> 25% < 50% 9.4 76.8
> 50% < 100% 7.2 84.1
> 100% < 300% 13.8 97.8
> 300% 2.2 100.0

6.65.
On 21 November 2008, after the Interim SIT Report was issued, the RAGB sent a letter to CEPS (which was copied to Bankswitch) requesting that a public notice be issued regarding the Customs Classification and Verification Certificate ("CCVC") becoming a mandatory requirement in the clearing of all goods from 1 January 2009.104
6.66.
On 27 April 2009, the Ghanaian Minister for Trade and Industry convened a meeting of shareholders to discuss the existing Destination Inspection Scheme. The meeting was attended by representatives from the following associations and entities: (i) Association of Ghana Industries; (ii) Ship Owners Association of Ghana; (iii) Customs Brokers Association of Ghana; (iv) Ghana Association of Freight Forwarders; (v) DICs; (vi) GCNet; and (vii) Parliamentary Select Committee on Trade, Industry and Tourism.105
6.67.
During the meeting, CEPS and the Ghana Association of Freight Forwarders suggested that CEPS should take over the role of the DICs, but the general consensus was that the Government should retain the Destination Inspection Scheme and address its challenges rather than replacing the scheme entirely.106 Bankswitch was not invited to the meeting, while other private companies with a vested interest in the continuation of the DIC scheme were in attendance. It is noteworthy that the largest association of users of the service, the Ghana Association of Freight Forwarders, felt that the existing system should be discontinued.107
6.68.
Following the meeting, the Ghanaian Minister for Trade and Industry briefed the Ghanaian Cabinet, seeking guidance on how to proceed on the issue of the Destination Inspection Scheme.108 In response, the President set up a special committee tasked with reviewing the arrangements ("Special Committee"), chaired by Mr Kofi Totobi Kwakye, the former National Security Coordinator. Additionally, the Special Committee included Mr Dan Abodakpi, the former Ghanaian Minister for Trade and Industry; Ms Hanna Tetteh, the Ghanaian Minister for Trade and Industry; and the CEPS Commissioner.109
6.69.
According to the Respondent, the Special Committee concluded that it was not in the best interests of Ghana to adopt the Bankswitch System as it would be duplicative of the existing customs infrastructure to a significant extent.110 The Special Committee based its conclusions on the two perceived primary functions of the Bankswitch System – (i) a component for the acquisition of shipment documentation with reduced human intervention and (ii) a price evaluation system.111 According to Mr Larbi, on that basis, the Government believed that the Bankswitch System would not increase the Government's revenues significantly and that the fees Bankswitch would receive were not justified.112

6.69.1 This proposition is contested by the Claimant, who argues that the GCS does not (or at least not to a significant extent) duplicate the existing Ghanaian customs infrastructure.113 The Claimant also points out that the statements by Mr Larbi are not supported by minutes or documentation.114

6.69.2 The Ghanaian President accepted the Special Committee's recommendations and directed that the Destination Inspection Scheme should continue, entrusting the Ghanaian Ministry of Trade Industry with the implementation of the directive.115

6.69.3 The Ghanaian Ministry of Trade and Industry invited organisations interested in destination inspection services to apply for the contract and, from there, created a short list of organisations that could submit a proposal. Mr Larbi notes that although Bankswitch responded to the request, it was not short listed.116

6.69.4 The Claimant disputes the President's alleged acceptance of the Special Committee's recommendations and points out the absence of proof to support this allegation.117 There is also contradictory evidence of the Government accepting the claim that GRA, an agency of the Government, published a notice in April 2010 for importers to submit documents to the GCS.118 This implies that the Government accepted that the DICs and the GCS could and should co-exist within the infrastructure then in place.119

6.70.
In his witness statement, Mr Larbi asserts that the Government found several issues with the Bankswitch System in addition to those found by the Special Committee, namely:

6.70.1 CEPS Control: Mr Larbi states that the Bankswitch System does not address the primary vulnerability of the existing customs infrastructure, namely the potential for CEPS officers to perform their function improperly. Bankswitch claims that its system would render the DICs unnecessary and mandate the CEPS to control the system and perform the valuation and classification function on its own, leading to a significant increase in customs revenue.120

6.70.2 Mr Larbi further states that, if the Government phased out the DICs and put CEPS in charge of classification and valuation, there would be a real risk for a significant increase in the improper interference with the processing of consignments through the customs system which would have a negative impact on customs revenues.121

6.70.3 Evidence of Bankswitch's Claims: The Government was concerned with the lack of evidence suggesting that the Bankswitch System had been tested sufficiently to enable the Government to conclude that the Bankswitch System was capable of producing the results claimed.122

6.70.4 The 2009 International Monetary Fund Report on Strategy to Modernize the Ghana Revenue Administration cited 1,316,189 import declarations in 2008.123 However, neither the Inception Report nor the Readiness Report provided by Bankswitch specifies the quantity, if any, of live imports that were processed through the Bankswitch System. It was therefore not established that the Bankswitch System had sufficient capacity and integrity to process the large number of imports required of it had it been put into operation.124 Specifically, the Preliminary Report on the SIT produced by CEPS in November 2008 reported that 185 consignments had been processed during the test period from 23 October 2008 to 7 November 2008,125 while a presentation to the GRA on 21 May 2010 suggested 1,989 imports.126

6.70.5 Role of Intertek: Bankswitch entered into an agreement with Intertek International Ltd ("Intertek International") that placed the latter in charge of the price verification of the goods imported into Ghana.127 Mr Larbi notes that the Government determined that Intertek International's responsibilities would be duplicative of those performed by the DICs.

6.70.6 Mr Larbi further notes that Intertek International is an indirect, wholly owned subsidiary of Intertek Group Plc ("Intertek Group") which had provided preshipment inspection services under the pre-Destination Inspection Scheme system that ended in 2000.128 While the Government had rejected Intertek Group's proposal to be appointed as a DIC, under the Bankswitch System, Intertek Group's subsidiary was set to take on a role similar to that of a DIC.129

6.70.7 Mr Appenteng rejects the implication that the agreement between Bankswitch and Intertek International was done without the involvement of the Ghanaian Government. He maintains that the Government was fully aware of Mr Appenteng's engagement with Intertek and accepted it. He also states that parties from the Government were fully aware of Intertek International's involvement, and no objection was ever raised.130

G. Bankswitch System's Public Notices and Proposed "Go Live" Dates

6.71.
The Tribunal notes that numerous public notices were issued in the past relating to (i) the connectivity and installation of the GCS on 2 May 2008; (ii) an invitation for shippers and importers to receive hands-on training for the GCS on 5 May 2008; (iii) a demonstration of the payment module in the GCS on 16 May 2008; (iv) the submission of converted manifests on 25 August 2008; (v) the participation in a test run of the GCS on 1 October 2008; and (vi) the staffing of the Valuation and Classification Center on 24 December 2008.131
6.72.
First "Go Live" Date: After the results of the SITs were considered by Ghana, Bankswitch was reassured in a letter dated 21 November 2008 that the "go live" date for the Bankswitch System would remain 1 January 2009 as planned.132 In order for this to be achieved, Clause 5(d) of the Agreement required Ghana to issue policy instructions requiring all stakeholders to have their goods processed through the GCS as of the effective date. In preparation for "going live", Bankswitch conducted the ongoing training of 434 import agents and 2,510 agents at service centers and performed continued maintenance on the hardware/software.133 Although the GCS did not "go live" on 1 January 2009 and no reasons explaining the delay were provided by Ghana despite several attempts by Bankswitch to speak with representatives in MOFEP and RAGB,134 the CEPS Commissioner requested Bankswitch to continue training stakeholder staff and servicing the equipment, software and hardware for CEPS in anticipation of a rescheduled date.135
6.73.
Second "Go Live" Date: On 5 March 2009, Bankswitch sent a letter to MOFEP reaffirming that the GCS tests had been successful and that all specific alterations to fit the needs of Ghana had been made.136 Subsequently, Bankswitch urged Ghana to issue the Certificate of Satisfaction in order to begin the Implementation Phase, calling the Government's attention to the perceived advantages of the GCS.137 Additionally, and in continued anticipation of the start of the Implementation Phase, Bankswitch continued to deploy the GCS by training more CEPS officers.138
6.74.
In a 7 August 2009 meeting, Ghana informed Bankswitch of the appointment of a new CEPS Commissioner and implied that the new Commissioner would bring progress to the GCS project.139 On 30 September 2009, Bankswitch was invited to join the new CEPS committee for the implementation of the GCS ("Implementation Committee") which was tasked with supervising the implementation of an alternative plan to fast-forward the introduction of the GCS for a "go live" date of 1 January 2010.140 Of the 45 representatives on the Implementation Committee, 9 were members of the Bankswitch team.141
6.75.
Further programs to prepare and train CEPS officers and other stakeholders were implemented following the formation of the Implementation Committee, including hands-on training with the GCS for 716 officers from stakeholders and ongoing training for a "core group" of 38 officers.142
6.76.
On 8 October 2009, Ghana informed the stakeholders of new public policies that would officially institute the mandated use of the GCS,143 and, on 31 December, Bankswitch asked Ghana to give the "green light to commence immediate full operation" of the GCS, noting that the Bankswitch System was ready to become fully operational and would capture the current losses of taxes on imports amounting to nearly US$56 million per month owing to the customs revenue leakages.144 On 1 January 2010, there was still no word from Ghana on the start of the Implementation Phase with no reasons provided to Bankswitch for the continued delay.
6.77.
Third "Go Live" Date: Owing to meetings with the CEPS Commissioner, the GRA Commissioner General, and the Deputy Minister of Finance, Bankswitch was of the impression that the GCS would be implemented soon.145 Around March 2010, Bankswitch heard from sources on the Implementation Committee that Ghana was anticipating setting another "go live" date on 1 April 2010.146 This information was confirmed by additional public notices from the Implementation Committee, but ultimately, the Bankswitch System did not "go live" on 1 April 2010.147 Bankswitch later discovered that the President had issued a Presidential Directive on 27 April 2010 directing MOFEP, RAGB, GRA and CEPS to cease all transactions with Bankswitch and suspend the Agreement.148
6.78.
Fourth "Go Live" Date: A further "go live" date for the Bankswitch System was set for 1 May 2010 and publicly announced by Ghana in two national newspapers on 27 and 29 April 2010.149 The 27 April 2010 notice stated the following:

"The Ghana Customs Excise Preventive Service (CEPS) announces for the information of the public that it is introducing control measures to revalidate the valuation and classification of goods for customs purposes. The exercise is intended to further ensure fairness and equity in the assessment of customs duties and taxes when the FCVR is used.

[....]

3. Submission of Trade Documents

As part of these new measures, traders/agents will be required to submit soft copies of their trade documents as follows:

Traders and agents with front end setup (FES) will submit documents electronically through the Ghana Customs Documents Management System (GCSDMS)

Traders and agents without the front end setups (FES) will submit documents electronically through CEPS service centres or online using the URL www.gcsdms.com

4. Registration

Traders/Agents shall be registered in order to have access to the GCSDMS FrontEnd Setups (FES).

[....]

6. Deadline for the Submission of Trade Documents

The electronic submission of trade documents through the GCSDMS Front-End setup shall be done at the same time as the trade documents are sent in hard copy to the Destination Inspection Companies for the processing of FCVRs. Traders should note that these trade document are by law required to be submitted NOT LATER than 21 DAYS before the arrival of goods in Ghana.

7. Non Compliance

Submission of trade documents is mandatory and failure to submit them may result in undue delays in the clearance of goods from the port.

8. Submission of Customs Declarations

The FCVR obtained from the DICs will continue to be used for the preparation and submission of all customs declarations.

9. Scope of Application / Start Date

For a start and until further notice, these arrangements shall apply only at the Port of Tema. Submission of trade documents through the front-end setup of the GCSDMS will begin from 1st May 2010.

Traders/agents are advised to ensure that only genuine and correct trade documents are submitted for processing. By so doing, entry and clearance of goods from the ports will be made easy and timely."150

6.79.
Although 1 May 2010 passed without "live" implementation as others had before, it is this Fourth and Final "go live" date that has been cited by the Claimant as the proper date of the Government's breach of the Agreement and the calculation of the five-year contract term (see Paragraphs 11,154 to 11,164 below).
6.80.
On 12 May 2010, Bankswitch submitted invoices to the Government for services and informed the Government that, based on the data coming into the GCS (even though the software was not "live" yet), Ghana may have lost revenue on duties and taxes of around GH¢ 59,031,210.74 in March and GH¢ 95,784,289.12 in April (total of GH¢ 154,815,499.86) at just the Tema port alone owing to the under-reporting of imports under the DIC regime.151
6.81.
After four lapsed proposed "go live" dates, the Government continued to make representations to Bankswitch that it intended to implement the GCS. In a presentation on 21 May 2010, the GRA acknowledged that the GCS was ready to be implemented and that the Government intended to use the System.152 The presentation referred, however, to proposed cooperation on the GCS with the DICs rather than with Bankswitch.153 The presentation closed with a statement that the GCS would be "a win-win for all and provides opportunity for increased revenue for the better Ghana agenda."154
6.82.
On 30 August 2010, Ghana renewed its contracts with the DICs for an additional five-year period.155 The Claimant notes that, when implemented, the GCS could be used simultaneously within the existing system to complement the job of the DICs. After receiving word of the DIC contract renewal, Bankswitch began lobbying again, meeting with the GRA Commissioner General and other senior members of the Government. No Ghanaian official or representative has ever represented to Bankswitch that the implementation of the GCS was not going to take place, and at no time has Ghana ever given notice of any breach or default on the part of Bankswitch. Instead, Ghana continued to require Bankswitch to invest in the training of its officers and to keep the system ready for use.

H. Notice of Ghana's Breach

6.83.
After the failed "go live" dates (discussed at Paragraphs 6.71 to 6.78 above), the renewal of the DIC contracts (noted at Paragraph 6.82 above), and without any official notification to Bankswitch that it intended to stop making the down payments or planned to renounce the Agreement, Ghana stopped making the GH¢ 600,000 monthly down payments in April 2010.
6.84.
After several months and numerous letters sent to Ghana requesting that the payment of the down payments be restarted,156 Bankswitch officially put Ghana on notice of its breach by letter dated 7 June 2010.157 In its letter, Bankswitch stated the following:

"We refer to the obligation of both parties under the agreement particularly clause 5 (d) of the agreement that stipulates that:

'The Client [MOFEP RAGB] shall issue the necessary administrative and policy instructions to shippers and industry operators to ensure that all shipments are captured within the data base to ensure optimization of revenues.'

And clause 7 (iii) of the agreement stipulates that:

'The consultants shall submit an invoice to the Client [MOFEP/RAGB] within five working days of the end of each month or such other period as may be agreed by the parties. The Client [MOFEP/RAGB] undertakes to make payment to the Consultants within thirty (30) working days of receipt of the invoice.'

We have in recent times been concerned about information reaching us which includes the information that in a presentation delivered to, among others, H.E. The President, the Minister of Finance and the Deputy Minister of Finance, on the 21st May 2010, and to which we had been invited, that the Client [MOFEP/RAGB] had suspended payments to the Consultants.

We have yet to be informed of any breach or subsisting acts of default on our part and so are at loss as to why the Client [MOFEP/RAGB] should unilaterally choose to suspend payment due on our contract. At the same meeting, we also learned that the Client [MOFEP/RAGB] were considering various options which included:

Total buy out of the private partner

Resumption of monthly payments

Long term lease of the software

Short term rental of software while Customs develop its own software

The above mentioned matters, we believe are clear intimation on the part of the Client [MOFEP] to abrogate the contract, which poses a serious threat to our investment under the agreement for the GCSDMS.

We are therefore as a matter of urgency drawing your attention to our present concerns raised for your response and action.

We believe the Client [MOFEP/RAGB] would appreciate our fears and zest to protect our investment which was made in the interest of Ghana."158

6.85.
Since this notice of the Government's breach, certain actions have been taken by the Government which, the Claimant argues, evince the Government's continued expressions that the Agreement is valid and enforceable. After sending its 7 June 2010 letter, and from July to October 2010, Bankswitch continued sending letters demanding payment,159 and on 28 February 2011, Ghana caught up on its arrears and resumed making the GH¢ 600,000 monthly payments.160 According to Bankswitch, these GH¢ 600,000 "goodwill" payments induced it to continue performing its obligations under the Agreement. In September 2011, the Ghanaian Ministry of Justice wrote to MOFEP with regard to settlement discussions with Bankswitch, stating that the GCS did not duplicate or conflict with the DICs, could be used independently or integrated with the DICs, and that the Agreement should be performed in its entirety.161 Each month from January until August 2012, the Government issued Release Letters that approved payments to be made against the future earnings of Bankswitch under its Service Fee.162 In its 10 October 2012 letter, even after the Government's arguments in this Arbitration had been set out, GRA wrote to the Attorney-General stating that "[t]here is evidence from the 3-month pilot of the Bankswitch system that customs revenue collection could grow at the rates specified in their contract".163
6.86.
Because of Ghana's actions, Bankswitch contends that it has become exposed to severe financial stress, including intense pressure from its bankers, compelling it to lay off the bulk of its employees who are now demanding their severance entitlements.164

7. RELIEF SOUGHT BY THE PARTIES

7.1.
In accordance with Article 3(3)(f) of the UNCITRAL Rules 1976, the Claimant requested several primary and alternative forms of relief for the breaches of the Respondent that it has alleged. However, at the Evidentiary Hearing on 15 January 2013, the Claimant, under Article 20 of the UNCITRAL Rules 1976, amended its claim, withdrawing all claims of relief except for (i) Alternative A (iv); and (ii) Primary and Alternative B, C and D.165 The recitation of the Claimant's requests for relief set out in the next sub-paragraph reflect the amended claims following its 15 January 2013 letter.

1. THE CLAIMANT'S REQUESTED RELIEF

7.2.
In accordance with Article 3(3)(f) of the UNCITRAL Rules 1976, the Claimant requests the Tribunal to:

(a) find that the Respondent has breached the Agreement;

(b) order the Respondent to pay damages consisting of the loss of profits ("Breach Damages") and certain extra costs which have been incurred in relation to the refurbishment and maintenance of the CEPS Valuation Office ("Extra Costs") up to the date of the final Arbitral Award to the Claimant within fourteen days of the final Arbitral Award;

(c) order the Respondent to pay all costs associated with these proceedings, including all professional fees and disbursements and the fees and expenses of the Tribunal;

(d) award the Claimant interest (being pre-award and post-award interest) from the date of 1 May 2010 (or such other date as the Tribunal deems appropriate), until final payment at the highest Bank Base Rate at the relevant date, per annum, compounded annually; and

(e) order any further relief the Tribunal may consider appropriate.

2. THE RESPONDENT'S REQUESTED RELIEF

7.3.
The Government requests that the Tribunal dismisses each of Bankswitch's claims in their entirety and orders that Bankswitch reimburse the Government's costs and expenses.166

8. ISSUES TO BE DECIDED IN THIS AWARD

8.1.
Failing to reach consensus on an Agreed List of Issues, the Parties submitted the following separate Lists of Issues pursuant to Paragraph 4.2(a) of Procedural Order No 4:

1. THE CLAIMANT'S LIST OF ISSUES

8.2.
The validity and scope of the Agreement
8.3.
Bankswitch's compliance with the preconditions specified in Clause 9(iii) of the Agreement for the issuance of the Certificate of Satisfaction, namely the readiness of the GCS for full implementation and the improvement of revenue collection
8.4.
Compliance of the Government with its obligations under the Agreement, namely, amongst others, the issuance of the Certificate of Satisfaction, its compliance with Clause 5 (to ensure shipments are captured in the GCS), and 7 (regarding payment), and its commitment to do what is necessary to implement the GCS
8.5.
Remedies for the liability of the Government for breach of the Agreement and other remedies available
8.6.
Term of the Agreement
8.7.
Payment by the Government for services falling outside the Agreement

2. THE RESPONDENT'S LIST OF ISSUES

8.8.
Whether the Agreement is valid and enforceable under Ghanaian law
8.9.
Whether the preconditions for the issuance of the Certificate of Satisfaction specified in Clause 9(iii) of the Agreement were met
8.10.
Whether the Government was obliged to do the following:

(a) implement the Bankswitch System;

(b) enable Bankswitch to recoup its investment;

(c) ensure all shipments were captured within the Bankswitch System; and

(d) make payments to Bankswitch, whether pursuant to Clause 7 of the Agreement or otherwise, including in relation to services allegedly provided by Bankswitch that were outside the scope of the Agreement

so that, by not doing so, the Government was in breach of the Agreement

8.11.
Whether the term of the Agreement has commenced
8.12.
If the term of the Agreement has commenced, the date on which it terminated or will terminate
8.13.
Whether Bankswitch is entitled to the remedies it seeks, i.e.:

(a) a declaration that the Government has breached the Agreement;

(b) specific performance of the Government's alleged outstanding obligations under the Agreement;

(c) damages; and/or

(d) an order that the Agreement be terminated retroactively.

3. FURTHER ISSUES

8.14.
In the Claimant's letter of 15 January 2013, the Tribunal was asked to determine whether the Tribunal should sign and issue the Award on Agreed Terms without the signature of the Respondent (see Paragraphs 11.8 to 11.22 below).

9. POSITIONS OF THE PARTIES

1. THE CLAIMANT'S CASE

9.1.
In (i) the Statement of Claim; (ii) the Claimant's First Memorial; (iii) the Claimant's Second Memorial; and (iv) the Claimant's Written Opening Statement, the Claimant contends that it is entitled to the relief sought (discussed in Section 7 above) for eight principal reasons.
9.2.
First, the Claimant submits that the Respondent legally acknowledged the validity of the Agreement, and thus cannot revoke such acknowledgement under Article 154(1) of the Dutch Code of Civil Procedure. The following sub-paragraphs summarise the arguments on this subject:

9.2.1 As the lex arbitrii is Dutch law, Article 154(1) of the Dutch Code of Civil Procedure ("DCCP") applies and states:

"1. A legal acknowledgment by a party of the truth of one or more of the counterparty's statements during the course of proceedings.

2. A legal acknowledgment can only be retracted if it is shown that it was made in error or was not freely made."

9.2.2 The list of situations where a legal acknowledgment may be revoked is exhaustive, and if a listed situation does not exist (and it does not here), then a tribunal must consider such acknowledgment an established fact, and is precluded from investigating – of its own accord or even at the request of the Parties – the truth of such acknowledgment.167

9.2.3 In Sections 1, 33 and 34 of the Respondent's Statement of Defence, the Government expressly acknowledged that the Agreement was valid:

"1. [....] The "Agreement" means the agreement between the Respondent and the Claimant on the Ghana Customs Excise and Preventive Service Secure Document Management System entered into on 12 December 2007, attached as Exhibit C-1 to the Statement of Claim.

[....]

33. The Government's primary position on the status of the Agreement is that the Agreement terminated in accordance with clause 10 on, or around, 11 March 2006 (or shortly thereafter) when the Pilot Phase ended without fulfilment of the preconditions necessary for the issuance of the Certificate of Satisfaction. [....]

34. The Government's alternative position is that the five year term of the Agreement will end on 12 December 2012 (being five years from the execution of the Agreement)."168

9.2.4 The above-quoted portion of the Statement of Defence clearly and unconditionally asserts that the Agreement was entered into and specifies that the Government's position on the status of the Agreement was that the Agreement was effective and legally binding from the start until either 11 March 2008 or 12 December 2012.169 Further statements from the Respondent only refer to whether the Agreement was breached or whether it should be terminated.170 No statements were made until the Counter Memorial that there was any issue of the validity of the Agreement.

9.2.5 Further, from the date the Agreement was entered into (i.e., 12 December 2007) onwards, the Government has acted as if the Agreement was valid and legally binding, making an explicit declaration to that effect in a 28 September 2010 letter from the Attorney General and Minister for Justice, Betty Mould Iddrisu, which stated "[h]aving carefully examined the above mentioned Agreement I am of the opinion that there is a valid / legally binding contract between the parties."171

9.2.6 Based on the above facts, which show that the Government has no grounds to revoke the legal acknowledgement of the Agreement, the Tribunal must consider the validity of the Agreement to be an established fact, thereby rendering the question of the validity of the Agreement under Ghanaian law irrelevant.172

9.3.
Second, assuming arguendo that the Tribunal does not find that the Respondent legally acknowledged the validity of the Agreement under Article 154(1) of the DCCP, the Claimant submits that Articles 19(2) and 20 of the UNCITRAL Rules 1976 prohibit the Respondent from disputing the validity of the Agreement. The following sub-paragraphs summarise this argument:

9.3.1 Article 19(2) of the UNCITRAL Rules 1976 states:

"The statement of defence shall reply to the particulars (b) [statement of facts supporting the claim], (c) [points at issue] and (d) [relief or remedy sought] of the statement of claim."

9.3.2 With regard to the UNCITRAL Rules 2010, Webster notes that "the Respondent should add all issues that the Respondent believes should be dealt with in the Award".173 Because Article 19(2) of the UNCITRAL Rules 1976 is identical to Article 21(2) of the UNCITRAL Rules 2010, the statement regarding the latter also applies to the former.

9.3.3 Article 20 of the UNCITRAL Rules 1976 specifically lays out the rule for supplementing a claim or defence:

"During the course of the arbitral proceedings either party may amend or supplement his claim or defence unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any other circumstances. However, a claim may not be amended in such a manner that the amended claim falls outside the scope of the arbitration clause or separate arbitration agreement."

9.3.4 The Respondent is thus prevented from amending or supplementing its defence if there is an inordinate delay in making the amendment or supplement or if such delay will prejudice the other party.174 In his textbook, Mr Born has added that the tribunal may disallow the amendment based on any other circumstances that would make an amendment inappropriate.175

9.3.5 In Mohsen Asgari Nazari v The Government of the Islamic Republic of Iran, the tribunal refused to allow the claimant to amend its claim based on the significant lapse of time preceding the amendment, and noted that "the Claimant had not offered any justification for his delay in making his application".176 Further, when a party has repeatedly disobeyed orders setting deadlines and delayed the proceedings, tribunals should be even more reluctant to accept new defences in submissions:

"Repeated non-compliance with deadlines and last-minute amendments to pleadings or evidence can compromise the efficacy and integrity of the arbitral process. It is sometimes difficult for arbitrators, who lack the coercive authority of a national court, to prevent such conduct, but making determined efforts to do so is an essential part of the tribunal's mandate to conduct an efficient and fair proceeding."177

9.3.6 The Respondent has repeatedly disregarded procedural deadlines, constantly placing the Claimant in a difficult position, and the Claimant would be prejudiced if the Respondent were allowed to amend its Statement of Defence.

9.3.7 Further, as discussed at Paragraphs 9.2.3 to 9.2.6 above, the Respondent has continuously treated the Agreement as a valid and enforceable contract, and nowhere in the Statement of Defence or Counter Memorial has the Respondent refuted the explicit statements of validity.178

9.3.8 It took the Respondent five years after the Agreement was signed to dispute the validity of the Agreement for the first time. All of the facts and circumstances allegedly showing the invalidity of the Agreement – on which the Respondent has relied in its Counter Memorial (e.g., the 1992 Ghanaian Constitution) – have existed and have been expressly known by the Government not only when it submitted its Statement of Defence but also well before the Agreement or First MOU had been signed.179

9.3.9 Furthermore, to allow this change in position would disrupt the efficacy of the proceedings as the Respondent has not elaborated on its argument on the validity of the Agreement in its Counter Memorial, providing the Claimant no information on the Respondent's position on the consequences of the Agreement being void and of no effect.180 It is undisputed that the Claimant has performed many tasks under the Agreement, cooperating closely with many branches of the Government (e.g., CEPS, RAGB, and PIT).181

9.4.
Third, the Claimant submits that the Agreement does not constitute an "international business or economic transaction" under Article 181(5) of the Ghanaian Constitution. The following sub-paragraphs summarise the Claimant's arguments on this subject:

9.4.1 Article 181(5) of the Ghanaian Constitution provides that parliamentary approval is required for "international business transactions" to which Ghana is a party.

9.4.2 The Claimant relies on the decision of the Supreme Court of Ghana in Attorney General v Balkan Energy Ghana Ltd, which establishes that an Agreement with foreign elements will only be considered an international business or economic transaction within the meaning of Article 181(5) in exceptional circumstances:

"Given the complexity of contemporary international business transactions, there will be transactions of such a clear international nature that they should come within any reasonable definition of an international business transaction...."182 (emphasis provided by the Claimant)

9.4.3 Balkan Energy further establishes that Art 181(5) in no way covers all agreements that have a foreign element:

"We think that a business transaction is "international" within the context of article 181(5) where the nature of the business which is the subject-matter of the transaction is international in the sense of having a significant foreign element or the parties to the transaction (other than the Government) have a foreign nationality or reside in different countries, or in the case of companies, the place of their central management and control is outside Ghana."183 (emphasis provided by the Claimant)

9.4.4 The Claimant contends that the current transaction is not an "international business transaction" for two reasons. First, the current transaction can be distinguished from that at issue in Balkan Energy. Second, the Respondent's arguments cannot support a finding that the Agreement constitutes an international business or economic transaction under Article 181(5) of the Ghanaian Constitution.

9.4.5 The Claimant first submits that the facts of this case can be distinguished from Balkan Energy.

9.4.6 First, the Agreement was negotiated by Mr Appenteng, a Ghanaian national and resident. All of Bankswitch's correspondence with the Government – written, oral, or otherwise – was conducted through Mr Appenteng who also signed the Agreement on behalf of Bankswitch. The MOU was signed by Mr James Osei-Poku on behalf of Bankswitch and GETGroup. Mr Osei-Poku was also a Ghanaian citizen at the relevant time.184

9.4.7 Second, Bankswitch is not a wholly owned foreign entity. At the relevant time, 40% of the shares in Bankswitch were indirectly held by Ghanaian nationals residing in Ghana.185

9.4.8 Third, Bankswitch's management was Ghanaian. Mr Appenteng, who has been the Managing Director of Bankswitch since 2006, is a Ghanaian national and resident. Additionally, five out of six members of the management team responsible for the day-to-day operations of Bankswitch are Ghanaian.186

9.4.9 Fourth, as opposed to Balkan Energy, the Agreement does not contain a clause obliging the Parties to finally resolve their dispute by means of international commercial arbitration. Clause 19 of the Agreement (Settlement of Disputes) provides for conciliation in the first instance, and if the dispute cannot be resolved, then arbitration under the UNCITRAL Rules:

"The parties shall endeavour to settle any and all disputes, differences, or disagreements under this contract through conciliation in the first instance. In the event that the parties cannot settle such disputes or differences, the aggrieved party may refer that matter for arbitration under the UNCITRAL rules."

9.4.10 The clause thus does not necessarily refer to international commercial arbitration, as it does not stipulate whether arbitration is to take place inside or outside of Ghana.

9.4.11 Fifth, the Agreement does not contain a clause stipulating the Government's waiver of sovereign immunity while the agreement in Balkan Energy included a waiver of sovereignty immunity as follows:

"24. To the extent that [Government of Ghana] may in any jurisdiction claim for itself or its assets or revenues immunity from suit, execution, attachment (whether in aid of execution, before judgment or otherwise) or other process and to the extent that any such jurisdiction there may be attributed to the [Government of Ghana] or its assets or revenue such immunity [the Government of Ghana] agrees not to claim and irrevocably waives such immunity to the full extent permitted by the laws of such jurisdiction."

9.4.12 Sixth, the Agreement does not contain a clause stipulating that no taxes or foreign exchange controls would impede the execution of the Agreement. In Balkan Energy, in contrast, the tax and foreign controls clause stated:

"29.2 [The Government of Ghana] represents and warrants that:

(g) No Taxes. There is no Tax other than stamp duty at a nominal rate imposed on or in connection with:

(A) the execution, delivery or performance of this Agreement;

(B) the enforcement of any of this Agreement; or

(C) on any payment to be made to the [Balkan Energy] under this Agreement. In connection with Letters of Credit, no Government Authority shall impose any reserve, special deposit, deposit insurance or assessment affecting [Balkan Energy].

No Foreign Exchange Controls : There are no foreign exchange or other restrictions in effect in the Republic of Ghana adversely affecting the ability or right of [the Government of Ghana] to acquire and to remit to [Balkan Energy] foreign currency to pay and satisfy [the Government of Ghana]'s obligations under this agreement."187

9.4.13 As the factual matrix of this dispute can be sufficiently distinguished from that of Balkan Energy, the Claimant contends that the Agreement does not constitute an "international business or economic transaction" within the meaning of Article 181(5) of the Ghanaian Constitution.

9.4.14 The Claimant further asserts that the Respondent's arguments that the Agreement constitutes an international business or economic transaction are flawed.

9.4.15 While the Respondent notes that the Claimant's shareholders are domiciled in Switzerland, Bankswitch was incorporated in Ghana and registered in the Ghanaian Registry of Companies,188 with 40% of Bankswitch's shares being held by residents of Ghana with Ghanaian nationality.189

9.4.16 While the Respondent notes that the GETGroup operates from premises in Dubai, the Claimant asserts that it explicitly chose its domicile to be at Bankswitch's offices in order to have a presence in Ghana.190

9.4.17 While the Respondent notes that fundamental obligations of Bankswitch and the GETGroup were subcontracted to GET Holdings, the Claimant argues that the Supreme Court in Balkan Energy made no reference whatsoever to the possible role of the contractual involvement of a third party in the determination of whether an agreement is considered an "international business or economic transaction" within the meaning of Article 181(5).

9.4.18 The Claimant further submits that the Government had "insisted on the cosigning of the Agreement by the GETGroup, as they wanted to ensure that the entity who owned the software had its name on the contract so that they could be held accountable in case of any failures".191

9.4.19 GET Holdings, though based in Cyprus, performed its services predominantly in Ghana. It conducted "review and analysis of business processes, involving lengthy interviews with various user groups to determine their specific roles in the current customs system".192

9.4.20 While the Respondent notes that GET Holdings and the Dubai-based GETGroup FZE were entitled to 16% of the total fees received by Bankswitch, the Claimant reiterates that the contractual involvement of third parties should not be considered in the determination of whether an agreement is an "international business or economic transaction" as this factor was not referred to in Balkan Energy. Nonetheless, this 16% payment represents payment for the contractually agreed services. It is difficult to reconcile a 16% payment with the requirement that a foreign element be "significant" under Balkan Energy.193

9.4.21 While the Respondent notes that Bankswitch engaged UK-based Intertek International Ltd, the Claimant reiterates that the Balkan Energy decision did not hold that the participation of a foreign third party would result in the transaction becoming an "international business or economic transaction" under Article 181(5) of the Ghanaian Constitution. The Claimant further notes that Intertek was engaged to provide price verification services for the benefit of the GCS.194 Neither MOFEP nor any other body of the Government protested against this engagement.195

9.4.22 The price verification service handled by Intertek International was not part of Bankswitch's contractual obligations under the Agreement at the time of signing. It was not foreseeable at the time of signing the Agreement that Bankswitch would agree to provide price verification services, let alone engage Intertek International. Accordingly, the engagement of Intertek International cannot affect the determination of whether the Agreement falls under the purview of Article 181(5). Also, Intertek International's price verification role falls short of the "significant" foreign element requirement stipulated in Balkan Energy.

9.4.23 While the Respondent notes that Bankswitch engaged Panama-based Faberkner Corp, the Claimant reiterates that the Balkan Energy decision did not hold that the participation of a foreign third party would result in the transaction becoming an "international business or economic transaction" under Article 181(5) of the Constitution. The Claimant nevertheless submits that Faberkner provided services related to Bankswitch's day-to-day operations and not specifically to its obligations under the Agreement. Therefore, the agreement with Faberkner is irrelevant to the validity of the Agreement. The involvement of Faberkner also in no way meets the requirement set out by the Supreme Court in Balkan Energy that the foreign element must be "significant".

9.4.24 Because the Respondent's argument cannot lead to the conclusion that the Agreement constitutes an international business or economic transaction, the Agreement is thus valid and legally binding.

9.5.
Fourth, assuming arguendo that the Tribunal finds that the Agreement is an "international business or economic transaction" under the Ghanaian Constitution, and thus invalid and of no effect, the Claimant submits that the Respondent is estopped from relying on Article 181(5) of the Constitution to establish the invalidity of the Agreement. The following subparagraphs summarise the Claimant's argument on this subject:

9.5.1 The doctrine of estoppel precludes a party from asserting or proving facts that are contrary to its own representations and that have induced the other party to act to its detriment. Arguing that it can prove the conditions of representation, reliance, inequitablility, and detriment, the Claimant asserts that the Respondent is estopped from relying on Article 181(5) of the Constitution to argue that the Agreement is void and of no effect. The Respondent represented to the Claimant that the Agreement was valid and legally binding through the following:

9.5.2 Throughout the six years of the contractual relationship between the Parties, at no time did the Respondent indicate that the Agreement was invalid or not legally binding on the Government.196

9.5.3 The Respondent, acting through MOFEP and RAGB, signed the First MOU on 21 December 2006.197 Following the successful deployment test of the GCS, the Respondent signed the Agreement on 12 December 2007,198 and special commissions were created and special commissioners appointed in relation to the GCS.199 Numerous meetings were convened by the Government and attended by all Parties to evaluate the progress of the development of the GCS software.200

9.5.4 Additionally, monthly down payments were made by the Respondent to the Claimant in the amount of GH¢ 600,000 each, pursuant to a series of release letters.201 The Respondent further approved, but has not to date paid, the release of GH¢ 3,000,000.00 to the Claimant.202

9.5.5 The Respondent also issued multiple public notices,203 informing the public and stakeholders about the GCS and inviting all stakeholders to use and test the system.204 Public announcements that the GCS would "go live" on 27 and 29 April 2010 were also made in two national newspapers.205

9.5.6 Further, the Respondent explicitly confirmed that the Agreement was valid and legally binding in an exchange of letters with MOFEP. In the letter dated 28 September 2011, Ghana's Attorney-General and Minister of Justice wrote that "[h]aving carefully examined the above mentioned Agreement, I am of the opinion that there is a valid legally binding contract between the parties."206

9.5.7 The Claimant argues that the facts also meet the element of reliance.

9.5.8 First, the Claimant relied on representations of the Respondent that (i) the Agreement was legally binding and (ii) the Claimant had carried out its obligations under the MOU and the Agreement.

9.5.9 Second, the Claimant bought, developed and installed hardware and software,207 developing electronic solutions and a portal platform for the Respondent.208 The Claimant further provided training and know-how to the Respondent's staff.209 In completing the Pilot Phase,210 the Claimant made every possible effort to finally implement the GCS.

9.5.10 Third, beyond its contractual obligations, the Claimant also made additional investments and exerted every effort necessary to have the GCS ready for implementation.211

9.5.11 Fourth, the Claimant's reliance was legitimate and based on representations made by the Respondent, including those made by the Government, its ministries, its Attorney-General, and other special commissioners and committee members appointed by the Government.212 Not once did the Respondent, or any of its representatives, question the Agreement's validity until the commencement of this arbitration.213

9.5.12 Based on the above, it would be inequitable for the Respondent to assert the invalidity of the Agreement, given that the Claimant had entered into the Agreement in reliance on the representations of the Respondent and its representatives. The Claimant has performed acts that cannot be undone, and cannot be restored to the position it would have been in had it not relied on the validity of the Agreement.214

9.5.13 The Claimant also submits that the element of detriment is not necessary to prove estoppel in this case because this requirement has only been imposed for the specific case of estoppel by representation, where the promisee has done something he was previously not bound to do.215 In other kinds of estoppel, evidence of reliance suffices.216

9.5.14 Should the Tribunal hold, however, that the element of detriment is required, there can be no doubt that the behaviour of the Respondent was (and still is) detrimental towards Bankswitch considering the damage that has been suffered.217

9.5.15 Accordingly, the Claimant submits that, since the elements of estoppel have been met in this case, the Government is estopped from arguing, based on Article 181(5) of the Ghanaian Constitution, that the Agreement is void and of no effect.

9.6.
Fifth, the Claimant submits that the Respondent has breached its obligations under Clauses 5, 7, and 9 of the Agreement, thus entitling the Claimant to seek the remedies requested above. The following sub-paragraphs summarise the Claimant's arguments on this subject:

9.6.1 A breach of contract occurs when a party fails or refuses to perform its obligations under the contract,218 and liability for such non-performance of contractual duties is strict and independent of fault unless the provisions of the specific contract provide otherwise.219

9.6.2 The Claimant submits that the Respondent has breached its obligations under (i) Clause 5 (Obligations of the Client) (discussed in Paragraph 9.9 below); (ii) Clause 7 (Fees and Terms of Payment) (discussed in Paragraph 9.8 below); and (iii) Clause 9 (Pilot Phase) (as discussed below in Paragraph 9.7 below).

9.7.
Sixth, the Claimant submits that the Respondent's refusal to issue the Certificate of Satisfaction provided for in Clause 9 of the Agreement constitutes a breach of the Respondent's obligations under the Agreement. The following sub-paragraphs summarise the Claimant's arguments on this subject:

9.7.1 Under Clause 9 of the Agreement (quoted in Paragraph 6.6 above), the Claimant satisfied its obligations by submitting (i) an Inception Report explaining the status of the GCS220 and (ii) a project brief outlining the Project to date.221

9.7.2 Clause 9(iii) of the Agreement stated that "[t]he basis for issuance of the Certificate of Satisfaction shall be the demonstrated potential of the deployed systems to increase the revenues exponentially by a factor satisfactory to the Client."

9.7.3 The Government, through various officials from MOFEP, RAGB and CEPS, made statements at two separate meetings that it was satisfied with the demonstrated performance of the GCS.222 The condition for the issuance of the Certificate of Satisfaction as set out in Clause 9(iii) had therefore been met. At the PIT Committee Meeting on 18 March 2008, several statements were made which indicated the Respondent's satisfaction with the "demonstrated potential" of the GCS (discussed at Paragraph 6.40 above).223

9.7.4 Additionally, the SIT (discussed in detail at Paragraph 6.62 above) was successful, and demonstrated the revenue potential of the GCS. The Preliminary Report on SIT, submitted in conjunction with CEPS,224 demonstrated the GCS's potential to increase revenue, including, inter alia, (i) a statement that the GCS has a 100% submission rate;225 (ii) a recommended public notice for all clearing agents to submit trade documents to GCS;226 (iii) a recommendation that carriers use the GCS to provide missing information from their bills of lading;227 (iv) a recommendation for the issuance of a public notice for all clearing agents indicating the optimal connectivity options for better overall benefits of using the GCS;228 (v) an explanation of only minor improvements in the process needed to make the GCS fully ready for implementation;229 and (vi) a conclusion that the SIT was "successful in all respects."230

9.7.5 On 5 March 2009, Bankswitch sent a letter to MOFEP, further explaining the successes of the GCS as evidenced by the October-November 2008 SIT.231 In the letter, Bankswitch explained that there was a significant capability of the GCS to capture potential losses in revenue that were not being captured under the current customs system, "namely the significant under-declarations of FOB [Freight on Board] values by importers."232 Specifically, the results of the SIT showed that 41.3% of consignments submitted were under-declared and of those underdeclarations, 15.9% were under-declared by more than 100% as compared to the figures obtained through the GCS.233 Thus, by implementing the GCS, CEPS could effect significant increases in revenue by preventing such rampant underdeclaration.

9.7.6 Further, on 27 and 29 April 2010, the Government issued two public notices in the Ghanaian Times and Daily Graphic respectively, stipulating that submission of trade documents through the GCS would begin on 1 May 2010.234 These notices clearly indicated the Government's willingness to "go live" with the GCS, and therefore evidenced their satisfaction with the GCS's revenue potential under Clause 9(iii) of the Agreement.

9.7.7 The Claimant requested that the Respondent consider issuing the Certificate of Satisfaction on several occasions, beginning with a letter dated 19 February 2008.235 Since that date, the Government has failed to issue the Certificate of Satisfaction, and further, has never informed Bankswitch of any reason for its failure to do so.

9.7.8 Based on the foregoing, the Claimant submits that the Respondent is in breach of its contractual obligations under Clause 9 of the Agreement.

9.8.
Seventh, the Claimant submits that the Respondent unjustly failed to implement the GCS and prevented the Claimant from recouping its investments as it was entitled to do under Clause 7 of the Agreement. Accordingly, the Respondent breached its obligations under the Agreement. The following sub-paragraphs summarise the Claimant's argument on this subject:

9.8.1 Under Clause 7 of the Agreement, the Claimant was to "prefinance the procurement of all required hardware and related equipment" and then recoup such investments after the implementation of the GCS through the Service Fee provided for in Clause 7(iii) of the Agreement. The Service Fee represents the Respondent's consideration for the Claimant's services.

9.8.2 Owing to the structure of the Agreement, the Claimant's compensation was based solely on a percentage (2/3 of 0.7%) of the final invoice of the FOB value of all import transactions passing through the GCS. Therefore, without a set price for the Claimant's services, the Claimant would only be compensated once import transactions began passing through the GCS, which in turn would happen only after the commencement of the Implementation Phase was triggered by the issuance of the Certificate of Satisfaction under Clause 9 of the Agreement.

9.8.3 Despite the successful completion of the Pilot Phase, the Respondent failed to issue the Certificate of Satisfaction (discussed in Paragraph 9.7 above), the prerequisite to triggering the start of the Implementation Phase and the corresponding calculation of the Service Fee.

9.8.4 By failing to comply with the Agreement, as stated above, the Respondent is in breach of its obligations and has consequently prevented and is preventing the Claimant from recouping its investments.

9.9.
Eighth, the Claimant submits that the Respondent breached its obligations under Clause 5(d) of the Agreement by failing to implement the GCS and to ensure that all shipments were recorded in the database, thereby ensuring the optimisation of revenues. The following subparagraphs summarise the Claimant's arguments on this subject:

9.9.1 Clause 5(d) of the Agreement obliged the Respondent to "issue the necessary administrative and policy instructions to shippers and industry operators to ensure that all shipments are captured within the database to ensure optimization of revenues."

9.9.2 Although the Respondent did issue public notices informing the stakeholders about the GCS and instructing them to submit trade documents through the system,236 those obligations were never enforced and the stakeholders continued to proceed under the previous customs regime.237 No shipments have been captured under the GCS.238

9.9.3 By failing to enforce the public notices, the Respondent failed to abide by its obligations under Clause 5(d) of the Agreement.

2. THE RESPONDENT'S CASE

9.10.
In the (i) Statement of Defence and (ii) Counter Memorial, the Respondent contends that the Claimant should not be entitled to the relief sought (discussed in Section 7 above) for five principal reasons.
9.11.
First, the Respondent submits that, under Article 181 of the Ghanaian Constitution, the Agreement never came into operation, and is thus void and of no effect. The following subparagraphs summarise the Respondent's arguments on this subject:

9.11.1 Article 181 of the Ghanaian Constitution provides:

"1. Parliament may, by a resolution supported by the votes of a majority of all members of Parliament, authorise the Government to enter into an agreement for the granting of a loan out of any public fund or public account.

2. An agreement entered into under clause (1) of this article shall be laid before Parliament and shall not come into operation unless it is approved by a resolution of Parliament.

3. No loan shall be raised by the Government on behalf of itself or any other public institution or authority otherwise than by or under the authority of an Act of Parliament.

4. An Act of Parliament enacted in accordance with clause (3) of this article shall provide:

(a) that the terms and conditions of a loan shall be laid before Parliament and shall not come into operation unless they have been approved by a resolution of Parliament; and

(b) that any moneys received in respect of that loan shall be paid into the Consolidated Fund and form part of that Fund or into some other public fund of Ghana either existing or created for the purposes of the loan.

5. This Article shall, with the necessary modifications by Parliament, apply to an international business or economic transaction to which the Government is a party as it applies to a loan."

9.11.2 The Ghanaian Supreme Court in Balkan Energy enumerated criteria for determining what transactions come under Article 181(5) as being "international business or economic transactions".

9.11.3 "International" : The Balkan Energy court held that Article 181(5) of the Ghanaian Constitution should be construed purposively, to mandate the consideration of more than the mere nationality of the parties to an agreement and the assessment of the nature of the transaction and the parties involved:

"The phrase 'international business or economic transaction to which the Government is a party', if purposively construed, should not lead necessarily to the result that only agreements between entities resident abroad and the Ghana Government can be embraced within the meaning of the term. Given the complexity of contemporary international business transactions, there will be transactions of such a clear international nature that they come within any reasonable definition of an international business transaction, but which may have been concluded with [the] Ghana Government by an entity resident in Ghana."239

9.11.4 The Respondent focuses on the following factors in establishing that the Agreement is "international" under the meaning of Article 181(5) of the Ghanaian Constitution:

(i) Bankswitch's shareholders are domiciled in Switzerland.240

(ii) GETGroup operates from premises in Dubai (evidenced by the fact that significant elements of the GCS are hosted at its premises in Dubai and requests for technical assistance in relation to the GCS were directed to Dubai).241

(iii) Under the Technical Consultant Agreement, certain fundamental obligations of Bankswitch and GETGroup were subcontracted to GET Holdings, a company incorporated under the laws of Cyprus with its registered address in Nicosia, Cyprus. GET Holdings was responsible for (i) business process review and analysis; (ii) system design configuration and recommendations; and (iii) strategic planning advisory services.242

(iv) The Claimant's claims in this Arbitration include a claim for the fees payable to GET Holdings under the Technical Consultant Agreement (16% of the total fees received by Bankswitch from MOFEP/RAGB).243

(v) Invoices submitted to MOFEP for payment of fees allegedly owed under the Agreement have been submitted on behalf of both Bankswitch and GETGroup FZE, a Dubai company (according to its website).244

(vi) Bankswitch engaged Intertek International, a company incorporated under the laws of England and Wales, with a registered office in London, to provide price verification services. The Claimant's claims include amounts for the fees paid to Intertek International.245

(vii) Bankswitch engaged Faberkener Corp, a company incorporated under the laws of Panama, for the provision of management services to Bankswitch. Bankswitch's claims include a claim for the fees payable to Faberkener Corp.246

(viii) The Agreement contains an international arbitration agreement.247

9.11.5 "Business Transaction" : In Balkan Energy, the Supreme Court held that a transaction will be deemed a "business transaction" where (i) it is commercial in nature or (ii) impacts on the wealth and resources of Ghana.248 The transaction contemplated by the Agreement envisaged the development of a sophisticated IT system in consideration for significant fees, which form the basis of Bankswitch's claim for some GH¢ 853,779,000.249 The nature of the Agreement and the amounts claimed under it demonstrate that the transaction potentially impacts on the wealth and resources of Ghana.250

9.11.6 "Major" : In Balkan Energy, the Supreme Court clarified that Article 181(5) of the Ghanaian Constitution only applies to "major" transactions. Given the value of the fees claimed by Bankswitch, the Respondent believes that the Agreement clearly contemplates a "major" transaction. Based on the above, by classifying the Agreement as contemplating an "international business or economic transaction", and pursuant to Articles 181(1) and (2) of the Ghanaian Constitution, the Agreement could not come into operation unless and until it was approved by a resolution supported by the affirmative votes of a majority of all the Members of Parliament.251 As no such resolution was ever passed, it could not have come into operation, and is thus void and of no effect.252

9.12.
Second, the Respondent submits that its decision to withhold the Certificate of Satisfaction is a matter exclusively for the Government's subjective judgment, and thus was justified. The following sub-paragraphs summarise the Respondent's argument on this subject:

9.12.1 Clause 9 of the Agreement (reproduced at Paragraph 6.6 above) provides for the issuance of the Certificate of Satisfaction, with Clause 9(iii) conditioning its issuance on "the demonstrated potential of the deployed systems to increase revenues exponentially by a factor satisfactory to the [Government]." Based on the language of the Agreement, the decision of whether or not to issue a Certificate of Satisfaction is a matter exclusively for the Government's subjective judgment as there are no objective criteria specified in the Agreement according to which the Government's decision not to issue such certificate can be judged.253 Further, MOFEP and RAGB, as the Government parties, were designated in Clause 9(ii) as the parties with the power to make the decision of whether to issue the Certificate of Satisfaction.

9.12.2 Although the Claimant argues that statements made by certain members of CEPS evidence the satisfactory revenue potential of the GCS (see Paragraph 9.7 above), the views expressed by CEPS representatives are not relevant to a determination of whether the precondition in Clause 9(iii) of the Agreement was met, as the power to issue the Certificate of Satisfaction was granted exclusively to MOFEP and RAGB. Accordingly, the statements cited by the Claimant above are not relevant to a determination of the issuance of the Certificate of Satisfaction and should be disregarded.

9.13.
Third, the Respondent argues that the Claimant accepted the risk that, upon development of the GCS, the Certificate of Satisfaction would not be issued if the precondition was not met. The following sub-paragraphs summarise the Respondent's argument on this subject:

9.13.1 Pursuant to Clauses 7(i), 7(ii) and 9(i) of the Agreement, the Claimant agreed to develop the GCS using its "own resources" to "prefinance the procurement of all required hardware and related equipment" and to develop the GCS "at cost".254

9.13.2 The Claimant accepted the risk that it would ultimately bear the cost of any works it carried out in seeking to obtain the issuance of the Certificate of Satisfaction if it was unable to meet the preconditions in Clause 9(ii) of the Agreement. Moreover, the Respondent is not obliged to make any payment prior to the issuance of the Certificate of Satisfaction, whether as a contribution towards the Claimant's costs or otherwise.255

9.14.
Fourth, assuming arguendo that the Tribunal decides that there were objective criteria for the issuance of the Certificate of Satisfaction, the Respondent contends that the preconditions for issuance have not been met by the Claimant. Respondent's written submissions did not expound on this argument beyond this general assertion.
9.15.
Fifth, the Respondent argues that since all remaining obligations allegedly breached by the Respondent were predicated on the issuance of the Certificate of Satisfaction as a condition precedent, these obligations never became effective. The following sub-paragraphs summarise the Respondent's argument on this subject:

9.15.1 Owing to the fact that the remainder of the Respondent's obligations under the Agreement were conditioned on the issuance of the Certificate of Satisfaction, the Respondent cannot be held in breach of Clauses 5 or 7 (as discussed at Paragraphs 9.8 to 9.9 above).

9.15.2 Clause 7: Under Clause 7 of the Agreement, the Claimant was responsible for pre-financing the development of the GCS and, in consideration of its services, would receive "the equivalent of 2/3 of 0.7% of the final invoice FOB value of all import transactions which pass through the [GCS]." The Respondent's payment obligation under the terms of the Agreement is only applicable following the issuance of the Certificate of Satisfaction and the implementation of the GCS. As the Certificate of Satisfaction was not issued and the GCS not implemented, the Respondent has no obligation to make the payment under Clause 7(iii) or any other payment for that matter.256

9.15.3 Clause 5 : Under Clause 5(d) of the Agreement, the Respondent was responsible for ensuring that any shipments being imported into Ghana were recorded in the GCS "to ensure optimization of revenues". The Respondent was not obliged to ensure that any shipments were recorded in the GCS until the precondition in Clause 9(iii) was satisfied, the Certificate of Satisfaction was issued, and the GCS was implemented.257 Therefore, by failing to satisfy the precondition of Clause 9(iii), the subsequent obligations have not become binding on the Respondent, who cannot be held in breach of the relevant provisions of the Agreement.

9.16.
Sixth, and alternatively, the Respondent submits that the Claimant failed to exercise its right to terminate the Agreement under Clause 20 and in fact waived its right to so terminate by its continued performance of the Agreement. The following sub-paragraphs summarise the Respondent's argument on this subject:

9.16.1 If, assuming arguendo, the Respondent breached the Agreement on 1 May 2010 (or another date) as alleged by the Claimant, then the Claimant failed to exercise its right to terminate the Agreement under Clause 20 of the Agreement and thereby waived this right by its continued performance of the Agreement. Accordingly, the Tribunal cannot grant the remedy of retroactively terminating the Agreement.258

9.16.2 Equally, if the Tribunal finds that the Respondent repudiated the Agreement on 1 May 2010, then the Claimant did not accept the repudiation and instead elected to affirm the Agreement by its subsequent actions and current claim for specific performance.259

9.16.3 The Claimant's election to continue its performance of the Agreement was an affirmation of the Agreement and a question of fact; thus the Tribunal cannot retroactively alter this fact or retroactively terminate the Agreement.260

10. AVAILABILITY OF REQUESTED REMEDIES

1. CLAIM FOR SPECIFIC PERFORMANCE

10.1.
In its letter dated 15 January 2013, the Claimant amended its original claims for relief and withdrew its claim for specific performance. Accordingly, the Tribunal has not reached a determination on the availability of specific performance in this arbitration.

2. CLAIM FOR DAMAGES RELATED TO THE ALLEGED BREACH OF THE AGREEMENT

10.2.
The Claimant submits that it has a right to certain damages caused by the Respondent's alleged breach of the Agreement owing to the Respondent's failure to implement the GCS. The Tribunal notes that, in addition to the withdrawal of the Claimant's specific performance claim, certain categories of damages were also withdrawn by the Claimant (i.e. Delay Costs, Fixed Stand-by Costs, Further Stand-by Costs and Extra Costs). The Claimant's request for relief following its 15 January 2013 letter has been set out in Paragraph 7.2 above.

A. The Claimant's Quantification of Damages

10.3.
The Claimant contends that damages are based on the loss sustained by the Claimant and not on the benefit gained by the Respondent. Loss, as such, includes any harm to the person or property of the Claimant and any other injury to its economic position. In determining such loss, the overall position of the Claimant is taken into account, but may not be made better than it would have been had the Agreement not been broken.261 In the case of the termination of a contract, damages consist mainly of compensation for lost profits.262
10.4.
Since the basic principle is that the injured party should be put in the position it would have been in had the contract been performed, the aim of the sum awarded is to provide full compensation to the injured party. Damages cover the profit that the injured party would have earned had the contract been performed. As Koffman and Macdonald state:

"Contractual damages are usually awarded in relation to the injured party's expectation loss – the loss of what he would have received had the contract been performed.... This means that damages cover the profit which the injured party would have derived from the contractual performance."263

10.5.
Arbitral tribunals frequently award compensation for lost profits or the loss of a possible benefit.264 In Sapphire International, the tribunal noted that it is well recognised by international tribunals that a wrongful breach of contract entitles the injured party to the benefit it would have derived from the bargain, stating:

"According to the generally held view, the object of damages is to place the party to whom they are awarded in the same pecuniary position that they would have been in if the contract had been performed in the manner provided for by the parties at the time of its conclusion.... This rule is simply a direct deduction from the principle of pacta sunt servanda, since its only effect is to substitute a pecuniary obligation for the obligation which was promised but not performed. It is therefore natural that the creditor should thereby be given full compensation. This compensation includes loss suffered (damnum emergens), for example expenses incurred in performing the contract, and the profit lost (lucrum cessans), for example the net profit which the contract would have produced. The award of compensation for the lost profit or the loss of a possible benefit has been frequently allowed by international arbitral tribunals."265

10.6.
The Claimant contends that it is entitled to expectation damages, restitution damages, and interest for five principal reasons.
10.7.
First, the Claimant submits that it is entitled to compensation for the loss of the benefit of the bargain made in the Agreement. The following sub-paragraphs summarise the Claimant's argument on this subject:

10.7.1 Damages can be claimed as of right by a party adversely affected by a breach of contract;266 thus, every breach of contract gives rise to a claim for damages.267 A claim for damages in relation to a breach of contract is a claim for monetary compensation for the fact that a claimant has not received the performance for which it bargained.268

10.7.2 The damages to be compensated include the loss sustained as well as the profits lost as a result of the breaching party's actions, so that its expectations arising from or created by the contract are protected.269

10.7.3 Contractual damages seek to put the third party in the position in which it would have been had the contract been performed satisfactorily.270 In Robinson v Harman,271 the court stated:

"The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed."272

10.7.4 This principle has been confirmed by a recent Ghanaian Supreme Court decision in Juxon-Smith v KLM Dutch Airlines in which it states:

"Where a party has sustained a loss by reason of breach of contract, he was, so far as money could do it, to be placed in the same situation with respect to damages, as if the contract had been performed."273

10.8.
Second, the Claimant submits that the damages claimed are recoverable as they arose naturally from the Respondent's breach of the Agreement. The following sub-paragraphs summarise the Claimant's argument on this subject:

10.8.1 A foundational rule of damages is that a loss will not be recoverable if it is found to be too remote. In the oft cited English case of Hadley v Baxendale, the general rule of remoteness is characterised as follows:

"Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants."274

10.8.2 Thus, there are two classifications of recoverable damages – (i) those arising naturally from the breach and (ii) those reasonably contemplated by both parties when they made the contract as being a probable result of its breach.275 Under the second classification, it is necessary that the parties foresaw the type of damages, but whether they foresaw the extent of damages or the precise manner of its occurrence is irrelevant.276

10.8.3 Loss of Profits: The Claimant's loss of profits that are caused by the Respondent's breach is recoverable because it falls into the first classification of those damages arising naturally out of the contract. Clause 7(iii) of the Agreement clearly stipulates that the Claimant will receive a Service Fee in consideration of the services provided. However, owing to the Respondent's breach, the Claimant has not earned its Service Fee. Thus, the loss of profits is a normal consequence of the breach since Clause 7(iii) of the Agreement explicitly provides that payment relates to the implementation of the GCS.277

10.9.
Third, the Claimant submits that if, assuming arguendo, the Tribunal finds that the damages claimed did not arise naturally from the Respondent's breach of the Agreement, these damages were reasonably contemplated and foreseeable by both Parties at the time of contracting. The following sub-paragraphs summarise the Claimant's arguments on this subject:

10.9.1 If the Tribunal finds that the loss of profits and/or incidental costs did not arise naturally out of the breach, these losses should still be recoverable as they were reasonably contemplated by the Parties at the time of the breach pursuant to the terms of Clauses 5 and 7 of the Agreement.

10.9.2 Loss of Profits: At the time of signing the Agreement, the Respondent knew, or reasonably should have known, by virtue of the terms of Clause 7(iii), that the Claimant would not earn its Service Fee, and would subsequently suffer lost profits if the Respondent failed to implement the GCS in a timely fashion, as per Clause 5(d) of the Agreement.

10.9.3 Incidental Costs: At the time of signing the Agreement, the Respondent knew, or reasonably should have known, by reason of the terms of Clauses 7(i) and 7(ii) of the Agreement, that the Claimant would be responsible for keeping the GCS system and facilities ready for implementation if the Respondent failed to implement the GCS timeously, as per Clause 5(d) of the Agreement.

10.10.
Fourth, the Claimant submits that the Tribunal should determine damages based on a valuation date that coincides with the actual breach of the Agreement, namely 1 May 2010. The written submissions did not expound on this point beyond this general assertion.
10.11.
Fifth, the Claimant submits that it satisfied its duty to mitigate, and thus its damages should not be reduced by any amount. The written submissions did not expound on this point beyond this general assertion.
10.12.
The amended quantification of such monetary damages was re-calculated and confirmed by the Claimant's expert, KPMG, in Exhibit C-103, the Second KPMG Report.

B. The Respondent's Case

10.13.
In its (i) Statement of Defence and (ii) Counter Memorial, the Respondent contends that the Claimant is not entitled to any damages because the Respondent did not breach the Agreement and the Claimant agreed to pre-finance the development of the GCS. Its written submissions did not, however, expound on this point beyond this general assertion.

11. TRIBUNAL'S ANALYSIS AND DECISION

1. THE CLAIMANT'S COMPETENCE TO INITIATE PROCEEDINGS

11.1.
In its First Post-Hearing Submission, the Respondent raised for the first time the argument that Bankswitch was incompetent to initiate this arbitration on its own because GETGroup, a party to the Agreement, is not a Party to this Arbitration even though GETGroup is included as part of the "consortium of Consultants executing the Project" in Clause 1.1(c) of the Agreement.278 The Claimant notes that the facts and circumstances cited by the Respondent in its First Post-Hearing Submission regarding the Claimant's competence to initiate these proceedings were known to it well before even the Statement of Defence was filed, and to allow the raising of such arguments at such a late stage would cause grave prejudice to the Claimant.279 Further, the Claimant argues that because the Respondent failed to raise the jurisdictional issue of competence within the time prescribed by the UNCITRAL Rules, the Respondent had effectively waived its right to raise the argument because of the potential for it to prejudice the Claimant.280
11.2.
The Tribunal agrees with the Claimant that the Respondent's argument regarding the competence of the Claimant to initiate these proceedings goes to the jurisdiction of the Tribunal to hear this arbitration. This argument is therefore a procedural one, and Article 21(3) of the UNCITRAL Rules 1976 applies. Article 21(3) states:

"A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than in the statement of defence or, with respect to a counter-claim, in the reply to the counter-claim."

11.3.
In CME v Czech Republic, the tribunal found that the party raising a defence of jurisdiction had waived its right to do so because the jurisdictional objection was not raised in time.

"[A] defence of jurisdiction is deemed to be waived if not raised in time. This concept derives from the assumption that defences on jurisdiction can be waived by the Parties, with the consequence that a Tribunal is not able to set aside or disregard a Party's waiver in respect to the defence of lack of jurisdiction."281

11.4.
The Respondent's jurisdictional objection was raised ten months after the date of its Statement of Defence, which is 20 April 2012, and no compelling justification for such a lengthy delay has been provided. The fact of GETGroup's inclusion in the "consortium of Consultants" has been known to the Respondent since the Agreement was entered into on 12 December 2007. Accordingly, the Tribunal finds that the Respondent's jurisdictional objection is out of time, and deems this objection to have been waived.

2. WITNESS STATEMENT OF MR LARBI

11.5.
At the Evidentiary Hearing, the Claimant applied for the Tribunal to disregard the entirety of Mr Larbi's Witness Statement under Article 4(7) of the IBA Rules as the Respondent had failed to make Mr Larbi available for examination at the Evidentiary Hearing.282 Article 4(7) of the IBA Rules states:

"If a witness whose appearance has been requested pursuant to Article 8.1 fails without a valid reason to appear for testimony at an Evidentiary Hearing, the Arbitral Tribunal shall disregard any Witness Statement related to that Evidentiary Hearing by that witness unless, in exceptional circumstances, the Arbitral Tribunal decides otherwise."

11.6.
As discussed at Paragraph 4.56 above, the Claimant stated in Paragraph 3.1 of its Answer to the Pre-Hearing Questionnaire for the Pre-Hearing Telephone Conference that it wished to cross-examine Mr Larbi. The Respondent did not respond to the Claimant's request, and did not provide any reason or exceptional circumstances for its failure to make Mr Larbi available at the Evidentiary Hearing.
11.7.
The Tribunal notes that under Article 9(1) of the IBA Rules, it has the power to "determine the adminissibility, relevance, materiality and weight of evidence". Combined with Article 4(7) of the IBA Rules, this gives the Tribunal the authority to consider how to handle the admissibility of Mr Larbi's Witness Statement. The portions of Mr Larbi's Witness Statement that corroborate the Claimant's evidence and support the Claimant's positions do not unjustly prejudice the Claimant. Accordingly, the Tribunal grants the Claimant's application that the Tribunal disregard Mr Larbi's Witness Statement only to the extent that it conflicts with the Claimant's evidence.

3. ISSUANCE OF THE AWARD ON AGREED TERMS WITHOUT THE RESPONDENT'S SIGNATURE

11.8.
The facts set out in the preceding Paragraphs 4.67 to 4.77 are repeated.
11.9.
In its letter of 15 January 2013, the Claimant requested that the Tribunal sign and issue the Award on Agreed Terms without the signature of the Respondent.283 The Claimant argued that the statements made by the Respondent throughout the correspondence evince the Respondent's acceptance of the text of the Award on Agreed Terms without any reservation; the Claimant also points out that the Claimant accepted the proposal of the Respondent for the final issue of the amount of damages,284 thereby concluding the Parties' agreement on the text of the Award on Agreed Terms.285
11.10.
According to the Claimant, the formulation of the Award on Agreed Terms developed as follows:

11.10.1 On 4 January 2013, the Claimant provided the Respondent (through the Chief Director of MOFEP, Commissioner-General of GRA and Director Legal of MOFEP) with a copy of the draft Award on Agreed Terms. On 8 January 2013, Mr Appenteng discussed the draft at length in a meeting chaired by the SolicitorGeneral and attended by three attorneys from the Attorney-General's Office, the Director Legal of MOFEP, the Commissioner-General of GRA, a Customs officer, and Ms Nania Owusua-Ankomah of Bentsi-Enchill, Letsa & Ankomah, the Claimant's Ghanaian Counsel.286

11.10.2 On 10 January 2013, Messrs Appenteng and Darko of Bankswitch met with the GhanaianVice-President to discuss the draft of the Award on Agreed Terms, and the Claimant sent follow-up correspondence on the morning of 11 January 2013 that included the revised text of the draft based on the conversation.287 The email notes that "the changes were agreed with a senior government official at the meeting last evening, except for the increase of the repayment term and the increase in instalments in clause 4.3".288

11.10.3 In the afternoon of 11 January 2013, Professor Koppenol-Laforce spoke to Ms Gaise, the Solicitor-General, and an agreement was reached on the (i) the terms of the Award on Agreed Terms and (ii) the percentage of the Service Fee. The only outstanding issue was the amount of damages in case of the Respondent's non-performance, on which Ms Gaise was to send a proposal once she had completed internal discussions.289 The Respondent informed the Claimant that, owing to its inability to speak to officials from MOFEP, the Claimant should "use the percentage that would give a figure of 500-600 [million Cedis,] whichever is preferable to your client".290 The only request from the Respondent relating to damages was that the Claimant state the amount in the Award on Agreed Terms using words and not numbers.291

11.10.4 After discussing the matter with the Claimant, Professor Koppenol-Laforce responded on 12 January 2013 with a revised draft of the Award on Agreed Terms that provided GH¢ 599,000,000 (written in words only) plus applicable taxes as the "Compensation Amount" in Clause 5.1.292 Additionally, the Claimant requested that the Respondent initial the Award on Agreed Terms that day which would then be sent to the Tribunal for its consideration.

11.10.5 On 12 January 2013, the Respondent asked for two further changes, namely (i) a more open clause for the Respondent's bank account information and (ii) the insertion of the names of the persons who would sign the Award on Agreed Terms (i.e., Solicitor-General, Chief Director of MOFEP and the CommissionerGeneral of GRA).293 These changes were incorporated into the Award on Agreed Terms and the document was again circulated to the Respondent.294 The Claimant again requested the Respondent to sign the Award on Agreed Terms as soon as possible so that it could be sent to the Tribunal for comment and signature.295

11.10.6 Mr Appenteng spoke to Ms Gaise on the telephone after the revised draft had been sent out on 12 January 2013, and Ms Gaise indicated that the Award on Agreed Terms would be signed on Monday, 14 January 2013. No reservations were made by Ms Gaise as the language of the Award had been completely agreed and as the Claimant had sent the Award on Agreed Terms to the Tribunal for its review and comments.

11.10.7 During various telephone conversations, the Claimant was notified that Ms Gaise, the Solicitor-General, had signed the Award on Agreed Terms, but was awaiting the remaining two required signatures (i.e., the Chief Director of MOFEP and the Commissioner-General of GRA).296 Additionally, via telephone call on the evening of 14 January 2013, Mr Appenteng was informed by the Director Legal of MOFEP that the Award on Agreed Terms had been signed by all three required signatories and that the Ghanaian Vice-President had also approved it.297 However, despite various representations and promises made by the Respondent, a signed copy of the Award on Agreed Terms was never produced.

11.10.8 On 14 January 2013, the first day of the Evidentiary Hearing, the Tribunal requested that certain changes be made to the language (but not the terms) of the Award on Agreed Terms, which was then circulated to the Parties in a redlined version.298 The Claimant agreed to these changes but, to the Tribunal's knowledge, the Respondent has never provided its acceptance of the changes requested.

11.11.
The Claimant submits that, based on the facts set out at Paragraph 11.10 above, there can be no doubt that the Respondent had, in fact, agreed to the text of the Award on Agreed Terms. It also contends that Article 34 of the UNCITRAL Rules 1976 does not require the signature of the Parties.
11.12.
Based on the foregoing, the Claimant requests that the Tribunal issue the Award on Agreed Terms if the Tribunal (i) finds that the Respondent had, in fact, agreed to the text of the Award on Agreed Terms and (ii) believes that the edits made by the Tribunal do not alter in any material way the contents of the agreed terms.
11.13.
Since the Claimant has not submitted any legal authorities beyond its statement that Article 34 of the UNCITRAL Rules 1976 does not require the signature of the Parties, the Tribunal has considered the Claimant's arguments, the factual matrix of this case, and generally accepted principles of international contract law to reach its decision. Article 34 of the UNCITRAL Rules 1976 states:

"1. If, before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by both parties and accepted by the tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award.

2. If, before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reason not mentioned in paragraph 1, the arbitral tribunal shall inform the parties of its intention to issue an order for the termination of the proceedings. The arbitral tribunal shall have the power to issue such an order unless a party raises justifiable grounds for objection.

3. Copies of the order for termination of the arbitral proceedings or of the arbitral award on agreed terms, signed by the arbitrators, shall be communicated by the arbitral tribunal to the parties. Where an arbitral award on agreed terms is made, the provisions of article 32, paragraphs 2 and 4 to 7, shall apply."

11.14.
Additionally, Articles 32(2) and 32(4) to 32(7) state:

"2. The award shall be made in writing and shall be final and binding on the parties. The parties undertake to carry out the award without delay.

[....]

4. An award shall be signed by the arbitrators and it shall contain the date on which and the place where the award was made. Where there are three arbitrators and one of them fails to sign, the award shall state the reason for the absence of the signature.

5. The award may be made public only with the consent of both parties.

6. Copies of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal.

7. If the arbitration law of the country where the award is made requires that the award be filed or registered by the arbitral tribunal, the tribunal shall comply with this requirement within the period of time required by law."

11.15.
The Tribunal notes that none of the changes requested by the Tribunal altered a material provision of the agreed terms, as they instead dealt with the language of the Award on Agreed Terms. Accordingly, those suggestions would not preclude the Tribunal from finding that there was agreement of the Parties on its terms.
11.16.
The Tribunal accepts the proposition that Article 34 of the UNCITRAL Rules 1976 does not contain a requirement for the signature of the Parties. The Tribunal notes, however, that this general requirement does not take into account the specific agreement between the Parties for the signatures of certain individuals (in their official capacity) to be included in the Award on Agreed Terms. Typically, an award on agreed terms under Article 34 is issued after the parties to an arbitration have concluded a separate settlement agreement. The award on agreed terms will then operate to record (whether expressly or by reference) the terms of the settlement agreement in an enforceable award. The Tribunal must therefore consider whether the factual matrix surrounding the negotiation of the Award on Agreed Terms resulted in a final and enforceable agreement to settle the arbitration conclusively pursuant to its terms.
11.17.
In this Arbitration, the Parties drafted the Award on Agreed Terms, specifically providing for the Parties' representatives' signatures.299 In its email of 12 January 2013, the Respondent expressly required the signatures of three Government officials – namely (i) the SolicitorGeneral; (ii) the Chief Director of MOFEP; and (iii) the Commissioner-General of GRA – as follows:

"With regard to who will sign the agreed terms of settlement on behalf of govt [sic] of Ghana the vice president indicated that it would be the Solicitor-General, the Chief Director of the Ministry of Finance and Economic Planning and the Commissioner-General of the Ghana Revenue Authority." (emphasis in original)300

11.18.
While the Claimant argued that "Ghana, together with Bankswitch, wants this award on agreed terms",301 the Tribunal questioned whether an agreement to terms without formal signature was sufficient to bind the Parties:

"MR BORN: Professor Koppenol, isn't it basic contract law that there's a difference between agreement to terms and consent to be legally bound by those terms, and isn't it quite clear that we don't have Ghana's consent to be legally bound by those terms?

PROFESSOR KOPPENOL-LAFORCE: The position of Bankswitch is that, given the emails they have been sending and the questions they have been asking and how they stated in their last email, you could say that they have – that there is consent. Of course, that's the statement of Bankswitch.

MR BORN: No, I understand that's your position. But trying to look at this objectively, isn't it very difficult to say that Ghana has consented to be bound by the terms of the award? Isn't this all if you will, in English terms, subject to contract, which is actual sign-off on the formal document, which has not happened?

PROFESSOR KOPPENOL-LAFORCE: I can't deny that the formal sign-off of the document has not happened, in a way that they really signed something and you saw the signatures. But if you see the email of yesterday evening, they say that at that point in time they would be in a position to communicate favourably with the Tribunal. So in fact, they already provide the answer, and the answer would be yes. They it's a mere formality that they didn't sign."302

11.19.
Chitty on Contracts discusses the situation where parties to contractual negotiations require the formal execution of a contract before being legally bound by it:

"The effect of a stipulation that an agreement is to be embodied in a formal written document depends on its purpose. One possibility is that the agreement is regarded by the parties as incomplete, or as not intended to be legally binding, until the terms of the formal document are agreed and the document is duly executed in accordance with the terms of the preliminary agreement (e.g. by signature). This is generally the position where 'solicitors are involved on both sides, formal written agreements are to be produced and arrangements are made for their execution.' The normal inference will then be that 'the parties are not bound unless and until both of them sign the agreement.' [....] Conversely, an agreement which originally lacked contractual force for want of execution of the formal document may acquire such force by reason of supervening events. This could, for example, be the position where 'it can be objectively ascertained that the continuing intention [not to be bound until execution of the document] has changed or... subsequent events have recurred whereby the non-executing party is estopped by replying on his non-execution'; or where the party resisting the enforcement of the contract had 'waive[d]... [the] requirement' of 'a formal written contract.'"303

11.20.
On 12 January 2013, the Respondent informed the Claimant that the Solicitor-General had signed the Award on Agreed Terms, and that the remaining signatures would be collected on 14 January 2013.304 The Claimant indicated that it was informed around 1830 hours (Dutch time) on 14 January 2013 by the Legal Director of the Ministry of Finance that the Award on Agreed Terms had been signed by all the necessary officials. However, no signed document was submitted to the Claimant or Tribunal evidencing formal, operative acceptance of the agreed terms. Until that formal acceptance of agreed-upon terms occurred, the Respondent remained free to withdraw its agreement to the draft Award on Agreed Terms.
11.21.
Additionally, under Article 34 of the UNCITRAL Rules 1976, the Tribunal has the discretion on whether or not it will "accept" and "record the settlement in the form of an arbitral award on agreed terms". A tribunal is clearly not required to issue an award on agreed terms if any concerns about the agreement's conclusion are raised. In his commentary on the UNCITRAL Rules 2010 (Article 26 of the UNCITRAL Rules 2010 is materially the same as Article 34 of the UNCITRAL Rules 1976), Thomas Webster comments on the tribunal's discretion as follows:

"The Tribunal is not required to issue an Award even if the parties have settled the dispute and all parties request it. Usually, a Tribunal will comply with a request to issue an Award unless it has some concern about either the dispute or the settlement. [....] In some very exceptional cases, the Tribunal may not understand the basis for the settlement or may have some doubts as to the reality of the positions of the parties. In such very exceptional circumstances, the Tribunal may prefer to decline to issue an Award and prefer to issue an order for termination."305

11.22.
The Tribunal finds that the Respondent's request for the signatures of its three representatives on 12 January 2013306 and the Claimant's acceptance of the request and insertion of signature lines for (i) the Solicitor-General of Ghana; (ii) the Chief Director of MOFEP; and (iii) the Commissioner-General of RAGB into the draft Award on Agreed Terms307 was a recognition that the signatures of those officials of the Government of Ghana were required for the Award on Agreed Terms to settle the present arbitration and come into force. As the Claimant has conceded,308 no formal settlement agreement has been signed by the Respondent. Accordingly, the Tribunal rejects the Claimant's application to issue the Award on Agreed Terms without the required signatures of the Respondent's representatives, and shall proceed to deal with the remaining amended claims for relief (as set out in Section 7 above) and remaining issues (as set out in Section 7.3 above).

4. "NECESSARY MODIFICATIONS" TO ARTICLE 181(5) OF THE GHANAIAN CONSTITUTION

11.23.
At the Evidentiary Hearing, and in its letter of 21 January 2013, the Tribunal communicated its concerns about the terms of Article 181(5) of the Constitution of the Republic of Ghana. While Articles 181(1)-(4) deal with the requirement of parliamentary approval before granting "a loan out of any public fund or public account", Article 181(5) expands its application to any "international business or economic transaction to which the Government is a party". However, Article 181(5) refers to a "necessary modification" to be made by Parliament, a reference concerning which the Tribunal required assistance from the Parties to clarify its meaning. Article 181 provides:

"(1) Parliament may, by a resolution supported by the votes of a majority of all the members of Parliament, authorise the Government to enter into an agreement for the granting of a loan out of any public fund or public account.

(2) An agreement entered into under clause (1) of this article shall be laid before Parliament and shall not come into operation unless it is approved by a resolution of Parliament.

(3) No loan shall be raised by the Government on behalf of itself or any other public institution or authority otherwise than by or under the authority of an Act of Parliament.

(4) An Act of Parliament enacted in accordance with clause (3) of this article shall provide –

(a) that the terms and conditions of a loan shall be laid before Parliament and shall not come into operation unless they have been approved by a resolution of Parliament; and

(b) that any moneys received in respect of that loan shall be paid into the Consolidated Fund and form part of that Fund or into some other public fund of Ghana either existing or created for the purposes of the loan.

(5) This article shall, with the necessary modifications by Parliament, apply to an international business or economic transaction to which the Government is a party as it applies to a loan."309

11.24.
While the Claimant did not directly address whether Article 181(5) of the Ghanaian Constitution had come into effect in its First Post-Hearing Submission, the Respondent argues that "Article 181 (5) of the 1992 Constitution already extends the application of the provisions of Article 181 (1)–(4) to international business transactions to which [the] Government is a party" and the expression "with the necessary modifications by Parliament" merely "means that Parliament may by law, modify the application of Article 181 (1) – (4) to such international business transactions".310 Further, in the absence of such a law modifying the application of Article 181(5), the terms of Article 181(5) apply in their entirety to international business transactions to which the Government is a party.311
11.25.
Although the Respondent has not supported its position with any legal authorities, there are references to the phrase "with the necessary modifications by Parliament" in two Ghanaian Supreme Court cases, Attorney-General v Faroe Atlantic Co Ltd312 and Attorney-General v Balkan Energy Ghana Ltd.313
11.26.
In Faroe Atlantic, the proposition that Article 181(5) applies without further parliamentary action was addressed directly by two of the seven justices, Dr Date-Bah JSC and Ms Sophia Akuffo JSC, with Ms Georgina Wood JSC adding her acceptance of Dr Date-Bah's analysis generally.314 In Balkan Energy, however, there was a unanimous decision delivered by Dr Date-Bah JSC on the issue, as follows:

"The argument that, without the legislative modifications that the Constitution mandates under article 181(5), the provision is inoperative and cannot be enforced is erroneous and the defendants are precluded by stare decisis from re-opening that issue. We have already referred to the passage in Attorney-General v Faroe Atlantic Co. Ltd. [2005-6] SCGLR 271, where the Supreme Court held that even before Parliament acts on the modifications to article 181(5) it is enforceable. That position is supported, not only by authority, but also by principle. The framers could hardly have intended that Parliament should be able to stultify their purpose of achieving transparency in the Executive's international business deals through simple inaction. Such an interpretation of article 181(5) would be unreasonable and not in tune with the purpose of the provision."315

11.27.
In light of the foregoing decision, the Tribunal considers that Article 181(5) of the Ghanaian Constitution has come into force and must be considered by this Tribunal to determine whether the Agreement falls under the ambit of an "international business or economic transaction" requiring the approval of Parliament. This conclusion is without prejudice to the question of whether, in the instant case, Ghana is estopped from its reliance on Article 181(5) of the Ghanaian Constitution in defending its position. That question is considered below.

5. THE AGREEMENT AS AN "INTERNATIONAL BUSINESS OR ECONOMIC TRANSACTION"

11.28.
Article 181(5) of the Ghanaian Constitution requires that any "international business or economic transaction" must be submitted to Parliament for approval. Therefore, the Tribunal must consider whether the Agreement qualifies as an international business or economic transaction, as the term is interpreted by the Ghana Supreme Court in Balkan Energy.
11.29.
The Tribunal notes that the Claimant has not taken issue with the classification of the Agreement as a "business or economic transaction" within the meaning of Article 181(5), but rather, focuses its argument on the classification of the transaction as "international". Since the Tribunal is satisfied that the Agreement would clearly qualify as a business transaction under Article 181(5)'s meaning, it has limited its consideration of Article 181(5) to determining whether the Agreement is "international".
11.30.
In Balkan Energy, the Supreme Court provided a framework for such a determination under Article 181(5):

"We think that a business transaction is 'international' within the context of article 181(5) where the nature of the business which is the subject-matter of the transaction is international in the sense of having a significant foreign element or the parties to the transaction (other than the Government) have a foreign nationality or reside in different countries or, in the case of companies, the place of their central management and control is outside Ghana."316

11.31.
Since a party does not need to be foreign in order for the transaction to be subject to Article 181(5), it is important that the circumstances of the transaction must be "purposively construed" and that "the substance, rather than the form, should prevail" in determining whether the transaction is found to be "international" in nature.317 Each transaction must therefore be considered on a case-by-case basis, taking into account all of the facts and circumstances surrounding the nature of the contracting parties as well as the agreement itself. The Balkan Energy Court relied on several factors that led it to the conclusion that the Power Purchase Agreement was "international in nature", namely (i) the transaction was negotiated between the Government and a foreign investor; (ii) although the defendant was a Ghanaian company, it was wholly owned by a foreign entity incorporated in the United Kingdom; (iii) the managing director of the defendant was a foreigner and managerial control was therefore in foreign hands; (iv) the agreement included provision for international commercial arbitration; and (v) the agreement included certain other provisions which are common to foreign investment transactions.318 No one factor was held to be critical to the court's decision, and it is clear that the court did not intend those five factors to be exhaustive. Accordingly, the Tribunal shall consider whether there were significant demonstrable foreign elements involved in the Agreement before it.
11.32.
The Respondent has focused its arguments on the following factors: (i) Bankswitch's shareholders are domiciled in Switzerland; (ii) GETGroup, Bankswitch's partner that is named in Clause 1.1(c) of the Agreement as a member of "the consortium of Consultants executing the project," is a company of foreign incorporation that operates from Dubai; (iii) Bankswitch was registered with the Ghana Investment Promotion Centre ("GIPC") as a company under foreign ownership; (iv) the Agreement touches substantially on the wealth and economic resources of Ghana; (v) Bankswitch engaged other foreign entities (e.g., GET Holdings and Intertek International) to perform major parts of the Agreement and the names of such third parties were included in invoices sent to the Government; and (vi) there was a provision in the Agreement stating that disputes would be settled under the UNCITRAL Rules.319 The Claimant, in turn, has highlighted the following factors: (i) the Agreement was negotiated by a Ghanaian national, residing in Ghana; (ii) the management of Bankswitch, including its Managing Director, are Ghanaian residents; (iii) the Agreement does not contain a clause waiving Ghana's sovereign immunity; and (iv) the Agreement does not contain a clause stipulating that no taxes or foreign exchange controls would impede the execution of the Agreement.320 The Tribunal will address each of these factors in turn.

11.32.1 Negotiation of the Agreement : The Claimant has focused on the fact that the First MOU was signed on behalf of Bankswitch and GETGroup by Mr Janes Osei-Pokuand and that the Agreement was negotiated and signed by Dr Appenteng also on behalf of these two entities; the Claimant highlights that both Mr James Osei-Poke and Dr Appenteng are Ghanaian nationals and residents.321 However, the Tribunal does not consider the nationality of an entity's representative to be a significant factor in determining whether the entity itself was "international" for the purposes of its determination of the applicability of Article 181(5) to the Agreement.

11.32.2 Bankswitch Shareholders : The Respondent has argued that the existence of foreign shareholders should lead to a determination that the Agreement is "international" in nature.322 According to the Claimant's evidence, at the time of the negotiation and execution of the Agreement, 40% of Bankswitch shares were indirectly held by Ghanaian nationals residing in Ghana.323 While Balkan Energy involved a wholly owned subsidiary of a foreign parent company, the court did not state that a company must be wholly owned by a foreign investor or parent in order to be considered "international". The Tribunal agrees with the Respondent that the 60% foreign ownership of Bankswitch is a factor that must be taken into account in considering the applicability of Article 181(5) to the Agreement.

11.32.3 Control of Bankswitch's Management : The Claimant has provided evidence that the control of the management of Bankswitch was in Ghanaian hands, especially as Dr Appenteng was appointed as its Managing Director.324 According to the Claimant, it is the de facto control of the company and not the place of residence of Bankswitch and GETGroup that is the relevant test for determining the "international" factor.325 Although the control of the entity in question was not addressed in Balkan Energy, the court in that case made it clear that the relevant analysis should not be restricted to a finite list of factors because the consideration should be made on a case by case basis and should include any relevant factors posed by the Parties. The Tribunal has taken the control of Bankswitch's management into account as a factor in considering the applicability of Article 181(5) of the Constitution to the Agreement.

11.32.4 GETGroup's Involvement with the Agreement : The Respondent has argued that (i) GETGroup operates from premises in Dubai; (ii) significant elements of the GCS are hosted at the Dubai premises; and (iii) GETGroup provided a Dubai address for assistance with GCS technical information.326 The Claimant contends that it is irrelevant from where GETGroup operates because, for the purposes of the Agreement, it chose to domicile itself at the Bankswitch offices to have a presence in Ghana.327 The Tribunal has considered the participation of GETGroup, a Dubai company, in the Agreement as a factor in its determination of the applicability of Article 181(5) to the Agreement.

11.32.5 Registration with the Ghana Investment Promotion Centre : The Respondent has not elaborated on its argument regarding Bankswitch's registration with the GIPC. According to its website, the GIPC is a Ghanaian Government agency established to "encourage, promote and facilitate investments in all sectors of the economy except mining and petroleum" and that "facilitates and supports local and foreign investors in both the manufacturing and services sectors as they seek more valuecreating operations, higher sustainable returns and new business opportunities".328 Bankswitch was registered with the GIPC (Registration No CA-23,099/2116) as a company under foreign ownership, so the Tribunal has given this factor consideration in its determination of the applicability of Article 181(5) to the Agreement.

11.32.6 Relationship with the Wealth and Economic Resources of Ghana : The Respondent has not elaborated on its statement that the Agreement's relationship with the wealth and economic resources of Ghana evidences the "international" nature of the contract, nor has the Claimant addressed this argument. The only mention of the relevance of a transaction's impact on the wealth and economic resources of Ghana was made in Faroe Atlantic in relation to the reasoning behind the 1992 Constitution, including the requirement for parliamentary approval in Article 181. Although the court in Balkan Energy did not specifically consider this element in its decision, it did make clear that a decision on Article 181(5)'s application should be based on a purposive approach, therefore mandating that the purpose of the enterprise should be taken into account. Accordingly, the Tribunal has given the Agreement's relationship to the wealth and economic resources of Ghana consideration as a factor in determining the applicability of Article 181(5) to the Agreement.

11.32.7 Engagement of Foreign Entities : The Respondent argues that the third-party contracts entered into by Bankswitch with international companies evidences the international nature of the Agreement. For example, according to Clause 3.1 of the Technical Consultant Agreement, GET Holdings (Cyprus) was subcontracted to perform three activities for which it was entitled to 16% of the total Service Fee collected: (i) business process review and analysis; (ii) system design configuration and recommendations; and (iii) strategic planning advisory services.329 Additionally, the Claimant contracted with Intertek International (UK) for price verification services and Faberkener (Panama) for management services.330 The Claimant argues that such third-party contracts cannot change the nature of the Agreement because these contracts were not entered into until well after the date of the signing of the Agreement.331 To hold otherwise would, according to the Claimant, lead to the possibility of a contract that was valid at the time of signing becoming invalid at some indeterminate future time if an international party became involved.332 The Tribunal rejects the Respondent's contention that the engagement of sub-contractors to assist in the performance of a contract would lead to the characterisation of the main agreement as international even if it previously was not. To do so would effectively lead to the result that a contract for goods that required parts from a foreign manufacturer would have to receive parliamentary approval. In response to a similar argument from the Respondent, the Balkan Energy court characterised the argument as a reductio ad absurdum and noted that there is a principle necessarily implied into Article 181(5) of the Ghanaian Constitution "that only major international business or economic transactions are to be subject to its provisions".333 The implementation of computer hardware developed and manufactured outside of Ghana would not characterise Bankswitch's services as being international in nature. Similarly, in the case of a service contract, the mere existence of a subcontract for services utilised only by the contractor and not the Government should not change the characterisation of the primary contract as international. Further, the listing of foreign entities in itemised costs on invoices to the Government is irrelevant because payments according to such invoices were made on account of Bankswitch's future Service Fee and were thus costs that would have been borne by Bankswitch.334

11.32.8 Waiver of Sovereign Immunity : The Claimant argues that the lack of a clause in the Agreement waiving the Government's sovereign immunity is a major departure from the facts of Balkan Energy and evidences the inapplicability of Article 181(5) of the Ghanaian Constitution in this case.335 While the contract in Balkan Energy did include such a waiver at Clause 24,336 the lack of such a clause does not automatically lead to a determination that the Agreement is not "international" in nature. That being said, the lack of a sovereign immunity waiver in the Agreement was considered by the Tribunal in its determination of the applicability of Article 181(5) to the Agreement.

11.32.9 Tax and Foreign Exchange Control Clause : The Claimant argues that the lack of a clause in the Agreement exempting Bankswitch from certain taxes or foreign exchange controls is a major departure from the facts of Balkan Energy and evidences the inapplicability of Article 181(5) of the Ghanaian Constitution to the Agreement.337 While the contract in Balkan Energy did include such a provision at Clause 29.2,338 the lack of such a clause does not automatically lead to a determination that the Agreement is not "international" in nature. However, this has been considered as a factor by the Tribunal in its determination of the applicability of Article 181(5) to the Agreement.

11.32.10 Relationship to the Wealth and Economic Resources of Ghana : The Respondent has argued that the fact that the Agreement weighs on the wealth and economic resources of Ghana should result in it being subject to Article 181(5) of the Constitution. 339 The Faroe Atlantic court noted that the origin of Article 181 related to the huge debt that has been incurred by the Government and called for specific provisions in the Constitution to deal with the questions of loans.340 The Tribunal acknowledges the public policy interest of the Government to protect against the accrual of debt levels similar to those that had bankrupted the Government, giving rise to the 1992 Constitution and the requirement that Article 181(5) should be interpreted with a "purposive" approach. The Tribunal has therefore placed weight on the Agreement's effect on the wealth and economic resources of Ghana.

11.32.11 Provision for UNCITRAL Rules : The Respondent argues that the inclusion of a dispute resolution clause (Clause 19) in the Agreement that calls for arbitration under the UNCITRAL Rules shows that the Agreement provides for "international commercial arbitration" and is therefore an "international" transaction.341 The Claimant believes that Clause 19 of the Agreement does not lead to the contract being an "international" one because (i) the clause required an attempt at conciliation before any arbitration was commenced and (ii) the clause did not stipulate whether the arbitration was to take place inside or outside of Ghana, and the fact that arbitration is now taking place outside of Ghana is irrelevant to a determination under Article 181(5) of the Ghanaian Constitution since this would not have been known to the Parties at the time of their contracting.342 While it is true that the UNCITRAL Rules are technically available to parties involved in purely domestic arbitrations, such a scenario would be novel in practice, and the Tribunal is unpersuaded by the Claimant's argument, without evidence, that Clause 19 was specifically intended to address that unique situation. The UNCITRAL Rules were developed by the United Nations Commission on International Trade Law specifically "as a method of settling disputes arising in the context of international commercial relations" and "prepared after extensive consultation with arbitral institutions and centres of international commercial arbitration" for "the use [...] in the settlement of disputes arising in the context of international commercial relations, particularly by reference to the Arbitration Rules in commercial contracts".343 The Tribunal has therefore considered Clause 19 of the Agreement as a factor in its determination of the applicability of Article 181(5) to the Agreement.

11.33.
As the court in Balkan Energy stated, Article 181(5) of the Constitution, if purposively construed, does not lead to only agreements between foreign entities and the Ghana Government being considered "international"; and indeed, "there will be transactions of such a clear international nature that they should come within any reasonable definition of an international business transaction, but which may have been concluded with the Ghana Government by an entity resident in Ghana."344 In considering the totality of the facts and circumstances surrounding the Agreement, the Tribunal must also weigh the significance of the elements. As the court in Balkan Energy stated, "the foreign elements or contacts that lead to a judgment of internationality in relation to a transaction have to be subjected to a qualitative assessment before reaching [the] judgment" on the purpose of Article 181(5).345
11.34.
Although the Claimant has distinguished characteristics of the Agreement from the factors relied on in Balkan Energy, there are sufficient other factors present to lead this Tribunal to classify the Agreement as an "international business or economic transaction" under Article 181(5). The particular factors on which the Tribunal relied are (i) Bankswitch's significant ownership by foreign shareholders; (ii) GETGroup, a foreign entity, being named in the Agreement as a member of the "consortium of Consultants"; and (iii) the fact that the Agreement provided for the development of a national customs system dealing with imports to Ghana, a service with numerous international elements.

6. APPLICABILITY OF CUSTOMARY INTERNATIONAL LAW PRINCIPLES IN GHANA346

11.35.
Before the Tribunal can consider the customary international law principle of estoppel, as argued by the Claimant, it must first consider whether principles of customary international law can be applied in this arbitration. The Tribunal has thus considered (i) whether Ghana has adopted the Doctrine of Incorporation into its national laws and (ii) whether a tribunal must apply principles of national law to the exclusion of principles of customary international law.

A. The Doctrine of Incorporation in Ghana

11.36.
What has become known as the Doctrine of Incorporation (for purposes of English law) means that customary international law is automatically taken to be part of the law of England and Wales without the need for legislative action. Rules of customary international law, if the Doctrine of Incorporation is applied by a State, are taken ipso jure to be the rules of that State's common law. The opposing doctrine, the Doctrine of Transformation, requires that any rule of international law must be specifically adopted into the national legislation by an act of the State's legislature. Since the eighteenth century, the English common law has adopted the Doctrine of Incorporation,347 and international law has since been treated as law in the English courts when dealing with matters on the "international plane". In Blackstone's Commentaries on the Laws of England, Blackstone wrote:

"In arbitrary states [the laws of nations], whenever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power: but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of [its] jurisdiction) is here adopted in [its] full extent by the common law, and is held to be part of the law of the land. And those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be part of the civilized world."348

11.37.
In a discussion of customary international law in post-colonial Africa, Tiyanjana Maluwa commented on the Doctrine of Incorporation in African nations including Ghana as follows:

"In Anglophone Africa, on the few occasions when domestic courts have been seized with the question, they have tended to follow the approach currently favoured by the English courts at the material time. Thus, the courts in Ghana and Uganda, for example, have adopted the incorporation doctrine in accepting the applicable rules of customary international law as part of the municipal law of those countries."349

11.38.
The Claimant argues that Maluwa's explanation of the state of international law in Ghana is accurate, making customary international law a part of the law of Ghana.350 The Respondent denies the adoption of the Doctrine of Incorporation in Ghana and argues that references to international law norms in the Constitution and case law do not result in a determination that all customary international law principles are part of the law of Ghana.
11.39.
In addition to the applicability of the Doctrine of Incorporation in Ghana, the Claimant has also cited Article 73 of the Constitution ("International Relations") as an express adoption of the applicability of customary international law principles. Article 73 provides:

"The Government of Ghana shall conduct its international affairs in consonance with the accepted principles of public international law and diplomacy in a manner consistent with the national interest of Ghana."351

11.40.
While Article 1(2) of the Ghanaian Constitution provides that the Constitution is the supreme law in Ghana, Article 11 enumerates the types of law which are applicable.

"(1) The laws of Ghana shall comprise-

(a) this Constitution;

(b) enactment made by or under the authority of the Parliament established by this Constitution;

(c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution;

(d) the existing law; and

(e) the common law.

(2) The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.

(3) For the purposes of this article, 'customary law' means the rules of law which by custom are applicable to particular communities in Ghana.

(4) The existing law shall, except [as] otherwise provided in clause (1) of this article, comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Act, Decree, Law or statutory instrument issued or made before that date, which is to come into force on or after that date.

(5) Subject to the provisions of this Constitution, the existing law shall not be affected by the coming into force of this Constitution.

(6) The existing law shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution."

11.41.
It is clear from Article 11 that the common law, as it existed before the entry into force of the 1992 Constitution, is still in effect to the extent that it was not changed by the provisions of the new Constitution. The Claimant has cited several cases where the Ghanaian courts have adopted principles of customary international law even where those principles were not directly incorporated by acts of Parliament as would be necessary in a State that does not apply the Doctrine of Incorporation.
11.42.
The Claimant cites the case of The State v Schumann which dealt with the extradition of a Nazi war criminal and relied heavily on international law principles even though these principles did not comprise an express portion of Ghanaian law.352 The court in Schumann stated that "[t]he principle that an official of a State cannot hide his crimes behind the façade of the theory of 'Act of State' is too well established [in international law] to require any further elaboration".353
11.43.
The Claimant also relies on Lardan v Attorney-General & Others (No. 1) and Lardan v Attorney-General & Others (No. 2) (together referred to as "Lardan") in which the court referred to the English case of Croft v Dunphy when applying international law principles in Ghana, and which stated as follows:

"Legislation of the Imperial Parliament, even in contravention of generally acknowledged principles of international law, is binding upon and must be enforced by the courts of this country, for in these courts the legislation of the Imperial Parliament cannot be challenged as ultra vires."354

11.44.
The Respondent argues that this passage from Croft is consistent with the dualist conception of customary international law (i.e., Doctrine of Transformation) rather than the monist approach (i.e., the Doctrine of Incorporation).355 In Croft, the court held that the legislature is authorised to enact laws that are against acknowledged principles of international law, a legal truth in any monist State. The Doctrine of Incorporation does not prevent a legislature from passing laws which contravene customary international law, but rather incorporates principles of customary international law into a State's domestic legal regime when no such legislation exists. The Tribunal rejects the Respondent's position that Lardan and Croft evidence the dualist approach of Ghanaian law as they are consistent with the Doctrine of Incorporation.
11.45.
As the Claimant noted in its Third Post-Hearing Submission, "this is not a case in which an act of Parliament is challenged due to the fact that it is in contravention of international law", but rather one where "[t]here is no act of Parliament that would be inconsistent with applying the customary international law principles of estoppel".356 In this arbitration, the Respondent is arguing that principles of estoppel are inapplicable under Ghanaian law because the common law refuses the application of estoppel to constitutional questions like the applicability of Article 181(5). The cases cited by the Government, however, are domestic cases decided in Ghanaian courts and do not possess the international elements that are present here.
11.46.
In Biloune and Marine Drive Complex v Ghana, the tribunal stated that, although Ghanaian law governed the contract in question, it "also applied customary international law as there was 'no indication that Ghanaian law diverges on the central issue of expropriation from customary principles of international law".357 Article 11(4) of the Constitution expressly provides that the "existing law shall, except as otherwise provided in clause (1) of this article, comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution...." The Respondent has cited a yet unpublished paper from Emmanuel Benneh which argues that Ghana does not follow the Doctrine of Incorporation.358 However, as the Claimant points out, Mr Benneh's paper admits that "customary international law as part of the common law may be applied by the courts in Ghana", but states that there has not been a case in the Ghanaian courts that has explicitly adopted the Doctrine of Incorporation.359 Indeed, the Ghana Supreme Court has applied customary international law principles since the 1992 Constitution. The Claimant submits the example of Tsatsu Tsikata v The Republic in which the Court held (in a case relating to Article 73 of the 1992 Constitution) that the "Ghana Judiciary as the arm of government entrusted under the 1992 Constitution with the responsibility to administer justice is obliged to apply international norms in the administration of justice".360
11.47.
Although the Biloune award was rendered prior to the coming into force of the 1992 Constitution, the Tribunal has found no reason to conclude that the position of the Biloune tribunal is inconsistent with the current state of Ghanaian law following the revisions to the Constitution.
11.48.
The Respondent argues that Ghanaian courts have referred to international human rights norms in cases like Schumann and Lardan because Article 33(5) of the Constitution specifically adopts such principles; the Respondent then highlights that the instant case does not relate to international human rights principles.361 Article 33(5) states:

"The rights, duties, declarations and guarantees relating to fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the dignity of man."362

11.49.
The Respondent fails to take account, however, of other references in the Constitution to international laws and obligations. For example, Article 40 of the Constitution provides:

"In its dealings with other nations, the Government shall

(a) promote and protect the interests of Ghana;

(b) seek the establishment of a just and equitable international economic and social order;

(c) promote the respect for international law, treaty obligations and the settlement of international disputes by peaceful means;

(d) adhere to the principles enshrined in or as the case may be, the aims and ideals of-

(i) the Charter of the United Nations;

(ii) the Charter of the Organisation of African Unity;

(ii) the Commonwealth;

(iv) the Treaty of the Economic Community of West African States; and

(v) any other international organisation of which Ghana is a member."

11.50.
Additionally, the Constitution makes explicit reference to the applicability of international law principles in Ghana (i.e., Articles 33(5), 40, and 73), and nowhere does it preclude the application of such principles.
11.51.
The Respondent cites the Ghana Supreme Court case of New Patriotic Party v IGP which discusses the supremacy of the 1992 Constitution:

"The laws of Ghana are as set out in Article 11 (1) of the Constitution. The Constitution is the supreme law of Ghana. Consequently, laws, municipal or otherwise which are found to be inconsistent with the Constitution cannot be binding on the State whatever their nature. International laws, including intra African enactments, are not binding on Ghana until such laws have been adopted or ratified by the municipal laws…"363

11.52.
This quotation, however, stands for the proposition that customary international law principles cannot conflict with, or otherwise replace, provisions of the 1992 Constitution. It does not stand for the proposition that customary international law principles do not make up a portion of Ghanaian law through the operation of the Doctrine of Incorporation.
11.53.
In June 2013, the Ghanaian Supreme Court issued a judgment in The Republic of Ghana v High Court, Ex Parte the Attorney-General; NML Capital & the Republic of Argentina ("NML Capital") which involved an Argentinian securities dispute and the detention of an Argentinian warship in a Ghanaian port while on a diplomatic mission.364 The Supreme Court expressly addressed the fact that Ghana applies the Doctrine of Incorporation, stating:

"[I]t would thus be worth our while to examine this question of the relationship between international law and municipal law in Ghana. Ghanaian law on this basic question is no different from the usual position of Commonwealth common law jurisdictions. It is that customary international law is part of Ghanaian law, incorporated by the weight of common law case law [....] This position of the law is usually referred to as reflecting the 'dualist' school of thought, as distinct from the monist approach followed by some other States."365

11.54.
It is clear from the recent Supreme Court case that Ghanaian law does apply the Doctrine of Incorporation, making customary international law a part of the Ghanaian common law. Especially given the Supreme Court's decision in NML Capital, t he Tribunal is not persuaded that the 1992 Constitution changed the position on the applicability of this doctrine. Accordingly, the Tribunal accepts the Claimant's position that the Doctrine of Incorporation, from at least as early as the Schumann case in 1966 or the Biloune decision in 1989, constitutes, and has been applied as, part of Ghanaian law.

B. Application of National Law to the Exclusion of Customary International Law

11.55.
The Respondent argues that international law is entirely inapplicable in the present Arbitration because of the Parties' selection of Ghanaian law to govern the contract.366 It further states that, in order for a tribunal to apply principles of international law, a subject of public international law must bring a claim before an international forum that is founded on breaches of an international obligation.367 The Tribunal has already dealt with the issue of Ghanaian law adopting principles of customary international law through the Doctrine of Incorporation (see Paragraphs 11.36 to 11.50 above), and will therefore not address the Respondent's continued argument that international law has no place in a dispute governed by Ghanaian law.
11.56.
The Government further argues that no Ghanaian court has ever invoked principles of customary international law or practice "to overrule constitutional provisions such as the mandatory provisions of Article 181(5) of the Constitution".368 While Article 1(2) of the Constitution states that the Constitution "shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void", the principle of estoppel is not one which overrules or overrides Article 181(5). The Claimant has not argued that international law principles should override the principles of Article 181(5), but rather that a State party must be precluded from relying on contradictory statements and conduct to invalidate an agreement on which an international entity relied in the performance of its obligations under that agreement pursuant to the principle of allegans contraria non est audiendus ("no one is to be heard whose evidence is contradictory").
11.57.
The Claimant argues that a tribunal is not allowed to apply principles of national law to the exclusion of those of customary international law, especially when the relevant contract (i) incorporates customary international law (either expressly in the contract or through the governing law's application of the Doctrine of Incorporation) and (ii) where the relevant contract is "international" in nature.369 The Tribunal has determined that Ghanaian law has adopted the Doctrine of Incorporation (see Paragraphs 11.36 to 11.50 above) and that the Agreement is international in character (see Paragraphs 11.28 to 11.34 above). More than this, Article 3 of the Articles on State Responsibility of the International Law Commission of the United Nations ("ILC Articles"), quoted below, and the many fundamental decisions of the World Court which that article encapsulates, are determinative. Accordingly, the Tribunal agrees with the Claimant that the Tribunal must measure the Government's conduct against international standards and apply principles of customary international law.370
11.58.
The Claimant argues that, where international law provides a cause of action to an individual, a tribunal must measure the State's conduct against international law standards, even if the contract is governed by a national law.371 Further, the Claimant argues that Article 73 of the Constitution requires the Government to comply with international law when conducting international affairs and that Article 3 of the ILC Articles must be considered in measuring the Government's conduct. Article 3 of those Articles, reflecting the jurisprudence of the World Court, provides that:

"The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law."

11.59.
In the Treatment of Polish Nationals case, the Permanent Court of International Justice ("PCIJ") stated that "[a] State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force".372 To avoid its international legal obligations based on its domestic law (i.e., Article 181(5)) would be inconsistent with public international law. The Government cannot rely on its own Constitution to avoid the customary international law rule that a host State must act in good faith and in a manner that is consistent with international law principles when dealing with a foreign investor.
11.60.
In his separate opinion in the International Court of Justice's ("ICJ") Norwegian Loans Case Judge Lauterpacht held that:

"The question of conformity of national legislation with international law is a matter of international law. The notion that if a matter is governed by national law it is for that reason at the same time outside the sphere of international law is both novel and, if accepted, subversive of international law. It is not enough for a State to bring a matter under the protective umbrella of its legislation, possibly of a predatory character, in order to shelter it effectively from any control by international law. There may be little difference between a Government breaking unlawfully a contract with an alien and a Government causing legislation to be enacted which makes it impossible for it to comply with the contract."373

11.61.
In Judge Lauterpacht's opinion, customary international law is superior to the municipal law which works in contravention of its principles. Judge Jennings commented that an international tribunal must not only consider what the proper legal result of a dispute is in relation to the applicable law, but must also consider "whether this legal result is in accordance with the rule of international law".374
11.62.
In addition, the principle of pacta sunt servanda must be applied not only to agreements entered into between two State parties, but also to agreements entered into between a State party and a foreign entity precisely because of the international character of such agreements. As the United Nations General Assembly held in Resolution 1803 (XVII) of December 14, 1962, on "Permanent Sovereignty over Natural Resources": "Foreign investment agreements freely entered into by, or between, sovereign States shall be observed in good faith...." Thus, a State has long been justified in resisting the non-performance of contractual obligations by another State in favor of its own nationals. This right also extends to situations where a foreign entity is resisting non-performance on its own, without the assistance of its home State. When a company is vested with a direct right to defend its interests against a State through prescribed procedures (i.e., the Arbitration Clause in Clause 19 of the Agreement), those procedures embrace the direct right of the company to invoke international law when available in defence of its interests when available. As Pierre-Yves Tschanz maintains, "[i]n the transnational arbitral context, the standing of the foreign investor to assert claims under international law is generally recognized, even when international law is not the lex contractus ".375
11.63.
Under English law, there is no body of "State contract law" separate from the general law of contracts, but State contracts with foreign interests, which may be long-term economic development agreements, have an international nature which subjects them to international law in certain situations. By its international nature and connection to trade and import laws, the Agreement has its roots in the international legal order. Combined with the Tribunal's recognition of the Doctrine of Incorporation in Ghana, its assessment of the Agreement's international nature (discussed at length at Paragraphs 11.28 to 11.34 above) was based on all of the economic and legal realities surrounding the negotiation and performance of the Agreement. Whether the application of international law is based solely on the will of the parties and the application of domestic law, or whether a tribunal must further consider the transaction's circumstances, the outcome is the same: the legal relationship arising out of the Agreement and the law governing the Parties' contractual relationship are matters within the international legal order and, when applicable, should be measured against international standards.
11.64.
Indeed, when a State party enters into a commercial contract with a foreign party, even in the case of a contract that names a domestic legal regime as the governing law, international law will apply to some aspects of the contract.

"[E]ven in the case of a contract which cannot be considered to be governed or subject to international law, and which therefore allows for a greater role of the domestic legal system and national sovereignty, some key aspects of such contract will, nevertheless be subject to the operation of international law either because there are specific clauses to this effect or because the general safeguards of international law will always be at hand. The latter will of course operate independently from the contract to the extent that there is an international wrong."376

11.65.
Accordingly, international arbitration tribunals and courts operating under international law have found a "distinction between the State operating in its sovereign capacity – jure imperii – and the State operating as a commercial or business entity – jure gestionis. While immunity and other State prerogatives are observed in connection with the first capacity none of it is available if the nature of the activity concerned is purely commercial or business-related."377 Indeed, some national courts have embraced this distinction, acknowledging that "the State defaulting on its contractual obligations in respect of an individual, national or foreign, engages its responsibility and has, at the very least, the obligation to compensate the resulting damage".378 The judgment went on to state:

"[I]t can be concluded that treaties and contracts, albeit different, pursue the same objective of ensuring the rule of law and the observance of legal commitments in the international community and are thus called to increasing interaction. To this end, treaties are becoming privatized by allowing a greater role for individuals in their operation, just as contracts are becoming public to the extent that states and international law extend their guarantees to their observance. All of it points towards the need for global protections in a global society, where perhaps the distinction between public and private law will become less meaningful."379

11.66.
In the present case, it is clear that in entering into the Agreement with Bankswitch, the Government was acting in a commercial capacity and therefore is not protected as a jure imperii entity.
11.67.
Based on the above, this Tribunal accepts the propositions that (i) international law can be invoked in matters involving a State and a non-State foreign party and (ii) a governing law clause providing for the application of national law does not preclude an international tribunal from resorting to relevant customary international law principles, if applicable. The Tribunal holds that this is a situation where such an application is available and warranted.
11.68.
Thus, while Clause 22 of the Agreement states that the Agreement "shall be governed by the Laws of the Republic of Ghana", that choice of law clause does not insulate the Government from its obligations under customary international law to treat what is essentially a foreign investment fairly and equitably and not to take that investment without compensation. Contracts between a State and a foreign entity are typically governed by the law of the State, but it would be untenable for that reason to allow a State to act freely in order to absolve itself of its obligations towards the foreign entity by altering the content of its governing law to evade the terms of its commitments without regard to the State's obligations under international law. Rather, the Tribunal adheres to the principle that, if a State repudiates or violates its obligations under a contract with a foreign entity, it is responsible for such a violation if its breach is discriminatory or is akin to an expropriation in that the contract is repudiated or breached for governmental rather than commercial reasons. Such a breach is considered to be "arbitrary" and subjects the breach to international standards. The action or inaction by a State vis-à-vis a foreign entity may be perfectly lawful in terms of its municipal law, but may still engage its international responsibility. For example, the breach of a commercial contract by a State in ordinary commercial intercourse may not be a violation of international law, but the use of its sovereign authority, contrary to the expectations of the parties, to abrogate or violate a contract with a foreign entity is a violation of international law.380
11.69.
A case that is quite on point here is the United States of America on behalf of P.W. Shufeldt v The Republic of Guatemala in which the arbitrator held that Guatemala's action in recognition of the validity of the contract precluded it from denying its validity under principles of international law.381 In the Shufeldt Case, as here, Guatemala did not take steps to cancel the contract or refer the dispute to arbitration, but rather continued to treat the contract as valid and enforceable, acting pursuant to it. It might be true that the Ghanaian Government is able to act in such a manner to the detriment of its nationals, but when a foreign entity is involved and the agreement in question is an "international" one, it is a settled principle of international law that a sovereign cannot be permitted to set up one of its own municipal laws as a bar to a claim for a wrong done to the foreign entity.382 While a State may act in contravention of its private obligations when such a decision is for the benefit of the "public good", because a foreign entity is, by definition, not a part of the national public whose welfare the State is promoting, the State is obligated under international law as well as in equity to repair the resultant situation, whether by payment of compensation or the restitution of its contract.
11.70.
In view of the foregoing analysis, the Tribunal accepts the Claimant's proposition that, while Ghanaian domestic law might not allow for the principle of estoppel to avoid the application of constitutional provisions, principles of customary international law, both as incorporated by Ghanaian law and in their own right (given the international nature of the Agreement) are an appropriate source of law from which the Tribunal must assess the Parties' respective rights and obligations. However, if the case poses an issue for which the rules of international law are not applicable, its principles are irrelevant. Therefore, the Tribunal must now consider whether any principles of international law are applicable in the instant dispute.

7. APPLICATION OF THE INTERNATIONAL LAW PRINCIPLE OF ESTOPPEL AND INTERNATIONAL PUBLIC POLICY

A. Estoppel in International Law; Cognate Principles in International Public Policy

11.71.
The existence of a doctrine of estoppel in international law is well established, with a consensus that it constitutes at least a general principle of law383 — given the existence of similar concepts of estoppel and preclusion in most legal systems— if not a rule of customary international law.384 A further consensus can be identified that the origin of the doctrine in international law lies in the basic principle of good faith,385 and it has commonly been identified as an aspect of the broader good faith principle.386As stated by James Crawford in Brownlie's Principles of Public International Law, "[a] considerable weight of authority supports the view that estoppel is a general principle of international law, resting on principles of good faith and consistency."387 And in fact, "[n]o equitable conception recurs more frequently in international adjudication in important contexts than that of estoppel."388
11.72.
Apart from public international law, international public policy as applied consistently in international arbitration (i.e., "fundamental principles of law that are considered to be common among developed legal systems, and to have mandatory application, regardless of what the parties have agreed")389 has to be considered by this Tribunal. Among these principles of international public policy is one closely related to estoppel: inconsistency between a party's claims or defences, and its previous conduct in connection therewith leads to the preclusion of a State from relying on inconsistent positions in a later arbitration, based on the principle of allegans contraria non audiendus est. As Fouchard, Gaillard and Goldman have stated in relation to a public entity entering into an arbitration agreement with a foreign party:

"[I]nternational public policy would be strongly opposed to the idea that a public entity, when dealing with a foreign party, could openly, knowingly and willingly enter into an arbitration agreement, on which its co-contractor would rely, only to claim subsequently, whether during the arbitral proceedings or on enforcement of the award, that its own undertaking was void."390

11.73.
This proposition is also articulated in an ICC award dating as early as 1971 and had been applied consistently since then:

"[The] international ordre public would vigorously reject the proposition that a State organ, when dealing with foreigners, having openly, with knowledge and intent, concluded an arbitration clause that inspires the cocontractant's confidence, could thereafter, whether in the arbitration or in execution proceedings, invoke the nullity of its own promise."391

11.74.
Thus, for a State to enter into a contractual relationship with a foreign entity and then, after substantial performance of the foreign party's obligations, claim that the underlying agreement was void would also be a violation of international public policy and cannot be allowed.392

B. Application of Customary International Law Principles of Estoppel

11.75.
Owing to the Tribunal's determination that principles of customary international law apply in this arbitration (see Paragraphs 11.35 to 11.70 above), the Tribunal must now consider whether the Government is precluded by international principles of estoppel from arguing that the Agreement was unenforceable under Article 181(5) of the Ghanaian Constitution. The Government's arguments for the preclusion of the application of international law principles have found support in holdings from its own domestic courts that have precluded the application of Ghanaian principles of estoppel to constitutional issues like that in Article 181(5).393 While the Tribunal acknowledges that Ghanaian law may not allow for a party to plead estoppel in relation to a constitutional question, there is no such prohibition in international law, which applies estoppel as a powerful and flexible instrument to oblige a State "to be consistent in its attitude to a given factual or legal situation".394 Brownlie describes estoppel as "a general principle of international law".395
11.76.
A host State's conduct and participation in relevant conduct (i.e., the performance of the Agreement without submission of the contract for parliamentary approval under Article 181(5) of the Constitution) are properly regarded as unilateral acts of the host State in the sense that they are not directed towards the formation of a bilateral agreement with the foreign investor. It is well-established that unilateral "[a]cts and conduct of governments may not be directed towards the formation of agreements and yet are capable of creating legal effects in a great many ways".396 Unilateral acts of state conduct can be subject to the doctrines of recognition, acquiescence and estoppel – all of which are considered part of the corpus of principles of international law and reflect the will of the State, which arises out of its unilateral conduct and which implies consent to or agreement with a specific factual or juridical situation. All three doctrines are connected to the principles of equity based on general considerations of good faith, justice and fairness. The Latin maxim allegans contraria non est audiendus ("no one is to be heard whose evidence is contradictory") reflects the principle of good faith and leads a tribunal to preclude a party from "blowing hot and cold" or affirming a position at one time and denying it at another. In 1958, Professor Iain C. MacGibbon wrote the following on the subject of applying estoppel against the actions of a State party:

"What appears to be the common denominator of the various aspects of estoppel which have been discussed, is the requirement that a State ought to maintain towards a given factual or legal situation an attitude consistent with that which it was known to have adopted with regard to the same circumstances on previous occasions. At its simplest, estoppel in international law reflects the possible variations, in circumstances and effects, of the underlying principles of consistency which may be summed up in the maxim allegans contraria non audiendus est. Linked as it is with the device of recognition, it is potentially applicable throughout the whole field of international law in a limitless variety of contexts, not primarily as a procedural rule but as a substantive principle of law. [....] The extent to which different aspects of estoppel have been 'accepted as law' is a question which can be answered only against the background of a wider survey of the practice of States than has so far been undertaken. It may be considered probable, however, that some aspects of estoppel are in [the] process of fulfilling, if they do not already fulfil, the criteria demanded of an international custom. Any such development towards the establishment of estoppel on a customary basis may be welcomed inasmuch as it serves to encourage respect for the precept of good faith and to promote a measure of stability in the legal relations between States."397

11.77.
There are notable cases in public international law which have established that a State party may be bound by its previous statements and conduct when in contradiction with its later claims in the dispute. In 1933, the PCIJ, in the Legal Status of Eastern Greenland case, held that a statement made by the Norwegian Minister of Foreign Affairs in 1919 effectively "recognised the whole of Greenland as Danish", and because that statement by the Minister was clear and consistent with prior statements from Norway, the declaration gave rise to an estoppel, leading to "Norway [being] under an obligation to refrain from contesting Danish sovereignty over Greenland as a whole, and a fortiori to refrain from occupying a part of Greenland".398 Later, in 1960, the ICJ, in the Case Concerning the Arbitral Award Made by the King of Spain, found that "Nicaragua, by express declaration and by conduct, recognized the Award as valid and it is no longer open to Nicaragua to go back upon that recognition and to challenge the validity of the Award", adding that "Nicaragua's failure to raise any question with regard to the validity of the Award for several years after the full terms of the Award had become known to it further confirms the conclusion at which the Court has arrived".399 In the 1962 Case Concerning the Temple of Preah Vihear, the ICJ applied principles of estoppel "to the effect that even if there could be any doubt as to whether Thailand did originally accept the Annex I map and line, so as to become bound by it, she is precluded by her subsequent conduct from now asserting her non-acceptance".400 The Court in the Temple of Preah Vihear invoked estoppel in the following terms:

"The principle of preclusion is the nearest equivalent in the field of international law to the common-law rule of estoppel, though perhaps not applied under such strict limiting conditions (and it is certainly applied as a rule of substance and not merely as one of evidence or procedure). It is quite distinct theoretically from the notion of acquiescence. But acquiescence can operate as a preclusion or estoppel in certain cases, for instance where silence, on an occasion where there was a duty or need to speak or act, implies agreement, or a waiver of rights, and can be regarded as a representation to that effect.... On that basis, it must be held in the present case that Thailand's silence, in circumstances in which silence meant acquiescence, or acted as a representation of acceptance of the map line, operates to preclude or estop her from denying such acceptance, or operates as a waiver of her original right to reject the map line or its direction at Preah Vihear.

However, in those cases where it can be shown that a party has, by conduct or otherwise, undertaken, or become bound by, an obligation, it is strictly not necessary or appropriate to invoke any rule of preclusion or estoppel, although the language of that rule is, in practice, often employed to describe the situation. Thus it may be said that A, having accepted a certain obligation, or having become bound by a certain instrument, cannot now be heard to deny the fact, to 'blow hot and cold'. True enough, A cannot be heard to deny it; but what this really means is simply that A is bound, and being bound, cannot escape from the obligation merely by denying its existence. In other words, if the denial can be shown to be false, there is no room or need for any plea of preclusion or estoppel. Such a plea is essentially a means of excluding a denial that might be correct – irrespective of its correctness. It prevents the assertion of what might in fact be true. Its use must in consequence be subject to certain limitations. The real field of operation, therefore, of the rule of preclusion or estoppel, stricto sensu, in the present context, is where it is possible that the party concerned did not give the undertaking or accept the obligation in question (or there is room for doubt whether it did), but where that party's subsequent conduct has been such, and has had such consequences, that it cannot be allowed to deny the existence of an undertaking, or that it is bound."401

11.78.
ICSID tribunals have also applied the principle of estoppel to prevent State parties from evading the effects of their past representations. In Fraport AG Frankfurt Airport Services Worldwide v Republic of the Philippines, the tribunal held that "[p]rinciples of fairness should require a tribunal to hold a government estopped from raising violations of its own law as a jurisdictional defense when it knowingly overlooked them and endorsed an investment which was not in compliance with its law".402 In ADC Affiliate Ltd v Hungary, the tribunal rejected Hungary's arguments that the relevant group of agreements was illegal or unenforceable because Hungary had performed these agreements for several years and thereby led the claimant to believe that the agreements were all effective.403 The tribunal stated:

"Even if the Respondent was correct in any of its submissions on the miscellaneous points dealt with... above, they would nevertheless fail on them simply because they have rested on their rights. These Agreements were entered into years ago and both parties have acted on the basis that all was in order. Whether one rests this conclusion on the doctrine of estoppel or a waiver matters not. Almost all systems of law prevent parties from blowing hot and cold. If any of the suite of Agreements in this case were illegal or unenforceable under Hungarian law one might have expected the Hungarian Government or its entities to have declined to enter into such an agreement. However when, after receiving top class international legal advice, Hungary enters into and performs these agreements for years and takes the full benefit from them, it lies ill in the mouth of Hungary now to challenge the legality and/or enforceability of these Agreements. These submissions smack of desperation. They cannot succeed because Hungary entered these agreements willingly, took advantage from them and led the Claimants over a long period of time, to assume that these Agreements were effective. Hungary cannot now go behind these Agreements. They are prevented from doing so by their own conduct."404

11.79.
Accordingly, the Tribunal finds that the principle of estoppel can be used against the Government. However, it remains to be determined whether the elements of estoppel are present in the instant case to preclude the Government from relying on Article 181(5) here.
11.80.
It is important to note that the international law principle of estoppel, while founded in the conceptions of the common law, has been broadened to become a species all its own. Judge Alfaro, in the Case of the Temple at Preah Vihear, explained that the international law conception of estoppel is not subject to the same restrictions that may exist within domestic legal regimes:

"There is a very substantial difference between the simple and clear-cut rule adopted and applied in the international field and the complicated classifications, modalities, species, sub-species and procedural features of the municipal system."405

11.81.

As applicable to this case, the elements of estoppel include (i) an unambiguous statement or representation by the Respondent (either through words or conduct); (ii) which is voluntary, unconditional and authorised; (iii) which is relied on by the Claimant in good faith; and (iv) with such reliance operating either to the detriment of the Claimant or the advantage of the Respondent.406

(i) Clear Representation by the Respondent

11.82.
In order for the Government to be precluded from arguing that the Agreement is unenforceable under Article 181(5) of the Constitution, the Tribunal must find a clear representation (either in statement or conduct) on the part of the Government that the Agreement was not subject to the requirements of Article 181(5). The Tribunal has presented a detailed exposition of the facts surrounding the negotiation and performance of the Agreement from Paragraph 6.33 to 6.82 above and will not repeat that discussion here. From the facts discussed above, the Tribunal is of the opinion that the Government made numerous clear representations to Bankswitch that reasonably led Bankswitch to believe that the Agreement was valid and enforceable under Ghanaian law. These representations are with regard to the following:

(a) the training of Government and shipping line staff under Clause 6 of the Agreement;

(b) various statements by CEPS, RAGB and MOFEP officials regarding the planned implementation of the software in committee meetings and correspondence between the Parties;

(c) the signing of the Second MOU governing the responsibilities regarding the Valuation Office;

(d) the various public notices as well as administrative and policy instructions stating that the GCS would be implemented and "go live" in Ghana as required under Clause 5(d); and

(e) the payment of invoices and making of down payments by the Government to Bankswitch on account of the Service Fee under Clause 7(iii).

11.83.
In addition to the statements of CEPS, RAGB and MOFEP officials from 12 December 2007 (the date of the Agreement) to 7 June 2010 (the Claimant's notice of breach), the AttorneyGeneral and Minister of Justice made an express statement on the validity of the Agreement which the Tribunal finds significant:

"Having carefully examined the above mentioned Agreement, I am of the opinion that there is a valid and legally binding contract between the parties."407

11.84.
Little evidence has been pleaded about the circumstances surrounding this letter, which was sent on 28 September 2011, after Bankswitch had given notice in 2010 that Ghana was in breach of the Agreement, and after the Supreme Court's decision in Faroe Atlantic had been published in 2005-2006. However, the following points may be made about this letter.

(a) It was not addressed or copied to Bankswitch, nor has any evidence been offered as to how Bankswitch came into possession of a copy of it.

(b) The Respondent challenges the effect of this letter on the sole ground that the letter was not addressed to Bankswitch, but has not argued that Bankswitch came into possession of the copy by improper means. The Tribunal therefore proceeds on the assumption that a copy was lawfully furnished to Bankswitch, presumably by a person in the Government with the intention of informing Bankswitch of the views of the Attorney-General and Minister of Justice.

(c) Given that the Attorney-General and Minister of Justice must have been aware of the decision in Faroe Atlantic at the time of her letter in 2011 (the AttorneyGeneral having been a party in that case), her opinion of the legal position of the Agreement in relation to Article 181(5) of the Ghanaian Constitution must mean that she did not find that Article 181(5) would apply to the Agreement so as to nullify any transactions made in potential contravention of that provision.

(d) In the circumstances, the Tribunal regards this letter as confirming the earlier representations by the Government to Bankswitch that there was no issue regarding the legality of the Agreement on any ground (including unconstitutionality).

11.85.
Taking all of these facts together, the Tribunal finds that sufficiently clear representations, both by the statements and the conduct of Government officials, were made to Bankswitch to satisfy the first element of estoppel.

(ii) Reasonable Reliance on the Representation by the Claimant

11.86.
As a preliminary matter, the Tribunal notes that, contrary to the Government's argument that Bankswitch must be presumed to know the laws of Ghana as a locally incorporated company,408 it has treated Bankswitch as a foreign entity for the purposes of this arbitration as seen in the Government's own arguments. The Government may not, on the one hand, argue that Bankswitch is a foreign entity which should be subject to Article 181(5) of the Constitution and then, on the other hand, argue that it should be treated as a local company for the purposes of presuming Bankswitch's knowledge of Ghanaian law merely because it has become legally convenient to do so. Accordingly, the Tribunal shall not presume that Bankswitch knew of the requirements of Article 181(5) and finds that it was reasonable for Bankswitch to have relied on the representations and conduct of the Government on this subject.
11.87.
The Supreme Court in Balkan Energy noted that the current status of Article 181(5) of the Constitution requires clear and practical guidance for the Government and parties to better understand the parameters of its requirements. The court opined that "[i]t is therefore imperative that Parliament takes up early the challenge of framing the modifications to article 181 needed to give greater certainty and clarity as to what categories of international business or economic transactions to which the Government is a party come within the ambit of article 181(5)".409
11.88.
The Tribunal believes that Bankswitch was reasonable in not requesting that the Agreement be submitted to Parliament for approval under Article 181(5) and in relying on the representations of the Government because (i) the services provided by the DICs were of a similar nature although not duplicative (see Paragraphs 11,106 to 11,120 below; (ii) several DICs were foreign entities and were not subject to the requirements of Article 181(5) (see Paragraph 6.23 above); and (iii) the Government was in a better position to understand the constitutional requirements that would possibly apply to the Agreement and Bankswitch was reasonable in relying on that knowledge. The DICs were contracted to (i) develop, implement and maintain a computerised risk management system used by the DICs and CEPS to determine the level of risk posed to revenue collection by particular consignments and from there ascertain the need for physical inspection; (ii) develop and update a "transaction price database" containing the prices of goods imported to Ghana in order to identify declarants' undervaluation of imports by allowing the DICs and CEPS to compare the valuations submitted by declarants with historic valuations recorded in respect of similar imports; and (iii) verify imports for price, customs value and classification and, on the basis of the results of the computerised risk management system, identify which imports require physical inspection on arrival in Ghana.410
11.89.
More than this, the Claimant correctly stated in its First Post-Hearing Submission that, if the Agreement was required to be submitted to Parliament for approval, parliamentary procedures would have required the Respondent to submit the Agreement to the relevant parliamentary sub-committee in order to commence the approval process.411 Since the Respondent failed to submit the Agreement for parliamentary approval, it cannot now claim that that the Agreement is unenforceable on account of its own failure to take proper steps. The Claimant lacked standing to submit the Agreement to Parliament; that is uncontested. In Woyome v Attorney-General, the Ghana Superior Court held that "[i]t would be preposterous to suggest that the parties did not at the stage of signing the terms appreciate the nature and effect of the document they were signing".412 The court in Woyome cited Section 26 of the Ghana Evidence Act 1975, which provides that "when a party has by its own statement, act or omission, intentionally or deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest".413
11.90.
In Defence Industries Organisation of the Ministry of Defence and Support for Armed Forces of the Islamic Republic of Iran v International Military Services Ltd, the Dutch Supreme Court rejected the defence of lack of constitutional approval under the application of the Lizardi Rule:414

"According to Dutch private international law (a) the laws of the country in which the legal person was incorporated are applicable to the question regarding the restrictions on the legal person's authority and the question regarding the external enforceability of such restrictions and (b) no restrictions on authority can be invoked against a counterparty that was not aware and could not have been aware of such restrictions. In international legal transactions in principle the party that acted in good faith with regard to its counterparty's authority to act will be protected."415

11.91.
The Dutch Supreme Court went on to state that "[a] contracting party cannot rely on protection of the rule as formulated by the court of appeal if it was aware or should have been aware of the restrictions on authority of its counterparty".416
11.92.
Based on the Government's various acts and representations regarding the validity of the Agreement, Bankswitch proceeded to (i) make significant investments in the development of the GCS including the purchase of hardware and the furnishing of the Valuation Office specifically at the behest of the Government; (ii) develop electronic solutions for specific considerations raised by the Government; (iii) train the Government and shipping line staff at its own time and expense; and (iv) make additional investments to have the GCS ready to "go live" at any time after the passing of the First "Go Live" Date to ensure timely implementation.
11.93.
Accordingly, the Tribunal finds that Bankswitch reasonably relied on (i) the fact that the Government alone had the burden of submitting the Agreement for parliamentary approval if it was necessary and (ii) the various statements and conduct of the Respondent (notably including the opinion of the Minister of Justice that the Agreement was valid and enforceable without approvals).

(iii) Result Would Lead to Unjust or Inequitable Result

11.94.
In addition to the Government being found to have made clear representations on which Bankswitch relied, the Tribunal must find that the result of such reliance would lead to an unjust or inequitable result if the Government were to be successful in claiming the invalidity of the Agreement. Owing to the fact that the Government was the only Party to the Agreement that was in a position to submit the Agreement to Parliament for its approval under Article 181(5), and also considering that the Government continued to represent to Bankswitch that the Agreement was valid and enforceable, allowing the Government to now go back on its representations and invalidate the Agreement at this stage would be an unjust and inequitable result, given the facts and circumstances surrounding the performance under the Agreement for five years.

(iv) Reliance on the Representation was to the Claimant's Detriment

11.95.
It is clear from the facts that Bankswitch continued to perform its obligations under the Agreement in reliance on the Government's representations of the Agreement's enforceability, continuing to test, develop and train customs officials and shipping line staff on the GCS software. Bankswitch was required to prefinance the development of the system under Clauses 7(i) and (ii) of the Agreement and would only recoup its investment and receive a profit through the receipt of a Service Fee after the GCS went "live". By reason of the Government's leading Bankswitch to bel