(1) Where any dispute arises between the foreign investor and the Government in respect of the enterprise, all efforts shall be made through mutual discussions to reach an amicable settlement.
(2) Any dispute between the foreign investor and the Government in respect of an approved enterprise which is not amicably settled through mutual discussions may be submitted to arbitration;
(a) In accordance with the rules of procedure for arbitration of the United Nations Commission on International Trade Law...
Having received no response from the Respondents, on March 11, 1988, the Claimants’ counsel notified the Respondents by telex of the Claimants’ nomination of Professor Don Wallace, Jr as sole arbitrator, or requesting GIC’s nomination of its arbitrator to a three-judge panel.
22. Subject to the provisions of the Code:
(a) no enterprise approved under the Code shall be expropriated by the Government.
(b) no person who owns, whether wholly or in part, the capital of an enterprise approved under the Code shall be compelled by law to cede his interest in the capital to any other person.
3. In partnership with a group of entrepreneurs (Marine Drive Complex Limited) we planned to refurbish the project...
5. The relevant application for a building permit to cover the extension works envisaged was submitted to the Accra City Council through the Accra Town Planning Committee on 27th August 1986...
6. We started the construction of some of the new structures before the issue of the necessary permit because:
(a) We were assured by Town Planning Department that there would be no difficulties in securing the said permit even though it would take sometime.
(b) It was assumed that ACC would readily grant approval since it was for extension work and not a new building project.
(c) We needed to start the extension works early to be able to finish early enough for Inter-Tourism 86...
6. [sic] In view of the foregoing, it is please requested that you review the decision to demolish the structure starting 4th September, 1987. It is please intimated that actual demolition work started on 3rd September, one clear day before the deadline given us.
It was also agreed that:
(a) Regardless of the levels of investment of the two partners, [GTDC] would remain the majority shareholder with 51 percent shares.
(b) [GTDC] would exercise control and supervision over the project.
(c) [GTDC] would monitor all Investment Concessions to [MDCL] in respect of matters related to the property.
(d) [MDCL] would manage the complex for an initial period of 10 years with an option of renewal.
Lt Col Yaache further wrote:
7. Construction of some of the new structures started before the issue of the necessary permit because of several reasons, including the following:
(a) the project was approved by the Investment Centre and an agreement signed accordingly.
(b) We were assured by the Town Planning Department that there would be no difficulties in securing the said permit even though it was going to take some time.
(c) It was assumed that Accra City Council would readily grant the permit since it was for extension works and not a new building project.
(d) There was need to start the works early to be able to finish early enough for Inter-Tourism 86. Incidentally this deadline could not be met due to unforseen circumstances.
He noted in addition that "the project is 51 percent owned by the Government and not a privately owned venture". He requested that Mr Obeng "take the necessary action to save the project from destruction and enable us [to] proceed with the construction works". Finally, Lt Col Yaache concluded: "It is the view of this Company that there is something more to the reaction of the Accra City Council than the reason of ‘failure to obtain a Building Permit’".
The following persons who have connection with a company called Marine Drive Complex Ltd are to report to the National Investigations Committee at the former Border Guards Headquarters today, September 3, at 10 a.m.
They are Antoine Biloune, Gilbert Awoonor-Williams, alias Michigan, Commander (Rtd) J. W. K. Arthur and Nana Prah.
The Claimants assert that the same announcement was also made over Government-controlled radio on September 2. As ordered, Mr Biloune and the other named MDCL officers reported to the National Investigations Committee where they were given "assets declaration forms" and ordered to fill them out within 14 days. In addition, they were ordered to report to the National Investigations Committee twice a week.
It has come to our notice after an inquiry by the Accra City Council that we have been carrying out construction works without permit. The procuring of the permit is the sole responsibility of our Consultants namely Messrs Anthony Moore/Deweger Gruter Brown and Partners. Although these Consultants submitted the application to the Town and Country Planning on 27th August, 1986, they failed to follow it up.
On 28th August, 1987, Accra City Council gave us a Demolition Notice which expired on the 4th of September, 1987. On the 3rd of September, 1987, Accra City Council moved in and destroyed part of the new construction works.
Ghana Tourist Development Company Limited who is the majority shareholder of this project was contacted. They made several efforts to plead for extension of the date line but failed. [sic]
On the 2nd of September, 1987, an announcement on the radio requested myself, Nana Prah who is the Ag. Managing Director, and other persons to report to the National Investigations Committee (NIC) at 10 a.m. the following day. We reported accordingly and after providing our personal particulars in writing, we were served with Assets Declaration Forms to be completed within 14 days and we were told to report twice a week to the office of the NIC.
I have so far invested over $700,000 in the project made up of both local and foreign currency. We are in constant touch with both local and foreign investors who have shown considerable interest in the project. (Please find attached copies of correspondence to this effect).
In view of these unusual developments, and absence of security clearance from the government for the project as well as lack of serious consideration for alternate road from behind the Independence Square, it seems to me that the Government may not be interested in the project after all. I can not and do not intend to oppose the wishes of the Government.
I therefore appeal to you to use your good offices to clarify the position regarding Government support for the project, the provision of security clearance for the project and the construction of the alternate road to the site. The result of this clarification will assist me and other foreign investors to decide whether to continue with the project or direct our efforts elsewhere.
Antoine Biloune (Chairman of Board of Directors of Marine Drive Complex Ltd and main Investor (signed))
The general public is informed that with effect from today, December 18 the area behind the Independence Square, covering the distance from the Old Palm Court Restaurant up to the Labour Point along the beach, is closed to the public except Security Forces. The public is hereby warned not to trespass this area until further notice.
The Claimants allege that this closing, which blocked public access to the Marine Drive project site, was unprecedented. They charge that the closing of access was intended to and did prevent resumption of work at the site. The Respondents assert that the closing had nothing to do with the MDCL project, but was to permit preparation for a New Year’s parade. They deny, in any case, that the area closed prevented construction access to the restaurant site, since an unpaved road remained available.
We are surprised by the impression [in the Notice of Arbitration of February 10, 1988] that all efforts to resolve the issue amicably had failed. Since your client brought his grievances to our notice, we have been liaising with the relevant agencies of Government to help resolve the problem as part of our efforts to help resolve the issue amicably.
We have been able to secure necessary assurance from the Accra City Council and the Ghana Tourist Development Company Limited of the willingness to assist in resolving the issue amicably.
The Centre (and indeed the Government of Ghana) is committed to resolving this matter amicably in accordance with laid-down rules and procedures.
We are by this letter extending an invitation to the Company and to you or any other representative of Mr Biloune’s choice to join us in Ghana to discuss the matter.
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