Attorney-General Clarifies: No U.S. Court has awarded judgment debt against Ghana’s government

The Attorney-General of Ghana, Godfred Dame, has clarified that there is no U.S. court awarding a judgment debt against the government of Ghana. He stated that the recent case involving a $111 million judgment debt in favor of the Ghana Power Generation Company (GPGC) is merely an enforcement order, not a new judgment.

“This award was given way back in 2021, and the government since then has had the obligation to pay and indeed they have been making efforts to pay. It is the failure to exhaust payment which has led to the company seeking enforcement orders in other jurisdictions. It is not the case where there has been a new judgement or a fresh award given by any court or any tribunal anywhere,” Dame explained during an interview with Accra-based Citi.

The enforcement order follows Ghana’s failure to fully comply with a prior tribunal decision from the United Kingdom. A District of Columbia court in the U.S. awarded the $111,493,828.82 judgment debt to GPGC, along with an order for mandatory post-judgment interest.

In 2021, a U.K. court had already ruled that Ghana owed $140 million for terminating a power deal with GPGC. This ruling mandated that the government pay $134,348,661 for the Early Termination Payment, along with costs for mobilization, demobilization, preservation, maintenance, and accrued interest. Additionally, Ghana was required to cover over $3 million in arbitration costs and GPGC’s legal fees.

The oil trading company Trafigura was positioned to sell Ghana’s assets in the U.K. to recover the debt owed to it. In response, Ghana filed an application on June 23, 2003, to set aside the order, but the court dismissed it.

Deputy Attorney-General Alfred Tuah Yeboah acknowledged that while some partial payments were made, the state could not adhere to the installment payment plan. “Having failed to do so, the judgment creditor decided to execute the judgment. They attached property belonging to the Republic in the U.K., and then they sought to serve us with that process. We then filed a motion trying to set aside the process through which we were served, but the High Court in England said no, and that the service on us [the state] was properly made. So now, the Ministry of Finance has been advised to once again approach the judgment creditors and make every effort to pay that money,” he stated.

Despite the ruling, Ghana only managed to pay $1,897,692.40, leaving a substantial outstanding balance. Following unsuccessful attempts to secure the remaining amount, GPGC filed a case in the U.S. District Court on January 19, 2024, seeking to recover the compounding debt under the New York Convention and Chapter 2 of the Federal Arbitration Act.

Court documents indicate that the U.S. court served Ghana with the petition on January 23, 2024, via Shirley Ayorkor Botchwey, Ghana’s Minister for Foreign Affairs and Regional Integration. The documents were confirmed to be received in Ghana on January 29, 2024. However, Ghana did not respond by the March 29, 2024, deadline and failed to appear in court.

The court found it had jurisdiction over the case, referencing the New York Convention, which the U.S. has ratified to recognize U.K. arbitral awards. The court also highlighted that Ghana had waived its sovereign immunity and committed to international arbitration under the power purchase agreement.

In his memorandum opinion on August 6, 2024, Chief Judge James E. Boasberg pointed out that the arbitral award between the non-U.S. parties arose from a commercial relationship, making it subject to the New York Convention. Although the judge did not grant pre-judgment interest to GPGC, the court will award post-judgment interest at the specified rate in U.S. codes, further increasing Ghana’s financial obligations.

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