Article 181(5) of the 1992 Constitution of Ghana and its Implications on International Commercial Transactions

The significance is in relation to the purpose of Article 181(5). [...]the example given in the defendant's statement of case 'that every contract that the Government enters into for the supply of vehicles is an "international economic or business transaction" because "it is a notorious fact that nearly all the cars plying our roads are imported"' would not necessarily be correct because the fact only of the importation of the vehicles would not be significant enough in relation to the purpose of Article 181(5) to justify the transaction being characterised as an international business transaction. [...]in the words of the court: 'All these circumstances cumulatively lead us to the conclusion that the answer to the first question referred to this Court is that the Power Purchase Agreement dated 27th July 2007 between the Government of Ghana and Balkan Energy (Ghana) Limited constitutes an international business transaction within the meaning of Article 181(5) of the Constitution.' [...]in the subsequent case of Attorney General v Balkan Energy Ghana Ltd,15 in order to avoid the effect of the pronouncement of the Supreme Court in the Faroe Atlantic case, the defendants in an apparent display of ingenuity incorporated a company in Ghana before entering into transactions with the Government of Ghana. [...]it was held that Ghana cannot rely on its own constitution to avoid the customary international rule that a host state must act in good faith and in a manner that is consistent with international law when dealing with a foreign investor. [...]even in a case where a state party enters into a commercial transaction with a foreign party that names a domestic legal regime as the choice of law, international law will apply to some aspects of the contract either because there will be specific clauses to that effect or because of the general safeguards of international law.