What Can Ghana Learn from Slovak Republic's Success in International Investment Arbitration?

The Slovak Republic's impressive track record in international investment arbitration provides critical insights for Ghana as it continues to refine its approach to investor-state disputes. With Ghana moving away from relying on external counsel and now defending arbitration cases in-house, there is an opportunity to draw valuable lessons from Slovakia's success to enhance its strategy, strengthen its defences, and protect its interests effectively.

1. Building Institutional Capacity for In-House Arbitration

Slovakia's victories are built on proactive legal strategies supported by expert teams. While Ghana's decision to handle arbitration cases in-house reflects confidence in its institutional capacity, it underscores the need for continuous investment in training and expertise. Specialized legal teams familiar with international arbitration rules, treaty interpretation, and tribunal dynamics are crucial for maintaining a strong defence.

Ghana must build a well-resourced arbitration unit within the Attorney General's office or a similar body. This unit should include lawyers trained in international investment law who can handle complex disputes. Collaboration with international legal networks and access to arbitration databases could further strengthen in-house capacity.

2. Strengthening the Domestic Legal Framework

Slovakia's alignment with European Union law has been a critical factor in its arbitration success. Similarly, Ghana must ensure its domestic legal framework aligns with international standards while safeguarding public interests. Laws governing investments, natural resources, and environmental protections should be clear, transparent, and enforceable.

Additionally, Ghana should consider modernizing its bilateral investment treaties (BITs). Many of these treaties were negotiated decades ago and may not reflect contemporary priorities. Incorporating clauses that allow Ghana to regulate in the public interest, such as provisions for health, environmental sustainability, and social welfare, can help protect the state from excessive investor claims.

3. Balancing Public Interest with Investment Obligations

Slovakia's success in cases like Achmea v. Slovak Republic highlights the importance of framing state actions as necessary for protecting the public interest. Ghana must similarly ensure that its policy decisions, particularly in critical sectors like health and natural resources, are well-documented and demonstrably aligned with public welfare.

For example, when introducing new regulations, Ghana should conduct thorough impact assessments and justify policy changes with data and reports. This documentation can serve as critical evidence in arbitration to show that the state acted within its sovereign rights.

4. Proactive Dispute Prevention

Slovakia's ability to resolve disputes early and efficiently has been instrumental in its success. Ghana can adopt similar measures by establishing mechanisms to address investor grievances before they escalate into arbitration. Regular communication channels with investors, mediation services, and consultation mechanisms can foster trust and prevent conflicts.

An investment dispute prevention unit within the government could monitor ongoing projects, address concerns proactively, and reduce the likelihood of disputes. This would not only protect Ghana's reputation but also reinforce investor confidence in the country's commitment to fair treatment.

5. Learning from Arbitration Precedents

Slovakia's legal teams have effectively relied on precedent to anticipate tribunal decisions and frame their arguments. Ghana can benefit from developing a comprehensive database of relevant arbitration cases, particularly those involving similar sectors or treaty provisions.

By analyzing past rulings, Ghana's legal teams can craft stronger defences and understand how to frame arguments in line with tribunal expectations. This knowledge would be especially useful for in-house legal teams navigating the complexities of arbitration.

6. Regional Collaboration and Investment Policy Reform

While Slovakia's success has been supported by its integration into the European Union, Ghana can leverage regional platforms like the African Continental Free Trade Area (AfCFTA) to promote fair investment practices. Collaborating with other African states to standardize investment protocols and reform treaties can strengthen Ghana's position in arbitration and create a more balanced framework for foreign investments across the continent.

Moving Forward: Ghana's Path to Arbitration Resilience

The Slovak Republic's success in international arbitration is not accidental—it is the result of deliberate strategies, robust governance, and proactive legal defences. For Ghana, the path to improving its arbitration record lies in adopting similar measures: investing in legal expertise, modernizing investment treaties, safeguarding the public interest, and fostering early dispute resolution. By doing so, Ghana can build a robust system that not only defends its sovereignty but also attracts and sustains foreign investment in line with its development goals.

In an era of increasing investor-state disputes, Ghana has an opportunity to learn from Slovakia's example and position itself as a strong, balanced participant in the global investment landscape. With the right reforms and strategic focus, Ghana can minimize disputes, protect its interests, and emerge as a model for other nations navigating the complexities of investment arbitration.