A Tribunal constituted under the auspices of the London Court of International Arbitration (LCIA) has dismissed all claims brought by Sibton Switch Systems Ltd against the Bank of Ghana (BoG) to terminate a master agreement for the Ghana Retail Payment Systems Infrastructure in 2017.
The tribunal also ordered Sibton Switch to make a substantial payment to the BoG regarding its legal fees and costs of the arbitration.
Sibton Switch Systems Ltd, on 9 April 2018, filed a request for arbitration with the LCIA against BoG for breaching the master agreement for the Ghana Retail Payment Systems Infrastructure entered into by the two parties.
Following the 2016 elections and the subsequent appointment of new management for the Bank of Ghana, it became necessary to review the terms of the contract entered into by the previous government.
In reviewing the contract, the BoG new management concluded that Sibton had neither acquired the licence nor fulfilled the condition precedent for effectiveness of rights and obligations of the parties.
The agreement, which dealt with the grant of exclusive rights to Sibton Switch to build, operate and own the Ghana Retail Payment Systems Infrastructure, was therefore terminated on the basis that it never came into effect.
The claimant, Sibton Switch, went to the LCIA seeking relief for US$478 million from the respondent, Bank of Ghana.
The contract awarded to Sibton Switch was one-sided in favour of Sibton Switch and severely detrimental to the Bank of Ghana’s interests.
For example, the Public Procurement Authority approval for the project provided that the Bank of Ghana’s maximum liability was GHC300,000. Contrary to this approval, the corruptly procured contract with Sibton Switch provided that the Bank of Ghana had a huge potential liability of $478 million (GHC2.6 billion).
In addition, the tender price of Sibton Switch was 33 times expensive than the next most costly bid.
Following the termination of the contract with Sibton Switch in 2017, the Bank of Ghana’s subsidiary, Ghana Interbank Payment and Settlement Systems (GhIPSS), was able to deliver mobile payment systems interoperability at a small fraction of the cost, saving the taxpayer billions of cedis.
On 28 July 2021, a panel of three distinguished arbitrators issued an award in favour of the Bank of Ghana in the LCIA arbitration, dismissing all the claims brought by Sibton Switch Systems Ltd.
The claims were dismissed due to the failure by Sibton Switch Systems Ltd to comply with the orders of the tribunal, including an earlier interim award made by the tribunal on 25 June 2019, in favour of the Bank of Ghana, which required Sibton Switch to make an interim award payment for security of costs.
The final award also orders Sibton Switch Systems Ltd to pay to the Bank of Ghana, in total, its costs of the arbitration in respect of the BoG’s legal fees.
Rex Mainoo Yeboah, ISD
