FIDIC around the world – Ghana

Isaac Aburam Lartey
Sam Okudzeto & Associates, Accra

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What is your jurisdiction?

Ghana

Are the FIDIC forms of contract used for projects constructed in your jurisdiction? If yes, which of the FIDIC forms are used, and for what types of projects?

Yes, FIDIC forms of contract are commonly used in Ghana. They are particularly used for large-scale international infrastructure and engineering projects funded by development finance institutions such as the World Bank, the International Finance Corporation (IFC) and the African Development Bank (AfDB). Some domestic projects adopt the FIDIC forms of contract as well.

The type of FIDIC forms adopted on a project in Ghana depends on the nature of the project and the intended model of risk allocation.

The Red Book is typically used for traditional procurement projects, particularly building and civil engineering works such as roads, where the Employer assumes responsibility for the design and the Contractor’s obligation is primarily to construct the works in accordance with that design.

The Silver Book is also used in Ghana for EPC/turnkey projects involving large-scale infrastructure, where employers pass down design responsibility and execution of the project to the contractor based on a single point of responsibility for the project outcome.

There is also an increasing resort to the White Book for various consultancy services in the construction industry in Ghana. The White Book is used in Ghana for projects requiring the services of architects and consultants for both design and supervision of projects.

Do FIDIC produce their forms of contract in the language of your jurisdiction? If they do not, what language do you use?

FIDIC contracts are produced in the English language, which is the official language used in Ghana.

Are any amendments required in order for the FIDIC Conditions of Contract to be operative in your jurisdiction? If yes, what amendments are required?

Yes. For projects involving the Government of Ghana, Sub-Clause 14.8 of the 2017 suite of FIDIC Contracts must be amended before they can be operative in Ghana. Under the Contracts (Amendment) Act 2023, a person shall not enter a contract or transaction on behalf of the Republic of Ghana where the payment of interest on a sum due to a counterparty in the contract or transaction is calculated on a compound interest basis.¹ Any such contract would be null and void.²

In view of the provision in Sub-Clause 14.8 of the 2017 suite of FIDIC Contracts and Sub-Clause 7.2 of the White Book, which stipulates the payment of financial charges compounded monthly on any delayed payment, these provisions would need to be amended to reflect simple interest for delayed payment before they can be operative in a project involving the Government of Ghana.

Are any amendments common in your jurisdiction, albeit not required in order for the FIDIC Conditions of Contract to be operative in your jurisdiction? If yes, what (non-essential) amendments are common in your jurisdiction?

Yes. In addition to legally required amendments, some commercially driven modifications are commonly introduced in Ghanaian projects, typically through the Particular Conditions while preserving the overall structure of the 2017 FIDIC suite.

In relation to dispute resolution under Clause 21, the multi-tiered framework is generally maintained, including the role of the dispute board and the requirement for amicable settlement. In practice, however, the process is often streamlined. The amicable settlement period is frequently shortened, and formal mediation is rarely adopted as a separate step, with parties preferring to proceed more directly to the dispute board or arbitration where early resolution is not achieved.

Risk allocation is also addressed through targeted amendments, particularly in relation to unforeseeable physical conditions, access to the site and compliance with laws. These amendments typically clarify or redistribute responsibility for ground conditions, land access and regulatory approvals in a manner that reflects local conditions and commercial expectations.

Security provisions remain a key area of negotiation. Advance payment and performance security mechanisms are frequently refined to address the form, duration and release of guarantees, particularly in projects involving lender oversight or heightened performance requirements.

Does your jurisdiction treat Sub-Clause 20.2.1 of the 2017 suite of FIDIC contracts as a condition precedent to Employer and Contractor claims?

There is currently no definitive judicial authority in Ghana directly addressing whether Sub-Clause 20.2.1 of the 2017 suite of FIDIC contracts constitutes a strict condition precedent.

However, as a matter of contractual interpretation, Ghanaian courts generally uphold freely agreed contractual provisions, including notice requirements, provided they are clear and unambiguous. This is based on the principle of freedom of contract and the sanctity of contract. The language of Sub-Clause 20.2.1 is clear and mandatory: a claiming party must give notice within 28 days of becoming aware (or when it ought reasonably to have become aware) of the relevant event, failing which it ‘shall not be entitled’ to additional payment or extension of time, and the other party is discharged from liability. This type of wording is generally recognised within the contract law jurisprudence of Ghana as creating a condition precedent, particularly where non-compliance is expressly linked to the loss of substantive entitlement.

Accordingly, Sub-Clause 20.2.1 of the 2017 FIDIC suite would, in principle, be treated as a condition precedent to both Employer and Contractor claims, subject to the precise wording of the contract.

Are dispute boards used as an interim dispute resolution mechanism in your jurisdiction? If yes, how are dispute board decisions enforced in your jurisdiction?

Dispute boards are used in Ghana, particularly on internationally financed projects. However, in practice, their use remains relatively limited and inconsistent.

A key challenge lies in the enforcement of dispute board decisions. There is currently no existing legal framework in Ghana which expressly recognises adjudication decisions as immediately enforceable in the same manner as arbitral awards. This is coupled with a recent Supreme Court decision which failed to recognise and enforce the decision of a dispute board merely based on the issuance of a notice of dissatisfaction of an engineer’s determination by the counterparty. As a result, parties seeking to enforce dispute board decisions may need to pursue arbitration or initiate a fresh action in court to enforce dispute board decisions as a contractual obligation. This undermines the intended interim-binding nature of such decisions under FIDIC.

This enforcement gap has created a degree of uncertainty and has, in some instances, reduced the effectiveness of dispute boards as a dispute avoidance mechanism within the Ghanaian construction sector.

Is arbitration used as the final stage for dispute resolution for construction projects in your jurisdiction? If yes, what types of arbitration (ICC, LCIA, AAA, UNCITRAL, bespoke, etc) are used for construction projects? And what seats?

Yes. Arbitration is widely used as the final dispute resolution mechanism for construction projects in Ghana. Both institutional and ad hoc arbitration are commonly adopted by parties. Domestic disputes are frequently administered under the rules of the Ghana Arbitration Centre or conducted as ad hoc arbitrations under the ADR Act 2010 (Act 798) and UNCITRAL Arbitration Rules. For international projects, parties often adopt institutional rules such as the rules of the International Chamber of Commerce (ICC) Court of Arbitration.

The seat of arbitration is usually Accra, although international contracts may designate foreign seats such as London or Paris.

Are there any notable local court decisions interpreting FIDIC contracts? If so, please provide a short summary.

In Tieso Ghana Ltd v Euroget De-Investa SA,³ the Ghanaian courts considered the effect of a Dispute Adjudication Board (DAB) decision under Clause 20 of the FIDIC Conditions (1999). Following a DAB award in favour of the contractor, the employer issued a Notice of Dissatisfaction within 21 days and resisted enforcement.

The High Court, Court of Appeal and Supreme Court consistently held that a DAB decision is not enforceable unless it has become ‘final and binding’. According to the courts, where a Notice of Dissatisfaction is issued within time, the decision has no binding effect capable of enforcement and the dispute must proceed to arbitration. The courts further emphasised that the DAB is not an arbitral tribunal and its decisions do not constitute arbitral awards.

This approach departs from the orthodox FIDIC position. The Ghanaian courts did not recognise the ‘binding but not final’ nature of DAB decisions and therefore rejected the ‘pay now, argue later’ principle.
The result is that DAB decisions in Ghana are not immediately enforceable, undermining their intended role in preserving cash flow and project continuity pending arbitration.

Is there anything else specific to your jurisdiction and relevant to the use of FIDIC on projects being constructed in your jurisdiction that you would like to share?

Yes. A key practical issue affecting the use of FIDIC contracts in Ghana is not the form of the contracts themselves but the level of familiarity with their administration among project participants. While FIDIC forms are widely used (particularly on donor-funded infrastructure projects), their mechanisms are not always properly implemented in practice.

Recent capacity-building initiatives are beginning to address this gap. For example, the World Bank, in collaboration with the Ghana Consulting Engineers Association, has organised targeted training on FIDIC contract management
in Accra. These programmes focus on the practical application of core FIDIC mechanisms, including claims procedures, risk allocation and dispute avoidance.

This development is directly relevant to the use of FIDIC in Ghana. Many disputes arise not from deficiencies in the contract forms but from failures in contract administration – such as non-compliance with notice requirements, poor record-keeping and underutilisation of dispute avoidance mechanisms. Improving capacity in this area is therefore likely to enhance the effectiveness of FIDIC contracts in practice and reduce the frequency of formal disputes.

Notes

1 Section 17 (4) of the Contracts (Amendment) Act 2023 (Act 1114).

2 Section 17 (5) of the Contracts (Amendment) Act 2023 (Act 1114).

3 Civil Appeal No. J4/34/2019 24 July 2019.

Isaac Aburam Lartey is a Senior Associate at Sam Okudzeto & Associates in Accra, Ghana, where he specialises in dispute resolution with a focus on construction, infrastructure and commercial arbitration. He has acted for a diverse range of clients in complex disputes before both courts and arbitral tribunals, particularly in matters arising from construction and engineering projects. He can be contacted at isaac.lartey@senachambers.com.