On 17 September 2026, an ICC tribunal found that Befesa Desalination Developments Ghana Limited had validly terminated the Water Purchase Agreement with Ghana Water Company Limited and awarded approximately US$235 million in termination payments to Befesa and Standard Bank of South Africa Limited.
The award includes pre-award interest calculated to 31 March 2026, with continuing interest on the relevant debt component from 1 April 2026. A parallel arbitration under the State Guarantee also resulted in an award holding Ghana liable for Ghana Water’s liabilities.
The government says negotiations with Befesa to acquire the plant had already begun before the final award and are continuing. The stated objective is to conclude an arrangement that would allow the State to acquire the plant while avoiding payment of the US$235 million award.
So, where does that leave Ghana?
The Award and its Legal Effect
Under the ICC Arbitration Rules, an award is binding on the parties, and parties undertaking arbitration under the Rules agree to carry out the award without delay, subject to any recourse that may validly be available under the applicable law.
The Alternative Dispute Resolution Act, 2010 (Act 798) also provides mechanisms for challenging arbitral awards and for recognising and enforcing foreign awards. The precise route depends on matters such as the place of arbitration and the law applicable to the arbitration.
For Ghana, therefore, the award leaves three broad questions. Can it be challenged? Can it be enforced in Ghana? And can the parties reach a settlement that changes the practical consequences of the award?
Can Befesa Enforce the Award While Negotiations Continue?
The existence of negotiations does not, on its own, suspend an arbitral award. The parties can negotiate a settlement, but until they reach an agreement dealing with their respective obligations, the award remains in the picture.
As a foreign arbitral award, section 59 of Act 798 provides for enforcement by the High Court. The party seeking enforcement must satisfy the statutory requirements, including producing the award and the arbitration agreement in the prescribed form. The Act also identifies circumstances in which the Court must refuse enforcement, including where the award has been annulled in the country in which it was made or where the party against whom it is invoked was not given sufficient notice to present its case.
The important point is that negotiations do not themselves create a legal standstill. Ghana and Befesa can continue negotiating while the legal rights arising from the award remain in existence.
What Can Ghana Challenge?
An arbitration award does not ordinarily give the losing party an opportunity to argue the substantive dispute all over again. The available grounds of challenge are limited by the arbitration law applicable to the award.
Under Act 798, grounds for setting aside an award include matters such as incapacity of a party, invalidity of the arbitration agreement, inadequate notice or inability to present a case, the tribunal deciding matters outside the scope of the submission, failure to follow the agreed arbitral procedure, and certain circumstances concerning the arbitrator. The Act also provides for setting aside where the subject matter is not capable of settlement by arbitration or where the award was induced by fraud or corruption.
For a foreign award, the New York Convention framework reflected in Act 798 similarly provides limited grounds for resisting recognition and enforcement. These include invalidity of the arbitration agreement, lack of proper notice, excess of the tribunal’s jurisdiction, procedural irregularity, an award that is not yet binding, or an award that has been set aside or suspended at the seat.
What Does Execution Against the State Look Like?
Here, there are two stages to keep separate, recognition and enforcement of the award on the one hand, and execution against the State once the award has become enforceable as a judgment on the other.
For a foreign award, the first stage falls under section 59 of Act 798. If the statutory requirements are satisfied, the High Court may enforce the award.
The second stage brings the State Proceedings Act, 1998 (Act 555) into the picture. Once an award has become enforceable as a judgment against the Republic, the statutory framework governing execution against the State becomes relevant. The Supreme Court has previously held that the certificate required under section 15 of Act 555 is a precondition to execution against the State.
In Republic v High Court (Fast Track Division), Accra; Ex Parte Attorney-General (Maud Nongo Interested Party), the Supreme Court noted that public funds may be attached to satisfy judgments against the State but quashed garnishee orders made without the required certificate. So even where a claimant has obtained an enforceable monetary award against the State, the claimant must follow the statutory procedure applicable to execution against the Republic.
What Are Ghana’s Options Now?
The Government has a few matters to deal with at the same time.
It can examine whether there is a legally sustainable challenge to the award. It can continue negotiating with Befesa over the acquisition of the plant and seek terms that deal with the award and the parties’ outstanding obligations. It can also prepare for the consequences of recognition and enforcement if the award is brought before the Ghanaian courts.
The negotiations therefore deserve close attention. If Ghana acquires the plant, the transaction would have to deal with more than the price of the physical asset. The parties would need to address the relationship between the acquisition, the arbitral awards, outstanding liabilities and the rights created by those awards.
There is also the question of interest. The Attorney-General’s statement confirms that interest continues on the relevant debt component from 1 April 2026. Every additional month therefore has the potential to affect the amount ultimately payable if the award remains outstanding.
One other point is important. The two arbitrations do not create an entitlement to double recovery. The tribunal rejected the claim for approximately US$402 million in unpaid charges and awarded the contractual termination payment instead. The Government has also stated that the parallel awards contain safeguards against double recovery.
And What Happens Next?
The award has brought the arbitration itself to a close. The next stage concerns what the parties do with the result.
Ghana can challenge the award if a recognised legal ground exists. It can negotiate. Befesa and Standard Bank can pursue the legal routes available for recognition and enforcement. The State, in turn, has the statutory protections and procedures that govern enforcement against it.
For now, the Government’s negotiations with Befesa provide another route for resolving the matter. Whether those negotiations produce an agreement, however, will depend on the terms eventually reached between the parties.
The US$235 million award has moved the dispute into a different phase. The questions now concern challenge, settlement and enforcement, and each comes with its own legal rules.
