The Approach of Ghana’s Judiciary in the Enforcement of Forum Selection Agreements in International Commercial Transactions

• Pages: 19-32

LEX PORTUS VOL 11 ISS 2 2025

ISSN 2524-101X

eISSN 2617-541X

DOI 10.62821/lp11202

The Approach of Ghana’s Judiciary in the

Enforcement of Forum Selection Agreements in

International Commercial Transactions

Solomon Okorley*

*Postdoctoral Research Fellow, Research Centre for Private International Law in Emerging Countries, Faculty of Law, University of Johannesburg

(Cnr.Kingsway & University Roads, Auckland Park, Johannesburg, South Africa) https://orcid.org/0000-0002-1725-0642

ABSTRACT

In international commercial transactions, parties often include a jurisdiction clause in their

contracts, specifying which court should resolve any disputes that arise. This practice brings

certainty, predictability and reduces the risks of parallel litigation, conicting judgments, and

additional expenses. Jurisdiction agreements can be exclusive, non-exclusive, or asymmetrical.

The Hague Convention on Choice of Court Agreements is the international convention that

governs these clauses. It aims to ensure the ecacy of exclusive jurisdiction agreements and

manage parallel proceedings in dierent countries. Although several countries have adopted the

convention, no African country has acceded to it, including Ghana.

In Ghana, issues with jurisdiction clauses typically arise when a lawsuit is led in a court

dierent from the one designated in the contract, leading to objections and requests to move

the case to the designated jurisdiction. This article examines how Ghana’s courts enforce these

agreements, highlighting that there is no consistent approach. This undermines legal certainty

and predictability. The article argues that Ghanaian courts should prioritize upholding the

parties’ negotiated agreements, only limiting their choice in rare cases for justice. A lack of

consistent enforcement could discourage foreign investment and cross-border trade. The paper

advocates for a uniform judicial approach to forum selection clauses and recommends that

Ghana accede to the Hague Convention to enhance legal certainty and attract foreign investors

CITATION

Okorley, S. (2025). The Approach

of Ghana’s Judiciary in the

Enforcement of Forum Selection

Agreements in International

Commercial Transactions.

Lex Portus, 11(2), 25–38.

https://doi.org/10.62821/lp11202

KEYWORDS

International commercial

contracts, jurisdiction agreement,

certainty, predictability, Hague

Choice of Court Convention,

Ghana, judicial eciency

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Introduction

In transnational trade or commercial transactions, a common phenomenon is that the

parties, during the conclusion of the contract, designate in advance the competent court that

should adjudicate any dispute that will arise from their contract. This is known as a jurisdiction

agreement or jurisdiction clause. Having such a clause in the contract is benecial as it brings

parties certainty, predictability and reduces the risk of parallel litigation and its attendant

problems, such as duplicative litigation, signicant additional expense for litigants, and

susceptibility to conicting judgments (Herrup & Brand, 2022, p. 9; Garnett, 2013). These

jurisdiction agreements are enforced because the courts want parties to a contract to “abide by

their contracts, and therefore, will restrain a plainti from bringing an action which he is doing

in breach of his agreement with the defendant that any dispute between them shall otherwise

be determined” (Racecourse Betting Control Board v. Secretary of Air, 1944, Ch. 114, p. 126).

A jurisdiction agreement can be exclusive, non-exclusive, or asymmetrical (Keyes & Marshall,

2015, p. 345). An “exclusive jurisdiction agreement” is a clause that confers jurisdiction on the

chosen or designated court (Sooksripaisarnkit & Garimella, 2020–2021, p. 4). In other words,

the parties are to litigate only in the designated court. A non-exclusive jurisdiction clause

(Keyes, 2020, p. 5), on the other hand, is a pact by the parties that “the nominated court may