Senegal

Commercial courts are organised around a professional presiding judge, assisted by lay judges from the business world, and generally rule as a panel. However, the presiding judge may rule alone in summary proceedings and for urgent or provisional measures. The public prosecutor intervenes in certain cases, particularly collective proceedings, while the court clerk’s office is responsible for the administration and monitoring of cases. Decisions may be appealed before the commercial chamber of the Court of Appeal, then to the Common Court of Justice and Arbitration (CCJA).

The procedure is generally written and expedited, even if the evidence is mainly written (contracts, invoices, correspondence). The court is most often seized by summons, but also by voluntary appearance or joint petition. Mandatory prior conciliation is organised before the merits of the case are examined; if it fails, the case is heard. The court rules as a panel (one professional judge and consular judges), while the president may rule alone in summary proceedings for emergencies and provisional measures. The adversarial principle applies: each party only submits the documents on which it relies, with no obligation for general disclosure. Judgments may be accompanied by provisional enforcement, and the remedies available are appeal to the commercial chamber of the Court of Appeal, then to the Court of Cassation.

Before initiating legal proceedings in commercial matters in Senegal, it is necessary to verify the jurisdiction of the court, the existence and compliance with a prior attempt at amicable settlement (conciliation), the plaintiff’s standing, capacity, and interest in bringing the action, compliance with statutes of limitations, the availability of sufficient written evidence, and any contractual clauses that may require arbitration, mediation, or a specific jurisdiction, while assessing the costs and risks of the proceedings.

In Senegal, major commercial disputes are mainly settled through ADR methods, such as: arbitration, which is widely used for complex or international cases and governed by the Uniform Act on Arbitration Law and the New York Convention; mediation and conciliation, which promote amicable solutions that are legally binding and often certified as enforceable; and transactional negotiation, which allows the parties to end the dispute by contractual agreement while preserving their business relationship.

In Senegal, the Code of Civil Procedure provides for a period of three months. However, in practice, a typical commercial dispute generally reaches trial within two to six weeks, thanks to the accelerated procedure of the commercial courts and prior conciliation, although complex cases or those requiring expert opinions may take several months to be heard.

Each party is only required to disclose the documents on which it relies to support its claims or defence (contracts referred to, invoices, purchase orders, correspondence, accounting documents). There is no obligation on each party to spontaneously disclose documents that are unnecessary or unfavourable to his/her case.

Witnesses are not normally required to attend hearings because the procedure is documentary; it is based on documents rather than oral testimony. However, the judge may order an investigation and call witnesses by official summons.

The judge has a wide margin of discretion. In accordance with the Code of Civil Procedure, costs are in principle borne by the unsuccessful party.

There is an interim relief judge before the Commercial Tribunal. Provisional measures also consist of protective measures, and investigative measures, in addition to certain specific exceptional measures. In urgent situations, they make it possible to preserve the rights of the parties, protect property or evidence, order provisional payments, or temporarily suspend certain acts, without ever prejudging the final decision that will be rendered on the merits of the dispute.

The OHADA Uniform Arbitration Act is the arbitration law applicable in the 17 OHADA (Organisation pour l’harmonisation en Afrique du droit des affaires) countries.

Where OHADA law is not applicable (i.e. the seat of arbitration is not in an OHADA country), the Senegalese Code of Civil Procedure has a chapter on arbitration.

The regulation is closely aligned with the UNCITRAL Model Law.

Yes, if provided in the rules or the agreement. Under OHADA law (applicable in Senegal), the arbitral tribunal has the power to order any provisional or protective measures it deems necessary to preserve the rights of the parties or evidence (e.g. provisional prohibition of an act, preservation of property, deposit of sums, measures to protect evidence). These measures do not affect the merits of the dispute. However, the enforcement of these measures may require the intervention of the competent state court (often the judge hearing applications for interim relief), particularly where public enforcement is required.

An arbitral award may be challenged before a state court only by way of an application for annulment, on limited grounds:

• lack of jurisdiction of the arbitral tribunal;
• procedural irregularities affecting the rights of the parties;
• violation of public policy;
• incapacity or lack of consent of a party; or
• invalidity of the arbitration agreement.

Unless these grounds apply, the award is final and binding.

Senegal is a party to several international instruments governing the enforcement of arbitral awards and foreign judgments. It has ratified the New York Convention (1958) on the recognition of foreign arbitral awards and applies the OHADA Uniform Act on Arbitration, guaranteeing the enforcement of awards within the OHADA area. CCJA rulings are also automatically recognised in all member states. The country is also a party to the ICSID Convention, ensuring the enforcement of investor–state awards as well as domestic decisions. However, for non-arbitrated foreign civil or commercial judgments, enforcement is based on bilateral agreements or the principle of reciprocity.

In commercial matters in Senegal, judgments imposing an obligation are enforceable; in particular, judgments on the merits that have become final, those accompanied by provisional enforcement, as well as summary judgments and orders on request, which are immediately enforceable. Arbitration awards are also enforceable after exequatur, or directly when provided for by a special text. On the other hand, judgments before ruling, purely declaratory decisions, judgments subject to a suspensive appeal when no provisional enforcement has been ordered, or decisions that have been overturned or are contrary to public policy are excluded from enforcement.

In Senegal, foreign judgments or arbitral awards are registered and enforced through exequatur proceedings before the competent court, generally the commercial court for commercial disputes. The interested party files a petition accompanied by the judgment or award, a certified French translation, and proof of notification to the opposing party. The judge verifies, in particular, the jurisdiction of the foreign court, the regularity of the proceedings, and compliance with Senegalese public policy. If these conditions are met, the judge issues an exequatur order, making the decision enforceable in Senegal. OHADA or ICSID awards benefit from simplified procedures or automatic recognition.

Once a foreign judgment or arbitral award has been declared enforceable in Senegal by exequatur, it may be enforced by several means:

• seizure of movable property (seizure for sale, seizure of assets);
• seizure of immovable property;
• seizure of wages or income;
• injunctions to do or refrain from doing something; and
• seizure of securities or transferable securities.

The bailiff implements these measures in accordance with the Code of Civil Procedure, and the costs of enforcement are in principle borne by the debtor.

Pending the enforcement of a judgment or arbitral award in Senegal, the court may order provisional measures to protect the rights of the parties and ensure the effectiveness of enforcement. These include:

• the seizure of movable property, real estate, or bank accounts;
• injunctions to do or not to do something;
• the suspension of acts or prohibition on disposing of property;
• the payment of provisions; and
• provisional investigative measures, such as expert opinions or reports.

Orders on request may also be issued quickly to freeze funds or preserve assets, all of which remain temporary and under the control of the presiding judge.

Proceeding on the assumptions outlined in the Model Answer, would a court in this jurisdiction recognise and enforce the arbitral award under the New York Convention?

In particular:

• Does the award fall within the scope of Article V(1) of the Convention, or would any of the grounds in Article V(1) justify refusal on the assumed facts?
• Is the subject matter of the dispute capable of settlement by arbitration under domestic law for the purposes of Article V(2)(a)?
• Would recognition or enforcement of the award be contrary to public policy within the meaning of Article V(2)(b)?

Response

From an enforcement perspective, the Senegalese Commercial Court would apply OHADA law and consider the arbitration clause to be valid as long as it relates solely to the financial terms of enforcement of a final judgment, without calling into question the authority of res judicata. The arbitral award, limited to verifying the finality of the judicial decision and setting the payment, interest and security, would not violate public policy or the rules of jurisdiction. When asked to grant exequatur, the judge would exercise limited control, without reviewing the merits of the case, and would grant exequatur, thus allowing the enforcement of the award in accordance with the Uniform Act on the Organization of Simplified Recovery Procedures and Enforcement Measures (AUPSRVE).