SENEGAL Law and Practice Contributed by: Aboubacar Fall, AF Legal
Law Applicable to Arbitration Agreements – Approach of the Courts When seized of a matter relating to an arbitration agreement, Senegalese courts refer to the AUA, but also apply the principles of private international law. • The courts will respect the primacy of the parties’ will. If the arbitration agreement designates an applicable law (eg, French law or English law), the courts will respect that choice. • In the absence of an express choice, the courts may determine the applicable law according to several criteria: (a) the law of the seat of arbitration; (b) the law applicable to the main contract; or (c) in certain cases, general principles of law or Lex Mercatoria, if this allows the parties’ inten - tion to submit the dispute to arbitration to be honoured. Enforcement of Arbitration Agreements – Judicial Approach Senegalese courts apply the principle of negative jurisdiction provided for in Article 13 of the AUA, according to which the state court must declare itself incompetent where a valid arbitration agreement exists unless a clause is manifestly void or manifestly unenforceable. Are Arbitration Agreements Enforced? In most cases, arbitration agreements are enforced by Senegalese courts, provided that: • they are recorded in writing;
law may also be parties to arbitration, regardless of the legal nature of the contract, without being able to invoke their own rights to challenge arbitrability. Non-Arbitrable Matters in Senegal Specifically, the following cannot be submitted to arbi - tration in Senegal: • Disputes relating to the status of individuals – ie, marriage, divorce, filiation, adoption, nationality, etc. • Criminal disputes – ie, those falling exclusively within the jurisdiction of the criminal courts. • Matters relating to public order or the prerogatives of public authorities, such as: (a) questions of nationality law; (b) tax or customs law (disputes with the tax au - thorities); (c) certain labour law issues falling under manda - tory social law; and (d) collective insolvency proceedings (bankruptcy) strictly regulated by the OHADA Uniform Act on Collective Proceedings (AUPC/AP). It is also debated whether, in practice, certain admin - istrative disputes involving the state or public authori - ties in the exercise of their sovereign prerogatives (as opposed to commercial contracts) are arbitrable. General Approach to Determining Arbitrability The approach generally followed in Senegal is based on a distinction between disposable rights and non- disposable rights. Disposable rights are those that the parties may freely assign, modify or waive by con - tract – they are arbitrable (eg, commercial disputes, contractual disputes, disputes between partners, etc). Non-disposable rights are those that the parties can - not freely modify because they relate to public policy, family, the state, or fundamental rights – they are not arbitrable. 3.3 National Courts’ Approach In Senegal, the approach of national courts to the law governing arbitration agreements and their enforce - ment is broadly consistent with international stand - ards and falls within the framework of OHADA law.
• the parties have legal capacity; • the dispute is arbitrable; and • the clause is not manifestly invalid. 3.4 Validity
An arbitration clause can be considered valid even if the main contract in which it is included is declared invalid. This independent validity stems from the appli - cation of the rule of separability (also known as the autonomy of the arbitration clause), as provided for in paragraph 4 of Article 3 of the AUA, which declares the arbitration clause to be independent of the main contract.
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