SENEGAL Law and Practice Contributed by: Aboubacar Fall, AF Legal
Senegalese courts strictly follow this rule, in accord - ance with OHADA law. In the event of a dispute over the validity of the main contract, judges may still con - firm the jurisdiction of the arbitral tribunal on the basis of a valid arbitration clause.
petent state court (the supporting judge) shall inter - vene to appoint the missing arbitrators (Article 8 of the AUA). Default Procedure in Multiparty Arbitration In multiparty arbitrations (more than two parties), the appointment of arbitrators can be more complex. In the event of disagreement between the parties on the method of appointment, or failure to appoint certain arbitrators, the supporting judge also intervenes to appoint the missing arbitrators. The AUA does not provide for a specific detailed multiparty procedure, but the general principle of intervention by the sup - porting judge applies. The rules of an arbitral institu - tion chosen by the parties may also provide for spe - cific mechanisms to deal with such situations. 4.3 Court Intervention In Senegal, a state court may intervene in the selection of arbitrators in the event of a deadlock or failure of the parties to appoint their arbitrators. This intervention is provided for and regulated by the AUA. Court Intervention in the Selection of Arbitrators When the parties are unable to agree on the appoint - ment of an arbitrator, or if one party obstructs the appointment, the competent state court, known as the supporting judge, may be asked to make the appoint - ment. Article 8 of the AUA regulates this mechanism and sets the time limits within which the judge must rule. Limits on the Court’s Power • Subsidiary nature – the court only intervenes if the parties have failed to appoint arbitrators in accord - ance with the agreed procedure or if they have not provided for a procedure. • Impartiality and transparency – the supporting judge must act impartially, without favouring one party over another, and must respect the principles of fairness. • Respect for the parties’ wishes – the court must take into account any criteria set by the parties (qualifications, nationality, etc) when selecting arbitrators. • No interference in merits – the court must not sub - stitute itself for the arbitrators on the merits of the
4. The Arbitral Tribunal 4.1 Limits on Selection
Although the parties to a contract enjoy considerable freedom in choosing their arbitrators in arbitration pro - ceedings, this autonomy is not absolute and is sub - ject to certain limitations provided for in the AUA and judicial practice. Limits Imposed by Law • Appointment deadlines: The AUA sets strict deadlines for the appointment of arbitrators. If the parties fail to meet these deadlines, the supporting judge or an arbitral institution may proceed with the appointment (Article 8 of the AUA). • Incompatibilities and impartiality: Arbitrators must be impartial and independent. The law provides that the parties may not appoint an arbitrator who has a serious conflict of interest or incompatibility. • Legal capacity: Arbitrators must have the legal capacity and expertise required for the type of dispute. • Intervention of the supporting judge: In the event of disagreement, failure to appoint or refusal of an arbitrator, the competent state court (district court) may intervene to appoint the missing arbitrators. • Compliance with mandatory rules: The choice of arbitrators must not contravene mandatory rules of In Senegal, if the method chosen by the parties for appointing arbitrators fails, there are default proce - dures provided for in the AUA, which apply to both bilateral and multilateral arbitrations. Default Procedure in the Event of Failure to Appoint If the parties fail to appoint one or more arbitrators within the agreed time frame, or if they have not pro - vided for a procedure for appointing such, the com - procedure or public policy. 4.2 Default Procedures
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