SENEGAL Law and Practice Contributed by: Aboubacar Fall, AF Legal
Review of Negative Decisions on the Jurisdiction of Arbitral Tribunals When the arbitral tribunal decides that it does not have jurisdiction, the parties may refer the matter to the competent state court for a final decision on jurisdic - tion. Senegalese courts then review the decision rigor - ously, but without seeking to challenge the autonomy of the arbitral tribunal. If the state court confirms the arbitral tribunal’s lack of jurisdiction, the arbitral award may be set aside. When the arbitral tribunal declares that it has no juris - diction, the parties may refer the matter to the com - petent court of law, which shall make the final deci - sion on the matter. If the judge confirms the lack of jurisdiction, the arbitral proceedings are terminated and the dispute may be brought before the competent state courts. On the other hand, if the arbitral tribu - nal declares itself competent and renders an award, it may then be challenged before the state judge by means of an action for annulment, in particular on the grounds of lack of jurisdiction of the arbitral tribunal (Article 26, AUA) 5.3 Timing of Challenge In Senegal, a party may challenge the jurisdiction of the arbitral tribunal at various stages of the pro - ceedings, but this is governed by the AUA in order to ensure the smooth running of the arbitration and avoid delays. The objection to jurisdiction must be raised before any defence on the merits, unless the facts on which it is based have been revealed subsequently. The arbitral tribunal may rule on its own jurisdiction in the award on the merits or in a partial award subject to appeal for annulment. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility In Senegal, in the context of arbitration governed by the AUA, the standard of judicial review applied to questions of admissibility (arbitrability) and the juris - diction of the arbitral tribunal is generally a standard of de novo review – ie, a complete and independent review by the state court.
• procedures for handling challenges to the impar - tiality of arbitrators.
5. Jurisdiction 5.1 Challenges to Jurisdiction
The principle of competence-competence is fully rec - ognised and applied in Senegal, in accordance with the AUA. Article 5 of the AUA explicitly states that the arbitral tribunal may rule on its own jurisdiction, including objections relating to the validity of the arbitration clause. 5.2 Circumstances for Court Intervention In Senegal, state courts may indeed examine issues relating to the jurisdiction of an arbitral tribunal, but this intervention is strictly regulated and limited by the AUA. Circumstances Where a Court May Examine the Jurisdiction of the Arbitral Tribunal A state court may be seized in the context of an action to set aside an arbitral award (an appeal for annul - ment), in particular if the award was rendered by an arbitral tribunal that lacked jurisdiction. In summary or incidental proceedings, a court may be called upon to rule on its own jurisdiction or on the validity of the arbitration clause if the parties refer the matter to the court before the arbitral tribunal is constituted. The supporting judge may intervene to rule on dis - putes over the jurisdiction of the arbitral tribunal, par -
ticularly when appointing arbitrators. General Attitude of Senegalese Courts
Judicial intervention is seen as a last resort, exercised with caution so as not to impede the autonomy and speed of the arbitration proceedings. Non-interfer - ence is favoured, considering that it is up to the arbi - tral tribunal to decide issues first.
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