SENEGAL Law and Practice Contributed by: Aboubacar Fall, AF Legal
De Novo Review The state court is not bound by the arbitral tribunal’s assessment of its jurisdiction or the arbitrability of the dispute. It conducts a new and complete assessment of the facts and law relating to these issues. 5.5 Breach of Arbitration Agreement In Senegal, national courts take a clear and generally strict approach to legal proceedings brought in viola - tion of an arbitration agreement. When a party brings a case before a state court even though a valid arbitration agreement exists between the parties, the courts generally declare themselves incompetent to hear the merits of the case, in accord - ance with Article 13 of the AUA. This lack of jurisdic - tion must be raised ex officio or upon request, and is intended to prevent legal proceedings from interfering with the resolution of the dispute through arbitration. Senegalese courts therefore strictly apply the principle of negative jurisdiction, which excludes the jurisdic - tion of state courts when the parties have agreed to arbitration. 5.6 Jurisdiction Over Third Parties In Senegal, governed by the AUA, the jurisdiction of the arbitral tribunal is normally limited to the par - ties who have entered into the arbitration agreement. However, in certain specific cases, national law allows the arbitral tribunal to declare itself competent with respect to third parties, under certain conditions, with - out formal distinction between nationals and foreign - ers. Jurisdiction over non-signatory third parties may occur: • when a third party voluntarily agrees to be bound by the arbitration, for example through an adhesion clause or a specific commitment; • through tacit extension or contractual implica - tion – ie, a third party may be considered bound if its involvement in the contractual relationship is close (eg, where it is a subcontractor, guarantor or indirect co-contractor); and/or • in complex or multiparty contracts, where the legal relationship justifies including a third party in the arbitration dispute.
OHADA law and Senegalese practice do not make an explicit distinction between nationals and foreigners in this regard. The essential criterion is the clear and unequivocal manifestation of the third party’s consent to arbitration.
6. Preliminary and Interim Relief 6.1 Types of Relief
An arbitral tribunal is authorised to grant preliminary or provisional measures in accordance with the AUA. Power to Grant Provisional Measures Article 14 of the AUA provides that the arbitral tribunal may order any provisional or protective measures it deems necessary to protect the rights of the parties Interim measures ordered by the arbitral tribunal are binding on the parties. Their enforcement relies on the good faith of the parties, but in the event of refusal, the parties may refer the matter to the competent state court to enforce these measures. This ensures the effectiveness of the measures and prevents irrepa - rable harm. Types of Preliminary or Provisional Measures Granted The arbitral tribunal may order, in particular: • seizure of assets to ensure the future enforcement of an award; during the arbitration proceedings. Binding nature of interim measures • prohibition of certain actions likely to cause irrepa - rable harm (eg, prohibition on selling a disputed asset); • obligation to provide financial guarantees; • measures to preserve evidence (eg, inspection, seizure of documents); and • temporary suspension of the performance of cer - tain contractual obligations. 6.2 Role of Courts Senegalese courts may grant preliminary or provi - sional measures in support of arbitration proceedings, particularly when the arbitral tribunal has not yet been
697 CHAMBERS.COM
Powered by FlippingBook