SENEGAL Law and Practice Contributed by: Aboubacar Fall, AF Legal
12. Enforcement of an Award 12.1 New York Convention
The decision of the competent court of the OHADA member state on the application for annulment may only be appealed before the CCJA. The arbitral award may be appealed by any person before the court of the state that would have been competent in the absence of arbitration and where that award infringes upon their rights. It may also be subject to an appli - cation for review before the arbitral tribunal on the grounds of the discovery of a fact that is likely to have a decisive influence on the outcome of the dispute and which, prior to the award, was unknown to the arbitral tribunal and to the party requesting the review. Where the arbitral tribunal can no longer be convened, the application for review shall be brought before the court of the OHADA member state that would have had jurisdiction in the absence of arbitration (Article 25 of the AUA). A party wishing to appeal an award rendered by an arbitral tribunal must submit a request to the court within the prescribed time limit by means of an appli - cation, which the court shall notify to the opposing party (Article 29 of the AUA). 11.2 Excluding/Expanding the Scope of Appeal The scope of application of appeals against arbitral awards may be extended if the parties have expressly provided for this. 11.3 Standard of Judicial Review Under Senegalese law, which is aligned with the AUA, the merits of an arbitral award cannot be reviewed by a national court. There is no substantive review under the standard of judicial review of validity. The state courts do not exercise a de novo review of the validity of the arbitral award – ie, they do not retry the case. Review is strictly limited to the grounds for annulment listed in Article 26 of the AUA.
Senegal is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbi - tral Awards and ratified it in 1994. Senegal has not made any reservations to the general obligations aris - ing from the Convention. 12.2 Enforcement Procedure Procedures and Standards for Enforcing an Arbitral Award The enforcement of arbitral awards (domestic or for - eign) is governed by: • the AUA (in particular Articles 30 to 34); • the 1958 New York Convention, ratified by Senegal, for foreign awards; and • the Senegalese Code of Civil Procedure for enforcement measures. Exequatur procedure Before enforcing an arbitral award, the winning par - ty must apply to the competent court (court of first instance) for an exequatur judgment. The court veri - fies that the award meets the conditions of validity, and in particular that there are no grounds for annul - ment. Once exequatur has been granted, the award may be enforced as a court judgment. Standards of review The judge does not re-examine the merits of the case (principle of limited review) but merely verifies compli - ance with public policy, the jurisdiction of the arbitral tribunal, and the regularity of the proceedings, etc. Enforcement of an Award Set Aside by the Courts of the Seat An award set aside by the court of the seat of arbi - tration cannot usually be enforced in Senegal. When reviewing the exequatur, the Senegalese judge will take into account the decision to set aside the award rendered by the competent court at the seat. The annulment constitutes an imperative ground for refus - al of enforcement (Article 33 of the AUA).
702 CHAMBERS.COM
Powered by FlippingBook