SENEGAL Law and Practice Contributed by: Aboubacar Fall, AF Legal
Approach in the Event of a Stay of Proceedings (Suspension) at the Seat In the event of pending proceedings at the seat (eg, appeal for annulment or opposition), the Senegalese courts tend to suspend enforcement proceedings until the decision at the seat is rendered. This suspension is intended to avoid a conflict of jurisdiction and pre - serve legal certainty. This practice may vary depend - ing on the circumstances and urgency. Sovereign Immunity at the Enforcement Stage A state or state entity may invoke sovereign immunity to oppose the enforcement of an arbitral award. Under Senegalese and OHADA law, this immunity is limited. It does not apply to commercial contracts or acts of economic management (restricted immunity), and it may be waived if the state has consented to arbitra - tion in the agreement (clear arbitration clause). The success of this defence therefore depends on: • the nature of the act or contract; • explicit consent to arbitral jurisdiction; and In Senegal, the recognition and enforcement of arbi - tral awards, whether domestic or foreign, are strictly regulated, with an approach that is generally favour - able to arbitration, subject to compliance with certain standards, particularly those related to public policy. The courts adopt a pro-arbitration approach, in accordance with the AUA and the New York Con - vention (1958), to which Senegal is a signatory. They ensure that arbitral awards are recognised and enforced quickly, in order to guarantee legal certainty and confidence in arbitration. However, this recogni - tion is not automatic: it is subject to the exequatur procedure, which allows for limited review. Standard for Refusal of Enforcement on Grounds of Public Policy The courts may refuse to enforce an arbitral award if it is contrary to national or international public policy. Standards Applicable to Refusal of Enforcement Article 31 of the AUA provides that enforcement may be refused if: • the circumstances of the dispute. 12.3 Approach of the Courts
• the arbitration agreement is invalid or non-existent; • the arbitral tribunal was improperly constituted; • the arbitral tribunal exceeded its powers; or • the award violates public policy rules. The New York Convention (Article V) also provides for limited grounds for refusal, including: • inability of the parties to conclude a valid arbitra - tion agreement; • failure to notify or impossibility for the party to present its defence; • award rendered by an incompetent tribunal; • failure to comply with due process; and • award contrary to public policy in the country of enforcement. 13. Miscellaneous 13.1 Class Action or Group Arbitration In Senegal, which applies OHADA law on arbitration, class arbitration or group arbitration is not expressly provided for or regulated by national legislation or by the AUA. The AUA does not contain any provisions relating to class or group arbitration. Similarly, Senegalese law does not explicitly provide for mechanisms to manage arbitration proceedings for disputes involving several claimants or defendants in the same class. In the absence of clear rules, the implementation of collective or group arbitration is difficult, particularly with regard to: • the joinder of parties; • the management of joint representation; • the notification and consent of all members of the group; and • the scope and effect of the award on non-party members. Limits to Arbitrability The general principles of arbitration, in particular the autonomy of the parties’ will and the need for express consent to arbitration, further limit the possibility of imposing collective arbitration without explicit agree -
703 CHAMBERS.COM
Powered by FlippingBook