SENEGAL Trends and Developments Contributed by: Aboubacar Fall, AF Legal
Enforceability of awards against third parties Article 25 of the AUA provides for the possibility for a third party to lodge a third-party objection against an arbitral award. Thus, an award may have indirect effects on third parties, in particular in the following cases: • when the rights of the third party are affected by the award; or • where there is collusion or fraud in the arbitral proceedings. Thus, third parties may be bound by an award in the event of voluntary intervention or in the event of forced intervention. Third parties or non-signatories may also be bound by an arbitral award if it causes them harm. The arbitral award may be the subject of an appeal in warranty by any person before the court that would have had jurisdiction in the absence of arbitration and where the award adversely affects that person’s rights. This provision strikes a balance between the binding force of the award and the protection of the rights of third parties. Emerging issues Rising economic stakes The entry into force of the African Continental Free Trade Area (AfCFTA) gives a new dimension to the debate on competent courts and the role of arbitra - tion. The agreement that established the 2018 AfCFTA, ratified by Senegal on 12 March 2019, represents an ambitious initiative by creating the largest free trade area in the world by number of participating coun - tries, bringing together the 55 countries of the Afri - can Union and eight regional economic communities. The AfCFTA will undoubtedly lead to conflicts of laws, hence the need to adjust OHADA in the face of the AfCFTA to guarantee a smooth transition and respect a certain hierarchy of norms. Senegal intends to play an active role in the construction of a pan-African sys - tem for the settlement of trade disputes.
Energy and infrastructure projects Senegal is involved in a number of major projects, including oil and gas exploitation (Sangomar, Great Turtle Ahmeyim GTA), power plants (Cap des Biches), ports, motorway and rail infrastructure. These projects are accompanied by agreements, where arbitration clauses have become the norm. These oil and gas projects could lead to new disputes related to fiscal stability, changes in environmental legislation or dead - lines for the execution of works. There has been a clear increase in arbitrations involv - ing the state of Senegal, public entities (eg, PETROS - EN or SENELEC) or international contractors, often before the ICC or the ICSID. The contracts, based on public-private partnerships (PPPs), include dispute resolution mechanisms via ad hoc or institutional arbi - tration. These disputes involve contractual disputes, delays, penalties, and even requests for economic rebalanc - ing. The absence of class/group arbitration Senegalese law and the AUA do not provide for col - lective or class arbitration. There is therefore no clear legal framework for the management of disputes involving several claimants or defendants in the same arbitral proceeding. This absence raises several prac - tical difficulties: • the joining of the parties is poorly regulated; • the management of the common representation is uncertain; and • the scope of the award on members who are not parties to the arbitration agreement is ambiguous. In addition, the mandatory submission of several par - ties to collective proceedings could conflict with the fundamental principle of autonomy of the will and the need for express consent to arbitration. Consequently, any attempt to develop collective arbitration in Sen - egal should go through a legislative or institutional evolution before taking effect. Ethics and professionalism in refereeing practice There is not yet a specific code of ethics for referees in Senegal. The main ethical duties of referees are
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