SENEGAL Law and Practice Contributed by: Khaled Abou El Houda, Malick Lo, Chadi Safieddine and Mohamed Kamil, SCP Houda & Associés
UEMOA regulation At sub-regional level, the AMF-UMOA and BCEAO regulate financial transactions. Règlement No 06/2024/CM/UEMOA permits residents to engage in derivatives transactions with approved intermedi - aries or banks for hedging currency and price risks, and non-residents may also transact under certain conditions. Instruction No 66/CREPMF/2021 allows collective investment schemes (OPCVMs) to invest in derivatives on BRVM-listed instruments or approved OTC markets, subject to strict conditions. Derivatives must be used primarily for hedging purposes, and cer - tain activities, such as short-selling, remain prohibited for investment vehicles. 4.5 Filing/Reporting Obligations Reporting Obligations for Derivatives Securities and disclosure laws (AMF-UMOA/ BRVM) For companies that issue securities to the public or are listed on the BRVM, the use of derivatives triggers strict transparency requirements, as follows. • Financial reporting Companies must disclose off- balance sheet commitments, including forward financial instruments and derivative contracts used, in the notes to their summary financial statements. • Material information disclosure If the conclusion of a derivative contract is likely to have a significant impact on the share price or financial situation, the issuer is required to issue an immediate press release under the supervision of the AMF-UMOA. • Specific reporting for funds According to Instruc - tion No 66/CREPMF/2021, undertakings for collec - tive investment (UCITS) must periodically report to the regulator their overall exposure to risks arising from derivatives in order to verify compliance with leverage limits. Competition Law Scrutiny (UEMOA and National Law) In terms of competition law, derivatives are mainly monitored when they impact the control structure of a company. • Stake building and control Derivatives giving access to capital (call options, warrants) are taken into account by the UEMOA Commission to deter -
“statutory” thresholds are commonly used to moni - tor the rise in capital of potential predators. • Higher thresholds It is strictly prohibited to raise the legal thresholds or remove the 10% reporting requirement, as this would violate financial market protection rules. Private companies (non-listed) In the OHADA area, the principle of freedom of con - tract allows shareholders to set out the rules for trans - ferring securities in the articles of association or in a shareholders’ agreement. Although there are no legal reporting thresholds for private companies, the parties are free to stipulate enhanced disclosure requirements to monitor changes in capital. Approval and Pre-Emption Clauses The main obstacles to stakebuilding lie in the restric - tive clauses included in the target company’s articles of association. The approval clause is the most com - mon; it makes any transfer of securities to third par - ties subject to the prior approval of the other share - holders or a corporate body. At the same time, the pre-emption clause allows existing shareholders to acquire priority rights to the securities being trans - ferred, thereby preventing an external investor from building up a significant stake without the agreement of the existing partners. Other Protective Measures Beyond the articles of association, shareholder agree - ments often contain “standstill” clauses that prohibit a signatory from increasing their stake for a specified period. 4.4 Dealings in Derivatives Dealings in Derivatives OHADA framework Under OHADA law, the Revised Uniform Act on Com - mercial Companies and GIE (AUSCGIE, Article 744, paragraph 6) explicitly allows joint-stock companies ( sociétés anonymes ) to enter into financial contracts, including derivatives, subject to authorisation by the competent authority in each member state. However, OHADA does not provide a detailed definition, proce - dural rules, or a specific regime for derivatives, which creates a gap in practical guidance.
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