1 Legal framework
1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?
In Senegal, the Organisation for the Harmonisation of Corporate Law in Africa Uniform Act on Arbitration of 23 November 2017 is the relevant statute on arbitration.
The act "shall be applicable when the seat of the arbitral tribunal is located in one of the Member States".
Oral agreements are not governed by the act. The arbitration agreement must be made in writing or in any other form evidencing its existence – in particular, by reference to a document containing the agreement.
1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?
There is no distinction between domestic and international arbitration. The Uniform Act on Arbitration "shall be applicable to any arbitration".
1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?
Yes. However, there are differences in some provisions, such as the scope of arbitration.
1.4 Are all provisions of the legislation in your jurisdiction mandatory?
Some provisions are mandatory, but most will apply only where there is no agreement between the parties.
1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?
No. The Uniform Act on Arbitration was first enacted in 1999 and revised in 2017.
1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?
Senegal ratified the New York Convention on 17 October 1994, which came into force on 15 January 1995. No reservations were made.
1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?
Senegal is a signatory to the 1965 Washington Treaty establishing the International Centre for the Settlement of Investment Disputes.
2 Arbitrability and restrictions on arbitration
2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?
Article 2 of the Uniform Act on Arbitration provides that any natural or legal person may resort to arbitration with respect to any rights to which he or she has free disposal.
2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?
There is no restriction on the choice of seat of arbitration.
3 Arbitration agreement
3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?
Article 3-1 in fine of the Uniform Act on Arbitration provides that an arbitration agreement must be made in writing or in any other form that evidences its existence – in particular, by reference to a document containing the agreement.
3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?
Article 4, paragraph 1 of the Uniform Act on Arbitration provides that the arbitration agreement shall be independent from the main contract.
3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?
There are no provisions on the seat and/or language if there is no agreement between the parties.
4 Objections to jurisdiction
4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?
Any objection to arbitral jurisdiction must be raised before any defence on the merits, except where the facts on which it is based have been disclosed at a later stage of the proceedings.
4.2 Can a tribunal rule on its own jurisdiction?
The arbitral tribunal alone is competent to rule on its jurisdiction, as well as on any issues concerning the existence or validity of the arbitration agreement.
4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?
No, only the arbitral tribunal can rule on its jurisdiction.
5 The parties
5.1 Are there any restrictions on who can be a party to an arbitration agreement?
There are no such restrictions.
In accordance with Article 2 of the Uniform Act on Arbitration, any natural or legal person may resort to arbitration.
States, other public territorial bodies, public entities and other legal persons under public law may also be a party to arbitration, regardless of the legal nature of the contract, without being able to invoke their own laws to object to the arbitrability of the dispute, to their capacity to submit to arbitration or to the validity of the arbitration agreement.
5.2 Are the parties under any duties in relation to the arbitration?
The main duty of the parties is to enforce the agreement to arbitrate.
In any case, the parties may resort to arbitration by mutual agreement, even where proceedings are already pending before a state court.
Article 8 of the Uniform Act on Arbitration provides that in case of an agreement that obliges the parties to follow a preliminary phase for the settlement of the dispute prior to arbitration, the tribunal shall, upon the request of one of the parties, examine whether this condition has been met and, as the case may be, shall mandate completion of this preliminary phase.
If this preliminary phase has not been initiated, the arbitral tribunal shall suspend the procedure for a timeframe which it deems appropriate, to allow the most diligent party to initiate this phase.
If this preliminary phase has effectively been initiated, the arbitral tribunal shall take note, as the case may be, of its failure.
5.3 Are there any provisions of law which deal with multi-party disputes?
There are no provisions dealing with multi-party disputes. However, Article 10 of the Uniform Act on Arbitration provides that: "Where the parties have agreed to refer to an arbitration institution, they shall be deemed to have agreed on the application of the arbitration rules of this institution unless they have expressly agreed to exclude specific provisions in agreement with this institution." In this regard, it is noteworthy that the rules of most arbitration institutions arbitration provide for multi-party arbitration.
6 Applicable law issues
6.1 How is the law of the arbitration agreement determined in your jurisdiction?
The arbitration agreement shall be interpreted in accordance with the common intention of the parties, without reference to national law.
6.2 Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?
No, the tribunal will not.
According to Article 15 of the Uniform Act on Arbitration, the arbitral tribunal shall rule on the merits of the dispute pursuant to the rules of law chosen by the parties. Absent such choice by the parties, the arbitral tribunal shall apply the rules it deems the most appropriate, by taking into consideration international trade practices, as the case may be.
However, the act does not expressly provide guidance on when the agreement is unclear.
7 Consolidation and third parties
7.1 Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?
No, the law does not permit consolidation. However, Article 10 of the Uniform Act on Arbitration allows parties to refer to an arbitral institution with rules dealing with consolidation.
7.2 Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?
No. However, the Uniform Act on Arbitration permits parties to refer to an arbitral institution with rules dealing with joinder.
7.3 Does an arbitration agreement bind assignees or other third parties?
Not in principle.
8 The tribunal
8.1 How is the tribunal appointed?
According to Article 6 of the Uniform Act on Arbitration, arbitrators shall be appointed, revoked or replaced pursuant to the parties' agreement.
Where the parties have agreed to appoint two arbitrators despite the provisions of Article 5, paragraph 2 of the act, the arbitral tribunal shall be completed by a third arbitrator who is mutually chosen by the parties.
Absent any such agreement, the arbitral tribunal shall be completed by the appointed arbitrators or, absent any agreement between them, by the competent jurisdiction in the member state.
The same procedure shall be followed if an arbitrator is challenged, becomes incapacitated, dies, resigns or is revoked.
Absent agreement between the parties on the appointment procedure, or in the event that their agreement is insufficient:
- in case of arbitration with three arbitrators, each party shall appoint one arbitrator and the two arbitrators so appointed shall appoint the third arbitrator; if one party fails to appoint an arbitrator within 30 days of receipt of the request for arbitration from the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment shall be made, upon the request of one party, by the competent jurisdiction in the member state; and
- in case of an arbitration with a sole arbitrator, if the parties are unable to agree on the choice of arbitrator, the latter shall be appointed, upon the request of one party, by the competent jurisdiction in the member state.
The decision to appoint an arbitrator by the competent jurisdiction must be made within 15 days of when it was seized, unless the laws of a member state foresee a shorter timeframe. This decision is not subject to appeal.
8.2 Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
Article 5 of the Uniform Act on Arbitration provides that the arbitral tribunal shall be composed of a sole arbitrator or three arbitrators. Absent agreement of the parties, the arbitral tribunal shall be composed of a sole arbitrator.
There is no provision in the act as to the qualifications of arbitrators.
8.3 Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
Article 8 of the Uniform Act on Arbitration provides that in case of disagreement, and if the parties have not agreed on the challenge procedure, the competent jurisdiction in the member state will decide on the challenge within 30 days of the parties and the arbitrator being heard or duly summoned.
If the competent jurisdiction fails to render a decision within this timeframe, it shall be discharged and the challenge application may be brought before the Common Court of Justice and Arbitration by the most diligent party.
The decision of the competent jurisdiction dismissing the challenge application may be challenged only before the Common Court of Justice and Arbitration.
Any ground of challenge must be raised no later than 30 days after the fact that motivates the challenge is discovered by the party seeking to invoke it.
The challenge of an arbitrator shall be admissible only for reasons which have become known after his or her appointment.
8.4 If a challenge is successful, how is the arbitrator replaced?
Article 8 in fine of the Uniform Act on Arbitration provides that where the mandate of an arbitrator is terminated, or where he or she resigns for any other reason, a replacement arbitrator will be appointed according to the applicable rules on the nomination of the replaced arbitrator, unless otherwise agreed by the parties.
The same procedure shall be followed if the arbitrator's mandate is revoked by mutual agreement of the parties or in any other case where his or her mandate is terminated.
8.5 What duties are imposed on arbitrators? Are these all imposed by legislation?
According to Article 7 of the Uniform Act on Arbitration, an arbitrator who accepts his or her mandate must communicate his or her acceptance to the parties by any means in writing.
The arbitrator must undertake to complete his or her mandate until the end, unless he or she is aware of an impediment or legitimate reason for abstention or resignation.
The arbitrator enjoys the full exercise of his or her civil rights and must remain independent and impartial vis-à-vis the parties.
A prospective arbitrator must inform the parties of any circumstance that would be likely to create in their minds a legitimate doubt as to his or her independence and impartiality, and may accept the appointment only with the parties' unanimous written consent.
From the date of his or her appointment and during the course of the proceedings, the arbitrator must reveal any such circumstances to the parties.
8.6 What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
(a) Procedure, including evidence?
As provided by Article 14 of the Uniform Act on Arbitration, the parties may, directly or by reference to arbitration rules, determine the arbitral procedure. They may also make it subject to a procedural law of their choice.
Absent such agreement, the arbitral tribunal may conduct the arbitration as it deems appropriate.
The arbitral tribunal may invite the parties to provide it with factual explanations and to submit to it, by any legally admissible means, the evidence that it believes will be necessary to resolve the dispute.
It may not retain in its ruling the arguments, explanations or documents submitted by the parties, unless both parties have been in a position to discuss them.
It shall not base its ruling on evidence established on its own motion without previously inviting each of the parties to submit its comments thereon.
Where the assistance of judicial authorities is necessary for the taking of evidence, the arbitral tribunal may, on its own motion or upon request, seek the assistance of a competent jurisdiction in the member state.
The arbitral tribunal shall, unless otherwise agreed by the parties, be empowered to decide any incidental claims concerning verification of the authenticity of documents or forgery.
(b) Interim relief?
The arbitral tribunal may, upon the request of either party, order interim or conservatory measures, with the exception of conservatory seizures and judicial sureties, which remain within the jurisdiction of state courts.
(c) Parties which do not comply with its orders?
If, without raising a legitimate reason:
- the claimant does not submit its claim, the arbitral tribunal shall terminate the arbitral proceedings;
- the respondent does not submit its defence, the arbitral tribunal shall continue the arbitral proceedings without, however, considering this failure per se as an acceptance of the claimant's allegations; or
- one of the parties fails to appear at the hearing or to produce documents, the arbitral tribunal may continue the proceedings and decide on the basis of the evidence before it.
(d) Issuing partial final awards?
The arbitral can issue partial and final awards.
(e) The remedies it can grant in a final award?
Any remedy may be granted in the final award. There is no express provision excluding any kind of remedy.
The arbitral tribunal may grant provisional enforcement of the award if this has been requested or may reject the request through a reasoned decision.
Interest may be granted in the award.
8.7 How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
If a party does not participate in the arbitration without legitimate grounds, the arbitral tribunal will continue with the proceedings.
8.8 Are arbitrators immune from liability?
While arbitrators are not immune from liability, as a general principle of law, the Uniform Act on Arbitration does not include a provision with respect to the arbitrator's liability.
9 The role of the court during an arbitration
9.1 Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?
According to Article 13 of the Uniform Act on Arbitration, where a dispute for which an arbitral tribunal is seized pursuant to an arbitration agreement is brought before a state court, the latter must declare that it lacks jurisdiction if one of the parties so requests.
Where the arbitral tribunal is not yet seized or where no arbitral request has been filed, the state court shall also declare itself incompetent, unless the arbitration agreement is manifestly null or manifestly inapplicable to the case.
In that case, the competent jurisdiction shall issue a final decision on its jurisdiction within a maximum timeframe of 15 days. Its decision may be appealed only before the Common Court of Justice and Arbitration in accordance with its Rules of Procedure.
In any case, the competent jurisdiction may not on its own motion declare itself incompetent.
9.2 Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?
The existence of an arbitration agreement shall not preclude a state court, at the request of a party and in the event of a recognised and reasoned emergency, from ordering provisional or conservatory measures, as long as such measures do not imply an examination of the merits of the case, for which only the arbitral tribunal is competent.
9.3 Can the parties exclude the court's powers by agreement?
The court's powers in support of arbitration proceeding are a matter of public policy and cannot therefore be excluded by the parties' agreement.
10.1 How will the tribunal approach the issue of costs?
In the final award, the arbitral tribunal decides on the issue of costs. However, there is no express provision in the Uniform Act on Arbitration as to how costs are allocated between parties.
10.2 Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?
There is no express provision in this regard.
11.1 Is third-party funding permitted for arbitrations seated in your jurisdiction?
There is no express provision in the Uniform Act on Arbitration dealing with the issue of third-party funding.
12.1 What procedural and substantive requirements must be met by an award?
According to Article 20 of the Uniform Act on Arbitration, apart from the decision, the arbitral award must contain:
- the first and last names of the arbitrators who rendered the award;
- the date of the award;
- the seat of the arbitral tribunal;
- the last and first names and trade names of the parties, as well as their headquarters or registered office;
- as the case may be, the last and first names of counsel or any person having represented or assisted the parties; and
- the statement of the respective claims of the parties, their pleas and arguments, as well as the procedural history.
The arbitral award must state the reasons on which it is based.
The arbitral award must be signed by the arbitrator or arbitrators. However, if a minority of them refuse to sign the award, mention must be made of such refusal and the award will have the same effect as if all arbitrators had signed it.
12.2 Must the award be produced within a certain timeframe?
As provided for in Article 12 of the Uniform Act on Arbitration, where the arbitration agreement does not set a timeframe, the mandate of the arbitral tribunal may not exceed six months from the date on which the last appointed arbitrator accepted his or her appointment.
The legal or contractual time limit for the arbitration may be extended either upon agreement of the parties or upon request of one of the parties or of the arbitral tribunal, or by the competent jurisdiction in the member state.
13 Enforcement of awards
13.1 Are awards enforced in your jurisdiction? Under what procedure?
The award is subject to enforcement by virtue of an exequatur decision issued by the competent jurisdiction in the member state.
As provided in Article 31 of the Uniform Act on Arbitration, recognition and enforcement of the arbitral award presume that the party relying on it establishes the existence of the arbitral award. The existence of the arbitral award shall be established by production of the original award accompanied by the arbitration agreement or copies of these documents meeting the conditions required to establish their authenticity.
Where those documents are not written in one of the original language(s) of the member state in which the exequatur is demanded, the party must submit a translation certified by a translator registered on the list of experts established by the competent jurisdiction.
The recognition and the exequatur will be denied where the award is manifestly contrary to a rule concerning international public policy.
The national jurisdiction, seized by a request for recognition or exequatur, must render a decision within 15 days of the date of seizure. If, at the end of this period, the jurisdiction has not rendered its decision, the exequatur shall be presumed to have been granted.
Where the exequatur has been granted, or in case of silence from the jurisdiction seized by the request for exequatur within 15 days as mentioned above, the most diligent party may seize the head clerk or the competent authority in the member state in order to fix the formal exequatur upon the original of the award.
The exequatur procedure is not contradictory.
A decision rejecting the exequatur is subject to appeal on points of law only before the Common Court of Justice and Arbitration.
A decision granting the exequatur is not subject to appeal. However, the annulment action of the arbitral award shall automatically entail an appeal against the decision granting the exequatur within the limits of the referral of the competent jurisdiction of the member state.
Dismissal of the annulment action shall automatically validate the award, as well as the decision granting the exequatur.
Arbitral awards rendered on the basis of rules other than those provided for in the Uniform Act on Arbitration shall be recognised in member states under the conditions provided for by international conventions possibly applicable and, in the absence thereof, under the same conditions as those provided in the Uniform Act on Arbitration.
14 Grounds for challenging an award
14.1 What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?
The award is not subject to opposition or appeal on factual or legal grounds.
It may be subject to an annulment action, which must be lodged before the competent jurisdiction in the member state.
The decision of the competent jurisdiction in the member state regarding the annulment action may be appealed on points of law only before the Common Court of Justice and Arbitration.
The arbitral award may become the subject of opposition by any third party before the jurisdiction of the member state which would have been competent if there were no arbitration, where the award is prejudicial to its rights.
It may also be subject to a request for revision before the arbitral tribunal due to the discovery of a fact that would likely have had a decisive influence on the settlement of the dispute, but which was unknown to both the arbitral tribunal and the party requesting the revision before the award was rendered.
Where the arbitral tribunal may no longer be reconvened, the request for revision is brought before the jurisdiction in the member state which would have been competent in the absence of arbitration.
The grounds for annulment are strictly limited. An annulment action is permitted only if:
- the arbitral tribunal ruled without an arbitration agreement or based on an agreement that was void or expired;
- the arbitral tribunal was irregularly composed or the sole arbitrator was irregularly appointed;
- the arbitral tribunal ruled without conforming to the mandate with which it was entrusted;
- the principle of due process was not respected;
- the arbitral award was contrary to international public policy; or
- the award does not state the reasons on which it is based.
14.2 Are there are any time limits and/or other requirements to bring a challenge?
An annulment action must be brought as soon as the award is made. It will not be admissible if it is not brought within one month of notification of the award, having received the exequatur.
The competent jurisdiction shall render a decision within three months of its seizure. If it fails to render a decision within this timeframe, it is discharged of the case and an action may be brought before the Common Court of Justice and Arbitration within the next 15 days. The latter must render a decision within six months of its seizure. In that case, the deadlines specified in the Rules of Procedure of the Common Court of Justice and Arbitration shall be reduced by half.
Except where the provisional enforcement of the award has been ordered by the arbitral tribunal, the exercise of the annulment action shall stay enforcement of the award until such time as the competent jurisdiction in the member state or the Common Court of Justice and Arbitration, as the case may be, has rendered a decision. That jurisdiction shall also be competent to rule on a dispute concerning provisional enforcement.
In the event of annulment of the arbitral award based on the fact that the tribunal ruled without an arbitration agreement or based on a void or expired agreement, it rests upon the most diligent party, if it so wishes, to initiate a new arbitration proceeding in accordance with the Uniform Act on Arbitration.
14.3 Are parties permitted to exclude any rights of challenge or appeal?
The parties may agree to waive the annulment action against the arbitral award, provided that it is not contrary to international public policy.
15.1 Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?
The deliberations of the arbitral tribunal are confidential.
15.2 Are there any exceptions to confidentiality?
No. There are no provisions as to exceptions to confidentiality.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.