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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Senegal.
2. Date of entry into force of the New York Convention
15 Jan. 1995 (date of accession: 17 Oct. 1994).
3. Has any reservation been made under Art. I (3) of the New York Convention regarding:
(a) Reciprocity?
No.
(b) Commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I (1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
Arbitration law in Senegal is governed by the OHADA Uniform Arbitration Act (‘UAA’). This Act should be applicable to any arbitration located in one of the 17 member States. It remains applicable to recognition and enforcement of foreign awards in the absence of any specific rule. Under the UAA, there is no distinction between domestic arbitration and international arbitration.
(Source: Arts. 1 and 34, UAA.)
B. National sources of law
(Source: Art. 10, OHADA Treaty, 17 Oct.1993 (revised in 2008).)
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There is no specific provision addressing this issue under the UAA, and there is no specific limitation period for recognition or enforcement of foreign awards under national law.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Despite the above, the CPC provides for a general ten-year time limit for legal actions. However, in commercial matters this limitation may be five years. If either of these time limits were said to apply to the recognition and enforcement of foreign awards, then such time limit would start running from the date of notification of the award to the parties.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The judge of urgent matters who sits in the competent district court (first instance) where the enforcement is requested has jurisdiction over recognition and enforcement of foreign awards.
(Source: Arts.789, 794 bis, CPC; Art. 32, Act n ° 2017-24, 28 June 2017, on the creation, organization and functioning of the commercial courts and the commercial sections of Appeal Court.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
Before the court accepts jurisdiction over recognition and enforcement, it will first verify whether there are any assets against which to enforce the award within its jurisdiction.
(Source: Art. 789, CPC.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The decision granting or refusing recognition and enforcement of foreign arbitral awards is obtained through inter partes proceedings throughout the territory of Republic of Senegal.
(Source: Art. 791, CPC.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
With regard to the recognition and enforcement of awards rendered under the OHADA Arbitration Act:
Decisions rendered under legal regimes other than OHADA are subject to appeal before the Supreme Court.
(Source: Art. 32, UAA; Art. 789, CPC.)
(b) How many levels of appeal or recourse are available against this decision?
Whichever regime is applicable, only one level of recourse is available (see (a) above).
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
The execution against assets can proceed once a writ of execution of the award has been obtained by the court with jurisdiction in Senegal and has been notified to the debtor, or to any third party that detains assets belonging to the debtor. However, if the award is subject to a challenge, it may only be enforced if it contains an explicit decision for provisional execution.
(Source: Art. 791, CPC; Arts. 29, 54, 55, 153, OHADA Uniform Act related to organizing simplified recovery procedures and enforcement measures; Art. 24, UAA.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The applicant must provide an original copy or authenticated copies of both the award and the arbitration agreement.
(Source: Art 31, UAA; Arts. 792 and 793, CCP; Art. 24, Civil and Commercial Obligations Code.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
Both the award and the contract containing the arbitration agreement should be produced in their entirety.
(Source: Art. 31, UAA.)
(c) Are originals or duly certified copies required?
Senegalese law allows for the production of either originals or authenticated copies.
(Source: Arts. 18 and 19, Civil and Commercial Obligations Code.)
(d) How many originals or duly certified copies are required?
There is no specific requirement relating to the number of originals or authenticated copies that must be submitted. One original or one authenticated copy should suffice.
(e) Does the authority or court keep the originals that are filed?
Yes. Originals are kept by the courts as long as the procedure is ongoing. However, the applicant may get the originals back once the proceeding is closed.
13.
(a) Is it necessary to provide a translation of the documents supplied?
If the language of the award or of the contract containing the arbitration agreement is not French, then it is necessary to provide a translation of such documents.
(b) If yes, into what language?
French.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
The translations must be certified by a translator. In practice, this certification is carried out by a chartered translator or by a consular agent in the country where the arbitration proceedings took place.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
It is necessary to produce a full translation of the documents.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V (1) (e) of the New York Convention?
Yes.
(Source: Art. 28, UAA.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
Senegalese law does not contain any other provisions authorizing Senegalese judges to suspend proceedings for the recognition or enforcement of foreign awards.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
In principle, documents submitted to judicial proceedings, including arbitral awards and the arbitration agreement, are not part of public records.
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Generally, proceedings are conducted through written submissions. Hearings are public under the Senegalese general principles of civil procedure. However, under the general rules of the Senegalese law relating to judicial organization, steps may be taken to preserve confidentiality where public order or morality is at stake.
(Source: Art. 10, Act No. 2014 – 26, 3 Nov. 2014 repealing and replacing Law No. 84 - 19 of 2 Feb. 1984 fixing related to the judicial organization.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Like all court decisions, judgements on recognition and enforcement are subject to publication. We are not aware of specific provisions in Senegalese law allowing parties’ names to be removed or confidential information to be protected from publication.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
The applicable provisions to recognition and enforcement only refer to the term ‘foreign awards’ without distinguishing between interim, partial or final awards. The term ‘foreign awards' should therefore include partial/interim awards as well as final awards.
(Source: Arts. 787 and 790, CPC.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
Recognition and enforcement of non-monetary relief in foreign arbitral awards should be possible in Senegal.
(Source: Art. 354, CPC.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
Recognition and enforcement of only part of the relief granted in a foreign award should possible in Senegal.
(Source: 790, CPC.)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V (1) (e) of the New York Convention?
We are not aware of any provision under the UAA that allows a party to obtain recognition and enforcement of a foreign award which has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.
(Source: Art. 32, UAA.)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Yes, stamp duties of an amount of FCFA 10, 000. This fee would apply to each additional copy if any.
(Source: Arts. 512, 513, 514 and 516, Tax Code.)
Country Rapporteur: Mouhamed Kebe
Other contributors: Mahamat Atteib, Ousmane Ly