Senegal
In your jurisdiction, are there any formal ADR procedures available for resolving commercial disputes other than litigating (or arbitrating) to a final hearing?
Senegal recognizes mediation and conciliation as alternative dispute resolution methods. Senegalese jurisdiction recognizes judicial, ad hoc or institutional mediation. This is also the case for conciliation which may be ad hoc, institutional or judicial. Ad hoc and institutional mediation is regulated by the OHADA Uniform Act on Mediation of November 23, 2017. Judicial mediation and conciliation, it is governed by Decree no. 2014-1653 of December 24, 2014 on mediation and conciliation.
Does engaging in ADR have any effect on potential or existing litigation or arbitration?
Under the terms of Article 4, paragraph 4 of the OHADA Uniform Act on Mediation, unless otherwise agreed by the parties, the commencement of the mediation procedure suspends the limitation period for the action. Where the mediation procedure has ended without an agreement resulting from the mediation, the limitation period shall start running again, for a period which may not be less than six months, from the day on which the mediation ended without an agreement.
The same applies to conciliation which, under the terms of Article 22 of Decree 2024-1653 relating to mediation and conciliation, suspends the limitation period from the date of signature of the conciliation protocol and for the duration of the procedure. The suspension of the statute of limitations ends one month after the occurrence of a number of events, including the signing of the mediation agreement, the referral of the proceedings to the court, the expiry of the proceedings, etc.
In the case of judicial mediation and conciliation, the mediation or conciliation agreement acquires enforceability either by being filed by mutual agreement of the parties in the minutes of a notary’s office, or by being approved by the competent judge.
Regarding ad hoc or institutional mediation, Article 15 of the Uniform Act on Mediation provides that where the parties have agreed to mediation and have expressly undertaken not to initiate, for a given period or until the occurrence of a specified event, any arbitral or judicial proceedings relating to a dispute which has already arisen or which may arise subsequently, such undertaking shall be given effect by the arbitral tribunal or the state court until the conditions attached thereto have been satisfied. The provisions of the preceding paragraph shall not apply where a party considers it necessary to institute, for provisional and conservatory purposes, proceedings to safeguard its rights. The initiation of such proceedings shall not in itself be considered as a waiver of the mediation agreement or as the termination of the mediation proceedings.
Is ADR compulsory and if so are there any consequences if a party fails to engage in ADR? If it is not compulsory are there any plans for this to change?
With the exception of commercial courts, mediation or conciliation is initiated at the joint request of the parties. As regards judicial conciliation, it is mandatory before the commercial courts, and takes place behind closed doors (article 5 of the law governing the creation, organization and operation of commercial courts). Article 34 of the Decree relating to conciliation provides that if there is no communication between the conciliator and any party or its representative for a period of twenty-one days after a mediation or conciliation meeting or session, the procedure is terminated and the conciliator makes a note of this in the minutes.
Can the parties agree, in advance of any potential dispute, to engage in ADR?
Contracts binding the parties may include an amicable settlement clause (that is, is a contractual provision whereby the parties agree, in the event of a dispute, to have recourse to an alternative dispute resolution method: conciliation or mediation) in the event of a dispute between them.
In the event of recourse, reference is made to a mediation agreement or a conciliation agreement, in accordance with Article 35 of the Decree on mediation and conciliation of the draft rules of procedure for mediation and conciliation. This article provides that when the parties reach a total or partial agreement on the dispute submitted to mediation or conciliation, this agreement is formalized by a written document entitled “mediation agreement” or “conciliation agreement”. This document must be dated and signed by the parties and by the mediator or conciliator. This formality gives the agreement probative value and, depending on the case, may be enforceable by approval of the competent court.
Apart from the mediation or conciliation procedure as governed by the texts, the parties may agree on a form of amicable settlement at their convenience. In accordance with the provisions of Article 4 of the Decree relating to mediation and conciliation, “recourse to mediation or conciliation is based on the autonomy of the parties. They may, on their own initiative or under the conditions set out in this decree, attempt to resolve their dispute amicably with the assistance of a mediator or conciliator”. This means that the parties are under no obligation to initiate a mediation or conciliation procedure, unless a contractual clause expressly requires them to do so. The parties are free to do so, which confirms the non-binding nature of these alternative dispute resolution methods.
If these amicable procedures fail, the parties retain the option of bringing their dispute before the competent courts for judicial resolution or arbitration. However, where an express contractual clause requires prior recourse to one of these alternative dispute resolution methods, the competent court will ensure that this clause is complied with before examining the case.
When does ADR generally take place?
Concerning ad hoc or institutional mediation, it can begin on the day the most diligent party implements any written or unwritten mediation agreement according to Article 4 of the OHADA Uniform Act on Mediation. Mediation can also take place at the request of state court or arbitral tribunal with the agreement of the parties, by suspending the proceedings. In both cases, the state court or arbitral tribunal sets the time limit for suspending the proceedings in accordance with Article 4 of the OHADA Uniform Act on Mediation.
Concerning ad hoc or institutional conciliation, the party initiating the ad hoc or institutional conciliation sends the other party a written invitation to conciliate. This invitation must contain at least the following information: 1) its name, address, telephone and fax numbers and e-mail address, and those of its representative or counsel, if any; 2) the contract or agreement containing the mediation or conciliation clause, if any; 3) a brief statement of the facts and circumstances of the case and the subject of the dispute; 4) its position and the nature of the intended procedure.
Is ADR subject to without prejudice privilege and/or confidential? If not, is there any other means to protect confidential information?
Whatever the mode, mediation and conciliation are subject to the principle of confidentiality. There is also nothing preventing the parties from signing a Non- disclosure Agreement (NDA).
Does the output from ADR create precedents?
No as it is confidential.
Who bears the costs of ADR?
According to Article 13 of the Uniform Act, the parties determine, either directly or by reference to mediation rules, the costs of ad hoc or institutional mediation, including the mediator’s fees.
In the case of judicial mediation, the State court seized of the matter, which appoints a mediator, fixes the costs in agreement with the parties and orders the deposit of the amounts in the hands of the chief clerk of the court or the competent body of the State Party. If a party fails to pay its share of the fixed costs, the other party is allowed to pay its share so that the mediation can proceed. If no payment is made within the time limit set by the judge, his decision shall be null and void and the legal proceedings shall resume.
All costs of conciliation are shared equally between the parties. In addition, each party directly assumes the travel and other expenses of its witnesses, experts, lawyers or other persons representing or assisting the party during the proceedings. In the case of ad hoc or institutional conciliation, in the absence of a rate scale for the procedural costs of the institution chosen by the parties, reference is made, unless the parties agree otherwise, to the rate scale set by the Comité national de Médiation et de Conciliation (National Mediation and Conciliation Committee).
Is your jurisdiction subject to any specific rules for cross border ADR?
Regarding ad hoc and institutional mediation, the Uniform Act on Mediation was adopted by the Organization for the Harmonization of Business Law in Africa, which has 17 members including Senegal. Regarding conciliation, there is no rules for cross border ADR.
The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention) does not apply in Senegal.
Are there any particularly unusual features of ADR in your jurisdiction that you are aware are different to other jurisdictions?
Not to our knowledge.
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