The role of international arbitration in Africa continues to grow. This is now unanimously confirmed by the resources available. For example, according to a 2020 SOAS survey, no fewer than 73 arbitration centres in Africa have an online presence. In addition, certain African countries, including Côte d'Ivoire, which hosts the headquarters of the Organisation for the Harmonisation of Business Law in Africa (OHADA) Common Court of Justice and Arbitration in Abidjan, and Egypt, with the Cairo Regional Centre for International Commercial Arbitration - two of the top five arbitration centres in Africa according to the SOAS survey - have already acquired a reputation as leading players in the field of international arbitration. Nigeria, for its part, has made a name for itself by hosting sessions of the International Chamber of Commerce (ICC) Conference on International Arbitration in Africa, illustrating its major place on this scene.
Senegal, on the Atlantic coast of Africa, between Guinea-Bissau and Mauritania, is gradually gaining ground in the field of international arbitration, even though it may initially have been less prominent. A founding member of the OHADA, Senegal owes this positive trajectory to its considerable economic assets and favourable legal framework. The country's rise in arbitration is taking on even greater importance in the light of the African Continental Free Trade Area (AfCFTA), in which Senegal is participating. It is against this backdrop that this article takes stock of international arbitration in Senegal.
To gain a better understanding of the development of international arbitration in Senegal today, its role, local legal players' knowledge of the subject, and also its future, we held discussions with some of the key figures in international arbitration in this country: Diamana Diawara (Director of Arbitration and ADR Africa at the ICC), Aboubacar Fall (Senior Partner at AF LEGAL and Chairman of the Société Sénégalaise de Droit International (SSDI)), Habibatou Touré (Senegalese arbitrator and lawyer, also an arbitration expert), and Thomas Kendra (Partner at Hogan Lovells and co-founder of AfricArb, an association dedicated to the development of arbitration on the continent). What emerges is an optimistic picture for this fast-growing dispute resolution method on the African continent.
The growth of international arbitration in Senegal: a continuing development
Senegal has been actively promoting arbitration in its territory for many years. As early as 1964, this West African country devoted a book of the Code of Civil Procedure to arbitration. In 1967, it subscribed to the Washington Convention, in 1994 to the New York Convention, and in 1995 it was one of the first countries to ratify the Treaty of Port Louis, establishing the Organisation for the Harmonisation of Business Law in Africa (OHADA).
As pointed out by Mr. Aboubacar Fall, Senior Partner of AF LEGAL and Chairman of the Société Sénégalaise de Droit International (SSDI), "Senegal was a forerunner among the nations of French-speaking Africa when it came to the early adoption of legislation favourable to arbitration", he adds that "Senegal has always supported international trade and has been a leader in intra-African relations, and is therefore one of the countries that made a major contribution to the creation of OHADA. In fact, a Senegalese magistrate was one of the founding fathers of OHADA". Keba Mbaye, a Senegalese judge who was also a member of the International Olympic Committee and the International Court of Justice, was also cited by Ms Diawara, underlining the leading position of Senegalese figures in the early stages of the development of international arbitration:
“Keba Mbaye, one of the founding fathers of OHADA, was one of the first African members of the ICC International Court of Arbitration in the early 1980s! This illustrates the extent to which Senegalese lawyers were pioneers in the development of arbitration on the African continent, particularly within OHADA” (Diamana Diawara).
The country's membership of OHADA, with its modern arbitration law set out in the Uniform Act, has also greatly contributed to the development of arbitration by consolidating its position as a preferred destination for dispute resolution in West Africa. As Ms Diamana Diawara of the ICC confirms: "OHADA is also playing a key role in the development of this method of dispute resolution".
This flourishing development of arbitration in Senegal is closely in line with the dynamic evolution of its economy and trade relations. The country has recorded remarkable rates of economic growth, showing a substantial increase in GDP with growth of 6.5% in 2021 and 4.2% in 2022, despite the impacts of covid, thus positioning Senegal as the second economic power within the West African Economic and Monetary Union. This economic vigour has naturally attracted the attention of foreign investors, including major trading partners such as the European Union, with France, Belgium and the Netherlands accounting for 32% of Senegal's imports.
Added to this is the central role played by Senegal in promoting international arbitration as the preferred mechanism for resolving foreign investment disputes. For example, the country has concluded no fewer than 29 BITs protecting investors, demonstrating a desire to encourage a stable and favourable investment climate. However, many of these treaties have been in force for decades and, as a result, the time seems right to reform certain aspects of these agreements. As Ms. Habibatou Touré rightly points out that "finding the right balance remains an important step, given that African states have been confronted with a number of issues inherent in traditional investment arbitration".
"Any reform of investment treaties must take account of the interests of African states" (Aboubacar Fall).
Other initiatives are also multiplying in Senegal, such as the conference organised by Jus Africa on "Arbitration and companies under OHADA law", to be held in Dakar this year. According to Me. Fall, in Senegal today "the main elements are favourable to arbitration", and as Diamana Diawara points out, "the parties opt for arbitration to obtain enforceable, rapid, neutral and confidential decisions". Me. Touré also points out that in her day-to-day practice she concludes "almost exclusively contracts containing arbitration clauses, in line with growing client demand". International clients are thus demonstrating their confidence in the arbitration procedure.
From critical viewpoints to constructive solutions to challenges and realities
International arbitration in Senegal, while growing rapidly, is not without major challenges to overcome if it is to continue to develop. According to Diamana Diawara of the ICC, one of the major challenges is to "ensure that state courts recognise awards in accordance with the most widely accepted international standards". Mr. Fall adds that "parties currently want to initiate arbitration, but there is a difficulty linked to support infrastructure such as arbitration centres". However, as Habibatou Touré points out, "it may just be a question of maturity. You can't compare institutions that have been around for 100 years with more recent African centres". Ms Diawara adds that the development of centres is intrinsic to the development of arbitration.
Thomas Kendra, partner at Hogan Lovells and co-founder of AfricArb, an association dedicated to the development of arbitration on the continent, is working on the development of arbitration in Africa and stresses that greater transparency is important for the development of arbitration centres in Africa. According to Mr Kendra, who helped set up the Kigali International Arbitration Centre (KIAC) and remains a member of the Board: "In arbitration, the development of transparency is extremely important, particularly to reassure clients and other economic players that arbitration is reliable and operates efficiently. We have therefore established a partnership at KIAC to share information and materials on arbitration with the Jus Mundi platform. This is a fundamental tool for ensuring that arbitration users have greater predictability in the solutions that arbitrators are likely to adopt. Thanks to this kind of initiative, we have been the referral institution for more than 300 cases in less than 10 years, an impressive number for a new centre".
On the other hand, another challenge persists: that of knowledge and familiarity with this method of dispute resolution. Mr. Fall insists on the "need to train more professionals, including judges and the private sector, to explain the advantages and specific features of using this method of dispute resolution". Ms. Touré also emphasised that "Senegalese legal practitioners are looking for training in international arbitration". Diamana Diawara adds that training young practitioners is essential: "Students and young practitioners are vital to the development of arbitration. By training them, we can develop reflexes to use alternative dispute resolution methods when they are faced with future disputes". Dialogue between the judiciary and those involved in international arbitration is therefore essential to enhance legal certainty, train judges and promote economic development through foreign investment.
"Arbitration is not the enemy and is not opposed to the local judicial system; it simply responds to a need to deal with a dispute differently where appropriate" (Habibatou Touré).
Moreover, as Diamana Diawara points out, "dialogue between the judiciary and arbitration practitioners is of great importance for the development of arbitration on the continent". Arbitration centres also play an essential role in the settlement of disputes in Africa, as Diamana Diawara points out: "The International Chamber of Commerce fulfils the mission of operating an efficient platform for the settlement of disputes on the African continent". It is therefore clear that the development of arbitration on the continent depends in particular on the institutions that offer and manage it.
Despite the challenges, Ms Diawara remains optimistic, adding: "We have the tools, but we need to continue to work closely with the judiciary to really raise awareness of the importance for Senegal of building this arbitration centre. I am convinced that Dakar has everything it takes to become one of the arbitration centres of the future".
Economic growth driven by initiatives
The 2018 Agreement Establishing the African Continental Free Trade Area, also known as the AfCFTA, ratified by Senegal on 12 March 2019, represents an ambitious initiative in creating the largest Free Trade Area in the world, bringing together the 55 countries of the African Union and eight regional economic communities. The overall mandate of the AfCFTA is to create a single continental market with a population of around 1.3 billion people and a combined GDP of around US$3.4 trillion. As a result, the AfCFTA is likely to lead to an increase in disputes, as Diamana Diawara points out:
"By creating an intra-African Free Trade Area, the AfCFTA will have a definite impact on the number of arbitrations on the continent" (Diamana Diawara).
However, the application of this treaty remains to be defined and implemented. As Ms. Touré said: "We must be wary of certain fads, because there are many fundamental prerequisites that need to be identified before we can see the impact of the AfCFTA ". Mr. Fall also points out that OHADA will have to adjust to the AfCFTA to ensure a smooth transition and respect a certain hierarchy of norms: "the AfCFTA will undoubtedly lead to conflicts of laws". Mr. Kendra adds that these changes will be felt particularly in the area of investment. He emphasises in particular: "the major political will that this project represents, as well as the potential benefits in terms of investment, economic growth and inter-African cooperation that this ambitious initiative could bring".
Next steps
In conclusion, Senegal is an active and committed player on the international arbitration scene. This practice is constantly evolving, thanks to a favorable legal environment that the country has steadily developed, and this growth, encouraged all the more in the dynamic context of the AfCFTA, augurs an increasingly promising future for the resolution of international disputes in Africa.
Authored by Thomas Kendra, Lédéa Sawadogo-Lewis, and Camila Silva Kamel.
Collaborating Experts:
- Diamana Diawara – ICC Director, Arbitration and ADR Africa
- Aboubacar Fall - Senior Partner at AF LEGAL and Chairman of the Société Sénégalaise de Droit International (SSDI)
- Habibatou Toure – independent lawyer and arbitrator
