Recent developments: Senegal – New law on the commercial courts and commercial chambers of appeal

• Jurisdiction: South Africa
• Author: Salvatore Mancuso
• Date: 16 August 2019
• Pages: 184-199
• Published date: 16 August 2019
• Citation: (2017) 4(2) Journal of Comparative Law in Africa 184

184

RECENT DEVELOPMENTS: SENEGAL – NEW

LAW ON THE COMMERCIAL COURTS AND

COMMERCIAL CHAMBERS OF APPEAL

SALVATORE MANCUSO

Senegal is continuing its process of reforming the business climate through

the adoption of Law 2017-27 of 28 June 2017 establishing, organising and

operating commercial courts and commercial chambers of appeal.

After having liberalised the share capital of a limited liability company,

reduced the notary fees for its constitution, strengthened the civil

procedure system through the Decree 2014-1653 of 24 December 2014

on mediation and conciliation, Senegal has recently adopted Law 2017-27

of 28 June 2017 establishing, organising and operating commercial courts

and commercial chambers of appeal. Through these reforms, Senegal

continues its efforts for the realisation of one of the major objectives

of the OHADA Treaty: the implementation of an appropriate judicial

environment for the protection of investments.

Commercial courts have been introduced to rule on business

transactions and disputes involving companies, like lack of payments,

liquidation and bankruptcy procedures.

The main objective of this new law is to strengthen the legal protection

of investors and reduce the time necessary to judicially enforce contracts.

It is characterised by the specialisation of the commercial courts and of the

commercial chambers of appeal that are composed of judges, professional

magistrates and ‘consular judges’ (juges consulaires) who are not professional

magistrates but members of the business environment. They are appointed

by the Minister of Justice under proposal by the National and Regional

Chambers of Commerce (Art. 9), and their mandate is of three years and

can be renewed (Art 11).

According to Art 7 of the new law, the commercial courts are competent

to judge on:

• disputes relating to business transactions between traders within the

meaning of the Uniform Act on General Commercial Law;

• disputes between partners of a commercial company or an economic

interest group;

• disputes relating to ‘acts of commerce’ within the meaning of the

Uniform Act on General Commercial Law, no matter who the

parties are. However, in situations where one of the parties is not an

entrepreneur, the non-commercial plaintiff may bring proceedings

before the ordinary courts;

• bankruptcy procedures;

• more generally, disputes relating to ‘acts of commerce’ (as defined by

the Uniform Act on General Commercial Law) carried out by traders

(2017) 4(2) Journal of Comparative Law in Africa 184

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RECENT DEVELOPMENTS: SENEGAL – NEW LAW ON THE COMMERCIAL

COURTS AND COMMERCIAL CHAMBERS OF APPEAL 185

in the course of their trade, and all their commercial disputes, even if

having a civil implication;

• disputes and appeals relating to decisions taken by the commercial

courts.

As courts of first instance, the commercial courts rule on all claims whose

economic value is more than 25 million CFA Francs, while as courts of

first and last instance they rule on all claims whose economic value is not

exceeding 25 million CFA Francs (Art 8).

The commercial courts are composed of a president, one or more vice-

presidents, the judges and the ‘consular judges’ (Art 14), and its sessions

include the general assembly, the solemn hearings and the ordinary

hearings (Art 18).

Another major innovation that deserves to be emphasised is the

consideration of digital technology in the procedure. Thus, Law 2017-27

provides the possibility for the plaintiff to submit the claim by electronic

means and, more generally, the possibility to file documents electronically.

(Art 22).

The judgement must be rendered within three months from the date

of the first hearing, and this time limit can be extended only exceptionally

and for not more than one month by the president of the court (Art 26).

All rules of procedure set forth for the cases heard in first instance are

applicable also to appeals, but the judgement must be rendered within

two months from the date of the first hearing (Art 30). A special section

(Arts 31 to 33) is dedicated to precautionary proceedings.

The functioning of the commercial courts and the activity of the

judges is controlled by a supervisory board (Conseil the Surveillance) whose

members are appointed by the Minister of Justice (Title VI).

The full text of the law (in French) is attached.

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