Firmly committed to modernising its justice system to improve the business environment, Senegal is accelerating its transition to Alternative Dispute Resolution (ADR), which has been identified as a priority. At the forefront of this is mediation, hailed for its ability to decongest the courts, preserve relationships and guarantee the confidentiality of disputes. This is a crucial step towards making the judicial system more efficient and effective, backed up by an expanded legal arsenal.
“It is more than urgent that we take ownership of the reforms undertaken by the government,” said Ms. Aïssatou Diémé Diallo, President of the Dakar Commercial Court (Tribunal de Commerce Hors Classe), during Mediation Day.
And with good reason: despite the many reforms of the Code of Civil Procedure, “the objective of putting an end to the tardiness and abnormal congestion of the dockets” is difficult to achieve.
This is why decree No. 2014-1653 on mediation and conciliation was adopted, which aims to “promote the culture and practice of these alternative methods,” according to Ms. Diallo. This is essential, she said, because the “over-judicialisation” of these alternative methods risks “running counter to the objectives” of reducing congestion.
This view is shared by lawyers as “an essential link” whose support is vital, according to Ms. Diallo. “It is up to them to put an end to the logic of ‘all litigation’ and to bring about a change in practice,” she urged.
Notaries are also called upon to “include alternative dispute resolution clauses in their contract literatures,” she added.
Judicial mediation has also been incorporated into the commercial court’s procedures, complementing the existing judicial conciliation. This is a strategic development, as “ADR is an alternative means of access to justice,” the president points out: “Too much judicialisation of ADR would run counter to the objectives of the reforms.”
Strengthening economic attractiveness, the other major challenge
As well as easing the pressure on the courts, the rise of mediation is also aimed at improving Senegal’s economic attractiveness, according to Abdoulaye Rokhaya Wane, an expert consultant.
“Unpaid bank loans are an obstacle to the movement of capital and investment,” he stresses, pointing to the “economic impact of protracted disputes.”
Mr. Wane therefore advocates drawing inspiration from “effective international models” such as China, where “a system for settling disputes fosters investor confidence.” This is an approach that Senegal needs to adopt, especially as “the discovery of oil and gas” has led to the emergence of new types of economic disputes, often resolved “through mediation rather than the long and costly legal route.”
This view is shared by the authorities, who see mediation as a way of “resolving disputes on agreed terms, while preserving confidentiality and business relationships”.
According to Wane, the promotion of ADR is part of a wider “public responsibility” to “correct” the weaknesses that limit Senegal’s attractiveness. This is a major challenge at a time when the country is facing new types of economic disputes with “the discovery of oil and gas,” areas where “mediation is generally favoured.”
For the authorities, this objective of competitiveness means maintaining economic relations.
“Mediation makes it possible to resolve disputes on agreed terms while maintaining commercial relations,” an advantage that is reinforced by the confidentiality of the procedures, according to Diémé Diallo.
This is a strong argument for “opting for a consensual agreement rather than a forced judgment” and thus “reassuring the investor,” as the chairwoman points out, quoting Balzac: “A bad agreement is better than a good trial.”
ARD/ac/lb/as/APA