Senegal collection profile

Senegal is a signatory to the Organization for the Harmonization of Business Law in Africa Treaty (OHADA), a uniform act relating to commercial companies and economic interest groups.  
Submission of the balance sheet through financial statements is mandatory for all companies in Senegal. LLC (SARL) and PLC (SA) submit their financial statements along with their income tax return to the tax office. However only financial statements of companies (PLC) listed on “Bourse Régionale des Valeurs Mobilière“ (BRVM) stock exchange are made public for investment purposes. PLC and LLC are not required by law to make their financial statements public. As a consequence, it is difficult to have reliable financial information on companies in Senegal.
A copy of the balance sheet is also submitted to the Central Bank of West African States (Banque Centrale des États de l’Afrique de l’Ouest, BCEAO), which provides a central view of payment incidents.
As companies in Senegal need to be registered in the Register of Companies, additional information can be obtained from the Unique Information Collection Centre (Centre Unique de Collect de l’Information, CUCI), which holds the national identification number of companies and associations, known as the Numéro d’identification National des Entreprise et des Associations (NINEA). The CUCI also records the financial statements of all registered companies, although not all companies submit the required information. Information provided by CUCI may not be up to date and financial statements are not made public.
As financial information cannot always be relied upon, trading history is often a better indicator of a company’s viability.

There are several types of companies in Senegal, but the most widely used are the SARL and the SA entities:

• Limited Liability Companies (Sociétés à Responsabilité Limitée, SARL) have seen a lot of improvements in order to facilitate the creation of such company type. The minimum capital required for a SARL is CFA 100,000 (approx. EUR 150) and the company can consist of a single partner (owning 100% of the shares) or several partners. SARL is the most common type of entity due to the flexibility they offer.
• Public Limited Companies (Société Anonyme, SA) can consist of either a General Director or a Board of Directors. SA entities are often used by larger companies due to the rules and protection that they offer to the shareholders. The minimum capital required is CFA 10,000,000 (approx. EUR 15,000). The company should appoint a statutory auditor from the association of statutory auditors and accountants. This type of company is more reliable provided that the statutory auditor is doing his job according to accounting standards.
• Another type of company, known as Sole Proprietorship, is the registration of a natural person to do business. This type of company is very popular in Senegal and is designed to help small businesses grow. However, many of them are not willing to develop into LLC or PLC. Although they should submit financial statements, the accounting documents required from Sole Proprietorship are less restrictive.
  

Although the French influence remains important, the business law in Senegal is based on OHADA Treaty which has been ratified by 17 African countries, most of which are French-speaking except for Bissau Guinea and Equatorial Guinea.
The legislation in Senegal, based on the original colonial legislation of the French Law and introduced in 1830, has evolved since the country became independent in 1960.
The judicial structure of Senegal consists of:

• The Courts of Instance (Tribunaux d’Instance), Courts of Great Instance and Tribunal of Commerce (since 2017), which are responsible for common law matters including criminal, civil, commercial, social and administrative law. They act in the first instance on cases which can then be brought before the Court of Appeal if the decision is contested.
• The Courts of Appeal (Cours d’Appel) in the Courts of Great Instance and Tribunal of Commerce can be considered as the court of second instance, ruling on disputes heard in a Court of First Instance where the outcome is appealed.
• The Supreme Court is the final appeal jurisdiction at the national level.
• The Common Court of Justice and Arbitration (Cour Commune de Justice et d’Arbitrage, CCJA) is the last resort in terms of all commercial area countries who are signed to the OHADA Treaty.

As per the guidelines provided by the OHADA Treaty, collection costs are borne by the debtor unless it is clear that they were not necessary at the time that they were incurred. Furthermore, unless the costs concern an act that is covered by National Law or the aforementioned Treaty and are authorized by the competent court, collection costs undertaken without enforcement are the responsibility of the creditor.
Where the court awards collection costs to the creditor, there is no fixed rate. Instead, the court will assess the costs incurred by the lawyer and/or the creditor and award costs accordingly.

In sales contracts, there is a clause relating to Retention of Title (RoT) which allows the creditor to retain ownership of the goods until payment is received in full for the corresponding invoice. In practice, said clause is rarely enforced or becomes ineffective, as the goods are often sold by the debtor prior to enforcement.

The most commonly used payment methods are:
Bank transfers as they are fast, secured, and supported by an increasingly developed banking network domestically and internationally. Checks are considered debt recognition titles and can be used to demonstrate that a debt is certain and undisputed. Checks can also be used for fast-track proceedings.
Letters of Credit are available, although not very popular. Direct payment by cash, check or bank transfer is usually preferred.

Once a claim is due and one reminder has been sent, the creditor must notify the debtor officially via a letter of formal notice. The letter of formal notice summons the debtor to pay the claim within eight days. If they fail to do so, the creditor can begin the appropriate legal procedure.

In case the matter lands in court, the creditor must appoint a lawyer who will issue a writ of summons to require the debtor to appear before the Court of First Instance. Pleadings would then be exchanged between the two parties’ lawyers until the court is satisfied that they have obtained sufficient information in order to render a decision.
Any party can appeal the First Instance Court’s decision before the Court of Appeal within one month from the decision date.

The creditor must produce all the supporting documents justifying their claim including contracts, invoices, proof of delivery and recognition of debt. All documents should be in, or translated into, French as it is the official language of Senegal.

For general commercial matters, the statute of limitation is five years. For claims concerning contracts of sale, this period is two years, in line with OHADA.

There is a possibility to seek an attachment order preventing the debtor from disposing of specific assets until a decision has been made on the case's merits. The creditor must demonstrate that irreparable harm is likely to occur unless the injunction is granted, and that the claim has substantial chances to succeed. The creditor must act swiftly.

An appeal can be lodged against the Court of First Instance decisions within the time limit of one month from the decision date.

Locally, a final appeal is also possible before the Supreme Court within two months from the decision’s official notification via bailiff.

A judgment is enforceable as soon as it becomes final and definitive. The successful party may then ask the court to order enforcement proceedings.

Obtaining a decision in first instance would generally take six months to one year, whereas a final and enforceable decision would normally take two to three years. Enforcement proceedings themselves would last six months on average. Note that such time frames are indicative.

In general, costs for legal proceedings reach 5% to 10% of the total claim amount.

Arbitration and mediation are most frequently used, and take place before the Centre of Arbitration and Mediation of the Dakar Chamber of Commerce. The latter is very restrictive on the number of cases dealt with per year. As a general rule, the best way to apply ADR is to agree to this possibility in the sales/services contract and/or the general terms and conditions. Parties are also able to mutually agree to ADR terms afterwards.

Subjecting a contract to a foreign forum (i.e. foreign laws and/or foreign courts) may constitute a significant way of avoiding domestic courts. Indeed, Senegal allows selecting the law applicable to a contractual agreement as long as the public order is not threatened. There are various requirements, however, such as the necessity to demonstrate the international connection (for example, one party has elected domicile in another country, or the place of execution is abroad), and the validity of a foreign jurisdiction clause within the contract.

In civil, commercial and administrative matters, contentious and gracious decisions rendered by foreign courts have the full authority of res judicata in the territory of Senegal if they meet the following conditions: (i) the decision is issued by a competent court in accordance with the rules concerning conflicts of jurisdiction admitted in Senegal, (ii) the decision applied the law applicable to the dispute by virtue of the rules for resolving conflicts of law admitted in Senegal, (iii) the decision is, according to the law of the state where it was rendered, res judicata and enforceable, (iv) the parties have been duly summoned, represented or declared to be in default, and (v) the decision contains nothing contrary to the public policy of Senegal and is not contrary to a Senegalese judicial decision possessing the authority of res judicata.
Foreign awards shall not give rise to any enforcement until after they have been declared enforceable. An exequatur shall be granted - irrespective the value of the claim - by the president of the high court of the location where the execution is to be continued.
Foreign arbitration awards can also be enforced in Senegal, in line with the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.

The bankruptcy and insolvency law/regulation are uniformed by the OHADA treaty.

There are no out-of-court bankruptcy proceedings to reduce the court’s caseload from the time the liquidator is nominated.

A creditor can request the bankruptcy of a debtor when debtor has stopped making payments (‘cessation de paiement’) and is unable to pay the due debts. This is said to be the case when the assets cannot cover the debts. The debtor can oppose the request for bankruptcy as filed by the creditor, or can also voluntarily request its own bankruptcy if it is insolvent.
Often a debtor company which has become insolvent goes bankrupt, but it can undergo a judicial restructuring process (‘redressement judiciaire’). The court will then look into the possibilities to restructure the insolvent party by giving it time to discuss a possible solution with all creditors involved. If this is not considered possible, the court will proceed to with bankruptcy proceedings.

Bankruptcies are handled before the Tribunal de Grande Instance (TGI). Creditors must address the judge of TGI, which will then appoint a liquidator to assess the financial situation and conclude whether the debtor is really insolvent.
When a liquidator is nominated by the court, they become the sole manager of the company. All pending legal procedures are suspended.
The liquidator’s tasks are as follows:

• recover the company’s claims from its (third-party) debtors
  - invite all creditors to lodge their claims (creditors must present their titles of claim)
• organize creditors’ meetings
• evaluate the assets and the debts
• liquidate/sell assets
• finalize the liquidation and submit a final report.
  

Creditors must register their claims within three months (90 days after the second publication of the decision of liquidation and appointment of liquidator -the gap between the two publications is 15 days) after the liquidator is nominated. In the event a claim is disputed by the debtor, the creditor will be requested to submit evidence supporting the claim.

Any proceeds are distributed to the creditors in the following order: justice, taxation, employees, creditors with enforceable title of debt and other creditors.

The time frame for liquidation is 18 months with a possible extension of 6 months which makes it a total of 2 years.

Liquidation may be initiated at the request of a creditor without regard to the nature of the claim, provided that it is certain, liquid and payable.