I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK
Dispute resolution in Mauritius occurs via the traditional system of litigation before the courts and through alternative dispute resolution (ADR) procedures. A party may choose whether to apply to the courts for redress, or opt to have such a dispute resolved through mediation, conciliation or arbitration.
Disposal of commercial disputes through the Commercial Division of the Supreme Court of Mauritius is an inherent feature of Mauritius’s judicial system, which heard and disposed of more than 1,700 cases in 2015. The Mediation Division of the Supreme Court has also been actively involved in facilitating the settlement of ongoing civil and commercial disputes. Since 2012, around 1,500 cases have been referred to the Mediation Division of the Supreme Court, of which around 1,000 have been settled.
For disputes that are submitted to courts in Mauritius, the ultimate appellate body is the Judicial Committee of the Privy Council in England (JCPC). Sittings of the JCPC are generally held in England, but they also regularly occur in Mauritius to expedite the hearing of appeals.
Mauritius positions itself as a centre for international arbitration. Several measures have been adopted by the Mauritius government to create conditions for sustainable development of international arbitration.
In November 2008, the International Arbitration Act 2008 (IAA), which is based on the UNCITRAL Model Law, was enacted by parliament. With the coming into force of the IAA in January 2009, and the conclusion of a host country agreement with the Permanent Court of Arbitration (PCA) at The Hague, the permanent representative of the PCA located in Mauritius is, as from September 2010, called upon to intervene, for example, in cases of failure to constitute the arbitral tribunal, to appoint the arbitrator if the parties have not done so, or if there is a challenge to the arbitrator.
As Mauritius is already a recognised jurisdiction for the setting up of global business licence companies, an interesting feature of the IAA is that it also provides for the arbitration of disputes under the constitution of global business licence companies incorporated in Mauritius. Furthermore, all court applications under the IAA, which are made to a panel of three judges of the Supreme Court, have a direct and automatic right of appeal to the JCPC.
At the domestic level, arbitration can be resorted to under the Code of Civil Procedure 1808, which allows parties to refer any dispute for arbitration either before or after a dispute has arisen.
Mediation and arbitration procedures are also available at the level of the Mauritius Chamber of Commerce and Industry (MCCI), which has, since 1998, had its own permanent court of arbitration, the MCCI Arbitration and Mediation Center (MARC). Under the Mediation Rules or Arbitration Rules of MARC, individuals, private-sector entities and public-sector organisations can initiate arbitral proceedings in relation to both domestic and international commercial disputes.
II THE YEAR IN REVIEW
i Case law
UBS AG v. The Mauritius Commercial Bank Ltd 2
The Mauritius Commercial Bank brought an action against, inter alia, UBS AG before the Commercial Division of the Supreme Court for contractual negligence. UBS AG made a ‘Section 5 claim’ for stay of court proceedings in favour of arbitration, contending that the action entered was the subject of an arbitration agreement.
Pursuant to Section 5(1) of the International Arbitration Act 2008 (IAA), the Commercial Division transferred the matter to the Supreme Court, as constituted under Section 42 of the IAA. Under Section 5(2) of the IAA, the Supreme Court must refer the parties to arbitration unless a party shows, on a prima facie basis, that there is a very strong probability that the arbitration agreement may be null and void, inoperative or incapable of being performed. Respondents, inter alia, argued that the arbitration clause is inoperative and manifestly inapplicable.
The Court held that Section 5(2) modified Article 8(1) of the Model Law to create and give effect to our application of the ‘negative effect’ of the competence-competence principle. The Court would refer the parties to arbitration save in exceptional circumstances where the respondent satisfies the ‘very strong probability’ test at the prima facie stage and the Court finds that the arbitration agreement is in fact null and void, inoperative or incapable of being performed.
The Court further held that the prima facie ‘very strong probability’ test had to be satisfied irrespective of whether the party’s opposition to referral was based purely on a question of law or whether it was based on factual evidence or a mixture of law and fact. The Court decided to refer the dispute to arbitration.
Oxenham V v. France Maritime Agency Ltee (FMA) 3
Oxenham sued France Maritime before the Supreme Court for breach of contract. In his interlocutory judgment, the learned trial judge upheld a plea in limine raised by France Maritime to the effect that the dispute should have been referred to arbitration because of an arbitration clause in the contract. Oxenham appealed against the interlocutory judgment, inter alia, on the grounds that the arbitration clause does not provide for the modalities of designation of the arbitrator as required under Article 1,004 of the Code of Civil Procedure and Article 2,016 of the Mauritian Civil Code.
On appeal, the Supreme Court held that, unlike in France where the law was amended in 2011, in Mauritius there is still a formal requirement for an arbitration clause to designate the arbitrator or to provide for the modalities of designation of the arbitrator. The intervention of the judge in chambers is allowed only when there is a difficulty with the mechanism for appointment of arbitrator. Given that the arbitration clause in that case failed to designate the arbitrator or to provide for the modalities of designation of the arbitrator, it was null and void and deemed unwritten. Consequently the judge was wrong to have referred the case for arbitration.
Mascareignes Sterling Co Ltd v. Chang Cheng Esquares Co Ltd 4
Mascareignes Sterling Co Ltd appealed to the Privy Council against the decision of the Supreme Court, which upheld an arbitration award in a building contract dispute. The Privy Council held that it was possible for the parties to agree to limit any appeal against an arbitration award to questions of law only. Consequently, the Privy Council held that it had no jurisdiction to review the decision of the arbitrator not to rely on a report prepared by a surveyor as it involves questions of facts. The Privy Council rejected the claim that that the arbitration award was null and void because the arbitrator failed to keep proper record of the arbitral proceedings. However, the Privy Council also held that the loss of a document such as the minutes of a sitting of arbitration could amount to a violation of a rule of public policy under Article 1027-3 only in cases where there was a demonstrable adverse consequence to the administration of justice.
Fast Track Contracting Ltd v. Mella Villas Ltd & Anor 5
The defendants raised a plea in limine to the effect that the court does not have jurisdiction to entertain the claim as there was an agreement between the plaintiff and one of the defendants that all disputes should be referred to arbitration.
The plaintiff did not dispute the existence of the arbitral clause, but argued that the second defendant had failed to raise the issue in a timely manner (this had been raised together with the plea after the exchange of pleadings and the state implementation of the case).
The court upheld the plea in limine and held that any objection to jurisdiction of the court must be raised at the first available opportunity and may be raised, after the exchange of particulars, simultaneously with the plea on the merits, but not after issues have been joined and subsequent to the filing of the plea.
However, the court held that the plaintiff could proceed with its case against the other defendant, who was not privy to the arbitral agreement.
Mall of Mont Choisy Limited v. Pick ‘N Pay Retailers (Proprietary) Limited & Ors 6
Mall of Mont Choisy Limited brought an action before the Supreme Court seeking damages for breach of an agreement to develop and lease a shopping centre in Mauritius. The defendant made an application under Section 5 of the IAA to refer the matter to arbitration, on the grounds that an arbitration clause in the lease agreement covered the dispute. The plaintiff argued that it was not bound by the arbitration clause as the lease had not been properly executed.
Under Section 5(2) of the IAA, the Supreme Court must refer the parties to arbitration unless a party shows, on a prima facie basis, that there is a very strong probability that the arbitration agreement may be null and void, inoperative or incapable of being performed.
The Supreme Court decided to refer the dispute to arbitration. After considering Canadian jurisprudence in Dell Computer Corporation v. Union des Consommateurs and Olivier Dumoulin7 on the approach to applications to stay for arbitration and the travaux preparatoires, relating to the IAA the Court held that the legislator had opted for a non-interventionist judicial approach. The test of a ‘very strong probability’ in Section 5 is ‘a very high one’. If the challenge requires the production and review of factual evidence, the court should normally refer the case to arbitration.
The Court further emphasised that in cases involving a factual issue as to the validity of an arbitration agreement, the issue should be decided by the arbitrator subject to review by the court.
Cruz City 1 Mauritius Holdings v. Unitech Limited & Anor 8
Cruz City 1 Mauritius Holdings applied to the Supreme Court of Mauritius for an order recognising and declaring executory in Mauritius two foreign awards, which had been issued by an arbitral tribunal (the Tribunal) constituted by the London Court of International Arbitration (LCIA).
The two applications were brought under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (the 2001 Act) and have been the first to be adjudicated upon by the Supreme Court as set up pursuant to Section 42 of the IAA. The 2001 Act has given force of law in Mauritius to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), signed on 10 June 1958.
The respondents raised various points to resist the applications. It was argued on behalf of the respondents that granting enforcement of the awards would be in breach of the Constitution of Mauritius and would undermine the institutional integrity of the Supreme Court.
The Court held that the IAA makes provisions for the national courts to assist in facilitating the process of international arbitration chosen by the parties and this, without reducing judicial control or preventing the Court from intervening where appropriate. The Supreme Court has to adjudicate upon a matter brought before it by a party in compliance with the law that is applicable. In the present case, the Court stated that it would apply the 2001 Act implementing the New York Convention, unless that law had been declared unconstitutional. The Court explained that when it is asked to recognise or enforce an award it is being asked to decide on the legal right of the applicant to enforce the award; that is, to enforce that ultimate product of the agreement of the parties that is already binding on them.
The Court emphasised that, by virtue of the public policy exception provided in the law governing arbitration and enforcement of awards, it is obvious that the Court has the power to exercise ultimate control over the arbitral process where it is considered to be against the public policy of Mauritius. Therefore, the Court held that the institutional integrity of the Supreme Court could not be said to have been compromised and rejected the argument that the 2001 Act reduces the role of the Court. On the contrary, the Court noted that, in the context of enforcement of awards, the 2001 Act helps in preventing delayed justice and supports the finality of international arbitral awards by only refusing enforcement of awards when there are serious grounds.
The respondents also argued unsuccessfully that the enforcement of the awards would be in breach of Article V(1)(c) (jurisdictional issue) and Article V(2)(b) (public policy issue) of the New York Convention.
The Court held that in deciding to refuse recognition and enforcement under Article V of the New York Convention, it would not look into the merits of the dispute between the parties. Its task was not to sit on appeal and review the decision of the Tribunal on the merits or to substitute its own decision for that of the Tribunal but to consider whether it would refuse recognition and enforcement under any of the grounds that are relied upon and proved by a respondent under Article V of the New York Convention. In that respect, the Court had the power under the ground, provided in Article V(1)(c) to undertake a full review of the Tribunal’s findings on jurisdiction. It would do so where it considered it appropriate and necessary, bearing in mind the overriding principle that the process of enforcement should be smooth and expedient.
With regards to Article V(2)(b), the Court held that it had a discretion not to enforce an award and emphasised that such a discretion should be exercised with rigour if it considered that enforcing the award would go against the public policy of Mauritius. The Court also noted that it was public policy in the international context that would matter and not the public policy that would normally apply when challenging a domestic award.
The Court further explained that while considering the recognition and enforceability of foreign awards under Article V(2)(b), its task was not to see whether the decision of the Tribunal in its application of the law of the country governing the agreement in question was against the public policy of that country but to see whether the enforcement of the award prayed for would be against the public policy of Mauritius. In relation to the two applications made, the Court held that even on the assumption that an award of damages without proof of loss by a party was patently illegal under Indian law (the governing law of the contracts), a breach of law in India would not per se amount to a breach of public policy in Mauritius, be it in the domestic or international context.
The Court finally concluded that a respondent should not raise an objection to the recognition of a foreign award under Article V(2)(b) injudiciously. A respondent needs to show with precision and clarity in what way and to what extent enforcement of the award will have an adverse bearing on a particular international public policy of Mauritius. Not only must the nature of the flaw in the arbitration proceedings be unambiguously described, but a specific public policy must be identified and established by the party relying on it.
Having found no merits in the arguments put forward by the respondents, the Court granted the enforcement of the awards as prayed for by the applicant.
ii Legislative changes
A new category of licence, the Global Legal Advisory Services licence, has been introduced in the Financial Services Act 2007 for foreign law firms who wish to provide legal services in Mauritius pertaining to, inter alia, global business and international arbitration. These foreign law firms will be required to set up an entity in Mauritius to hold the Global Legal Advisory Services licence subject to meeting certain pre-requisites. Holders of such licences will be subject to regulation by the Financial Services Commission.
Mauritius enacted the International Arbitration (Miscellaneous Provisions) Act 2013, which came into effect on the 1 June 2013 and brought about important changes in the field of international arbitration. The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act that gave legislative force to the New York Convention was amended to provide that a foreign arbitral award is now recognised and enforceable in Mauritius irrespective of whether or not there is any reciprocity with the foreign state. French and English are each now deemed to be official languages for the purpose of the New York Convention thus avoiding unnecessary translation of awards and ensuring that awards rendered in both anglophone and francophone arbitrations are enforceable without unnecessary expense and delay. In addition, actions for the recognition and enforcement of foreign awards in Mauritius will not be subject to any domestic period of limitation or prescription.
The IAA was amended to give the Supreme Court power to issue interim measures in relation to arbitration proceedings whether the judicial seat of arbitration is Mauritius or not. However, this power should be used only to support and not disrupt the existing or contemplated arbitration proceedings. An application for such interim measures shall in the first instance be heard and determined by a judge in chambers but shall be returnable before a panel of three designated judges.
The IAA was also amended to make it clear that the shareholders of global business licence companies also have the right to agree to the arbitration of disputes concerning or arising out of agreements other than the constitution of the company, for example, shareholders’ agreements. However, the juridical seat of any arbitration relating to a dispute arising out of the constitution of a global business company is Mauritius.
Although any hearing before the Supreme Court under the IAA will usually be conducted in public, the IAA was also amended to empower the Court to hold hearings in private in appropriate circumstances to safeguard the confidential nature of certain types of arbitration.
Six designated judges were nominated by the Chief Justice to hear all international arbitration matters in Mauritius. It was intended that in addition to the specialist knowledge that the designated judges will accumulate from hearing all international arbitration matters, they will receive specialist training in this field both in Mauritius and abroad.
III COURT PROCEDURE
Evidential and procedural rules in Mauritius are inspired by English law. Litigation in Mauritius courts is based on an adversarial system.
i Overview of court procedure
The Supreme Court
Generally, the procedure to be followed before the Supreme Court is provided for under the Supreme Court Rules 2000.
Civil and commercial proceedings before the Supreme Court sitting in its original jurisdiction (other than the Bankruptcy Court), are initiated by way of plaint with summons. It must be noted that an action may be initiated by way of motion supported by affidavit, namely when such an action is for a prerogative order or if the circumstances require urgency.
The judge in chambers
An action before the judge in chambers is initiated by an applicant by way of praecipe and affidavit. Upon receiving this, the respondent may reply by filing a counter-affidavit, which the applicant can reply to with a second affidavit. The respondent has a final right of reply to the second affidavit. No further exchanges of affidavits will be allowed unless leave of the judge in chambers is obtained.
Where the judge in chambers is satisfied that all incidents of exchanges of affidavits have been dealt with and a case is ready to be argued before him or her on the merits, the case is fixed for the merits on such a date as the judge in chambers thinks fit.
The judge in chambers has the jurisdiction to deal with injunctive relief and urgent applications.
It must be noted that under Article 806 of the Code of Civil Procedure, the judge in chambers can sit as a judge of civil proceedings. The summary procedure is for those matters that require celerity, that is, where an order from the judge in chambers is required to prevent an imminent peril.
Apart from summary jurisdiction, the judge in chambers also has original jurisdiction in certain matters, such as for the granting of a writ habere facias possessionem.
Court of Civil Appeal
If a civil case is heard at first instance by a judge of the Supreme Court, an appeal lies to the Court of Civil Appeal within 21 days from the date of the judgment. The appeal must be lodged by way of notice of appeal in writing, and the grounds of appeal must be given in detail.
If the respondent wishes to resist the appeal, he or she must serve on the appellant and file in the Registry a notice of his or her intention to do so not later than two months after the date of service.
The appellant must, not less than 45 days before the date of the hearing of the appeal, serve on the other parties to the appeal and lodge in the Registry skeleton arguments and submissions on the grounds of appeal.
The respondent must, not less than 30 days before the date of the hearing of the appeal, serve on the other parties to the appeal and lodge in the Registry skeleton arguments and submissions on the grounds of appeal.
An appeal against an interlocutory judgment or order also lies to the Court of Civil appeal with leave of the judge giving the judgment.9
Appeal to the JCPC
An appeal to the JCPC from a decision of the Court of Appeal or the Supreme Court may be as of right or with the leave of the Supreme Court.
An application to the Supreme Court for leave to appeal to the JCPC must be made by motion or petition within 21 days of the date of the decision to be appealed from, and the applicant must give all other parties concerned notice of his or her intended application.
The JCPC may also grant special leave to appeal from the decision of the Supreme Court in any civil or criminal matter. The procedure for appeal to the JCPC is governed by the Mauritius (Appeals to Privy Council) Order 1968.
Appeals to the JCPC can only be made against final decisions from the Court of Appeal or the Supreme Court. A final judgment is one that disposes finally of a suit; puts the plaintiff in the impossibility of moving further or proceeding with the hearing of his or her action on the merits; finally determines or concludes the rights of the parties; and puts an end to the main dispute.10
Subordinate courts – the district courts, Intermediate Court and Industrial Court
An action before the subordinate courts is entered by way of praecipe served on the defendant by registered post with notice of delivery.
A party may appeal to the Supreme Court against a judgment of a district court, the Intermediate Court or the Industrial Court within 21 days from the date of the judgment. The computation of the 21 days excludes the day the judgment is delivered for subordinate courts.
ii Procedures and time frames
The applicable procedures and time frames vary depending on the intricacy of the case, the sum or matter in dispute and the availability of all parties involved.
Generally, matters dealt with at the district court level (generally covering claims of up to 50,000 rupees) last for a minimum of three months.
District courts also have a small-claims jurisdiction for civil actions where the sum claimed or the matter in dispute does not exceed 25,000 rupees. The small-claims procedure is a simplified one where the strict rules pertaining to the lodging of a case before district courts do not have to be adhered to.
Matters before the Intermediate Court (for sums of more than 50,000 rupees but less than or equal to 500,000 rupees) can be determined within one year, depending on the complexity of the case.
Matters before the Supreme Court (covering money claims of more than 500,000 rupees) may take more than one year to be determined, depending on the intricacy of the case.
It must be noted that the specialised divisions of the Supreme Court, including the Commercial Division and the Mediation Division, enable cases to be disposed of more efficiently. Furthermore, a system for e-filing in the judiciary was introduced in Mauritius in 2012 to permit the electronic filing of court processes and provide a faster means of putting a case together.
It must be noted that in urgent matters, applications can be made to the judge in chambers and may be disposed of, for example, in relation to an application for an interim injunction, within one day or a couple of days.
iii Class actions
Class actions are provided for under Mauritian laws in respect to companies inasmuch as a shareholder of a company can bring proceedings against the company or director of the company by representing all or some of the shareholders having the same or substantially the same interest in relation to the subject matter of the proceedings.11
iv Representation in proceedings
In most cases, litigants appoint a legal representative to represent them in court. The Courts Act 1945 provides that in any proceedings before the Supreme Court, a barrister may address the Court or any party to the proceedings may address the Court with leave of the Court. If the proceedings are before the Bankruptcy Division, an attorney retained by or on behalf of any party may do so.
The parties to the case will usually need to retain the services of an attorney for the preparation of the pleadings of the case. The attorney will instruct a barrister, who will be responsible to conduct the case in court.
Legal entities can be represented in court by their duly authorised representative (e.g., for a company, a director or secretary of the company, or any other natural person duly authorised by the company to act on its behalf).
v Service out of the jurisdiction
Mauritius is not a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. As such, the relevant procedure to be followed will be pursuant to the CCPA, which provides that the leave of the judge in chambers must be sought before the applicant can serve documents outside Mauritius. Such leave can be granted in specific cases provided for under the CCPA. In this respect, the applicant must make an application to the judge in chambers by way of praecipe supported by affidavit. Where service is effected out of Mauritius it must be effected in the same way as actions are required to be served in that foreign country.
vi Enforcement of foreign judgments
The procedure for enforcing a foreign judgment varies depending on whether such a judgment has been obtained in England and Wales or outside England and Wales.
For a judgment obtained from countries other than England and Wales, the law relating to the recognition and enforcement of foreign judgments in Mauritius is to be found in Article 546 of the Code of Civil Procedure.
Generally, courts in Mauritius will recognise and enforce a judgment given against a Mauritius entity in a foreign court other than England and Wales courts (the foreign court) without re-examination of the merits of the case if:
- a the foreign court that rendered such a judgment had jurisdiction to hear the claim;
- b the foreign court applied the proper law applicable to the determination of the claim against the Mauritius entity;
- c the judgment of the foreign court was not rendered in breach of any rule of procedural or substantive public policy applicable in Mauritius;
- d the judgment of the foreign court had not been obtained by fraud, or is not upon its face founded in error, or considered irregular and wrong by the law of the place where it is awarded;
- e the Mauritius entity had been summoned to attend the proceedings before the foreign court in accordance with the procedures set out in the rules of the foreign court; and
- f the judgment of the foreign court is still valid and capable of execution in the jurisdiction of the foreign court.
The procedure for enforcing the foreign judgment is made by way of affidavit before the Supreme Court of Mauritius. The application must be supported by certain documents, duly apostilled, to certify the authenticity of the foreign judgment, including:
- a a photocopy of the foreign judgment sought to be enforced will be sufficient. Each page of the judgment must bear the seal of the foreign court delivering the judgment and the last page is to be signed by the Chief Registrar of the foreign court; and
- b a certificate issued by the foreign court stating that there has been no appeal against the said judgment.
In cases of a judgment obtained from England and Wales, the judgment creditor may apply to the Supreme Court of Mauritius within 12 months after the date of the judgment, or such longer period as may be allowed by the Supreme Court, to have the judgment registered.
However, such a judgment will not be registered where:
- a the original court acted without jurisdiction;
- b the judgment debtor, who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;
- c the judgment debtor, the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he or she was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court;
- d the judgment was obtained by fraud;
- e the judgment debtor satisfies the Supreme Court either that an appeal is pending, or that he or she is entitled to and intends to appeal against the judgment; or
- f the judgment was in respect of a cause of action that for reasons of public policy or similar could not have been entertained by the Supreme Court.
vii Assistance to foreign courts
Assistance to foreign courts is generally provided for in criminal and related matters. The Mutual Assistance in Criminal and Related Matters Act 2003 (MACRMA) provides for mutual assistance between Mauritius and a foreign state or an international criminal tribunal in relation to serious offences.
Under the MACRMA, a foreign state or an international criminal tribunal may make a request for assistance to the Attorney General of Mauritius in any proceedings commenced in the foreign state or before the international criminal tribunal.
The Attorney General may, in respect of a request from a foreign state, either promptly grant the request, in whole or in part, or refer the matter to the appropriate authority for prompt execution of the request; or refuse the request, in whole or in part.
Where the request has been granted, the Attorney General needs to apply to a judge in chambers for an evidence-gathering order or a search warrant for the search of a person or premises and the removal or seizure of any document or article; or for an order for the taking of the virtual evidence of the person, among others.
viii Access to court files
Pursuant to the CCPA, a general cause list of cases pending before the Supreme Court is posted in a conspicuous place in the court house before the commencement of each term. Members of the public can thus ascertain when a case is coming for mention, trial or disposal. Details of cause lists for cases before the subordinate courts and the Supreme Court are also found on the website of the Supreme Court. In addition, the clerks of the different registries of the courts can be contacted by the parties to a case to know when the matter has been fixed before the courts.
Access to court files and papers is limited. Pleadings and evidence with respect to ongoing proceedings are generally not publicly available to non-legal practitioners or parties who do not have an interest in the matter at stake. However, for judgments that have been rendered in any subordinate court, the Supreme Court and the JCPC, members of the public can have access to those judgments that are posted on the website of the Supreme Court of Mauritius.
ix Litigation funding
There is no specific provision of the law on third-party funding of litigation in Mauritius.
IV LEGAL PRACTICE
i Conflicts of interest and professional conduct
The professional conduct of barristers, attorneys and notaries (law practitioners) in Mauritius is regulated by the Mauritius Bar Association, the Mauritius Law Society and the Chamber of Notaries, and their relevant codes of ethics. Under these codes of ethics, conflicts of interest are not allowed.
Under the Law Practitioners Act 1984 (LPA), law practitioners belonging to the same law firm must not appear for different parties in respect of any litigation where there is a conflict or significant risk of conflict between the interests of those parties.
The Attorney-General has the power to enquire into any act done by a law practitioner. If he or she is of the opinion that it is of such a nature as to call for the institution of disciplinary proceedings, he or she will report the matter to the Chief Justice. The Supreme Court has exclusive jurisdiction to deal with matters of professional misconduct; the law practitioner risks, inter alia, suspension or erasure of his or her name from the roll of law practitioners.
ii Money laundering, proceeds of crime and funds related to terrorism
Under the Financial and Anti-Money Laundering Act 2002 (FIAMLA), ‘members of the relevant profession or occupation’, which includes legal practitioners, have the responsibility to take such necessary measures so as to ensure that their services are not capable of being used by a person to commit or to facilitate the commission of money laundering offences or the financing of terrorism.
Legal practitioners must also forthwith make a report to the Financial Intelligence Unit of any transaction that they have reason to believe may be a suspicious transaction. However, such an obligation is not applicable if the legal practitioner has acquired knowledge of the transaction in privileged circumstances, unless it has been communicated to the legal practitioner with a view to the furtherance of a criminal or fraudulent purpose.
Furthermore, everyone has the duty to verify the true identity of all customers and other persons with whom they conduct transactions and keep such records, registers and documents as may be required under the FIAMLA and its regulations. Legal practitioners are also required to make available such records, registers and documents as may be required upon a court order and put in place appropriate screening procedures to ensure high standards when recruiting employees to fight money laundering and terrorist financing.
iii Data protection
The Data Protection Act 2004 (DPA) provides that every data controller and data processor must, before keeping or processing personal data12 or sensitive personal data,13 register himself or herself with the Data Protection Commissioner (the Commissioner). A data controller is statutorily defined as being a person who, either alone or jointly with another person, makes a decision with regard to the purpose for which and the manner in which any personal data is to be processed. A data processor is someone who processes the data on behalf of the data controller.
The DPA provides for several instances where personal data processed for specific purposes is exempt from certain parts of the DPA and these, inter alia, include personal data consisting of information in respect of which a claim to legal professional privilege or confidentiality as between a client and legal practitioner in connection with actual or prospective legal proceedings; and disclosure of personal data necessary for the purpose of establishing, exercising or defending legal rights.
The DPA prevents a data controller from transferring personal data to another country without the written authorisation of the Commissioner. The DPA further provides that personal data must not be transferred to a third country unless that country ensures an adequate level of protection for the rights of data subjects in relation to the processing of personal data. This requirement can be circumvented if the data subject gives clear and unambiguous consent or the transfer is necessary, for instance, for the performance of or for entering into a contract between the data subject and the data controller.
iv Other areas of interest
The LPA was amended in 2008 to allow a law firm in a foreign country to make an application to the Attorney General for the registration of a local office. Similarly, a foreign lawyer may apply to the Attorney General for registration and the right to provide legal services within a law firm, foreign law firm or joint-law venture.
A foreign lawyer may provide legal services in relation to arbitration proceedings, for conciliation, mediation and such other forms of consensual dispute resolution as may be prescribed by tendering legal advice in relation to foreign law or international law, among others.
In addition a foreign law firm and a local law firm can form a joint law venture and provide legal services in respect of both local law and foreign law.
The LPA has also been amended to provide for the continuing professional development programme applicable to every law practitioner and legal officer in Mauritius.
Pursuant to the 2011 amendments to the Law Practitioners Act 1984, a Mauritian citizen who has a professional qualification entitling him or her to practise as barrister in England and Wales, Australia, New Zealand, Canada or France can apply for admission to practise law in Mauritius.
V DOCUMENTS AND THE PROTECTION OF PRIVILEGE
Mauritius follows the same principles of legal privilege as English common law. In Mauritius, professional privilege is provided under Section 300 of the Criminal Code, which makes it a criminal offence for certain persons including lawyers to divulge confidential information entrusted to them in their professional capacity. Generally, communications between a lawyer and his or her client are privileged; that is, the lawyer cannot disclose the information without the consent of the person who gave him or her the information. However, such privilege does not apply in the case of furtherance of a crime. The rules of privilege apply similarly to both local and foreign lawyers.
With regards to law firms, the LPA provides that law practitioner–client privilege shall exist between a law firm and its clients in the same manner as it exists between a law practitioner and his or her clients and extends to every law practitioner who is a partner, director or employee of the law firm.
ii Production of documents
The Mauritius law of evidence is based on English law.
In civil proceedings, a party who asserts facts must produce documentary evidence proving such facts in court. For example, a party who asserts that he or she is the owner of a certain premises must produce the title deed showing that he or she is the owner of such premises. The relevance of the documents produced will be analysed in relation to the fact in issue, to determine whether such documents will be admissible in court.
Documents may be authentic deeds or deeds under private signature. Documents that may be produced during a trial include copies of public documents such as the contents of any record, book deed, map, plan or other document in the official custody of the Supreme Court, the Conservator of Mortgages, a government department, the Intermediate Court, a district court or any notary.
It must be noted that statements produced by computers are also admissible as evidence in civil proceedings under certain conditions as provided for under the Courts Act 1945. Under the Civil Code of Mauritius (the Civil Code), electronic documents may also be produced in court. Furthermore, a person relying on a digital signature as evidence must also rely on a valid certificate containing the public key by which the digital signature can be verified.
It must be noted that for an affidavit that emanates from a foreign country to be admissible in Mauritius courts it will need to be apostilled or legalised.
For matters relating to the law of evidence not specifically covered by any Mauritian laws the Courts Act 1945 provides that Mauritius courts should follow English law of evidence.
VI ALTERNATIVES TO LITIGATION
The use of arbitration as a means of dispute resolution is currently common in business and commercial circles, the local construction industry, and insurance and investment sectors in Mauritius.
Arbitration is not new to Mauritius. Since 1865, the Supreme Court has declined to review an arbitration award where the parties had expressly agreed that the decision of the arbitrator would be final and non-appealable.14 The intention of the parties to renounce the right to appeal must be clear and unequivocal.15
Regarding international arbitrations, when the juridical seat of arbitration is Mauritius, a party to an international dispute may request that such a dispute be referred to arbitration under the IAA. The IAA focuses on investment arbitration, and provides that the IAA will apply to ‘international arbitration’, as opposed to ‘international commercial arbitration’ under the UNCITRAL Model Law to cover such international investment arbitration.
Under the IAA, the Supreme Court, or any other relevant Mauritius court, will not intervene in an arbitral process, save to support such a process and to ensure that the essential safeguards provided for in the IAA are respected. Moreover, Mauritius courts will not intervene in an international arbitration agreement governed by the IAA except in specific instances provided for by the IAA, namely in relation to interim measures under Section 23 of the IAA whereby intervention of the Supreme Court is possible. In exercising its powers of intervention, the Supreme Court must adopt established and well-known principles of international arbitration.
The IAA seeks to maintain the validity of an arbitration clause, independently of the main agreement, through its Section 20. In relation to the validity of an arbitration agreement, the IAA provides that an arbitration clause that forms part of a contract will be treated as an agreement independent of the other terms of the contract, and a decision by the arbitral tribunal that the contract is null and void will not entail ipso jure the invalidity of the arbitration clause.
With regard to appeals, under paragraph 2 of the First Schedule to the IAA, a party may appeal to the Supreme Court on any question of Mauritius law16 arising out of an award, upon leave being granted by the Supreme Court. The Court will not grant leave unless it considers that, having regard to all the circumstances, the determination of the question of Mauritius law concerned could substantially affect the rights of one or more of the parties.
Mauritius is a signatory member of the New York Convention 1958 (the New York Convention), which has been implemented in the local law by the Convention on Recognition and Enforcement of Foreign Arbitral Awards Act 2001. Foreign arbitration awards are thus enforceable in Mauritius subject to the qualifications set out in the New York Convention.
Mauritius courts will thus recognise and enforce an arbitral award given against a Mauritius entity without re-examination of the merits of the case subject to the party supplying the duly authenticated original award or the original arbitration agreement or duly certified copies of same.
Currently Mauritius courts may refuse to recognise or enforce an award where:
- a the Mauritius entity was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present his or her case;
- b the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;
- c the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties;
- d the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made;
- e the subject matter of the difference is not capable of settlement by arbitration under the laws of Mauritius; or
- f the recognition of the award would be contrary to public policy.
With the creation of the Mediation Division of the Supreme Court, the Supreme Court now has the jurisdiction and power to conduct mediation in any civil suit, action, cause and matter that may be brought and may be pending before the Supreme Court.
The objective of the Mediation Division is to dispose of the civil suit, action, cause or matter by a common agreement, or to narrow down the issues in dispute, with the aim of reducing the costs and undue delays involved in a litigation matter; and facilitate a fair and just resolution or partial resolution of the dispute.
There were 152 cases pending before the Mediation Division as at 31 October 2014. Of the 327 cases referred to it from January to October 2014, an agreement was reached by the parties in 110 cases, 19 cases were set aside and 165 cases were referred back to the Supreme Court.
iii Other forms of alternative dispute resolution
Parties to an agreement may agree contractually to submit any dispute arising out of the agreement to an expert chosen by the parties. The agreement may provide that if the parties cannot agree on the choice of a common expert, each party will have the right to choose one expert, who will in turn choose a third expert for the settlement of disputes. This is usually resorted to in construction matters.
VII OUTLOOK AND CONCLUSIONS
On 8 May 2016, Mauritius held the 23rd Congress of the International Council for Commercial Arbitration entitled ‘International Arbitration and the Rule of Law: Contribution and Conformity’. The Congress welcomed 882 people from all over the world, among which were the Secretary General of the United Nations Ban Ki-moon and the Egyptian Nobel Peace Prize laureate Mohamed ElBaradei as keynote speakers. The 23rd Congress was the first one to be held in the African region. It aimed at developing Mauritius as a regional hub for international arbitration by strengthening the rule of law, increasing the acceptance of international arbitration as a legitimate, universal and peaceful means for the resolution of commercial and investment disputes, and enhancing the attractiveness of Africa to inward capital flows.
The LCIA-MIAC Arbitration Centre has recently won the Global Arbitration Review (GAR) 2015 award as an up-and-coming regional arbitral institution. GAR makes annual awards in various categories, including for best-prepared and most responsive arbitrator, and for the best international arbitration practice in large and boutique law firms. The winners are selected by a vote from readers of the journal, from a shortlist nominated by the editorial team of GAR.
In 2015, Mauritius chaired the UNCITRAL Working Group II (Arbitration and Conciliation), the Mauritius Convention on Transparency and hosted the signing of the Convention on Transparency dealing with the applicability of the Rules on Transparency, which came into force on 1 April 2014.
Mauritius held its third biennial International Arbitration Conference, ‘The Litmus Test: Challenges to Awards and Enforcement of Awards in Africa’, on 15 and 16 December 2014 to mark the successful continuation of the dynamic project to create a new platform in the region for international commercial and investment arbitration. Mauritius has established itself as a centre of expertise and training in international arbitration for the African continent and beyond.
Over the two days of the conference, the various panels chaired by the heads of the co-hosting arbitration institutions, including the Permanent Court of Arbitration, the LCIA and the International Court of Arbitration, held mock-hearings focused on the current and emerging issues in relation to challenges to and the enforcement of arbitral awards in Africa.
In 2013, the MCCI signed a partnership agreement with the Paris Chamber of Commerce and Industry and the Centre for Mediation and Arbitration of Paris, marking the collaboration for the development of MARC into a national and international centre for alternative dispute resolution.
In addition to having a local seat of the PCA in Mauritius, on 28 July 2011 the government of Mauritius entered into an agreement with the LCIA and the Mauritius International Arbitration Centre Limited (MIAC) for the establishment and operation of a new arbitration centre in Mauritius for the conduct and administration of arbitrations within Mauritius. The LCIA-MIAC arbitration rules have been adopted and came into effect for arbitration on 1 October 2012. The Secretariat of the LCIA-MIAC Arbitration Centre has now administered its first arbitration case involving international companies.
The LCIA-MIAC mediation rules provide for the possibility of parties who want to mediate their dispute, irrespective of whether the contract provides for dispute resolution provisions by mediation to refer to the LCIA-MIAC Arbitration Centre for mediation. The Registrar of the LCIA-MIAC Arbitration Centre is also present in Mauritius.
1 Muhammad R C Uteem is a barrister and head of chambers at Uteem Chambers.
2 2016 SCJ 43.
3 2016 SCJ 10.
4 2015 PRV 51.
5 2016 SCJ 446.
6 2015 SCJ 10.
7 2007 2 SCR 801.
8 2014 SCJ 100.
9 Section 3 of the Court of Civil Appeal Act 1963.
10 Seebun v. Doomun 2013 SCJ 428.
11 Section 177 Companies Act 2001.
12 Personal data are data that relate to an individual who can be identified from those data or other information, including an opinion forming part of a database, whether or not recorded in a material form, about an individual whose identity is apparent or can reasonably be ascertained from the data, information or opinion.
13 Sensitive personal data is defined as personal information concerning a data subject and consisting of information as to their racial or ethnic origin; political opinion or adherence; religious belief or other belief of a similar nature; membership of a trade union; physical or mental health; sexual preferences or practices; the commission or alleged commission of an offence; any proceedings for an offence committed or alleged to have been committed by him or her, the disposal of such proceedings or the sentence of any court in such proceedings.
14 Robert v. Martin 1865 MR 140.
15 The Central Electricity Board v. La Compagnie Usinière de Mon Loisir Limitée 2005 SCJ 1.
16 ‘Question of Mauritius law’ is defined under the IAA as follows:
(a) includes an error of law that involves an incorrect interpretation of the applicable law (whether or not the error appears on the record of the decision); but (b) does not include any question as to whether (1) the award or any part of the award was supported by any evidence or any sufficient or substantial evidence; or (2) the arbitral tribunal drew the correct factual inferences from the relevant primary facts.