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' judicial system, which heard and disposed of more than 1,400 cases in 2018. The Mediation Division of the Supreme Court has also been actively involved in facilitating the settlement of ongoing civil and commercial disputes. However, there has been a drastic drop in the number of civil cases received at the Mediation Division of the Supreme Court – from 31 in 2017 to 28 in 2018.
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) and the Mauritius International Arbitration Centre (MIAC) as an independent arbitration centre.
i The MCCI
The MCCI has, since1996, 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 Mauritius International Arbitration Centre
The LCIA-MIAC Arbitration Centre, which was established in 2011 as a joint venture between the government of Mauritius and the London Court of International Arbitration (LIAC), ceased to operate on the 27 July 2018 and its operations have been taken over by a new arbitration centre, the MIAC. It was mutually agreed that the LCIA will administer arbitrations and mediations arising out of agreements referencing the LCIA-MIAC Arbitration Centre that have already been concluded. The MIAC will perform under the legal framework for international arbitration in Mauritius, which includes the International Arbitration Act 2008 and the Permanent Court of Arbitration's role thereunder. Besides this, the MIAC has set up new arbitration rules stemming from the UNCITRAL Rules 2010 and will also follow the tested provisions of the Mauritian Arbitration Act for arbitral appointments and challenges.
II THE YEAR IN REVIEW
i Case law affecting ADR
Kosi Meubles Ltee v. Alliance Building Contractors Ltd2
A dispute arose in connection with an unpaid amount from the defendant for the design, supply and installation of aluminium openings pursuant to a contractual agreement entered into by the plaintiff with the defendant. The plaintiff entered a plaint with summons before the Supreme Court of Mauritius, and during the proceedings, the defendant raised a preliminary objection in law to the effect that the Court seized has no jurisdiction to hear the matter as the contractual agreement between the parties included an arbitration clause for the settlement of disputes under the agreement.
The plaintiff, however, argued that upon construction of the arbitration clause, the dispute should have been submitted to arbitration only after a written notice specifying in detail the dispute or difference that arose between the parties was served on the other party. Since no such notice was served, it was not mandatory that the dispute that arose should be resolved by way of arbitration. The plaintiff submitted that the use of the word 'may' in the arbitration clause means that referral of the dispute to arbitration was discretionary and not mandatory.
The issue the Court had to determine was whether the wording of the arbitration clause ousted the jurisdiction of the Court. The Court agreed with the submission of the plaintiff and held that the word 'may' was only permissive and indicated that issuing a notice prior to arbitration was optional. It is only if any dispute has not been amicably settled by the parties within 210 days after the notice has been issued that the dispute 'shall' finally be settled under the rules set out for arbitration. The Court thus held that it was only once the notice was issued that referral to arbitration became mandatory and no such notice was served by either party in that case. The Court therefore held that the wording of the arbitration clause did not oust the jurisdiction of the Court to entertain a dispute relating to a contractual agreement between the parties. The preliminary objection in law was therefore set aside.
Luc et Luc Ltd v. Societe Lazuli & Anor3
The petitioner petitioned to the Supreme Court for a winding up order against respondent No. 2. Respondent No. 1, however, moved for a stay of the proceedings pending the determination by arbitration of the substance of the dispute between the parties. The petitioner objected to the motion for the stay of the winding up proceedings pending the determination of the dispute between the parties by an arbitrator.
While pronouncing on the above issue the Court took into account, inter alia, the fact that the parties could not get along anymore, that there was a deadlock on future issues arising, that the winding up was being sought against a backdrop of solvency issues, that most of the conflicting issues were not within the remit of the arbitrator to pronounce and that the parties before the Court were agreeable that the winding up petition did not necessarily warrant a stay of the arbitration proceedings such that the arbitration proceedings did not necessarily warrant a stay of the winding up petition. The Court also highlighted the fact that respondent No. 1 asked for a stay of the winding up proceedings pending the determination by arbitration of the substance of the dispute between the parties without having put before the Court the nature of that dispute. The Court therefore ruled that no stay should be granted.
State Trading Corporation v. Betamax Ltd4
A dispute arose between the parties in respect of the termination of their contract of affreightment (CoA). The matter was referred for arbitration to the Singapore International Arbitration Centre and the arbitrator ordered the applicant to pay to the respondent damages and costs that amounted to around US$120 million excluding interest. Further to the award, the respondent obtained an ex parte provisional order from the Supreme Court of Mauritius for the recognition and enforcement of the award.
The applicant sought to set aside the arbitral award on three grounds: first, that the subject matter of the dispute was not capable of settlement by arbitration under Mauritius law; second, that the arbitration agreement was not valid under Mauritius law; and third, that the award was in conflict with the public policy of Mauritius. The applicant also sought to set aside the provisional order obtained by the respondent for the recognition and enforcement of the award pending determination of the first application on the same grounds. Both applications were heard together and a single judgment was delivered.
A preliminary issue was raised by the respondent to the effect that the application to set aside the provisional order was time-barred as it was made beyond the 14-day time limit under Rule 15(7)(a) of the Supreme Court (International Arbitration Claims) Rules 2013 (the Rules). The Court held that the effective date of such an application was the date on which it was officially lodged with the Court's registry and not the date when the respondent made a motion in open court. Independently of the above, the Court stated that even if the application was made outside the time limit, the respondent should still not be precluded from pursuing its application as (1) the delay would be minimal as the time limit would have been exceeded by one day only; (2) there was no indication of any consequential prejudice to respondent that arose as a result of the matter being called before the court one day later; (3) the applicant had done what was necessary to lodge the application within the Court's registry within the time limit; and (4) there is nothing in the Rules which indicated that compliance with the time limit of 14 days must be construed as being imperative or obligatory and any failure to comply with the time limit is fatal.
The Court, while analysing the merits of the three grounds raised by the applicant, highlighted that the question as to whether the CoA was entered in breach of the Public Procurement Act (PPA) underpinned the three grounds for setting aside the arbitral award. The first pivotal issue, therefore, that had to be determined was whether the CoA is governed by the PPA or by the Public Procurement Regulations 2009 (the PP Regulations) and as a result of which the procurement process for awarding the CoA to the respondent would be prescribed by the PPA. The Court then had to determine whether the PP Regulations made the applicant an 'exempt organisation', which excluded the applicant from the application of the PPA.
The Court held that the subject matter of the CoA, which was essentially in respect of freight as a service incidental to the supply of petroleum productsm therefore fell directly and squarely within the definition of 'goods' under the PPA and hence brought the CoA within the ambit of the PPA. The parties were therefore legally bound to act in conformity with the requirements laid down in the PPA in respect of a procurement contract. Since the CoA failed to comply with the requirements of the PPA, the Court held that the CoA was to all intents and purposes a contract that had been illegally awarded in breach of the PPA.
The Court went on to analyse whether the arbitral award was against the public policy of Mauritius. The Court held that the notion of public policy was more restricted when applied against enforcement of international arbitration awards. The breach of the legal provisions must be flagrant, actual and concrete. The threshold was quite high; it should be the breach of a fundamental legal principle, a breach that disregarded the essential and broadly recognised values that formed part of the basis of the national legal order, and a departure from which will be incompatible with the state's legal and economic system. The Court therefore held that the PPA is a public procurement law with very stringent conditions designed to achieve the highest standards of integrity, transparence and fairness in the public procurement process of Mauritius. The enforcement of an illegal contract of such magnitude, in flagrant and concrete breach of public procurement legislation enacted to secure the protection of good governance of public funds, would violate the fundamental legal order of Mauritius. Such a violation broke through the ceiling of the high threshold that may be imposed by any restrictive notion of public policy. The Court further held that the public policy of Mauritius prohibited the recognition or enforcement of an award giving effect to such illegal contract, which shook the very foundations of the public financial structure and administration of Mauritius in a manner that unquestionably violated the fundamental legal order of Mauritius.
The Court therefore concluded that the arbitral award was contrary to public policy within the meaning of Section 39(2)(b)(ii) of the IAA, and the award as well as the provisional order for the recognition and enforcement of the award were accordingly set aside.
Luc et Luc Ltd v. Lakaz Chamarel Ltd5
The applicant, who is a minority shareholder in the respondent company, brought forth an application under Section 170 of the Companies Act 2001 for leave to bring proceedings in the name and on behalf of the respondent company against the co-respondents. The co-respondents raised an 'exception d'instance' as a preliminary objection on the ground of jurisdiction to contest and challenge the Court's competence to determine the issues and claims set out in the application.
The co-respondents argued that the substance of the dispute between the parties fell within the purview of the arbitration clause stipulated in the Sales Subscription and Shareholders Agreement (SSSA) entered into by the applicant, respondent and co-respondent, so that it was not open for the applicant to seize the jurisdiction of the Court. The applicant should have had recourse to the contractually agreed dispute resolution mechanism contained in the SSSA.
The Court had to effectively decide whether the dispute fell within the ambit of the SSSA and which are covered in the SSSA. The Court held that from a reading of the clause that the disputes that fell within the ambit of the SSSA are disputes in connection with the validity, interpretation, execution and termination of the SSSA.
The basis of the application for leave was in relation to alleged breaches of the duties of the co-respondents Nos. 2 and 3 as executive directors of the respondent company. The Court found that the SSSA did not contain any clause dealing dealing specifically with the management of the company nor did it address the duties and obligations of the directors.
The Court held that a reading of the arbitration clause revealed that it was limited in scope. The arbitration clause covered only disputes regarding 'the validity, interpretation, execution or termination of the Agreement'. It did not address breaches of the directors' duties. Therefore, since the complaints levelled against co-respondents Nos. 2 and 3 did not fall within the ambit of the arbitration clause, the Court held that the exception d'instance is not applicable and accordingly set aside the preliminary objection.
Ramasawmy & Ramasawmy Co Ltd v. Valoris Ltd6
An application was made before the judge in chambers under Articles 1003 and 1005 of the Code of Civil Procedure for the appointment of a sole arbitrator to adjudicate on a claim. The ground of objection raised by respondent purported to the fact that the alleged dispute concerned an independent third party (TDA) which was not bound by the clause compromissoire contained in the contract, so that the clause was insufficient and could not be invoked in the application.
The respondent argued that it had to be determined whether the dispute was between the applicant and the respondent, or whether the TDA was a third party to the contract and the dispute is one which is strictly between the applicant and the TDA so that the clause compromissoire invoked is insufficient for its application in the case. The Court highlighted that the argument of the respondent was in contradiction with the clear terms of the contract which referred to the TDA as the respondent's agent. The Court further held that any attempt at going 'contre et outre' the terms of the contract, even for the purposes of interpretation, cannot be resolved by the judge in chambers whose functions are not to try and resolve complex questions of law requiring 'detailed argument and mature considerations'.
It was not contested, however, that there was in effect a dispute between the parties, if only concerning their disagreement on whose liability should be engaged in relation to the applicant's claim. On that score, the Court held that the terms of the clause compromissoire were very broad since they cater for 'any dispute or difference concerning this Contract' being referred to arbitration. For all these reasons, the Court found that the dispute should be referred to an arbitrator, in accordance with the terms of the contract, for the arbitrator to resolve the issues arising under the said contract. The Court therefore proceeded to appoint an arbitrator to adjudicate on the dispute that has arisen between the parties.
GFIN Corporate Services Ltd & Ors v. Bhargava7
The respondent brought an action before the Commercial Division of the Supreme Court for breach of duties and obligations of applicants No. 1–3 under the law as officers of applicant No. 4 and for payment of damages for prejudice suffered as a result of their wrongful acts and omissions. The applicants challenged the jurisdiction of the Court to hear the case on the ground that the issues raised before the Court can only be determined by arbitration pursuant to an arbitration agreement and should therefore, according to Section 5(1) of the International Arbitration Act (IAA), be transferred to the designated judges of the Supreme Court (Adjudicating Court) for determination.
The Commercial Court (Referring Court), after hearing the parties, stayed its proceedings pending determination of the Adjudicating Court as: (1) its task under the IAA was only to ascertain whether the procedural requirement for a referral claim under Section 5(1) of the IAA has been satisfied; if this is the case, the Referring Court has to automatically transfer the action to the Adjudicating Court provided the claim for referral is made at the very outset before any pleadings on the substance of the case; (2) the referral claim of the applicants complied with Section 5(1) of the IAA as well as Rules 13(1) of the Supreme Court (International Arbitration Claims) Rules 2013 (Rules); and (3) the case must pursuant to Rules 13(2) of the Rules be referred for determination to the Adjudicating Court in accordance with Section 5 of the IAA.
The respondent is resisting the application that the Adjudicating Court should refer the matter to arbitration pursuant to Section 5(2) of the IAA on the following grounds:
- The respondent is in a position to satisfy the Adjudicating Court, on a prima facie basis, that there is a very strong probability that the arbitration agreements relied upon by the applicants may be null and void, inoperative or incapable of being performed.
- The Referring Court was never presented at any time with a Section 5 claim that was compliant with the Rules.
- There has not been a proper referral by the Referring Court to the Adjudicating Court pursuant to Rule 13(3) of the Rules.
While dealing with the second and third ground, the Court held that the Section 5 claim made by the applicants before the Referring Court substantially complies with the relevant requirements laid down in Section 5 of the IAA and Rule 13 of the Rules 2013.
Indeed, the Court noted that there was a clear and concise contention that the whole of the respondent's action was the subject of an arbitration agreement which required that the disputes between the parties should be referred to arbitration and the request was made in the proper timing as the request was made by the applicants when they submitted 'their first statement on the substance of the dispute'.
The Court clearly stated that it was not incumbent upon the Referring Court to decide upon or determine the challenge as regards the applicability or validity of the arbitration agreements. It was indeed outside the purview and jurisdiction of the Referring Court to delve into or adjudicate upon the merits of any objection relating to the applicability or existence of an arbitration agreement.
Therefore, once the conditions for referral as laid down in Section 5 of the IAA are met, the referring court has to mandatorily transfer the action to the Supreme Court.
While dealing with the first ground, the Court stated that following a referral under Section 5 of the IAA, it is incumbent upon the adjudicating court to determine whether the parties should be referred to arbitration. The Adjudicating Court, in its initial assessment under Section 5(2) of the IAA, has to decide whether there exists a 'very strong probability' that the arbitration agreement is null, void, inoperative or incapable of being performed. The Court does so on a prima facie basis. The Adjudicating Court carries out a summary prima facie assessment in the course of which the Court examines the evidence, including the affidavits and witness statements placed before it, in order to decide whether the objecting party has been able to show that there is a very strong probability that the arbitration agreement is null and void or inoperative or incapable of being performed. The Adjudicating Court does not engage for that purpose into a full trial, or even a mini trial on the merits. The Court is only saddled with the responsibility to determine, by making an assessment on a prima facie basis, whether the party contesting the validity or applicability of the arbitration agreement has been able to show that there is a very strong probability that it is invalid or inoperative. The court is not called upon at that juncture to embark into any conclusive decision quoad the validity of the arbitration clause or agreement and does not make any final finding as to whether the arbitration clause is valid or not.
The burden of proof that there is no valid and operative arbitration agreement lies on the party seeking to impugn the arbitration agreement.
It is therefore necessary to examine and ascertain, albeit on a prima facie basis, the precise nature of the respondent's court action to determine whether there is a strong probability that it falls within the ambit of a binding arbitration agreement.
From an examination of the respondent's plaint with summons and its contentions and claims, the Court held that it was strikingly apparent from the averments of the respondent that the court action raises issues, disputes and claims, relating to or arising out of the company constitution and/or the restructuring and shareholders' arbitration agreements. The Court held that all of the issues raised by the respondent, whether in tort or contract, may well fall within the ambit of arbitrable disputes arising out of, or relating to, the constitution of the company and/or one of the arbitration clauses contained in the shareholders' agreement.
The respondent was therefore unable to establish on a prima facie basis that there is a very strong probability that his allegations and contentions, as set out in the plaint with summons, do not fall within the purview of the arbitration agreements and are not arbitrable disputes.
The Court accordingly referred the parties to arbitration in accordance with Section 5(2) of the IAA.
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 prerequisites. 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.
The IAA also puts in a place a system of six designated judges to hear all international arbitration matters in Mauritius, thus ensuring that all applications under the IAA or the New York Convention Act are heard by specialist judges.
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 of 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.8
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.9
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 of 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 250,000 rupees) last for a minimum of six months.
District courts also have a small-claims jurisdiction for civil actions where the sum claimed or the matter in dispute does not exceed 100,000 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 250,001 to 2 million 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 2 million 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.10
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 Code of Civil Procedure (CCP), 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 CCP. 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:
- the foreign court that rendered such a judgment had jurisdiction to hear the claim;
- the foreign court applied the proper law applicable to the determination of the claim against the Mauritius entity;
- the judgment of the foreign court was not rendered in breach of any rule of procedural or substantive public policy applicable in Mauritius;
- 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;
- 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
- 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 motion supported by 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 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
- 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 of 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:
- the original court acted without jurisdiction;
- 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;
- 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;
- the judgment was obtained by fraud;
- 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
- 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 CCP, 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.
In fact, new Anti-Money Laundering Counter Financing Terrorism (AML/CFT) Guidelines for Law Firms have been issued under Section 19H(1)(a) of the FIAMLA by the Attorney General's Office. All legal professionals and other staff in a law practice who are involved in AML/CFT compliance have an obligation to abide by the Guidelines. As the Guidelines apply across the entire legal sector, the term 'legal professional' has been used to include legal professionals working in law firms, foreign law firms, joint law ventures and foreign lawyers as defined in the Law Practitioner's Act 1984.
Additionally, following recent changes, according to the First Schedule of the FIAMLA, the regulatory body for law firms, foreign law firms, joint law ventures and foreign lawyers is the Attorney General's Office for anti-money laundering (AML) and counter-financing terrorism (CFT) and proliferation purposes.
Under subsection 2(b) of Section 19H of the FIAMLA, where a barrister, an attorney or a notary has failed or is failing take such measures as are required under the FIAMLA or the United Nations (Financial Prohibitions, Arms Embargo and Travel Ban) Sanctions Act 2019, or any regulations made or guidelines issued under those Acts, the FIU shall, pursuant to Section 13 of the Law Practitioners Act, report the matter to the Attorney General. Thereafter, on receipt of a report, the Attorney General shall take such measures as are required under Section 13 of the Law Practitioners Act.
iii Data protection
A new Data Protection Act 2017 (DPA) was enacted on 15 January 2018. According to the DPA, a controller or a processor must, before keeping or processing of personal data, register himself or herself with the Data Protection Commissioner (the Commissioner). The controller or processor shall also maintain a record of all processing operations under his, her or its responsibility.
A controller is statutorily defined as a person who or a public body that, alone or jointly with others, determines the purposes and means of the processing of personal data and has decision-making power with respect to the processing. Under the DPA, a processor is someone who or a public body that processes personal data on behalf of a controller.
The DPA provides for several instances where personal data processed for specific purposes is exempt from certain parts of the DPA and lays out some principles relating to processing of personal data. As such, every controller or processor must ensure that personal data are lawfully and fairly processed in relation to any data subject. It is also a requirement under the DPA to ensure that personal data collected for explicit, specified and legitimate purposes are not further processed in a manner incompatible with those purposes and that the data collected are adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed.
The DPA further requires the controller and processor to obtain authorisation and consultation from the Data Protection Office prior to processing personal data in order to ensure compliance of the intended processing with the law, and in particular to mitigate risks involved for the data subjects where a controller or processor cannot provide for the appropriate safeguards in relation to the transfer of personal data to another country.
The DPA also allows a controller or processor to transfer personal data to another country under circumstances as specified therein.
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 a 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 regard 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, 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.11 The intention of the parties to renounce the right to appeal must be clear and unequivocal.12
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 law13 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:
- 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;
- 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;
- the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties;
- 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;
- the subject matter of the difference is not capable of settlement by arbitration under the laws of Mauritius; or
- 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.
According to the Annual Report of the Judiciary 2018, the number of civil cases received at the Mediation Division of the Supreme Court has again significantly decreased from 97 in 2016 to 31 in 2017 and to 28 in 2018. In 2018, agreement was reached in 19 cases before the Mediation Division and seven cases were referred back to the Supreme Court for determination. The number of outstanding cases at the end of 2018 further dropped from 11 in 2017 to only two at the end of 2018.
As announced in the government Budget speech of 2018–2019, the Chief Justice had on 22 March 2019 made the Intermediate Court (Mediation) Rules 2019, which came into operation on 1 July 2019. The primary purpose of mediation under the Intermediate Court (Mediation) Rules, is for the parties, in all good faith, to dispose of the civil suit, action, cause or matter by a common agreement, or to narrow down the issues in dispute.
Under the Intermediate Court (Mediation) Rules, the mediation magistrate have all necessary powers to facilitate mediation between and among the parties to the dispute in order to enable them to reach an agreement so as to dispose of the civil suit, action, cause or matter pending between the parties. In conducting mediation sessions, the mediation magistrate shall regulate the proceedings in such manner as he or she thinks fit while adopting an informal and flexible approach.
Where the parties have reached a formal agreement, the mediation magistrate shall record the settlement agreement in the form of a memorandum setting out the terms of the agreement. The memorandum shall be signed by the mediation magistrate and by the parties to the agreement and, thereupon, the agreement embodied in the memorandum shall be executed in the same manner as if it were a judgment of the court by consent of and between the parties who have signed it.
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
Despite the fact that the joint venture between the government of Mauritius and the London Court of International Arbitration has been terminated, the government remains fully committed to develop Mauritius as an arbitration centre to resolve international conflict, especially conflict involving Africa. After having benefited from its association with the LCIA since 2011, as well as gaining goodwill and practical experience from the leading institution, the MIAC is now in a position to stand on its own feet and proceed independently of the LCIA. In fact, the government gave full support to the termination of the LCIA cooperation at this level so as to allow the MIAC to further define its own distinctive identity to take full advantage of its position between Africa and Asia and to cooperate with a wider group of partners, including the Permanent Court of Arbitration. Henceforth, having the government as its backbone, the MIAC will continue to devote itself to the emergence of Mauritius as the regional hub for investment into Africa and to the diplomatic status of Mauritius as a state committed to the African continent and to its development.
The MARC adopted new arbitration rules in 2018. The new rules are meant to reflect best international practice and consist of a comprehensive tool kit of tried and tested provisions as well as several innovative provisions. An emergency arbitrator procedure has been introduced pursuant to which an arbitrator can be appointed within 24 hours and decide urgent interim and conservatory relief.
The MARC Advisory Board consists of 14 internationally renowned experts in the field of arbitration, and has fully operated since November 2017. During 2018, MARC has also been very active in organising training programmes, promotional events and activities both in Mauritius and abroad. MARC has also recently recruited a new head.
1 Muhammad R C Uteem is a barrister and head of chambers at Uteem Chambers.
2 2019 SCJ 113.
3 2019 SCJ 159.
4 2019 SCJ 154.
5 2019 SCJ 207.
6 2019 SCJ 247.
7 2019 SCJ 332.
8 Section 3 of the Court of Civil Appeal Act 1963.
9 Seebun v. Doomun 2013 SCJ 428.
10 Section 177 Companies Act 2001.
11 Robert v. Martin 1865 MR 140.
12 The Central Electricity Board v. La Compagnie Usinière de Mon Loisir Limitée 2005 SCJ 1.
13 '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.