Mauritius

Mauritius boasts a unique legal regime. Its substantive and procedural laws are inspired by English common law and French civil law; it has a legal community that is conversant in common and civil law, and a bilingual population.

Mauritius has ratified both the New York Convention and the Washington Convention through its enactment of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (the New York Convention Act 2001) and the Investment Disputes (Enforcement of Awards) Act 1969, respectively.

In 2008, Mauritius enacted its first modern international arbitration law, the International Arbitration Act 2008 (the Act), on which it has built its ambition to become a seat of choice for regional and international disputes. Until then, domestic and international arbitrations seated in Mauritius were governed by the Mauritius Code of Civil Procedure, the application of which resulted in arbitrations being conducted in a litigation-like manner applying Mauritius procedural law. The Code of Civil Procedure continues to apply today to domestic arbitration.

In order to assure international users that all appointing and other important administrative functions under the Act would be dealt with by a neutral, highly reputable and experienced body, the Act provides an innovative solution by giving certain powers, traditionally entrusted to the courts, to the Permanent Court of Arbitration at the Hague (PCA). In 2010, the PCA set up a permanent office in Mauritius (its first and only overseas office), following the conclusion of a host country agreement with the government of Mauritius in 2009.

In 2011, Mauritius set up its first international arbitration centre in joint venture with the LCIA, the LCIA Mauritius International Arbitration Centre (LCIA-MIAC).1 The LCIA-MIAC Arbitration Rules, which came into force in 2012, are an adapted version of the LCIA Arbitration Rules and incorporate certain amendments that were subsequently made to the 2014 version of those rules.

In 2013, Mauritius completed its legislative reform with the enactment of the International Arbitration (Miscellaneous Provisions) Act 2013 (which amended the Act and the New York Convention Act 2001), and the Supreme Court (International Arbitration Claims) Rules 2013 (the Court Rules). Both came into force on 1 June 2013. The Court Rules lay down rules of procedure for use in applications made to the Mauritius courts under the Act or the New York Convention Act 2001 (court applications).

The Act is comprised of nine parts and three schedules. It is based on the UNCITRAL Model Law as amended in 2006 (the Amended Model Law),2 although it departs from it in a number of instances, for it borrows from the English, the Singaporean and the New Zealand arbitration acts and from the works of UNCITRAL on the amendment of the UNICTRAL Arbitration Rules, a number of principles considered by the legislator at the time to be best practice in the field. Importantly, the Act allows parties in international arbitrations to be represented by any person including non-law practitioners and foreign law practitioners.

All court applications made to the courts in Mauritius are heard by a specially constituted court (the Designated Court) comprising three judges selected by the Chief Justice out of six international arbitration specialist judges of the Supreme Court (designated judges), save for applications for interim measures, which are heard first by a judge in chambers (also a designated judge), and is returnable before a panel of three designated judges, including the designated judge who initially heard the matter.

The Act sets out a very pro-arbitration regime, which allows Mauritius and foreign courts to intervene in relation to international arbitrations only to the extent so provided by the Act (section 2A). Courts in Mauritius are required to have regard to the specific features of international arbitration (section 23(1)(b)) and not to disrupt the arbitral proceedings. Until now, none of the attempts made before the Mauritius courts or the Mauritius Designated Court to either seek a disguised review of the merits of an award, to oust the jurisdiction of the tribunal or to challenge the enforcement of foreign or non-domestic awards has been successful. In Cruz City 1 Mauritius Holdings v Unitech Limited & Anor,3 the Designated Court held that the enforcement of foreign arbitral awards did not undermine the institutional integrity of the Supreme Court nor breach any of the fundamental rights protected by the Constitution of Mauritius, thereby reasserting firmly its non-interventionist approach.

Application of the Act and arbitrability

The Act applies as of right to all ‘international arbitrations’ seated in Mauritius commenced after 1 January 2009 (sections 3 and 3.A(1)). There are, however, three exceptions to this rule. Section 3A(2) provides that sections 5, 6, 22 and 23 (which deal with the Designated Court’s power in support of international arbitration) apply to all international arbitrations, irrespective of their seat. Section 2(1)(c) states that the Act may also apply to arbitrations irrespective of whether it is seated in Mauritius and notwithstanding the fact that it may not satisfy any of the criteria of internationality set out in section 2(1), if the parties agree to opt in to it. Finally, the provisions of the First Schedule only apply to arbitration proceedings if the parties so agree ‘by making express reference to that schedule or to that provision’ (section 3B), save in disputes arising out of the constitution of global business licence companies (GBL companies) (offshore companies incorporated in Mauritius), to which it is of mandatory application (section 3D(2)). The First Schedule deals with the parties’ right to apply to the Designated Court for the determination of a preliminary point of Mauritius law, an appeal on a question of Mauritius law, or the joinder of third parties, or to the tribunal for consolidation of arbitral proceedings.

The Act applies to all ‘international arbitrations’ (section 3A), with no requirement that the underlying dispute be of a commercial nature, thereby allowing for the arbitrability of non-commercial disputes, including investment disputes. Whereas disputes arising out the constitution of domestic companies are not arbitrable in Mauritius, the Act renders arbitrable disputes arising out of the constitution of GBL companies (section 3D(1)), although the Act imposes in such GBL company constitution disputes that the arbitration be seated in Mauritius (section 3.D(2)).4 Since 2015, the existence of an arbitration agreement in the constitution of a Category 1 GBL company may be taken into account by the Financial Services Commission to reinforce the ‘substance’ requirements of those companies seeking eligibility for tax residency purposes.5 The Act clarifies, for the avoidance of doubt, that disputes between shareholders of GBL companies pursuant to shareholders agreement, and disputes between GBL companies and third parties are also arbitrable (section 3D), irrespective of the seat of the arbitration (section 3D(4)(a)). In case of parallel arbitral proceedings dealing with the same issue under the constitution of a GBL Company and a shareholders’ agreement relating to that GBL Company, the consolidation provision of the First Schedule may be of great assistance to parties wishing to reduce costs and the risk of obtaining inconsistent awards.

Arbitration agreements and jurisdiction

Requirements of Form

Section 4 enacts variant 1 of the new article 7 of the Amended Model Law, and adopts its liberal requirements of form, which agreements need to satisfy to validly constitute ‘arbitration agreements’ for the purposes of the Act. Section 4 adds that arbitration agreements may be in the form of ‘another legal instrument’, in addition to an arbitration clause in a contract or in a separate agreement, thereby ensuring that investment treaties are also covered by the Act.6

Consumer contracts may only be subject to arbitration if a separate written agreement entered into between the parties to it after the dispute has arisen certifies that the consumer has read and understood the arbitration agreement and agrees to be bound by it (section 8(1)).

Kompetenz-Kompetenz and separability

The principles of Kompetenz-Kompetenz and separability are contained in section 20 of the Act, which is adapted from article 16 of the Amended Model Law. The tribunal may decide on its own jurisdiction, including on any objection relating to the existence or validity of the arbitration agreement. A finding by the tribunal that the underlying contract is invalid should not ipso jure affect the validity of the arbitration agreement.

A challenge to the tribunal’s jurisdiction may be raised as a preliminary question or together with the merits (section 20(6)). If it is raised as a preliminary question, section 20(7) provides that a party who is not satisfied with the tribunal’s ruling may, within 30 days of receipt of that ruling, request the Court ‘to decide on the matter’. Although based on article 16(3) of the Model Law, section 20(7) goes further, by enabling parties to challenge before the Designated Court rulings finding against the jurisdiction of the tribunal (in addition to those finding in favour of it).

If the Act is silent on the extent of the powers of the Designated Court under section 20(7), as a matter of logic and established practice, the Designated Court is empowered to rehear and reconsider in full the merits of the matter, for the tribunal cannot itself finally resolve any matter going to its jurisdiction.7 This principle was upheld in Liberalis Limited And Anor v Golf Development International Holdings Ltd and Others,8 where the Designated Court found in favour of the jurisdiction of the tribunal constituted in an international arbitration seated in Mauritius (court application No. 1 in support of the ‘Massilia Arbitration’): the Designated Court stated that, although it ‘may take into account the ruling of the tribunal and express its agreement or disagreement with any views expressed therein, it is not sitting on appeal as such against the said ruling’. It clarified, however, that the principle applied in appeals that findings of facts are not lightly interfered with, shall apply a fortiori to section 20(7) applications, where the Designated Court has not had the benefit of hearing the witness evidence heard by the tribunal.

A party dissatisfied with the tribunal’s ruling on jurisdiction is not obliged to make an application under section 20(7), which is subject to a 30-day time limit from the receipt of the award. It may choose instead to apply to the Designated Court to set aside the tribunal’s ruling under section 39 within three months of receipt of the tribunal’s ruling. While a section 20(7) application is pending before the Designated Court, the arbitral proceedings may continue and the tribunal may make one or more awards.

In Massilia Limited v Golf Development International Holdings Limited & Ors9 (court application No. 2 in support of the Massilia Arbitration), the Designated Court had to decide whether the stay of arbitral proceedings by the tribunal pending the determination by the Designated Court of the tribunal’s jurisdiction in Liberalis10 had caused the tribunal to become functus officio, so that it ceased to have jurisdiction to issue interim measures once the stay had been ordered. The Designated Court held that, in light of the fact that no final award had yet been rendered in the arbitration and that only a final award could have had the effect of rendering the tribunal functus officio, the tribunal did have jurisdiction to issue the interim measure granted after and despite the stay of the arbitral proceedings.

Preliminary issues

Any determination on whether an arbitration is an international arbitration; the juridical seat of an international arbitration is in Mauritius; or the First Schedule applies must, if the tribunal has been constituted, be referred to the tribunal (so that if either of the PCA or a court is seized of the matter, it must decline to hear the matter and refer it to the tribunal) or, if the tribunal has not yet been constituted, the PCA or the Designated Court may make a provisional determination pending the determination by the tribunal (sections 3C and 10(1)).

Substantive claims before the Designated Court

Section 5 of the Act is a modified version of article 8 of the Amended Model Law, which gives effect, inter alia, to Mauritius’ obligations under article II.3 of the New York Convention and to the principle of Kompetenz-Kompetenz. If a matter is brought before any court in Mauritius, and a party contends that it ought to be referred to arbitration, that court shall automatically transfer the matter to the Designated Court (as specifically constituted under the Act), which shall refer the parties to arbitration. The only instance in which the Designated Court may refuse to refer the matter to arbitration is if it can be shown on a ‘prima facie basis’ that there is a ‘very strong probability that the arbitration agreement is null and void, inoperative or incapable of being performed’. The prima facie test prevents the Designated Court from engaging in a full trial or summary trial of the matter. In case of doubt on a prima facie analysis of the matter, that doubt must be resolved in favour of a referral to the tribunal, which has jurisdiction under section 20 to determine the matter. It is only if the Designated Court is satisfied that the high threshold of strong probability on a prima facie basis has been met, that it may then decide the point on the merits with a full hearing. In UBS AG v The Mauritius Commercial Bank Ltd,11 the Designated Court highlighted that the ‘very strong probability’ on a ‘prima facie basis’ threshold was a ‘very high one’, and was more stringent than the test of article 8 of the Amended Model Law and that applied in the Canadian case of Dell Computer Corporation v Union Des Consommateurs and Olivier Dumoulin.12

Appointing the arbitral tribunal

Section 11 of the Act that enacts in part article 10 of the Amended Model Law contains a number of provisions relating to the appointment of arbitrators, which apply by default of the parties’ agreement, including that the default number of arbitrators shall be three. Section 12 is a modified version of article 11 of the Amended Model Law. It entrusts to the PCA all appointment functions in case of dispute between the parties. If the procedure for appointment agreed by the parties has failed, section 12(4) states that ‘any party may request the PCA to take any necessary measures, unless the agreement on the appointment procedure provides other means for securing the appointment’. If a party wishes to seek assistance to resolve the appointment difficulties contemplated by section 12(4), it is bound to refer the matter to the PCA. The use of the term ‘may’ in section 12(4) is only to express the option available to the parties to seek (or not) assistance to resolve the difficulties and is not the expression of a choice of forum between the PCA and the Designated Court.13

The nationality of an arbitrator shall not, of its own, preclude an arbitrator from being appointed, unless otherwise agreed by the parties (section 12(1)). However, when the PCA appoints an arbitrator, section 12(7) requires of it that it shall have regards to any qualification required by the arbitration agreement and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. It shall also take into account the advisability of appointing an arbitrator of a nationality other than those of the parties when appointing a sole, third or presiding arbitrator. Section 13 sets out the grounds for challenging the appointment of arbitrators (based on article 12 of the Amended Model Law), applying the standard test of ‘circumstances giving rise to justifiable doubts as to the impartiality or independence of the arbitrator’ and standard disclosure requirements. The procedure for replacing or dealing with arbitrators who have become unable to perform their functions (sections 14 to 16) is done in accordance with articles 13 to 15 of the Amended Model Law. A number of additions have been made at sections 16(2) to 16(4), notably the right for a party or members of the tribunal to request the replacement of an arbitrator who has resigned ‘for unacceptable reasons or refuses or fails to act without undue delay’.

Parties are jointly and severally liable to pay to the arbitrator(s) such reasonable fees and expenses as are appropriate in the circumstances and in the event that the tribunal’s fees would otherwise be the subject of no scrutiny by an arbitral institution, any party may apply to the PCA, which may order that the amount of an arbitrator’s fees and expenses be adjusted and fixed in such manner and upon such terms as it may direct (section 18). Finally, arbitrators, arbitral institutions and the PCA are immune from suit, unless bad faith on their part is proved (section 19(1)).

The arbitral proceedings

The tribunal’s powers

Section 24 of the Act enacts articles 18, 19 and 22 of the Amended Model Law, with amendments. The tribunal has a duty to provide the parties with a ‘reasonable’ rather than ‘full’ opportunity of presenting their case (in line with section 33(1)(a) of the English arbitration act), thereby reducing the risk of awards being challenged on unmeritorious grounds (section 24(1)(a)). Section 24(1)(b) expressly sets out the tribunal’s duty to adopt procedures suitable to the circumstances of the case, avoiding unnecessary delay and expenses, by reference to section 33(1)(b) of the English arbitration act. Section 24(3) states that failing agreement by the parties, the tribunal may conduct the arbitration ‘in such manner as it considers appropriate and determine procedural and evidential matters’, including a list of matters expressly set out therein (taken from section 34 of the English arbitration act). Pursuant to sections 24(2) and 24(3), the parties are otherwise free to agree on their own procedure, and although section 24(1) is not expressly stated to be of mandatory application, there is no doubt that the parties cannot derogate from the essential safeguards set out therein.14

Section 29(1) enacts article 27 of the Amended Model Law, with no substantive modification. It specifies, without limitation, the powers available to the Designated Court to assist in the taking of evidence. The Designated Court may grant such assistance as is within its powers and subject to its own domestic rules on the taking of evidence.

PCA’s powers to extend time limits

Section 30 is derived from sections 12, 50 and 79 of the English arbitration act. It gives the power to the PCA, on its own initiative or on request from a party and on notice, to extend time limits agreed by the parties in relation to any matter relating to the arbitral proceedings or specified in the Act, as having effect in default of such agreement, including any time limit for commencing arbitration proceedings or for making an award. The PCA has the power to act only if any available recourse to the competent forum has first been exhausted and if a substantial injustice would otherwise occur. This provision may assist the process where deadlines previously agreed by the parties would otherwise frustrate the process.

The award

Irrespective of the place of signature of an award, the award will be deemed to have been made at the seat (section 36(5)). Decisions of the tribunal are taken by a majority, failing which the presiding arbitrator shall decide (sections 34(1) and 34(3)). In matters of procedure, the presiding arbitrator may decide alone if the parties or all members of the tribunal agree (section 34(2)).

Pursuant to section 38, which enacts article 33 of the Amended Model Law with minor modifications, parties are entitled to ask the tribunal to make an additional award within 30 days of receipt of the award in case of omission of a claim presented to the tribunal, but omitted from the award (with the possibility of holding further hearings). A party may also request the tribunal to correct in its award (or in an additional award) any typographical errors or to interpret such award within the same time frame, although in the case of a request for interpretation, the agreement of all parties is required.

Rights of recourse

Setting aside of awards

Section 39 of the Act enacts article 34 of the Amended Model Law, which in turn imports into setting aside proceedings the grounds for refusing enforcement under the New York Convention, although it adds two grounds, in line with the modifications made in Singapore and New Zealand, namely if the making of the award was induced by fraud or corruption, and breach of natural justice. There are no mandatory rights of recourse similar to those contained in sections 67 and 68 of the English arbitration act (appeal against award on jurisdiction and appeal on grounds of serious irregularity). However, parties are free to opt in to sections 1 and 2 of the First Schedule,15 which allow applications to be made to the Designated Court in Mauritius to determine a preliminary question of Mauritius (not foreign) law or to appeal an award on a question of Mauritius (not foreign) law, subject to certain conditions.

As explained below,16 the Act is silent on whether interim remedies issued by tribunals may be set aside under section 39, leaving it to the Designated Court to determine whether, and if so to what extent, interim measures issued by tribunals may be set aside under section 39.

Recourse against decisions of the PCA

In order to avoid delays in the arbitral process and the use of dilatory tactics by recalcitrant parties, the Act expressly provides that ‘all decisions of the PCA under the Act shall be final and subject to no appeal or review’, ‘subject only to the right of recourse under section 39 against awards rendered in the arbitral proceedings’ (section 19(5)). Decisions of the PCA cannot therefore themselves be challenged, although if for instance, the PCA has appointed an arbitrator in breach of the parties’ agreement, the irregularity in the appointment may give rise to a challenge of an award rendered by the tribunal under section 39 on the ground that ‘the composition of the arbitral tribunal… was not in accordance with the agreement of the parties’.

Recourse against judgments of the Designated Court

Any final decision rendered by the Designated Court under the Act or the New York Convention Act 2001 is appealable as of right to the Privy Council (section 42(2)), which appeal shall be made in accordance with the procedure applicable to appeals as of right under the Mauritius (Appeals to Privy Council) Order 1968.

Recognition and enforcement

Section 40 of the Act states that all awards rendered under the Act may be enforcement in Mauritius pursuant to the New York Convention Act 2001, which gives effect in Mauritius to the New York Convention, in particular, the limited grounds on which recognition and enforcement of an award may be refused under article V. While the New York Convention Act 2001 is stated to apply to awards rendered in a state other than Mauritius only, the reference in section 40 to ‘awards rendered under the Act’ is clearly intended to extend the scope of application of the New York Convention Act 2001 to awards made in Mauritius in international arbitral proceedings (ie, non-domestic awards). In interpreting the New York Convention Act 2001, regard must be had to the interpretation of articles II(2) and VII(1) of the New York Convention adopted by UNCITRAL on 7 July 2006. Further, awards made in English and French are both conveniently deemed to have been made in an official language of Mauritius for the purposes of article IV(2) of the New York Convention.

In Cruz City,17 the Designated Court held that in enforcement proceedings it would not usually reconsider a ground of objection that has already been considered and rejected in setting aside proceedings before the courts of the seat outside of Mauritius, unless it was ‘in the presence of exceptional circumstances’. It also clarified that ‘public policy’ under article V(2)(b) of the New York Convention was a reference to international public policy of the place of enforcement, not to domestic public policy, nor to international public policy of the law governing the underlying contract.

Interim measures

Tribunal’s powers to issue interim measures

The powers of the tribunal to issue interim measures and the rules governing their enforcement are dealt with under section 21 of the Act, which enacts articles 17 and 17A of the Amended Model Law. The Act did not adopt articles 17B and 17C of the Amended Model Law and does not therefore allow tribunals to grant ex parte preliminary orders. Tribunals are otherwise given wide powers under section 21(1) to issue interim measures, but only to the extent such measures order a party to:

  • maintain the status quo pending determination of the dispute;
  • take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the tribunal process itself;
  • provide a means of preserving assets out of which a subsequent award may be satisfied;
  • preserve evidence that may be relevant and material to the resolution of the dispute; and
  • provide security for costs.

Although not expressly stated in the Act, it is expected that tribunals would be allowed to subject their preliminary orders to any conditions they deem fit, for instance, by requiring an express undertaking as to damages or fortification of that undertaking through the provision of an appropriate bank guarantee or other security.18

An interim measure granted by a tribunal shall be recognised as binding and may be recognised and enforced in Mauritius through an application made to the Designated Court under section 22 (enacting articles 17 and 17I of the Amended Model Law), irrespective of the country in which it was issued. Section 22(2) sets out the grounds on which recognition and enforcement may be refused, namely all grounds allowed for setting aside under section 39; breach of an order to provide security; termination or stay of the measure by the competent forum; and incompatibility of the measure with the Designated Court’s powers. In case of incompatibility with the Designated Court’s powers, the Designated Court may, instead of refusing recognition, vary the terms of the tribunal’s order to adapt it to its own powers or procedure, but may not modify its substance. In all cases, the Designated Court is not empowered to undertake a review of the merits of the interim measure (section 22(5)). Section 22 therefore provides a stand-alone regime applicable to the recognition and enforcement in Mauritius (only) of interim measures, which allows parties to circumvent the difficulties that they would otherwise encounter in attempting to apply for recognition and enforcement under article V of the New York Convention.

The Act is silent on whether interim measures granted by tribunals may be set aside under section 39. While section 39 states that only ‘awards’ may be set aside at the seat, section 22 makes no mention of whether an interim measure granted by a tribunal shall be considered an ‘award’ for the purpose of the Act and the Act does not define this term. The legislator appears to have wilfully left this issue to be decided by the Designated Court.

Designated Court’s powers to issue interim measures

In line with article 17J of the Amended Model Law, the Designated Court is empowered to grant interim measures in support of arbitration and has the same powers as Mauritius courts have in court proceedings (whether those powers are usually exercised by the judge in chambers or otherwise) and irrespective of the seat of the arbitration (section 23(1)).

If there is no urgency, the application must be made on notice to the other party and the Designated Court requires the permission of the tribunal or the agreement in writing of the other parties to the arbitration (sections 23(3) and 23(4)(b)). If the matter is urgent, the application may be made ex parte and permission of the tribunal is not required, but the Designated Court is only allowed to act if the tribunal or the forum in which the powers are vested is unable for the time being to act effectively (section 23(5)). The Designated Court may, if it wishes, hand over control back to the tribunal once it becomes able to act effectively again (section 23)(c)). In Amana Middle East Holdings Limited & Anor v Al Churair Abdul Aziz Abdulla & Ors,19 the Designated Court found that it had jurisdiction to issue an interim injunction under section 23 in light of the fact that the tribunal had not yet been constituted and ordered that the order shall cease to have effect ‘upon order of the tribunal’.

The Designated Court’s powers to grant interim measures are strictly limited to the powers set out in sections 23(3) to 23(6) of the Act and exclude any other powers, which it may otherwise have under domestic legislation, for instance, pursuant to its inherent jurisdiction or other powers. The Travaux Préparatoires clarify that the Designated Court should not follow the approach of the English courts, which have used their inherent jurisdiction and/or section 37 of the English Supreme Court Act 1981 to justify the grant of measures in cases where the section 44 conditions of the English Act (courts’ powers in support of arbitration) had not been fulfilled.20

Court Rules

The Court Rules provide for a new procedural regime applicable to all court applications made under the Act or under the New York Convention Act 2001. This new regime is aimed at importing into court proceedings relating to international arbitration, rules and practices which are better suited to the expectation of parties in international arbitrations, than those used in pure domestic court proceedings. The Court Rules impose, for instance, the use of witness statements with minimal formality, time limits to ensure good case management, rules on services out of jurisdiction, and a new costs regime.

Costs

The rules on costs in arbitral proceedings seated in Mauritius are in line with standard international arbitration practice and are inspired from the English, Singaporean and New Zealand arbitration acts. By default of the parties’ agreement, section 33(2)(a) provides that ‘the costs of the arbitration shall be fixed and allocated by the arbitral tribunal in an award, applying the general principles that “cost should follow the event”, except where it appears to the tribunal that this rules should not apply fully in the circumstances of the case’. The amount which a party is entitled to recover under section 33(2)(a)(ii) is a ‘reasonable amount reflecting the actual costs of the arbitration and not a nominal amount only’. In the absence of an award on costs, each party shall bear its own costs and shall share those of the tribunal, the PCA and of any institution in equal share (section 33(2)(b)).

As for the recovery of costs in court applications, although the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party, the Designated Court is given very wide powers to ‘make a different order’, taking into account all of the circumstances (including the conduct of all parties, whether a party has succeeded on part of his case, and settlement offers) and to decide on the type and amount of costs that a losing party may be ordered to pay (Rule 19 of the Court Rules).

Confidentiality

The Act is silent on the question of confidentiality of international arbitrations. This allows tribunals and courts to cater for the different expectations and needs that may arise in commercial and investment arbitrations. Despite this silence, tribunals and courts are expected to protect the confidentiality of arbitral proceedings, which has long been implied in arbitral proceedings as a matter of law, practice or expectation of the parties, save where exceptional circumstances would justify otherwise.21 In 2015, Mauritius took a firm commitment towards allowing for more transparency in investment arbitrations by ratifying the Mauritius Convention on Transparency.

As regards confidentiality in court applications, section 42(1B) of the Act makes it a principle that hearings shall be held in public, while allowing the Designated Court discretion to exclude persons other than the parties and their legal representatives from the proceedings, where publicity would prejudice the interests of justice (taking into account the specific features of international arbitration, including any expectation of confidentiality, which the parties may have had when concluding their arbitration agreement, or any need to protect confidential information). Section 42(1C) of the Act also allows the Designated Court to prohibit the publication of all information relating to court proceedings, which is otherwise public.

Notes

  1. Until then, only one local arbitration centre affiliated with the Mauritius Chamber of Commerce and Industry (MARC), provided administration services to the then predominant domestic arbitration market. MARC now also administers international arbitrations seated in Mauritius. Mauritius has also attracted the interest of the Chartered Institute of Arbitrators, which set up a local branch in Mauritius in 2009.
  2. The Third Schedule to the Act provides a useful table of corresponding provisions between the Act and the Amended Model Law.
  3. [2014] SCJ 100.
  4. The Second Schedule to the Act provides a model arbitration clause for use by shareholders of GBL companies wishing to incorporate an arbitration agreement in the constitution of their company.
  5. This change was brought about following amendments made in 2013 to Chapter 4 of the Financial Services Commission’s Guide to Global Business. Note however that this only applies to Category 1 GBL companies.
  6. See Travaux Préparatoires, paragraph 39.
  7. See Travaux Préparatoires, paragraph 76.
  8. [2013] SCJ 211.
  9. [2014] SCJ 188.
  10. Supra fn 8.
  11. [2016] SCJ 43.
  12. (2007) 2 section C.R. 801.
  13. See comments from Anne-Sophie Jullienne and Salim Moollan QC to this effect at the Mauritius International Arbitration Conference 2012, Conference Paper, pp. 86 and 99.
  14. See Travaux Préparatoires, paragraph 97.
  15. Save for shareholders of a GBL companies who agree to arbitrate disputes arising out of the constitution of a GBL company, to which the First Schedule is of mandatory application.
  16. See section on interim remedies.
  17. Supra, footnote 3.
  18. See Travaux Préparatoires, paragraph 84.
  19. [2015] SCJ 401.
  20. See Travaux Préparatoires, paragraph 93.
  21. See Travaux Préparatoires, paragraph 108.

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