Banking & Finance 2021

Last Updated October 05, 2021

Mauritius

Law and Practice

Authors



Bowmans has offices in South Africa, Kenya, Zambia, Uganda and Mauritius, and affiliated offices in Ethiopia and Nigeria. The Mauritius office consists of 15 experienced local practitioners who are known for delivering bespoke and quality legal services. The firm specialises in banking and finance, corporate, private equity, securities and regulatory law, frequently advises on cross-border banking and financing transactions, mergers and acquisitions and provides transactional support to investment funds and holding companies. The firm’s clients consist of both local and international clients, including fund managers, private-equity houses, management companies, banks and financial institutions. Some key transactions of the firm include acting as Mauritius counsel to Zimborders and its promoters in connection with the equity and loan financing of the Beitbridge Border Post Modernisation project, assisting a consortium of private South African banks in the restructuring and financing of the Tsebo group, assisting the Mauritius Commercial Bank in drafting security documentation, as well as providing customary legality, validity and enforceability opinions, and assisting a leading commercial bank on reviewing the LIBOR terms in light of the LIBOR transition.

Over recent years, significant emphasis has been placed on the implementation of a full-fledged risk-based approach to enhance the effectiveness of the Anti-Money Laundering/Combating the Financing of Terrorism (AML/CFT) banking system. These measures involved a profusion of training programmes aimed at enhancing the skills of the various licensees and market players and updating the existing AML/CFT Guidelines.

In parallel, the loan market proved resilient, with the Key Repo Rate, or repurchase rate, being reduced to 1.85% to support the economy. With high liquidity on the debt market and a healthy capital adequacy ratio of banks averaging 7% above the minimum regulatory threshold, the lending market has remained robust, while keeping a non-performing loan ratio of around 5%.

In light of the COVID-19 pandemic, banks have adopted more relaxed lending standards, which allowed for easier credit facilities, including the temporary suspension of capital repayment.

The Bank of Mauritius proceeded with the setting-up of the Mauritius Investment Corporation (MIC) with the aim of financially sustaining key economic players and other institutions whose finances have been negatively impacted by the pandemic.

Special lines of credits were also put in place by various financial institutions to support economic operators.

The reduction of the repo rate by the Bank of Mauritius has also positively impacted repayment capacity.

The ability of corporates to raise finance by issuing high-yield corporate bonds has made them less reliant on banks for funding. Some corporates also leverage on high-yield bond structures to refinance existing bank loans via bond issuance.

The domestic bonds market has been very active recently. From an international perspective, Mauritius has also been a popular platform for the issuance of these types of instruments, either through Mauritian special-purpose vehicles or through foreign corporates listing their high-yield bonds on the Mauritian stock exchange.

Peer-to-peer lending has proved very popular among start-ups and sole traders who seek micro financing or financing of their working capital, supply chain or business expansion.

This platform has also gained an increased interest among lenders who are currently incentivised by benefiting from an 80% tax exemption on interests derived from a qualifying peer-to-peer lending platform.

Peer-to-peer lending and crowd-funding are still, however, in their infancy and require time for mass adoption. Consequently, despite their growing popularity, the volume of funds raised on peer-to-peer lending platforms is not significant enough to disrupt the traditional lending market, which remains the favoured financing route.

From a corporate lending perspective, a clear trend in more sophisticated lending structures has surfaced. Mezzanine financing and quasi-equity instruments are being used with the aim of creating long-term value for local projects.

Local banks have also showed robust participation in syndicated financing on local and outbound projects, as well as cross-border financing.

The Finance Act 2021 brought substantial amendments to the Banking Act and Bank of Mauritius Act, with the aim of modernising the central banking legal framework, catering for the fast-evolving technological banking-related environment. In that regard, amendments were brought to cater for artificial intelligence, fintech and regtech, cybersecurity and cloud technology.

The Bank of Mauritius is also gearing up to launch its Central Bank Digital Currency (CBDC) towards the end of 2021, in line with transitioning from a cash-dominated economy to a digitised economy.

The first milestone achievement of the Bank of Mauritius rests in the recent introduction of the Mauritius Central Automated Switch (MauCAS), a fully digital hub for routing payments among operators on a 24-7 basis. The MauCAS will enable banks and non-bank operators to provide payment and value-added services through cards, mobile phones or other innovative channels while maintaining the inter-operability of different channels of payments.

Local banks have been partnering with several agencies to promote green loans at preferential interest rates and, by the same token, offering borrowers the possibility of receiving investment grants, depending on the specificities of their projects.

The Government has also expressed its firm intention of decreasing its carbon footprint, by introducing several incentives for the financing of projects in the renewable energy sectors.

From a retail perspective, the acquisition of fast chargers for electric vehicles, rainwater-harvesting systems and photovoltaic systems for domestic use are fully tax-deductible. To make electric vehicles more accessible, hybrid and electric vehicles benefit from a reduced excise duty.

Banks

Pursuant to the Banking Act 2004, no person is allowed to engage in banking business in Mauritius without a banking licence issued by the Bank of Mauritius.

Banking business is defined under the Banking Act 2004 as:

  • the business of accepting sums of money, in the form of deposits or other funds, whether or not those deposits or funds involve the issue of securities or other obligations howsoever described, withdrawable or repayable on demand or after a fixed period or after notice; and
  • the use of those deposits or funds, either in whole or in part, for:
    1. loans, advances or investments, on their own account and at the risk of the person carrying on that business;
    2. the business of acquiring, under an agreement with a person, an asset from a supplier for the purpose of letting out the asset to the person, subject to payment of instalments together with an option to retain ownership of the asset at the end of the contractual period;
  • paying and collecting cheques drawn by or paid in by customers and making other payment instruments available to customers; and
  • includes other such services as are incidental and necessary to banking.

Procedures

An applicant wishing to be authorised to operate as a bank must be a body corporate and must apply to the Bank of Mauritius using the prescribed form, accompanied by a non-refundable processing fee of MUR250,000 (approximately USD5,952). Among other AML, cybersecurity and related prescribed procedures and requirements, including the minimum capital adequacy ratio which the applicant needs to adhere to, the applicant must show adequate substance in Mauritius by having a principal place of business in Mauritius. In terms of staffing requirements, the applicant must have at least ten suitably qualified full-time officers, including the CEO, the Deputy CEO and key functional heads. The estimated operational costs of the applicant must not be less that MUR25 million (approximately USD595,200).

Non-banks

Pursuant to the Finance (Miscellaneous) Act 2020, the activity of money-lending in Mauritius is no longer within the purview of the Bank of Mauritius. The definition of “money-lender” in the Banking Act 2004 was deleted and the provisions in respect of licensing of moneylenders have been repealed.

Money-lending activities are now regulated by the Financial Services Commission of Mauritius. The Financial Services Act 2007 provides that, subject to certain exemptions as provided under the Fifth Schedule of the Financial Services Act 2007, any person, other than a bank or a non-bank deposit-taking institution, whose business is that of money-lending or who provides, advertises or holds himself or herself out in any way as providing that business, whether or not he or she possesses or owns property or money derived from sources other than the lending of money, and whether or not he or she carries on the business as a principal or as an agent, is required to apply for a licence with the Financial Services Commission.

Procedures

An applicant wishing to be authorised to operate as a non-banking financial institution conducting money-lending activities must be a body corporate and must apply to the Financial Services Commission using the prescribed form, accompanied by a non-refundable processing fee, which varies depending on the type of licence being applied for. Among other AML, cybersecurity and related prescribed procedures and requirements, including the minimum paid-up and unimpaired capital which normally ranges around MUR50 million (approximately USD1,190,000) which the applicant needs to adhere to, the applicant must show adequate substance in Mauritius by having a principal place of business in Mauritius and complying with other prescribed requirements.

There is currently no restriction on foreign lenders to grant loans from their foreign jurisdiction. However, if those foreign lenders intend to carry on the business of money-lending in Mauritius, they should first obtain the appropriate licence from the Financial Services Commission or the Bank of Mauritius, depending on the activities that it wishes to conduct. 

There are generally no restrictions which would prevent the granting of security or guarantees to foreign lenders in Mauritius. However, when a security involves the taking of a fixed and/or floating charge, certain elements as to the activities of the charge-holder will need to be considered.

Under the Mauritian Civil Code, a fixed and/or floating charge can only be granted in favour of an Institution Agréée (the Civil Code Restriction).

An Institution Agréée is, effectively, an approved institution, as listed in the Institution Agréées Regulations 1988, which lists certain entities as approved to hold a fixed and/or floating charge, and include “any body corporate not registered in Mauritius and having no place of business in Mauritius”.

Although the description of that approved body may appear broad, the Civil Code Restriction has been interpreted narrowly by the Supreme Court (vide Atelier Etude Limousin & others v BPCE International et Outremer & another 2014 SCJ 166).

In light of this judgment, the approach of the market has been that, in order for a foreign entity to benefit from a fixed and/or floating charge, it must necessarily be a “financing institution”, as opposed to merely being a foreign entity which may not necessarily be involved in the financing business.

The Foreign Exchange Control Act was suspended in 1994. As a result, there is currently no exchange control requiring approval for payments outside of Mauritius or repatriation of profits, dividends, or capital gains earned in Mauritius.

Although there are no legal restrictions under Mauritian laws applicable to the borrower’s use of proceeds from loans or debt securities, contractual restrictions on the borrower’s use of proceeds from loans or debt securities which are mutually agreed between the lender and the borrower are frequently seen.

The trust concept is recognised under Mauritian laws. The Civil Code also provides for general concepts which are used as alternatives to the agency concept, such as the “mandat” (which corresponds to agency) and the “tiers convenu” (which is a third party mutually appointed by the parties for the purpose of holding the security).

It is not uncommon that local banks are appointed to act as security agents for the benefit of foreign lenders where charged assets are located in Mauritius.

Loans are transferred by way of novation or assignment and associated security packages are transferred by way of assignment. However, where security agents are appointed to hold security, a change in lenders or a transfer of loans, these are unlikely to affect the security.

The laws of Mauritius do not restrict a debt buy-back by the borrower or sponsor. However, it is recommended that the borrower or sponsor consider the appropriate structuring and address potential tax liabilities.

There are no specific rules applicable to “certain funds” in respect of public acquisition finance transactions. However, when dealing with a potential takeover, the law requires that an offeror should give a firm intention to acquire the target, containing a confirmation by the board of the offeror that sufficient financial resources are available to satisfy the acceptance of the offer. Similarly, where the offer includes a non-cash consideration, the confirmation should provide that all reasonable measures have been taken to secure full payment of the shares acquired. 

Under the laws of Mauritius, there is no withholding tax for any payment made by a company holding a global business licence in Mauritius to lenders not carrying out business in Mauritius.

VAT

Value-added tax (VAT) is applicable at a flat rate of 15% to VAT-registered entities on all goods and services supplied by them in Mauritius, subject to certain supplies being exempted under the Income Tax Act 1995 and the various income tax regulations.

Registration Duty

Registration duty is payable on the registration of a deed, the rate of which depends on the nature of the transaction witnessed by the deed under the Registration Duty Act 1804.

A Mauritius law-governed fixed and/or floating charge, mortgage and a bordereau pursuant to an assignment agreement are required to be registered (and inscribed for fixed and/or floating charges and mortgages), while registration of finance documents and security documents other than those aforementioned are at the option of the lender.

The concept of usury laws does not figure in Mauritian laws. However, the Mauritian courts have the discretion to review downwards the interest amount if it is deemed excessive.

The assets available as collateral to lenders in Mauritius consist of:

  • shares;
  • land/buildings (immovable property);
  • contractual rights and receivables;
  • bank accounts;
  • intellectual property and other intangible and tangible rights;
  • equipment/material, stocks and outillage (tools of trade);
  • future assets; and
  • business undertaking.

The common forms of security granted are as follows.

  • Security over shares:
    1. a commercial pledge when the shares of a company that holds a global business licence are pledged in favour of a financial institution; and
    2. a civil share pledge when shares relate to a domestic company;
    3. a fixed and/or floating charge can also be granted as security over the shares.
  • Security over land or building (immovable property):
    1. a mortgage under the Mauritian Civil Code; and
    2. a fixed and/or floating charge.
  • Security over contractual rights and receivables:
    1. an assignment; and
    2. a pledge under the Mauritian Code de Commerce.
  • Security over bank accounts:
    1. a pledge under the Commercial Code; and
    2. a fixed and/or floating charge.
  • Security over intellectual property and other intangible and tangible rights:
    1. an assignment of rights by way of security; and
    2. a fixed and/or floating charge.
  • Security over equipment/material, outillage (tools of trade) and stocks are:
    1. a special pledge under the Mauritian Civil Code; and
    2. a fixed and/or floating charge.
  • Security over future assets:
    1. a pledge or an assignment by way of security under the Commercial Code;
    2. a fixed and/or floating charge.
  • Security over a business undertaking (fonds de commerce): a pledge of the business undertaking.

Perfection Requirements

A share pledge

The pledge of a shares agreement is executed between the pledgor, the company in which the shares are pledged and the pledgee. The pledgee is required to procure the delivery of the following to the pledgee:

  • a signed and undated blank share transfer form;
  • share certificates (if any) and other instruments evidencing or representing the pledged shares;
  • a transfer-in-guarantee instrument signed by the pledgee, the pledgor and the secretary of the company in which the shares are being pledged in respect of the pledged shares. The company secretary is required to procure the delivery of the following to the pledgee (i) a certificate of inscription, signed by the company secretary of the Company, attesting that the particulars of the transfer in guarantee has been inscribed in the registers of the company and an updated register of shares given in pledge.

Fixed and/or floating charge

The fixed and/or floating charge agreement is required to be registered and inscribed with the Registrar General and the Conservator of Mortgages of Mauritius. A memorandum setting out details of the charge must be affixed to the deed prior to the inscription. The chargor must deliver the registered deed of fixed and/or floating charge and provide satisfactory evidence of registration and inscription to the secured party.

Mortgage

The deed of mortgage, to which must be annexed a memorandum (bordereau), must be inscribed in the registers of the Conservator of Mortgages.

Assignment under the Commercial Code

A memorandum, known as a bordereau, which witnesses the assignment and forms part of the perfection requirement thereof under the Commercial Code, must be executed by the assignor and must be registered in the interest of the assignee with the Registrar General. The registered bordereau must thereafter be delivered to the assignee by the assignor.

Account pledge

A notice of assignment must be sent to the account bank and a “bordereau” confirming details of the pledge must also be executed by the pledgor.

Pledge of business undertaking (fonds de commerce)

The pledge of business undertaking is created under a deed prepared by a notary public or a deed under private signature and must be registered with the Registrar General of Mauritius. The registration with the Registrar General must be made within 15 days of the signing date of the pledge agreement.

Timing and Costs Involved

Depending on the type of entity involved, registration must be effected within eight days or up to three months for companies holding a global business licence (except for the pledge of business undertaking which must be registered within 15 days from the date of the security document). The registration process takes around three business days to complete. Registration duty and administrative fees (formerly stamp duty) payable to the Registrar General, amount to around MUR50,700 (approximately USD1,200) per document. Inscription of charges would also incur an additional inscription fee of around MUR1000 (approximately USD23).

The Mauritian Civil Code allows for the creation of a floating charge over all present and future assets of a company as security.

Downstream, upstream and cross-stream guarantees are generally permitted. This type of security is generally granted by way of a corporate guarantee, as provided under the Mauritian Civil Code. However, giving such a guarantee could be restricted where it amounts to providing financial assistance.

The laws of Mauritius restrict a target from providing a loan or guarantee or any form of security where the purpose of such a loan, guarantee or security is for the acquisition of the target’s own shares. In these circumstances, specific conditions must be adhered to by the target before it is permitted to provide any such financial assistance.

Except for the aforementioned restrictions, there are generally no other restrictions in connection with, or significant costs associated with, or consents required to approve, the grant of security or guarantees.

A security is generally released only when the secured obligation has been paid in full and all facilities which gave rise to the secured obligation have been terminated. However, when dealing with the release of mortgages and fixed and/or floating charges, an additional procedure is required to ensure that the security is erased from the public registers of the Conservator of Mortgages. The erasure is formalised by a letter from the secured party to the Conservator of Mortgages confirming the discharge of the secured obligation, the release of the security and requesting the erasure of the security from the registers of the Conservator of Mortgages. In respect of pledges and assignments, the secured party is required to return all documents delivered to it at the time of perfection of the security (which include share certificates, blank transfer forms or, in some instances, the bordereau), and counterparties will update their internal records to reflect the discharge and release.

By way of exception, the parties can also mutually agree to release the security before the discharge of the secured obligation. This can be done by way of a release agreement entered into between the parties providing for the release of the security.

In an event of insolvency, the Mauritian Insolvency Act 2009 provides the following ranking of claims of preferential creditors:

  • cost of the liquidator;
  • costs of compromises by the company with its creditors under the Companies Act;
  • payments made pari passu with first-ranking fixed and floating charges and mortgages inscribed for more than three years;
  • first-ranking fixed and floating charges and mortgages inscribed for less than three years;
  • other secured creditors; and
  • all other unsecured creditors who have been proved in the bankruptcy or winding-up.

When competing security interests arise, they are treated equally and the lenders to the same borrower can contractually vary their priority over the security by way of a subordination agreement. The subordination or an inter-creditor agreement will generally provide that the junior lender will not receive payments from the borrower until the senior lender has been paid.

The contractual provisions of a Mauritian-governed law subordination agreement will survive the insolvency of the borrower and will be recognised and given right in an insolvency procedure.

The circumstances for a secured lender to enforce a security will depend on the contractual provisions of the financing and security documents and on the type of security granted to the lender. In general, an event of default must have occurred under the finance and security documents which will trigger the enforcement of the security.

  • Enforcement of fixed charge: a secured lender can enforce a fixed charge that it holds over assets by appointing a public or private registered usher to seize the assets, without the need to serve a “commandement” (notice) on the debtor. If the debt remains unpaid, for three weeks following the date of seizure, the creditor can then sell the seized assets by public auction (in the case of movable assets), or by serving a notice in the same manner previously described (in the case of immovable assets).
  • Enforcement of a floating charge: the floating charge must first be converted into a fixed charge. This is known as the crystallisation of the floating charge. This requires the appointment of a court usher to draw a memorandum of inventory, which will then be transmitted to the Conservator of Mortgages to be inscribed in its registers, whereupon the charge is converted to a fixed charge. This process may entail further costs in terms of taxes or fees.
  • Enforcement of a special civil pledge over shares: the bank must serve notice on the debtor, stating its intention to proceed with the transfer of the pledged shares. The bank can then cause the pledged shares to be transferred seven days after the notice is served.
  • Enforcement of a pledge of shares under the Commercial Code: the pledgee must realise the pledged shares by completing and executing the share transfer form. No other formalities are required.
  • Enforcement of mortgages: the creditor can enforce a mortgage by serving the debtor a commandement (notice) notifying the debtor that, if it fails to pay the amount claimed, a seizure will be effected on the mortgaged property. The service of the commandement is effected through a public or private registered usher. The seizure of the mortgaged asset cannot be effected until at least ten days have elapsed since the date on which the commandement was served. The usher will then draw up a memorandum of seizure that must be registered and transcribed with the Conservator of Mortgages/Registrar General of Mauritius. A creditor that enforces a mortgage must also register and transcribe a memorandum of charges with the Conservator of Mortgages/Registrar General of Mauritius, containing the desired conditions of sale. The property may then be seized and sold before the Supreme Court of Mauritius to the highest bidder.

The choice of a foreign law as the governing law of the contract will be upheld in Mauritius.

A foreign judgment or arbitral award against a Mauritian company will be enforceable in Mauritius without a retrial of the merits of the case, subject to fulfilling the necessary exequatur procedures to recognise that foreign judgment or arbitral award.

When a foreign lender does not own any immoveable property in Mauritius, the debtor (as defendant) can apply for an order for the foreign lender (as plaintiff) to provide security for its costs before proceeding further with any claim in court.

The Insolvency Act 2009, which is the principal legislation dealing with the insolvency of companies, sets out the formal mechanism for the rescue or reorganisation of a company, which is the voluntary administration of a company.

The aim of a voluntary administration is to enable a business, property and affairs of a company to be administered in a way (i) to provide an opportunity for the company and its business to continue to exist or, should the former scenario not be possible, (ii) to provide a better return for the company’s creditors and shareholders, compared to an immediate winding-up of the company.

The administrator may be appointed by the company in administration, by a secured creditor holding a charge over the whole/substantially the whole of the company’s property or a buy-order of the court.

The Mauritius Companies Act 2001 further provides other mechanisms for company rescue, which include:

  • a compromise between the company and its creditors;
  • amalgamation procedures; and
  • a scheme of arrangement by a creditor or a shareholder in relation to the company.

The facility agreement will generally treat an insolvency event as an event of default and will usually include mechanisms where, upon the occurrence of such an event, the lender may have recourse to claim repayment of the loan and to enforce the security or guarantee which was provided to secure the loan amount.

Pursuant to the commencement of administration under the Insolvency Act 2009, while a company is in administration and upon the appointment of an administrator, a lender cannot enforce a charge on the property of the company except with the written consent of the administrator or with the permission of the court and on terms that the court thinks appropriate.

This restriction, however, does not apply in the case of a secured creditor, ie, a person who holds a charge on or over the property of the company and includes the holder of a “gage”. The secured creditor may apply to the court for an order granting leave to him or her to enforce his or her security within a specified period after the company has been put into administration.

The restriction does not further apply to those secured creditors who have already taken steps to enforce their rights to recover the property before the beginning of the administration of the company.

In an event of insolvency under the Insolvency Act 2009, the order of priority in which the following persons are entitled to be paid out the property of a company are as follows:

  • first, the liquidator or receiver for his or her fees and expenses and any indemnity to which he or she is entitled from the property of the company;
  • second, costs of compromises by the company with its creditors under the Companies Act;
  • third, payments made pari passu with first-ranking fixed and floating charges and mortgages inscribed for more than three years;
  • fourth, first-ranking fixed and floating charges and mortgages inscribed for less than three years;
  • fifth, other secured creditors; and
  • sixth, all other unsecured creditors who have been proved in the bankruptcy or winding-up.

The doctrine of an equitable subordination does not exist under the laws of Mauritius.

Potential risk areas which the lender may face, upon a borrower, security provider or guarantor becoming insolvent, are as follows.

Voidable Preference

A voidable preference is a transaction which involves creating a charge over the debtor’s property and incurring an obligation, and which (i) has been entered into by the company as a debtor at a time when the company is unable to pay its due debts and which (ii) enables another person to receive more towards satisfaction of a debt by the company than that person would receive in the bankruptcy or liquidation.

A voidable preference, which was made within two years immediately before adjudication or commencement of the winding-up, may be set aside by the court upon an official receiver or a liquidator making such an application.

Voidable Charge

A charge over a property or undertaking of a debtor, given within two years before the debtor’s adjudication or the commencement of the winding-up and where, immediately after the charge was given, the debtor was unable to pay its due debts, may be set aside by the court upon the application of an official receiver or a liquidator.

Mauritius has enacted several legislations to cater for the increasing demand of development in various sectors of the economy. Several parastatal bodies were also set up to facilitate investments and the setting-up of projects of various types.

Banks and other financiers have also been playing a major role in the financing of projects in Mauritius.

A series of attractive fiscal measures were put in place to encourage development in renewable energy, which has triggered an array of sizeable projects involving wind farms, solar farms and waste-recycling.

Most project finance is privately owned, although the government is also involved, particularly in energy projects where they stand as the sole power-purchaser for grid distribution. 

The Mauritian government has promulgated the Public-Private Partnership Act 2004, which came into force on 1 March 2005 (the PPP Act).

The PPP Act provides for the implementation of PPP agreements between contracting authorities and private parties and establishes a set of rules governing public-private procurement.

Over the years, the main PPP projects have involved the energy sector, with the setting-up of various power plants using fossil fuel and renewable sources, the development of the freeport zone and airport terminal and the setting-up of a waste-water treatment plant.

There are currently ten active projects in the country, with active investments exceeding USD940 million.

Government approval will be required to obtain the necessary permits and licences. Non-citizens who have an interest in a project which would own immovable property (such as land) could also be required to obtain the Prime Minister’s approval prior to acquisition of the land or leasehold right.

Certain application fees may also be required at the time of applying for the specific licences.

There is generally no requirement to register any application document, although some finance documents would require registration with the Registrar General’s office.

The Ministry of Energy and Public Utilities (the MOE) oversees the formulation of policies and strategies in the energy, water and waste-water sectors, radiation safety and nuclear security and is responsible for the establishment of a responsive legal framework to govern the development of these sectors.

The government has set up various statutory bodies to manage these sectors:

  • the Central Electricity Board is responsible for the generation, transmission, distribution and sale of electricity;
  • the Central Water Authority is responsible for the treatment and distribution of potable water;
  • the Waste-water Management Authority is responsible for the collection, treatment and disposal of waste-water;
  • the Mauritius Renewable Energy Agency is responsible to promote renewable energy projects.

Other government bodies:

  • the Road Development Authority is responsible for the construction, care, maintenance and improvement of motorways and main roads;
  • the Ministry of Land Transport and Light Rail is responsible to devise and implement policies for land transport operation, traffic management and road safety;
  • the government has set up a fully owned company, the Metro Express Limited, for the implementation and operation of a Light Rail Transit System, which began commercial operation in January 2020.

The ownership structure is the primary concern for a project - the type of vehicle used and how it is organised to "house" the investors and financiers. Traditionally, a private company limited by shares would be the favoured option, but other structures may be more appropriate, depending on the type of project.

Where immovable property would be owned or leased over a period by the project vehicle, approval from the Prime Minister’s office would be required if non-citizens would be holding a direct or indirect shareholding or interest in the project company, except where certain exemptions are provided.

The financial structure would also be of relevance in determining how the project would be financed, which could involve equity, short-term and long-term loans, bonds (listed or unlisted), quasi-equity and the determination of the relevant revenue streams to service the debts. Each type of financing would require specific attention in order to comply with the regulatory environment.

Depending on the type of project, the financing may be effected using traditional banking methods. Renewable energy-related projects may also receive financial support from specific agencies. The use of bonds is another method for raising finances and there have also been talks about the Government relaxing its legislation to raise finance by issuing bonds in order to finance its sustainable development projects, including renewable energy.

Mauritius does not have any natural resources to export, as yet.

The Environment Protection Act is the main legislation governing environmental issues relating to projects. It provides for the necessity of a promoter to prepare an environment impact assessment (EIA) or a Preliminary Environmental Report (PER), as the case may be, and to obtain the necessary EIA Licence or PER Licence with whatever conditions may be imposed by the governing body. 

The Environmental Assessment Division of the Ministry of Environment, Solid Waste Management and Climate Control is responsible for ensuring the identification of any environmental impacts of major projects and for addressing any issues at the inception of a project. This division is also responsible for ascertaining that appropriate measures are taken to mitigate adverse environmental impacts, enhance the positive impacts and promote sustainable development. EIA Licences and PER Licences are issued by this division.

Bowmans (Mauritius)

3rd Floor
The Dot
Avenue De Telfair
Moka
80829
Mauritius

+230 460 5959

info-ma@bowmanslaw.com www.bowmanslaw.com
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Trends and Developments


Authors



Bowmans has offices in South Africa, Kenya, Zambia, Uganda and Mauritius, and affiliated offices in Ethiopia and Nigeria. The Mauritius office consists of 15 experienced local practitioners who are known for delivering bespoke and quality legal services. The firm specialises in banking and finance, corporate, private equity, securities and regulatory law, frequently advises on cross-border banking and financing transactions, mergers and acquisitions and provides transactional support to investment funds and holding companies. The firm’s clients consist of both local and international clients, including fund managers, private-equity houses, management companies, banks and financial institutions. Some key transactions of the firm include acting as Mauritius Counsel to Zimborders and its promoters in connection with the equity and loan financing of the Beitbridge Border Post Modernisation project, assisting a consortium of private South African banks in the restructuring and financing of the Tsebo group, assisting the Mauritius Commercial Bank in drafting security documentation, as well as providing customary legality, validity and enforceability opinions, and assisting a leading commercial bank on reviewing the LIBOR terms in light of the LIBOR transition.

Banking and Finance in Mauritius

The Finance (Miscellaneous Provisions) Act 2021 (the Finance Act) brought substantial amendments to the legislation in Mauritius, setting the groundwork for economic recovery and resilience amidst the COVID-19 pandemic. Those amendments were introduced with the aim of strengthening the development of key sectors, such as innovation in terms of fintech and regtech, especially in light of the enhanced nexus between technology and financial services over the recent years. 

The major developments catalysed by the recent legislative amendments and an analysis of the trends being observed in Mauritius are set out as follows.

NPS Regulations

Two years after the promulgation of the National Payment Systems Act 2018 (the NPS Act) (which came into force in January 2019), the Bank of Mauritius (the BoM) proceeded to issue the National Payment Systems (Authorisation and Licensing) Regulations 2021 (the Regulations), which were made operational as from 1 June 2021. The NPS Act was introduced to set out the framework for the regulation and supervision of payment systems in Mauritius.

The Regulations now formalise the application process and provide clear guidelines to prospective payment-service operators, as well as existing payment service-providers, towards the proper conduct of their services.  There is now adequate monitoring and assessment of payment service-providers and their services in place to ensure the secure and efficient operation of payment systems.

These Regulations largely contribute to the modernisation of the payments eco-system in Mauritius, especially at this time, when dealing with the COVID-19 pandemic, where an increasing demand favouring contactless digitalised payments over the traditional cash payments has been witnessed.

MauCAS QR Code

In addition to the Regulations, the latest development relates to the announcement made in the National Budget in June 2021 in respect of the introduction of the MauCAS national QR code - a new method of payment on the BoM’s MauCAS (Mauritius Central Automated Switch) platform. Within a few months of the announcement being made, the BoM successfully launched the MauCAS QR Code on Monday, 20 September 2021. This is another milestone in the modernisation and democratisation of the payment eco-system, given the current international trend from a cash-dominated economy to one that is digitalised and the accelerated demand for digital payments amidst the challenges of the COVID-19 pandemic.

Digital Currency

Mauritian legislation has been amended to cater for a framework to be established under which digital currency may be issued by the BoM and may be held or used by the public. The BoM may now, for the purposes of issuing digital currency, accept deposits from and open accounts for these persons. With the speeding-up of the adoption of digital payments, it is likely that the BoM will be issuing rules with a view to providing further clarity concerning the mechanism regarding the use of digital currency in Mauritius.

Central Bank Digital Currency

In light of the aforementioned legislation change, the introduction of the central bank digital currency (CBDC) is anticipated for the end of 2021. The aim of the CBDC is to support the operation of faster payment systems, and to complement and bridge existing gaps which the traditional monetary system may struggle to fulfil.

Fintech and Regtech

The amendments brought by the Finance Act can be perceived as the stepping-stone to transform Mauritius into a leading fintech hub. The main developments brought about are aimed at transforming the traditional financial services system by making it more efficient, effective and resilient.

An overview of those changes is shown here.

  • The amended Banking Act 2004 (the BA) now includes definitions for “fintech”, “regtech” or “regulatory technology”, “regulatory sandbox” and “regulatory sandbox authorisation”. 
  • “Fintech” is defined as technologically enabled financial innovations which could result in new business models, applications, processes or products with an associated material effect on financial markets and institutions and the provision of financial services. “Regtech” relates to the innovative technology solutions utilised by financial institutions and other regulated entities to facilitate compliance with regulatory rules and requirements.
  • The Financial Services Act 2007 (FSA) has also been amended to cater for the issuance of a regulatory sandbox authorisation by the Financial Services Commission (FSC) to existing licensees and other bodies corporate.

The issuance of regulatory sandbox authorisation by the BoM and the FSC will have an impact on the growth of the fintech industry in Mauritius. This is a much-welcomed change, as the regulatory sandbox authorisation issued by the BoM (or the FSC as applicable) now allows a person to conduct live experiments with fintech, regtech or other innovation-driven financial services under the supervision of the BoM (in respect of banking-related services) or the FSC (in respect of its non-banking-related services). 

The issuance of the regulatory sandbox licences to investors who intend to conduct a business activity for which there exists no legal framework or adequate provisions under existing local legislation, was previously under the aegis of the Economic Development Board. Investors must now apply to the BoM or the FSC for a licence, depending on the nature of their activities.  This amendment will prove beneficial on the practical side, as the processing time for an application is likely to be reduced, given that the licence will be issued by the same competent authority which initially assessed the application for, and issued, the authorisation.

Any financial institution, licensee under the NPS Act or the FSA or body corporate will be eligible to apply for a regulatory sandbox authorisation.  This authorisation will provide a controlled environment where innovative products can be tested prior to making an application for a licence and to being made subject to the regulatory requirements. This will likely attract more investors and professionals in the field, given that they may test their products without incurring any licence-related cost, as they will only be required to make an application to the BoM (or the FSC where applicable) for the relevant licence once the BoM (or the FSC) is satisfied of the successful experimentation of the fintech, regtech or any other relevant innovation-driven financial services.

These amendments also include a detailed explanation of the application, approval, monitoring and renewal process of a regulatory sandbox authorisation. Such a change is highly likely to contribute to the further development of the financial sector in Mauritius.

Launching of the FSC One Platform

With the aim of having Mauritius embark on a revolutionary era of digital progress for financial services, the FSC launched its digital platform, FSC One, on 12 August 2021. The online licensing platform will improve the ease of doing business in Mauritius, especially in terms of reduced delays associated with assessing investors and with the processing of applications for licences, including regulatory sandbox licences. Regulatory information is also accessible at a mere click and investors are empowered to self-manage information on the platform and enjoy a positive user experience.

Establishment of a Fintech Innovation Hub and Digital Lab

In line with the Government’s vision to establish Mauritius as a leading regional fintech hub, the legislation, namely, the BA and the FSA, has been amended. The BA has been amended to cater for the establishment of a fintech innovation hub and digital lab to foster innovation and provide an appropriate environment for the testing of products and services. 

The BoM

The BoM will provide supervisory oversight and may seek the collaboration of any financial institution or public or private sector agency for the establishment of the hub and lab. With the BoM’s openness for collaboration, there is the possibility of fintech operators working together with the BoM to deliver value-added services such as credit scoring and to support its central bank digital currency (CBDC). The fintech innovation hub and digital lab under the purview of the BOM will relate to banking-related financial services.

The FSC

It follows from the amendments brought about to the FSA that the FSC will also be responsible for the setting-up of a fintech innovation hub and a digital lab to foster and assist technological developments in the non-banking financial services sector. The FSC will be determining the requirements for entry into and operation within the hub and having a regulated platform will greatly assist in the development of fintech products and services, as well as encourage investors to establish themselves in Mauritius and current fintech entrepreneurs to continue their operations and boost their businesses in Mauritius. A regulated platform will certainly provide more clarity and will positively influence investors to establish themselves in Mauritius.

It is anticipated that the FSC will very soon come up with a more regulated platform, as some of the regulatory frameworks for innovation-driven financial services have already been set up by the FSC over recent years.

For instance:

  • guidance notes were issued by the FSC on the recognition of digital assets as an asset class for investment by sophisticated and expert investors;
  • Mauritius was a pioneer in offering a dedicated regulatory landscape for the safekeeping of digital assets through the Custodian Services (Digital Asset) licence and corresponding rules;
  • the regulatory approach in relation to security tokens offerings (STOs) was clarified by the FSC through the publication of a second guidance note;
  • a further guidance note on security token offerings and security token trading systems was issued to provide for a common set of standards for STOs and the licensing of security token trading systems in Mauritius; and
  • most recently, the FSC has issued a consultation paper in respect of a regulatory framework for the fintech service-provider (FSP) licence.  This licence aims at offering providers of technology services to financial institutions who wish to establish a commercial presence and operate in or from within Mauritius with a conducive supervisory regime.

Fintech Service-Provider Licence

With the gradual turning of financial institutions to regulatory technology to assist them in meeting their statutory obligations through outsourcing arrangements or in-house programmes developed and maintained by these providers, there is an increasing need for the FSC to ensure the supervision of such activities of regtech service-providers. A consultation paper regarding the regulatory framework for the FSP licence has already been issued by the FSC, which has adopted a collaborative approach, seeking the views of the industry, its stakeholders and the public on this consultation paper.

The FSP licence and its corresponding regulatory framework are aimed at the licensing and adequate supervision of the regtech service-providers. It is anticipated that the holder of an FSP licence will be required to ensure strict adherence to all applicable enactments, including the Financial Intelligence and Anti-Money Laundering Act. The approach taken by the FSC is to develop activity-specific guidelines for the FSP as industry expertise develops in this field of activity.

Proposed criteria for obtaining an FSP licence

An applicant for an FSP licence will be required to demonstrate, in its business plan, its ability to meet the requirements of the FSA through the operational and governance protocols set out by the FSC, as well as the fitness and propriety of its officers. The applicant’s objectives will have to be limited to the development, provision and maintenance of technology solutions or software, in or from within Mauritius and operations arising directly therefrom, on a commercial basis, for use in the carrying-out or delivery of financial services.

In terms of governance, an applicant must, inter alia, ensure that its governance structure provides effective oversight of its activities, has adequate internal controls in place, maintains its registered office and place of business in Mauritius and has a board of directors composed of no fewer than three directors, at least one of whom shall be resident in Mauritius (and in the case of an applicant holding a global business licence, at least two directors of sufficient calibre to exercise independence of mind and judgement who are resident in Mauritius).

Having appropriate systems and procedures in place to operate in an efficient manner and to comply with statutory reporting requirements is a requirement for obtaining this licence. Where an applicant proposes to outsource any functions to a third party, full disclosure must be made to the FSC. Further, an applicant will need to have in place an appropriate cybersecurity and cyber-resilience system in line with best industry standards. 

Once the FSP licence has been issued to an applicant, the holder is required to maintain adequate resources, infrastructure and staff with the appropriate competence, experience and proficiency to carry out the activity for which the licence is sought. Prior to starting its operations, the licensee will be required to have AML/CFT systems and controls in place. The holder of the FSP licence will also be required to carry out system testing, which must be conducted in line with the industry’s best standards and practices. There is also a requirement for the licensee to maintain its minimum stated unimpaired capital of not less than MUR500,000 or any such higher amount as the FSC may determine.

Final Note

From the issuance of the NPS Regulations by the BoM this year, to the launching of the MauCAS Code within a few months of the announcement made in this year’s Budget, it appears that Mauritius is quickly embarking on its digital transformation era. The amendments brought about to the legislation are testament to the government’s will to provide new ways to access banking services in Mauritius, while fostering support and development for a robust digital banking business in Mauritius. 

The establishment of a fintech innovation hub and digital lab in Mauritius is a stepping-stone in the fintech industry, a sector which is fast becoming a competitive market. It is anticipated that, with the BoM’s strong willingness to make digital banking a reality in Mauritius, the BOM will be issuing further guidelines in relation to the regulatory framework for existing and new payment service-providers, fintech and regtech players, with the firm intention of offering broader types of financial products and services in the near future.

Prior to the legislative amendments, investors’ confidence to establish themselves in Mauritius and current fintech entrepreneurs’ confidence to continue their operations in Mauritius were negatively impacted due to the lack of proper regulatory framework or guidelines, which led to uncertainty. 

However, the BoM and the FSC are laboriously working on improving the regulatory framework to nurture the profile of Mauritius as an attractive jurisdiction where financial institutions and fintech start-ups can continue to lead digital innovation in the financial sector through further regulatory reforms, global networking and investment.

In light of the extensive developments addressed in the foregoing, it is undeniable that the future of the banking and payment sector in Mauritius looks promising. 

Bowmans (Mauritius)

3rd Floor
The Dot
Avenue De Telfair
Moka
80829
Mauritius

+230 460 5959

info-ma@bowmanslaw.com www.bowmanslaw.com
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Law and Practice

Authors



Bowmans has offices in South Africa, Kenya, Zambia, Uganda and Mauritius, and affiliated offices in Ethiopia and Nigeria. The Mauritius office consists of 15 experienced local practitioners who are known for delivering bespoke and quality legal services. The firm specialises in banking and finance, corporate, private equity, securities and regulatory law, frequently advises on cross-border banking and financing transactions, mergers and acquisitions and provides transactional support to investment funds and holding companies. The firm’s clients consist of both local and international clients, including fund managers, private-equity houses, management companies, banks and financial institutions. Some key transactions of the firm include acting as Mauritius counsel to Zimborders and its promoters in connection with the equity and loan financing of the Beitbridge Border Post Modernisation project, assisting a consortium of private South African banks in the restructuring and financing of the Tsebo group, assisting the Mauritius Commercial Bank in drafting security documentation, as well as providing customary legality, validity and enforceability opinions, and assisting a leading commercial bank on reviewing the LIBOR terms in light of the LIBOR transition.

Trends and Development

Authors



Bowmans has offices in South Africa, Kenya, Zambia, Uganda and Mauritius, and affiliated offices in Ethiopia and Nigeria. The Mauritius office consists of 15 experienced local practitioners who are known for delivering bespoke and quality legal services. The firm specialises in banking and finance, corporate, private equity, securities and regulatory law, frequently advises on cross-border banking and financing transactions, mergers and acquisitions and provides transactional support to investment funds and holding companies. The firm’s clients consist of both local and international clients, including fund managers, private-equity houses, management companies, banks and financial institutions. Some key transactions of the firm include acting as Mauritius Counsel to Zimborders and its promoters in connection with the equity and loan financing of the Beitbridge Border Post Modernisation project, assisting a consortium of private South African banks in the restructuring and financing of the Tsebo group, assisting the Mauritius Commercial Bank in drafting security documentation, as well as providing customary legality, validity and enforceability opinions, and assisting a leading commercial bank on reviewing the LIBOR terms in light of the LIBOR transition.

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