International Arbitration 2023 Comparisons

International arbitration is now quite prevalent in the commercial landscape in Mauritius, especially in construction contracts, constitutions and shareholders’ agreements of global business companies and commercial contracts where the parties are not of the same nationality. The parties tend to choose international arbitration as the method of dispute resolution. In construction disputes, commercial contracts governed by Mauritian law and constitutions of global business companies, the parties also choose Mauritius as the seat of arbitration.

Construction disputes tend to be resolved by arbitration because the contracts are based on standard forms that include arbitration clauses. By law, the constitutions of global business (offshore) companies that include arbitration clauses have to provide for Mauritius as the seat of arbitration.

There may have been a slowdown in resorting to arbitration in commercial and construction contracts generally, where the parties have chosen to allow their counterparties’ financial position to improve in order to maintain a business relationship and not destroy value in lengthy and costly arbitrations. In some cases, they may even have accepted discounted payments instead of bearing arbitration costs.

Both the Mauritius International Arbitration Centre (MIAC) and the Mauritius Chamber of Commerce and Industry Arbitration Centre (MARC) are commonly used, as they both have modern hearing centres and rules adapted for international arbitration, and are supported by reputable appointing bodies (the PCA in the case of MIAC and the MARC Court in the case of MARC).

Matters to be decided under the International Arbitration Act 2008 (IAA) or the Convention for the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (the “2001 Act”) are heard by “Designated Judges”, who are judges of the Supreme Court appointed in that capacity by the Honourable Chief Justice.

International arbitration is governed by the IAA and the 2001 Act, which incorporates the New York Convention. The IAA is founded on the UNCITRAL Model law on International Commercial Arbitration (“the Model Law”) and contains a specific provision that, inter alia, highlights the need to promote uniformity with the Model law (Section 2B of the IAA). However, the IAA contains a few modifications, tailored to ensure better effectiveness of and support for international arbitration.

• Arbitration clause: once a party contends that the dispute is subject to an arbitration clause, the parties are referred to arbitration unless the opposing party “shows, on a prima facie basis, that there is a very strong probability that the arbitration agreement may be null and void, inoperative or incapable of being performed” (Section 5 of the IAA).
• Jurisdiction: under Section 20 of the IAA, the Supreme Court decides on the issue of jurisdiction when an arbitral tribunal has decided it has jurisdiction and also when it has decided it does not have jurisdiction to determine the dispute.
• Arbitration proceedings: under the IAA, the arbitral tribunal needs to give parties a “reasonable opportunity to present their case”, whereas the Model Law provides that parties should be given “full opportunity”.
• Awards: under the IAA, there are no distinctions between partial awards, interim awards and final interim awards – all awards are final and binding. In setting aside an award, the Supreme Court has the power to make consequential orders (Section 39A of the IAA).
• Grounds to set aside an award: under Section 39 of the IAA, two additional grounds to set aside an award have been added:
1. if the award was induced or affected by fraud or corruption; and
2. if there is a breach of natural justice during the arbitral proceedings or in connection with the making of the award by which the rights of any party have been or will be substantially prejudiced.

The Third Schedule to the IAA sets out the provisions of the Model Law to which the provisions of the IAA correspond, in order to assist international users in identifying where the Articles have been incorporated.

No significant changes have been made to the national law in the past year and there is no pending legislation relating to international arbitration in Mauritius.

Under the IAA, an arbitration agreement should be in writing and in the form of an arbitration clause in a contract or legal instrument or separate agreement in order to be enforceable.

The addition of the term “legal instrument” under the IAA includes investment treaty arbitrations arising under investment treaties. Furthermore, Article II of the New York Convention, as incorporated in the 2001 Act, provides that contracting states should recognise agreements in writing, which includes an “arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams”.

Under Section 4(2) of the IAA, an arbitration agreement is in writing if:

• its contents are recorded in any form, whether or not the arbitration agreement or the contract has been concluded orally, by conduct or by other means;
• it is concluded by an electronic communication and the information contained in it is accessible so as to be usable for subsequent reference; or
• it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

No definitive pronouncement has yet been given on subject matters that may not be referred to arbitration. Courts give a broad interpretation to arbitration agreements, in order to give effect to the intention of parties in entering arbitration agreements.

Referral to arbitration is governed by Section 5 of the IAA, which provides that (i) when an action is brought before any court and (ii) a party contends that the action is subject to an arbitration agreement, that court should “automatically” transfer the action to the Supreme Court if the party does so after submitting their first statement on the substance of the dispute. The Supreme Court will thereafter refer parties to arbitration, unless the other party shows “on a prima facie basis, that there is a very strong probability that the arbitration agreement may be null and void, inoperative or incapable of being performed”, in which case it will itself determine whether the arbitration agreement is indeed null, void, inoperative or incapable of being performed. If the Supreme Court so finds, the matter is transferred back to the court.

No court has yet been tasked with determining the law governing an arbitration agreement. Nevertheless, the correct approach would be to give effect to the intention of the parties.

In fact, under Section 32(1) of the IAA, which embodies Article 28 of the Model Law, the arbitral tribunal itself will decide the dispute in accordance with the rules of law chosen by the parties as applicable to the substance of the dispute. If there is any designation of the law or legal system of a State, it should be construed, unless otherwise expressly provided, as referring directly to the state’s substantive law and not to its conflict of laws rules (Section 32(2) of the IAA). If there is no such designation, the arbitral tribunal will apply the law determined by the conflict of law it considers applicable.

Parties can expressly authorise an arbitral tribunal to decide the dispute ex aequo et bono or as amiable compositeur, meaning that it will determine the dispute on the basis of notions of fairness and equity without being bound by the strict rules of law (Section 32(4) of the IAA). In any event, disputes are decided in accordance with the terms of the contract, and usages of trade applicable to the transaction are also considered by the arbitral tribunal (Section 32(5) of the IAA).

Courts are willing to enforce arbitration agreements, and this is reinforced by Section 5 of the IAA and Article II(3) of the New York Convention.

The principle of the separability of an arbitration agreement is entrenched in Section 20(2) of the IAA, which provides that an arbitration clause is an independent agreement of the other terms of the contracts in which it is contained, and therefore a decision of the arbitral tribunal that the contract is null and void will not invalidate the arbitration clause.

Section 12(2) of the IAA provides that parties are free to agree on a procedure for appointing the arbitral tribunal, subject to the provisions of Sections 12(4) and 12(5) of the IAA, which provide for situations where the Permanent Court of Arbitration (PCA) can intervene to break deadlocks within the selection process unless the agreement between the parties provides for other means for resolving such issues.

Under Section 12(4) of the IAA, the PCA’s intervention includes situations where:

• parties fail to act in accordance with the agreed procedure;
• parties or arbitrators are unable to reach an agreement; or
• a third party (including an arbitral institution) fails to perform any function entrusted to it under that procedure.

Any party may request the PCA to take any measures as necessary.

The PCA’s power to intervene is further extended by Section 12(5) of the IAA, which provides that any party may request the PCA to take any necessary measures in the event of any other failure to constitute the arbitral tribunal.

Where any party has requested the PCA to intervene under Section 12(4) or 12(5) of the IAA, Section 12(6) sets out the measures that may be taken by the PCA, including:

• giving directions as to the making of any necessary appointments;
• directing that the arbitral tribunal shall be constituted by such appointments (or any one or more of them) as have been made;
• revoking any appointment already made;
• appointing or reappointing any or all of the arbitrators; and
• designating any arbitrator as the presiding arbitrator.

In appointing an arbitrator, the PCA shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. In the case of a sole or third or presiding arbitrator, the PCA shall also take into account the advisability of appointing an arbitrator of a nationality other than those of the parties (Section 12(7) of the IAA).

The IAA does not provide for the court’s power to intervene in the selection of arbitrators in international arbitrations seated in Mauritius.

In domestic arbitrations, a judge in chambers may appoint an arbitrator or the tribunal where the parties cannot agree on the identity of arbitrators or an appointment procedure.

Parties can either challenge arbitrators under Sections 13 and 14 of the IAA, or they can terminate the arbitrators’ mandates under Section 15 of the IAA for failure or inability to act.

The appointment of an arbitrator may be challenged where the arbitrator has failed to disclose any circumstance giving rise to justifiable doubts as to their impartiality or independence, or where the arbitrator is seen to lack such qualifications as agreed on by the parties (Section 13 of the IAA). Under Section 13(4) of the IAA, arbitrators can only be challenged by a party who appointed them for reasons of which that party became aware after the appointment was made.

Parties are free to agree on a procedure for challenging an arbitrator (Section 14(1) of the IAA). However, in the absence of an agreement, a party who intends to challenge an arbitrator shall send a written statement of the reasons for the challenge to the arbitral tribunal, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance giving rise to justifiable doubts as to the arbitrator’s impartiality or independence. Unless the challenged arbitrator withdraws from their office or the other party agrees to the challenge, it shall be up to the arbitral tribunal to decide on the challenge (Section 14(2) of the IAA).

Where a challenge under any procedure as agreed by the parties or as per the above does not succeed, the challenging party may then, within 30 days of receiving notice of the decision rejecting the challenge, request the PCA to decide on the challenge (Section 14(3) of the IAA).

While the request made to the PCA is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make one or more awards (Section 14(4) of the IAA).

With regards to termination, Section 15 of the IAA provides that if arbitrators become de jure or de facto unable to perform their functions, or fail to act without undue delay, their mandate shall terminate on their withdrawal from office, or upon agreement of the parties. Parties may request the PCA to resolve any remaining controversy on any of the grounds for termination.

An arbitrator’s duty to disclose any circumstance likely to give rise to justifiable doubts as to their impartiality or independence arises at the time where they are approached in connection with their possible appointment as an arbitrator, and is maintained from the time of their appointment and throughout the arbitral proceedings (Section 13 of the IAA).

There has not yet been any pronouncement on the subject matters that are excluded from arbitration. Generally, the making of winding-up orders and disputes, actions relating to the status of a person, taxation and the exercise of public law powers are understood to be outside the purview of consensual arbitration. It is worth noting that an arbitration agreement is not discharged by the death, bankruptcy or winding-up of a party, as it can still be enforced against the representative(s) of that party (Section 7 of the IAA).

An arbitral tribunal can rule on a party’s challenge to the tribunal’s own jurisdiction, and the principle of competence- competence is catered for under Section 20(1) of the IAA.

A party can only challenge the jurisdiction of an arbitral tribunal up to the submission of the statement of defence, and it would not be precluded from doing so even if it participated in the appointment of the arbitrator (Section 20(3) of the IAA). The arbitral tribunal can rule on its jurisdiction as a preliminary question or in an award on the merits of the dispute. If jurisdiction has been determined by the arbitral tribunal as a preliminary question, Section 20(7) of the IAA states that any party may request the Supreme Court to decide the matter of jurisdiction within 30 days of receiving notice of that ruling. Whilst such request is pending before the Supreme Court, the arbitral proceeding may continue, and one or more awards can be made by the tribunal.

Section 20 (7) of the IAA modifies the Model Law in a material aspect as it allows the Supreme Court to review rulings of the arbitral tribunal when it has ruled it has jurisdiction, and also where it has ruled it does not have jurisdiction. This was confirmed in the recent ruling of Digame Investment Company Limited & Ors v Apex Fund and Corporate Services (Mauritius) Ltd 2023 SCJ 273.

The Supreme Court will only address issues of jurisdiction after the arbitral tribunal has ruled on its competence (whether positive or negative) as a preliminary question and not in the final award. Section 20(7) of the IAA allows a party to request the Supreme Court to decide the matter, within 30 days of receiving notice of that ruling. Nevertheless, while such a request is pending, the arbitral proceeding is not stayed, and the tribunal can make one or more awards.

The standard of judicial review for jurisdiction is “de novo”, which means that the Supreme Court will make its own determination of the issue of jurisdiction by way of a full rehearing. The notion is that, as a matter of logic, the arbitral tribunal cannot itself finally resolve any matter going to its own jurisdiction and “thereby pull itself by its own bootstrap” (The Mauritian International Arbitration Act 2008: Text and Travaux Préparatoires paragraph 77, page 203).

Under Section 5 of the IAA, if a party contends that an action before a court is subject to an arbitration agreement, the court will automatically transfer the action to the Supreme Court, which in turn shall refer the matter to arbitration unless a party shows, 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 referral under Section 5 of the IAA therefore caters for circumstances where a party is acting in breach of an arbitration agreement. The high threshold imposed on the party opposing a referral to arbitration is clear evidence of a reluctance to allow parties to act in breach of an arbitration agreement.

An arbitral tribunal will not have jurisdiction over individuals or entities that are neither party to an arbitration agreement nor signatories to the contract containing the arbitration agreement. However, third parties may be affected in the following ways.

• If the parties expressly agree, under the arbitration agreement, that the supplementary provisions for International Arbitrations under Schedule 1 to the IAA will apply (“Supplementary Provisions”), paragraph 4 of the Supplementary Provisions allows a party to the arbitration to make an application to the Supreme Court to determine that one or more persons be joined in the arbitration as a party, provided that such third person and the applicant party have consented thereto in writing. This would apply irrespective of whether the third party is foreign or domestic.
• Unless agreed otherwise by parties, given that an arbitration agreement is not discharged by the death, bankruptcy or winding-up of a party, it can be enforced by or against representatives of that party (Section 7 of the IAA), although the representative was not a party to the arbitration agreement per se.
• If the “corporate veil” is lifted.
• If an entity or individual has conducted itself in a manner that shows it is intervening in a contract and agrees to be bound by its terms, that person can be considered to have become a party to the contract and will therefore be subject to the arbitration agreement.

Section 21 of the IAA provides that, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures in the form of an award or in another form, by which it orders a party to do the following at any time before making the award by which the dispute is finally decided:

• maintain or restore the status quo pending determination of the dispute;
• take action that would prevent the arbitral process itself, or refrain from taking action that is likely to cause current or imminent harm or prejudice to such process;
• 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; or
• provide security for costs.

The arbitral tribunal may modify, suspend or terminate an interim measure it has granted upon the application of any party or, in exceptional circumstances and on prior notice to the parties, on the arbitral tribunal's own initiative (Section 21(5) of the IAA).

Generally, court intervention is permitted only in certain circumstances, and in respect of international arbitrations seated in Mauritius. However, insofar as interim relief is concerned, the grant or recognition of interim relief is not limited to international arbitrations seated in Mauritius (Section 3A of the IAA).

Section 6 of the IAA provides that a party can request an interim measure of protection in support of arbitration from the Supreme Court or a court in a foreign state, before or during arbitral proceedings. An application to the Supreme Court shall be made and determined in accordance with Section 23 of the IAA, which provides for the powers of the Supreme Court to issue interim measures.

Section 22 of the IAA deals with the recognition by the Supreme Court of interim remedies granted by an arbitral tribunal.

Section 22(1) of the IAA provides that an interim measure granted by an arbitral tribunal shall be recognised as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the Supreme Court, irrespective of the country in which it was issued.

The party who is seeking or has obtained recognition or enforcement of an interim measure is required to promptly inform the Supreme Court of any termination, suspension or modification of that measure (Section 22(2) of the IAA).

Upon an application for the recognition or enforcement of an interim measure, and if it considers it proper, the Supreme Court may order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security, or where such a decision is necessary to protect the rights of third parties (Section 22(3) of the IAA).

Section 22(4)(a)(i) of the IAA provides that the recognition or enforcement of an interim measure may be refused at the request of the party against whom it is invoked where the court is satisfied that one of the grounds for exclusive recourse against an award under Section 39(2) (a) applies – namely, that the party making the application has furnished proof that:

• it was under some incapacity or the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under Mauritius law;
• it was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present its case;
• the award deals with a dispute not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration; or
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the IAA.

Recognition or enforcement may also be refused at the request of the party against whom it is invoked where the court is satisfied that the arbitral tribunal's decision with respect to the provision of security in connection with the measure issued by the arbitral tribunal has not been complied with (Section 22(4)(a)(ii) of the IAA), or where the interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the State in which the arbitration takes place or under the law under which that interim measure was granted (Section 22(4)(a)(iii) of the IAA).

Furthermore, under Section 22(4)(b) of the IAA, recognition or enforcement of an interim measure may be refused where the court finds that the measure is incompatible with the powers conferred on the court, unless the court decides to reformulate the measure to the extent necessary to adapt it to its own power and procedures for the purposes of enforcing that measure and without modifying its substance, or unless any of the following grounds set out in Section 39(2)(b) apply to the recognition and enforcement of the measure:

• the subject matter of the dispute is not capable of settlement by arbitration under Mauritius law;
• the award is in conflict with the public policy of Mauritius;
• the making of the award was induced or affected by fraud or corruption; or
• a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the award by which the rights of any party have been or will be substantially prejudiced.

Where the tribunal is unable to exercise its powers in granting or recognising an interim measure as provided for under Section 21 of the IAA, Section 23 sets out the powers of the Supreme Court to issue interim measures. The tribunal shall have the same power to issue an interim measure in relation to arbitration proceedings as it has in relation to proceedings in court, whether the juridical seat of the arbitration is in Mauritius or not, and whether that power is exercised by a judge in chambers, or otherwise. In so doing, the court shall have regard to the specific features of international arbitration.

However, the court shall exercise its power in such a manner as to support, and not to disrupt, the existing or contemplated proceedings (Section 23(2A) of the IAA).

Where the case is one of urgency, the court may, on the ex parte application of a party or proposed party to the arbitral proceedings, make such order as it thinks necessary (Section 23(3) of the IAA).

Where the case is not one of urgency, the court shall act only on the application of a party to the arbitral proceedings made on notice to the other parties and to the arbitral tribunal, and with the permission of the arbitral tribunal or the agreement in writing of the other parties (Section 23(4) of the IAA).

Under Section 23(5) of the IAA, other than in urgent circumstances, the Supreme Court can only order interim measures if the applicant has obtained the permission of the arbitral tribunal or written agreement of the other parties. In addition, the Supreme Court can act only if, and to the extent that, the arbitral tribunal and any other arbitral or other institution or person vested by the parties with powers regarding interim measures has no power or is unable for the time being to act effectively. Where the court so orders, an order made by it shall cease to have effect on the order of the arbitral tribunal or of any such arbitral or other institution or person having power to act in relation to the subject matter of the order (Section 23(6) of the IAA).

As can be seen from the above, the powers of the Supreme Court to issue interim relief are delimited by Section 23 of the IAA, so as to be in harmony with the arbitral tribunal.

Parties can be entitled to apply for an order for security for costs if the parties have agreed that the arbitration agreement shall be governed by specific rules that provide for such. Under the IAA, the arbitral tribunal can order a party to provide a means of preserving assets out of which a subsequent award may be satisfied (Section 21(1)(c) of the IAA) or to provide security for costs (Section 21(1)(e) of the IAA).

Furthermore, under Section 39(6) of the IAA, where an application is made to set aside an award, the court may order that any money made payable by the award shall be brought into court or otherwise secured pending the determination of the application.

It is also provided under Section 28 of the Supreme Court (International Arbitration Claims) Rules 2013 (the “2013 Rules”) that a “defendant to any arbitration claim may apply for security for his costs of the proceedings” (Rule 28(1)). Such an application is to be supported by written evidence, either by way of affidavit or in the form of one or more witness statements accompanied by any supporting documents (Rule 28(2)). Where the court decides to make an order for security for costs, it shall determine the amount of security, direct the manner and time in which the security shall be given, and make an order specifying the consequences of a breach of the order for security for costs.

The importance of complying with the procedure of the 2013 Rules was highlighted in the case of Segatto Paolo Italo v Geosond Holding Ltd 2015 SCJ 400, in which a motion for security for costs not made in accordance with the 2013 Rules was not entertained.

Subject to the IAA, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting arbitral proceedings.

As the parties have the liberty to agree on the procedure to be followed by the arbitral tribunal under the IAA framework, the procedural steps will depend on the chosen law and/or rule.

Under Section 24(1) of the IAA, every arbitral tribunal has the duty to:

• “treat parties with equality and give them a reasonable opportunity of presenting their case”; and
• “adopt procedures which are suitable to the circumstances to the case, avoiding unnecessary delay and expenses, so as to provide a fair and efficient means for the resolution of the dispute between the parties”.

Legal representatives include barristers at law, attorneys at law and notaries, and are subject to the Law Practitioners Act 2008. Under Section 31 of the IAA, unless otherwise agreed by the parties, a party to an arbitral proceeding can be “represented in the arbitral proceedings by a law practitioner or other person chosen who need not to be qualified to practise law in Mauritius or in any other jurisdiction”.

Subject to the IAA, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. Failing such agreement, the arbitral tribunal may, subject to the IAA, conduct the arbitration in such manner as it considers appropriate, and determine all the procedural and evidential matters (Sections 24(2) and 24(3) of the IAA).

In the absence of an agreement between the parties, the arbitral tribunal can determine all procedural and evidential matters (Section 24(3)(d) of the IAA).

In the absence of an express agreement on the collection and submission of evidence at the pleading stage and at the hearing, an arbitrator can compel a party to disclose documents under Section 24(3)(d) of the IAA.

Whilst the above shall only apply to parties to the arbitration, Section 29 of the IAA further provides that the arbitral tribunal can request the Supreme Court to provide assistance through the issue of relevant summons to non-parties to give evidence or produce documents or other material, or to order any witness to submit to examination on oath before the arbitral tribunal or before an officer of the court or any person for the use of the arbitral tribunal.

A strict application of the IAA does not render an arbitration confidential, but the parties can (and typically do) agree to the confidentiality of arbitration proceedings and their constituent parts either by express agreement or in the rules they have chosen to govern the arbitration.

Section 42(1B)(a) of the IAA provides that, upon application by a party, international arbitration-related cases before the Supreme Court can be heard in private, where:

• all the parties agree; or
• the court considers that publicity would prejudice the interests of justice, taking into account the specific features of international arbitration, including any expectation of confidentiality that the parties may have had when concluding their arbitration agreement, or any need to protect confidential information.

Only the announcement of the court's decision would then be public.

Section 42(1C) of the IAA further provides that the Supreme Court can prohibit the publication of all information relating to the court proceedings, upon the application of one or all of the parties and where the interests of justice so require.

In addition, Rule 12 of the 2013 Rules provides that any judgment of the Supreme Court can be edited before being published and that any evidence, court records and documents must be kept in the manner in which the Supreme Court directs.

Sections 34(1) and 34(2) of the IAA provide that, unless otherwise agreed by the parties, the arbitral tribunal can make more than one award at different points in time in the arbitration proceedings on a specific issue, claims or counterclaims submitted to it for decision. The key legal requirements of an award include the following (Section 36 of the IAA):

• it must be in writing and signed by the arbitrator or more than one arbitrator, or by the majority of arbitrators or the presiding arbitrator, provided that the reason for omitting any signature is stated;
• it must state reasons on which it is based, unless the parties have agreed otherwise;
• it shall state the date on which it was made and shall always be deemed to have been made at the juridical seat of the arbitration; and
• after an award is made, a signed copy must be delivered to each party.

Unless otherwise agreed by the parties, the arbitral tribunal:

• may make a declaration as to any matter to be determined in the proceedings;
• may order the payment of a sum of money in any currency;
• has the same powers as a court in Mauritius:
1. to order a party to do or to refrain from doing anything;
2. to order specific performance of a contract; and
3. to order the rectification, setting aside or cancellation of a deed or other document; and
• may award simple or compound interest for such period and at such rate as it considers meets the justice of the case.

It is worth noting that enactments relating to limitation and prescription in Mauritius are not applicable to arbitration proceedings, even if the judicial seat is Mauritius. This is reinforced by Section 4B of the 2001 Act, which provides that, notwithstanding any other enactment, the limitation period under the laws of Mauritius is not applicable to the recognition and enforcement of an arbitration award under the New York Convention.

This was confirmed in the recent ruling of Pueblo Holdings Limited v Emirates Trading Agency LLC 2023 SCJ 223, in which the court held that the limitation period prescribed for default judgments under the Mauritian Civil Code of Procedure did not apply to arbitral awards under the IAA and the 2001 Act.

The award of costs depends on either the arbitration agreement of the parties or the rules applicable to the arbitration. Under the IAA, costs include “the costs of the PCA in discharging its functions… the fees and expenses of the arbitral tribunal, the legal and other expenses of parties, and any other expenses related to the arbitration”.

Section 33 (2) of the IAA provides that, unless agreed otherwise by the parties, the cost of arbitration shall be fixed and allocated by the arbitral tribunal in an award, applying the following general principles:

• costs should follow the event, except where it appears to the tribunal that this rule should not apply or not apply fully; and
• the successful party should recover a “reasonable amount reflecting the actual costs of the arbitration and not only a nominal amount”, and if the award does not allocate costs, “each party shall be responsible for their own costs and shall bear in equal share the costs” of the arbitration, fees and expenses of the arbitral tribunal and any other related expenses.

The conduct of the parties is one of the factors considered in awarding costs.

Whilst there is no general right of appeal against an award under the IAA, the following applies:

• the First Schedule to the IAA provides for a right of appeal on any question of Mauritian law – parties can opt into the First Schedule, but its application is mandatory in arbitrations on the constitution of global business companies; and
• otherwise, Section 39 of the IAA provides an exclusive recourse on limited grounds for the setting aside of an award made in an arbitration seated in Mauritius.

Under Section 39(2) of the IAA, an arbitral award may be set aside by the Supreme Court only where:

• the party making the application furnishes proof that:
1. a party to the arbitration agreement was under some incapacity or the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under Mauritius law;
2. it was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present its case;
3. the award deals with a dispute not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration; or
4. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the IAA; or
• the Court finds that:
1. the subject matter of the dispute is not capable of settlement by arbitration under Mauritius law;
2. the award is in conflict with the public policy of Mauritius;
3. the making of the award was induced or affected by fraud or corruption; or
4. a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the award by which the rights of any party have been or will be substantially prejudiced.

An appeal against any final decision of three Designated Judges of the Supreme Court can only be made to the Judicial Committee of the Privy Council (Section 44 of the IAA).

Under Section 39(4) of the IAA, an application for setting aside may not be made more than three months after the date on which the party making that application has received the award or, if a request has been made under Section 38 (for correction or interpretation of an award or for an additional award), from the date on which that request has been disposed of by the arbitral tribunal.

When asked to set aside an award, the court may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside (Section 39(5) of the IAA), and may order that any money made payable by the award shall be brought into court or otherwise secured pending the determination of the application (Section 39(6) of the IAA).

It is for the parties to select which if any of the provisions of the First Schedule they wish to opt into. In order to avoid any controversy as to whether parties have opted into the Schedule or any specific provision thereof, the IAA requires that the parties expressly refer to the First Schedule of the IAA or to the specific provision in question in their agreement. As an exception, the provisions of the First Schedule apply mandatorily to arbitrations under the constitution of a Global Business Licence company.

The “opt in” options are:

• the determination of a preliminary point of Mauritius law by the court;
• appeals on questions of Mauritius law;
• the consolidation of arbitral proceedings; and
• joinder.

Leave to appeal shall not be granted by the court unless it considers that, having regard to all circumstances, the determination of the question of Mauritius law concerned could substantially affect the rights of one or more parties (Paragraph 2(2), First Schedule of the IAA).

The IAA does not expressly authorise parties to waive any rights of challenge to an award by agreement before the dispute arises. The procedure and grounds for setting aside an award are mandatory provisions of the law.

Under Section 39 of the IAA (or an application for the recognition and enforcement of a foreign arbitral award under the 2001 Act), no review on the merits of the dispute is allowed before the courts, so that the arbitral award is truly final on the merits of the dispute, even if an arbitral tribunal may have committed errors of fact and/or errors of law. Where the First Schedule to the IAA applies, the court may overturn the arbitral tribunal’s conclusions on a point of Mauritian law.

Therefore, except in relation to interim measures granted by the arbitral tribunal in the form of an award pursuant to Section 21 of the IAA, an award shall be final and binding on the arbitral tribunal with respect to the matters determined therein (Section 36(8) of the IAA).

Mauritius is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (without reservation), which has been given force of law in the Schedule to the 2001 Act. The New York Convention is applicable irrespective of reciprocity (Section 3A of the 2001 Act), allowing the enforcement of foreign arbitral awards rendered even in non-signatory states.

As well as foreign arbitral awards, the IAA provides that the 2001 Act (which contains the New York Convention) “shall” apply to the recognition and enforcement of awards rendered under the IAA – ie, awards made in international arbitrations whose juridical seat is Mauritius (Section 40 of the IAA).

Otherwise, applications for the recognition and enforcement of arbitral awards applications are governed by Rule 15 of the 2013 Rules, as follows.

• An application is made by way of an arbitration claim and is initially made without notice to any respondent.
• Written evidence in support of the enforcement claim should include the documents as set out in Article IV of the New York Convention (the duly authenticated original award or a duly certified copy and the original or a duly certified copy of the agreement).

• The application should state the name and the usual or last known place of residence or business of the applicant or, if a body corporate, the registered address of the person against whom it wishes to enforce the award.
• The application should state whether the award has been complied with or the extent to which it has not been complied with.
• The application should include a draft order.
• The application is dealt with by the Chief Justice and, if the above requirements have been complied with, a provisional order is granted recognising the award and authorising the enforcement of the award in the same manner. The Chief Justice can specify the parties on which the order should be served.
• Within 14 days after receipt of the provisional order, the applicant has to cause the enforcement claim and provisional order to be served on the respondent or any such parties as ordered by the Chief Justice. It is worth noting that an application can also be made to extend the delay to allow service to be effected outside the jurisdiction (Rule 8 of the 2013 Rules).

• The respondent may apply to set aside the provisional order and enforcement claim within 14 days of receipt or within such period as specified by the order if it has been served outside the jurisdiction. The grounds on which the respondent can rely to set aside the provisional order are limited to those contained in Article V of the New York Convention.
• The award only becomes enforceable once the period given to the respondent to set aside the provisional order has lapsed or, if the respondent has made an application to set aside the provisional order, when the respondent’s application has been finally dealt with.

If an award has been set aside by the court in the seat of the arbitration, the Supreme Court still has discretion to enforce it in Mauritius. Article V(1)(e) of the New York Convention provides that the court may refuse recognition and enforcement if the respondent furnishes proof that the award:

• has not yet become binding; or
• has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.

When an award is subject to ongoing set aside proceedings, the court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to furnish suitable security (Article VI of the New York Convention).

There is currently no specific law on state immunity at the enforcement stage or under the IAA. This question therefore remains subject to customary international law.

On the whole, the Mauritian courts have taken a pro-enforcement stance in the recognition and enforcement of arbitral awards. The courts would refuse to engage anew in the merits of an award unless the arbitration was seated in Mauritius and the parties had expressly agreed to the Supreme Court of Mauritius having the power to hear appeals on Mauritian law.

If the international arbitration is seated in Mauritius, the Supreme Court of Mauritius has the power to set aside the award under Section 39 of the IAA, based on grounds similar to those found in Article V of the New York Convention. If the international arbitration is seated outside Mauritius, the Supreme Court of Mauritius may refuse recognition and enforcement under Article V of the New York Convention. Some illustrations on the approach taken are set out below.

Public Policy

Betamax Ltd v State Trading Corporation 2021 UKPC 14 concerned an application to set aside an award on the ground that the arbitration agreement was void and the award contravened public policy. The Supreme Court held that an award which gave effect to an illegal contract was contrary to public policy and should be set aside. The Privy Council overturned this decision and held that the Court was debarred from determining the legality of the contract under which the dispute arose when the arbitral tribunal had addressed the issue of the illegality of the underlying contract. The award was therefore final and binding. Furthermore, the Supreme Court of Mauritius, whose judgment had been overturned, had previously confirmed that the public policy to be looked at was international public policy rather than the domestic public policy of Mauritius.

Unable to Present its Case

Essar Steel Limited v ArcelorMittal USA LLC 2021 SCJ 248

Essar Steel Minnesota Limited (ESML) and ArcelorMittal USA LLC (AMUSA) entered into a contract for the supply of iron pellets, which was then amended to include a holding company, Essar Steel Limited (ESL) as party. Following a dispute, AMUSA terminated the contract and ESML entered into bankruptcy proceedings. Pursuant to an arbitration clause, AMUSA referred its dispute to arbitration and, although ESL had filed an answer and counterclaim, it did not participate in the evidential hearings. When an award was delivered in favour of AMUSA and a provisional order was granted to recognise and enforce the award, ESL sought to set aside the award on the ground that it had been unable to present its case as, inter alia, it had no access to ESML’s documents. The court was not persuaded and held that ESL had a substantial burden to show that there was “serious, grave denial of procedural fairness” and that a respondent has forfeited its opportunity if it has been notified and refused to participate.

Breach of Natural Justice and Public Policy

Peepul Capital Fund II LLC And Anor v Vsoft Holdings LLC 2018 PRV 84

Vsoft Holdings LLC appealed against the Supreme Court’s decision to set aside its application under Section 39 of the IAA to set an award aside on grounds that it was in breach of natural justice (Section 39(2)(b((iv) of the IAA) and public policy (Section 39(2)(b)(ii) of the IAA). Vsoft sought to argue that its counsel had not abandoned its case. However, the agreed transcript of the arbitral proceedings, placed before both the Supreme Court and the Privy Council, confirmed that there was no breach of natural justice as:

• the counsel had been afforded an adjournment to seek proper instructions;
• it was clear that Vsoft had abandoned its case and conceded the claimants’ claims; and
• the arbitrator was right to only determine the quantum.

Furthermore, Vsoft’s case was that the award was in contravention of public policy as it afforded the successful party (the investors) a form of double recovery as the award did not contain a provision that they could not continue to enjoy the benefit of being equity shareholders once they were paid. The Privy Council found that this was a “hopeless submission”, that the arbitrator had no obligation to include such condition and that, in any event, Vsoft had not taken any administrative steps to remove the investors from the share register.

Breach of Natural Justice as the Wrong Arbitral Rules had been Applied

Flashbird Ltd v Compagnie de Sécurité Privée et Industrielle SARL (Respondent) (Mauritius) [2021] UKPC 32

This was an appeal against the Supreme Court’s decision to dismiss an application to set aside an arbitral award on the ground that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. Under the arbitration clause, the following applied:

• the applicable law was that of the Mauritius Chamber of Commerce and Industry and the Mediation Centre (MARC);
• the applicable rules were the Rules of Arbitration of the International Court of the International Chambers of Commerce (the ICC Rules); and
• the arbitrators were to be appointed in accordance with the ICC Rules.

The issue to be determined was whether the MARC or the ICC had jurisdiction to arbitrate the dispute. Flashbird contended that the arbitration clause was a “hybrid arbitration” that allowed the arbitrator to follow the ICC Rules and not the MARC Rules, which was agreed by the parties. The Privy Council held that, for an award to be set aside on this ground, the applicant must show “a material breach of the arbitration agreement that was not an inconsequential irregularity”. It was held that Flashbird suffered no substantial prejudice of the alleged breach of the ICC Rules and that, in any event, minor and technical errors will not necessarily lead to an award being set aside.

There is no procedure in Mauritius that provides for class action arbitration or group arbitration. However, different persons may jointly enter a case based on a common cause of action. Alternatively, those parties may enter separate cases and retain their respective attorneys and counsel to appear for them. When the respective cases are in shape for hearing, the court may allow them to be consolidated and heard together, in accordance with paragraph 3 of the First Schedule to the IAA.

There are no specific codes of ethics and/or codes of conduct applicable to arbitrators, but the respective Mauritian Codes of Ethics for Barristers and Attorneys at Law are applicable.

Mauritian laws on arbitration do not provide for any rules or restrictions on third-party funders. To the extent that there is no legislation prohibiting third-party funding, it may be considered to be permitted in Mauritius.

Although not commonly used in Mauritius, third-party litigation is increasingly being considered, especially by parties to complex arbitration matters and enforcement proceedings before the Supreme Court of Mauritius where the value of the claim involved is significant. In those cases, litigants have recourse to funders established internationally. To date, however, there is no public information available on cases in which parties have resorted to third-party litigation funding.

An arbitral tribunal seated in Mauritius and a court can consolidate separate arbitral proceedings if all parties agree. Under the IAA, parties can expressly opt for the Supplementary Provisions set out in Schedule 1 of the IAA to be applied to their arbitration. If they have done so, paragraph 3 of the Supplementary Provisions allows an arbitral tribunal to consolidate separate arbitral proceedings upon the application of at least one party.

The arbitral tribunal will do so on such terms it thinks just, and can also order that one of those arbitral proceedings be stayed (paragraph 3 (1) of the Supplementary Provisions of the IAA).

If the arbitral tribunal refuses or fails to make such order, the Supreme Court may make such order in lieu of the arbitral tribunal, upon the application of a party to any of the proceedings.

A third party, whether domestic or foreign, will not be bound by an arbitration agreement or award if it was not or did not become a party to it.