Introduction

Mauritius enjoys a longstanding reputation as a safe and stable offshore jurisdiction with a mature and sophisticated judiciary, which comprises a specialist commercial division and a bench of specialist “Designated Judges” who hear all court applications related to international arbitration and the enforcement of foreign arbitral awards under the New York Convention. The Judicial Committee of the Privy Council is the final appellate court of Mauritius and this provides a degree of assurance to both local and international users that their most complex and difficult appeals will be heard by eminently qualified jurists.

The attractiveness of Mauritius as a financial services centre and offshore jurisdiction of international repute not only depends on the administrative ease of doing business but also on the user friendliness of the legal system and a judicial system which supports the business community. As an increasingly mature financial services centre, in recent years Mauritius has seen a steady increase in cross-border disputes where it has become an important jurisdiction for asset recovery and the enforcement of foreign judgments and arbitral awards. A survey of the decisions over that last 20 years shows that the Mauritian courts have demonstrated a pro-enforcement approach to the recognition and enforcement of foreign judgments and arbitral awards. Whilst the legal regimes for the enforcement of foreign judgments and arbitral awards are entirely distinct, a common theme emerges: the cases show that the grounds for refusing recognition and enforcement are limited and the courts have given short shrift to procedural arguments invoked by recalcitrant debtors to frustrate the recognition and enforcement of judgments and arbitral awards.

The Mauritian courts also possess powerful tools in their armoury to lend their supportive powers to the preservation of assets to ensure that the enforcement of judgments is not rendered nugatory by defaulting debtors. The courts have the power to grant freezing injunctive relief (including without notice worldwide freezing injunctions) and Norwich Pharmacal orders to prevent potential judgment debtors from dissipating assets.

Mauritian law is a hybrid system of law, which draws its inspiration from both France and England, by reason of its colonial heritage. The practice of Mauritian law, both procedurally and substantively, is markedly comparative in nature and it is still largely influenced by concepts of French and English law which have been retained into Mauritian law. It is not uncommon to find references to decisions of the French Cour de cassation and French doctrinal writings alongside passages from decisions of the UK Supreme Court (formerly the House of Lords) and Dicey Morris and Collins (the leading English law textbook on private international law) in Mauritian judgments on the recognition and enforcement of judgments.

Recognition (Exequatur) Integrates the Foreign Judgment Into the Mauritian Legal Order

As the operation of legal systems does not have extraterritorial effect, foreign judgments have no direct operation in Mauritius. Foreign judgments are given legal effect within the Mauritian legal order through their recognition by the Supreme Court of Mauritius. As with many civil law jurisdictions, this process is termed an exequatur proceeding.

In Weston International Asset Recovery v Chilton [2018] SCJ 37, the Supreme Court refused to recognise a judgment debt arising under a judgment of the Eastern Caribbean Supreme Court of the British Virgin Islands (the “BVI Court”) in Mauritius where the judgment of the BVI Court had not first been recognised by the Mauritian courts. The Supreme Court observed that a judgment of a foreign court does not produce legal rights in Mauritius unless and until it has been “declared executory by the local courts following an action en exequatur”. This decision serves as an important reminder to parties that it is key to seek the recognition of a foreign judgment in Mauritius before further execution measures (including debt recovery and insolvency proceedings) are commenced.

The Applicable Legal Rules for Recognition and Enforcement of Foreign Judgments

Applications for recognition and enforcement of foreign judgments are made before the Supreme Court of Mauritius. The application is made by the filing of a motion paper which sets out the relief sought (ie, the exequatur of the foreign judgment) supported by affidavit evidence. The judgment debtor (the respondent party) is afforded an opportunity to file an affidavit in response to set out reasons (if any) as to why the foreign judgment should not be recognised and enforced. Hearings, which are reserved for legal submissions, usually last no longer than one day.

The courts derive their power to grant exequatur of foreign judgments from Article 546 of the Code de procédure civile (CPC) which is borrowed from the old French Code de procédure civile (see Ungar v Burton [1977] MR 156). Despite the deceptive simplicity of Article 546 of the CPC, the courts have turned to French doctrine to enumerate a core set of grounds which must be met for a foreign judgment to be recognised and enforced in Mauritius. Those grounds are commonly known as the D’Arifat v Lesueur principles (from the leading case of D’Arifat v Lesueur [1949] MR 191 at 196) and are as follows:

• the judgment must still be valid and be capable of execution in the country where it was delivered;
• it must not be contrary to any principle affecting public order (the authors submit that the proper terminology ought to be public policy);
• the respondent must have been regularly summoned to attend the proceedings (ie, the proceedings in the court which granted the judgment); and
• the court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.

No additional grounds are imposed for the recognition and enforcement of foreign judgments. Recognition and enforcement under Article 546 of the CPC is not prescribed by any limitation period. As a note of caution, following the judgment in Bayer Healthcare v Suvaman Trading [2015] SCJ 356, parties seeking the recognition and enforcement of a foreign judgment in Mauritius would be well advised to ensure that their supporting affidavit evidence contains evidence of foreign law (treated as fact in Mauritius) to explain that the foreign judgment is still valid and capable of execution in the country in which it was delivered. It is recommended that a lawyer qualified to practise law in the country where the judgment was delivered provides an affidavit confirming the validity of the foreign judgment.

Indeed, a survey of the cases on the exequatur of foreign judgment shows that Article 546 of the CPC is the preferred basis for seeking recognition and enforcement of foreign judgments.

Money judgments delivered by the superior courts of the United Kingdom in civil proceedings, may be enforced under the Reciprocal Enforcement of Judgments Act 1923 (the “1923 Act”). Section 3(2) of the 1923 Act provides that no judgment will be registered where:

• the original court acted without jurisdiction;
• the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;
• the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that they were ordinarily resident or was carrying on business within the jurisdiction of that court or agree to submit to the jurisdiction of that court;
• the judgment was obtained by fraud;
• the judgment debtor satisfied the Supreme Court either that an appeal is pending, or that they are entitled and intend to appeal, against the judgment; or
• the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the Supreme Court.

Recognition and enforcement under the 1923 Act must be made within 12 months after the date of the judgment. The Supreme Court has the discretionary power to extend that time period where it is just and convenient to do so.

In the case of an English money judgment, parties are free to elect under which regime they wish to seek recognition and enforcement in Mauritius. They may do so under Article 546 of the CPC which is more favourable and which does not provide for any time limit to seek enforcement (see Dallah Albaraka (Ireland) v Pentasoft Technologies [2015] SCJ 168; see also Essar Oilfields Services Ltd v Norscot Rig Management [2011] SCJ 346 which enforced a decision of the English High Court which rejected a challenge to the jurisdiction of an arbitral tribunal and made an order for costs).

The Enforcing Court Will Not Revisit the Merits of the Foreign Judgment

The Supreme Court of Mauritius has consistently held that the function of the exequatur judge is to ensure the validity of the foreign judgment (régularité internationale du jugement étranger) and ensure that it does not offend the international public policy of Mauritius (see Société Epson France v Société Intervenant Technologie [2012] SCJ 114. The exequatur judge is precluded from revisiting the merits of the foreign judgment (fond de la decision). This approach is in keeping with the position in France as set out in the 1964 French Cour de cassation case of Munzer v Meunier and in French doctrinal writings.

In Société Epson France, the Court added a requirement that the party seeking enforcement should prove an absence of fraud. This requirement should be construed in its proper context. The Court meant that it would not recognise and enforce a foreign judgment that has been obtained through procedural fraud (ie, forum shopping or in breach of an exclusive jurisdiction clause).

International Public Policy and Not Domestic Public Policy

As guardians of public policy of a State, the enforcing courts have a duty to ensure that the foreign judgments and arbitral awards that they give legal effect to in their legal order do not offend public policy. In keeping with international case law, the Mauritian courts do not apply domestic notions of public policy when recognising and enforcing judgments.

Rather, the exequatur judge has regard to the notion of international public policy (l’ordre public international) which is the concept of public policy in private international law. This means that a mandatory rule of domestic law would not necessarily operate to preclude the enforcement of a foreign judgment or international arbitral award. In Société Epson France (followed by Dallah Albaraka v Pentasoft), the Court observed that the meaning of international public policy is not to be confounded with the general concept of public policy as it is applied in the determination of a legal issue before a domestic court.

The Mauritian courts also take an internationalist approach to public policy when enforcing foreign arbitral awards. In Cruz City 1 v Unitech Limited [2014] SCJ 100, the Supreme Court held that a respondent had to show with “precision and clarity in what way and to what extent enforcement of the award would have an adverse bearing on a particular international public policy of this country”. A similar approach was adopted in Essar Steel v ArcelorMittal USA [2021] SCJ 248, where the Supreme Court adopted a resolutely comparative and international approach when construing a public policy defence under Article V(2)(b) of the New York Convention.

The enforcing courts are particularly careful not to allow recalcitrant judgment or award debtors from dressing up unmeritorious due process defences as public policy defences (see Essar Steel v ArcelorMittal USA).

Hobler v Harker: Presence of Assets in the Jurisdiction Not a Prerequisite for Exequatur

The recent decision of the Supreme Court in Hobler v Harker [2024] SCJ 159 is a welcome addition to the pro-enforcement line of cases. The Supreme Court recognised a judgment delivered by the High Court of Hong Kong and rejected an argument to the effect that recognition should be refused on the grounds that the judgment debtor is no longer domiciled in Mauritius and does not have assets in Mauritius. The Court relied on a decision of the French Cour de cassation dated 26 June 2019 and observed that the exequatur of a foreign judgment does not depend on the presence of assets within the jurisdiction. In the instant case, the Court was also persuaded to recognise the judgment of the Hong Kong High Court because the judgment creditor satisfied the Court that it had reason to believe that the judgment debtor would return to Mauritius.

The recognition of the foreign judgment integrates it into the Mauritian legal order, which then paves the way for enforcement measures which may include attachments, garnishee orders or winding up proceedings.

Equitable Remedies to Protect the Efficacy of a Judgment

Owing to the English colonial heritage of Mauritius, the Supreme Court of Mauritius is vested with full equitable jurisdiction to grant equitable remedies and its judges sit and conduct business in the same manner as judges in the High Court of Justice in England (see Sections 16 and 17 of the Courts Act 1945). These are potent provisions which vest the Supreme Court with plenary powers to grant equitable relief including freezing injunctions (also known as Mareva injunctions), asset disclosure orders, and search orders (Anton Piller orders). This was recently confirmed by the Judicial Committee of the Privy Council in Stanford Asset Holdings v AfrAsia Bank [2023] UKPC 35 at [31]-[32]. This decision also confirmed that the Supreme Court of Mauritius possesses equitable jurisdiction to grant Norwich Pharmacal Orders (ie, disclosure orders made against parties mixed up in facilitating a wrongdoing).

An important (and indeed necessary) feature of a modern commercial jurisdiction includes the power of its courts to make orders that protect the efficacy of an eventual judgment including an eventual foreign judgment. This is achieved through the equitable remedies of freezing injunctions and asset disclosure orders. In Barclays Bank Mauritius v Karamuth [2017] SCJ 313, the Supreme Court has confirmed that it has the power to grant freezing injunctions including any ancillary orders (eg, asset disclosure orders) to assist the efficacy of the injunction. In Appavoo v Buttie [2016] SCJ 118, the Court ordered a party to disclose the list of all assets it owned whether in Mauritius or abroad coupled with a freezing injunction.

This is an important power which ensures that judgment debtors seeking to avoid or defeat a judgment debt cannot dissipate assets out of Mauritius. Equally, the availability of asset disclosure orders and search orders, ensures that judgment debtors cannot park assets in Mauritius with a view to escaping their liabilities under a foreign judgment or arbitral award.

The decision of the Judicial Committee of the Privy Council in Broad Idea International v Convoy Collateral [2021] UKPC 24 at [102] (on appeal from the BVI) now confirms that a court with equitable jurisdiction may grant a freezing injunction:

• in relation to a foreign judgment or award which is capable of enforcement in the same way as a judgment of the domestic court using the court’s enforcement powers; and
• even where proceedings in which judgment is sought have not yet been commenced or where a right to bring such proceedings has yet to arise: it is enough that the court can be satisfied with a sufficient degree of certainty that a right to bring proceedings will arise and the proceedings will be brought (whether in the domestic court or before another court or tribunal).

This is a welcome decision which, in the words of Lord Nicholls in his dissenting speech in Mercedes v Leiduck [1996] AC 284 at 306, ensures that a party cannot defeat the purpose of the judgment (including a foreign judgment) by thwarting in advance the efficacy of the process by which the court (including a foreign court) will enforce compliance. Lord Nicholls’ words have now been given full effect (“A party must not be allowed to steal a march on the court’s own enforcement process”). The authors hope that Broad Idea will be followed by the Supreme Court of Mauritius.

Sovereign Immunity and Enforcement Against States

There is no legislation which addresses the issue of sovereign (State) immunity and Mauritius is not a party to the 2004 United Nations Convention on Jurisdiction Immunities of States and their Property.

The decision in First Global Funds v Republic of Indonesia [2016] SCJ 14 is the only reported decision on the doctrine of sovereign immunity. After a comparative analysis of the law in England & Wales and France, the Supreme Court held that the doctrine of State immunity applies in Mauritius as a matter of customary international law. The Supreme Court has held that since restrictive immunity is the accepted position under customary international law, it follows that is it the restrictive doctrine of State immunity which applies in Mauritius.

This means that State immunity will not extend to acts of a commercial nature of a State (jure gestionis) but will solely apply to acts of a governmental nature (jure imperii).

Recognition and Enforcement of Foreign Arbitral Awards

It is beyond the scope of this piece to canvas the law and cases on the recognition and enforcement of foreign arbitral awards in Mauritius. However, a few words are needed.

Mauritius is a signatory to the New York Convention which has been incorporated into domestic law by The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (the “2001 Act”). On 24 May 2013, Mauritius withdrew the reciprocity reservation thereby undertaking to also recognise and enforce foreign arbitral awards made in countries that have not acceded to the New York Convention.

The Supreme Court (International Arbitration Claims) Rules 2013 (the “2013 Rules”) operate as a standalone set of procedural rules that set out the procedure making a claim for the recognition and enforcement of foreign arbitral awards (the 2013 Rules are largely inspired from Part 62 of the English Civil Procedure Rules).

There are no limitation periods that apply to the recognition and enforcement of an arbitral award in Mauritius under the New York Convention. This facilitates the enforcement of international arbitral awards where the identification of assets globally may be laborious and time consuming.

Applications for recognition and enforcement of foreign arbitral awards are made without notice (ex parte) before the Chief Justice (see Rule 15(2) of the 2013 Rules). A party wishing to resist recognition and enforcement has 14 days after service of the provisional order granting the recognition and enforcement of the award to apply for its setting aside (see Rule 15(7) of the 2013 Rules).

As prefaced above, all applications for the recognition and enforcement of foreign arbitral awards are heard by a bench comprising three specialist “Designated Judges” of the Supreme Court. There is a direct and automatic right of appeal to the Judicial Committee of the Privy Council.

There is an increasing body of pro-enforcement case law which confirms the readiness of the Supreme Court to give effect to Mauritius’ obligation under international law to recognise and enforce international arbitral awards pursuant to Article III of the New York Convention. Most notable is the decision in Essar Steel v ArcelorMittal USA [2021] SCJ 248 where the Supreme Court recognised and enforced an ICC Award awarding ArcelorMittal USA in excess of USD1.3 billion in damages. The Supreme Court rejected Essar Steel’s defences of due process violation (Article V(1)(b) of the New York Convention) and public policy (Article V(2)(b) of the New York Convention). In particular, the Supreme Court recognised that arbitral tribunals are entitled to proceed with the merits hearing of an arbitration where the defaulting party unreasonably decides to stop participating in the arbitral process.

Future Developments: the Hague Convention 2019

Mauritius is not a party to multilateral conventions relating to the enforcement of foreign judgments.

In order to facilitate the currency of foreign judgments (as is the case with international arbitral awards under the New York Convention), it is understood that members of the Commercial Bar will be making representations to the Attorney General’s office to make Mauritius a signatory to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters of 2019. This should increase the attractiveness of Mauritius as a jurisdiction for the recognition and enforcement of foreign judgments.