International Arbitration in Mauritius
It may be briefly recalled that the origins of arbitration go back to dispute settlement usages in ancient times, so does the arbitration history of Mauritius which starts with its “Code Civil” and the “Code de Procedure Civil” in the section dedicated to “Clause Compromissoire”.
This brings us to the Mauritius Chambers of Commerce and Industry (MCCI) which is the main socio-economic actor of the country. Established in 1850, it is the oldest non profit making institution representing the private sector in the country. One of its two functions is the efficient settlement of a dispute relating to trade leading to the setting up of a Permanent Court of Arbitration which arbitration rules is based on international standards such as the ICC and UNCITRAL arbitration rules.
During the past decade Mauritius has taken some positive actions in order to modernise the legal framework of arbitration. One major advancement is the accession to The New York Convention on the Recognition and Enforcement of Arbitral Awards in 1996 and it was proclaimed by Parliament in 2004.
Mauritius has also passed a new international arbitration law, the International Arbitration Act 2008 (Mauritian IAA) that is designed to modernize international arbitration within Mauritius and to make the country a more attractive regional venue for international arbitration.
Passed in November 2008, the Mauritian IAA is based on the UNCITRAL model law and the subsequent amendments thereto; and was proclaimed with effect from 1st January 2009 and governs all international arbitrations commenced after that date, regardless of the date when the relevant arbitration agreement was executed. However, this law is not retroactive and does not apply to any arbitration already commenced before its effective date.
Based on the UNCITRAL model law, the Mauritian IAA can be classified as being modern as it contains many features found in other modern regional arbitration such as the Indian Arbitration and Conciliation Act, 1996 and the Dubai International Financial Centre Arbitration Law. This characteristic tends to make the law more attractive to businesses that employ international arbitration and to international arbitration practitioners. In addition to that, the Mauritian IAA has the tendency to be more advance than some other longer-established UNCITRAL-based laws as it incorporates features of the amended model law (Amended Model Law).
Some features of the Mauritian IAA, such as including specific provisions for disputes concerning offshore companies incorporated in Mauritius; Expanding the definitions of international arbitration and arbitration agreements to give the Mauritian IAA a specific focus on investment arbitration; specifically excluding confidentiality provisions to improve transparency; and expressly permitting foreign lawyers to act as both counsel and arbitrators, just to name a few, makes it unique and differentiates it from the other UNCITRAL based laws.
Mauritius adopted in November 2008 a state-of-the-art legislation based on the UNCITRAL Model Law, adapted to best serve the interests of international users, and concluded in April 2009 a Host Country Agreement with the Permanent Court of Arbitration at The Hague and in accordance to that the Permanent Court of Arbitration (PCA) has appointed a permanent representative in Mauritius. Mauritius is now co-operating with a leading institution in the field of international arbitration to open a dedicated and state-of-the-art regional Centre for International Arbitration.
The specific features of the Mauritian IAA are that it provides for all Court applications under the Mauritian IAA to be made to a panel of three judges of the Supreme Court. There is a direct and automatic right of appeal to the Privy Council. This should provide international users with the reassurance that Court applications concerning their arbitrations will be heard and disposed of swiftly, and by qualified jurists.
Part III of the Mauritian IAA also provides for the grounds for the challenge of arbitrators and the procedure to be followed for replacement of arbitrators in order to safeguard the fairness of proceedings.
Part IV section 21 of the Mauritian IAA also caters for interim measures such as ordering a party to:
(a) maintain or restore the status quo pending determination of the dispute;
(b) take action that would prevent, or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process itself;
(c) provide a means of preserving assets out of which a subsequent award may be satisfied;
(d) preserve evidence that may be relevant and material to the resolution of the dispute; or
(e) provide security for costs.
Part V of the Mauritian IAA deals with provisions relating to the conduct of the arbitral proceedings, such as, the duties and powers of the Tribunal, the matters relating to the statement of claim and defence, the conduct of the hearing, the default of a party, the appointment of an expert, the court’s assistance in taking evidence, the power of the PCA to extend time limits and issues relating to representation.
In accordance with PART VI section 36 of the Mauritian IAA, an award shall be final and binding on the parties. Moreover, a final award delivered by a foreign arbitration tribunal is enforceable in Mauritius, in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed at New York on 10 June 1958.
Apart from the law’s favourable features, the island strategic location between East Africa and the Indian Subcontinent, Mauritius is more likely to be successful in both its endeavours. It must also be highlighted that Mauritius has an efficient pool of lawyers well aware of the common and civil law plus the amount of law firms specialised in offshore transactions.
Despite the fact that Mauritius enjoys several advantages that will help in its effort to become a regional arbitration centre, it also faces a few obstacles that will have to be dealt with in order to achieve that status. To start with, there is no body located within Mauritius that can administer arbitrations conducted here. Secondly, it seems that Mauritius lacks some appropriate resources such as stenographic court reporters that are essential to conveniently and efficiently conducting proceedings. Finally, Mauritius position in the Indian Ocean surely makes it an ideal ground for East Africa and Indian Subcontinent but it also makes it less accessible than other regional locations centres and more vulnerable to certain natural hazard such as cyclones.
ERRIAH CHAMBERS is the only Chambers, which specializes in International Tax Law, International Trusts Law, International Business Law and all aspect of offshore business activities. Dev Erriah head of Chambers graduated in the UK and holds LLM in International Tax Law, Company Law, Law of International Finance and International Trusts Law from the prestigious University of London. Dev Erriah was the first Chairman of STEP Mauritius (Society of Trust and Estate Practitioners). Dev Erriah is also a member of the International Bar Association and forms part of Committees N (TAX) and E (Banking). Erriah Chambers headed by Dev Erriah and consists of a team of seven barristers and has associateship with many foreign law firms. Mr Erriah can be contacted on + 230 208 2220 or by email at firstname.lastname@example.org