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BY
ALLADIN .M. YASEEN
INTERNATIONAL AND
DOMESTIC ARBITRATION
Mauritian law
Abstract
Mauritius is not an automatic choice for individuals when it comes to resolving their
disputes. It hence becomes a seduction operation for the actors in the field to initiate if
they are to convince the relevant stakeholders on the capacity of Mauritius to provide
top quality arbitration services. Arbitration and related services can constitute an
important source of revenue, foreign direct investment as well as skilled jobs. In
addition, developing Mauritius into a reputable arbitration centre, will enhance the
image of the country as a user-friendly international business environment. Domestic
arbitration will be compared and contrast against International Arbitration in this
paper. I.e it will be a comparison of code de procedure civile against International
Arbitration Act 2008 ( Amended 2013). Can Mauritius carve a niche for itself in the
arbitration universe or are its international arbitration ambitions-like the dodos that
used to inhabit the island- doomed to extinction? Alison Ross, Mauritius: a blank
canvas
Important terminology
IAA
UNCITRAL
PCA
HCA
LCIA
MIAC
SIAC
ICCA
GBL
Arbitration clause
The compromise
The arbitral award
La clause compromissoire
Le compromis
La sentence arbitrale
INTERNATIONAL ARBITRATION......................................................................... 5
1.0 Introduction....................................................................................................... 5
1.1 Procedure .......................................................................................................... 6
1.2 Cost regime ....................................................................................................... 6
2.0 Permanent Court of Arbitration ........................................................................ 7
2.1 Appointment...................................................................................................... 8
3.0 Arbitral awards and Enforcement ..................................................................... 8
3.1 Cruz City 1 Mauritius Holdings v Unitech and anor2014 SCJ100,.................. 9
3.2 Ground to refuse recognition and enforcement of a foreign arbitral award: .... 9
4.0 Judge composition .......................................................................................... 10
5.0 The confidentiality issue ................................................................................. 10
6.0 Competence as to jurisdiction......................................................................... 11
6.1 Competence-competence principle .......................................................... 12
7.0 Interim measures............................................................................................. 12
8.0 The notion of juridical seat of arbitration ....................................................... 13
9.0 Composition of the tribunal ............................................................................ 13
10.0 Decision-making by the panel of arbitrators.............................................. 13
11.0 Specific powers bestowed on the tribunal..................................................... 14
12.0 Global Business Licence Company .............................................................. 14
DOMESTIC ARBITRATION................................................................................... 15
1.0 The arbitration clause...................................................................................... 15
2.0 Dispute settlement........................................................................................... 16
3.0 The compromise.............................................................................................. 16
4.0 Duty of arbitrator ............................................................................................ 16
5.0 Termination of arbitral proceeding Article 1022............................................. 17
6.0 Composition.................................................................................................... 17
7.0 The arbitral award ........................................................................................... 17
8.0 Exequature ...................................................................................................... 18
8.1 Grounds to be satisfied for Exequatur ............................................................ 19
9.0 Appeal of arbitration award ............................................................................ 20
10.0 Challenging arbitration award....................................................................... 21
11.0 Conclusion .................................................................................................... 22
Reference ..................................................................................................................... 23
Appendix...................................................................................................................... 24
INTERNATIONAL ARBITRATION
1.0 Introduction
Arbitration has been firmly established in Mauritius since the Constitution of 1791
which made special provision for its application at Titre IX whereby the International
Arbitration Act of 2008 was enacted, influenced by the UNCITRAL model law.
International arbitration means any arbitration where the parties to the arbitration
agreement have, at the time of the conclusion of that agreement, their place of
business in different States. With the 2013 Amendment Act, Mauritius achieved a state
of the art legal and regulatory framework 1 for the resolution of commercial and
investment disputes by way of 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 against any final decision and substantial
appointing functions and administrative responsibilities are given to the PCA. 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.
The question now arises as to why Mauritius has embarked on the international
arbitration project. Various reasons explain this initiative. As pointed out by the
1
This combines costs principles drawn in part from Schedule 2, S.6 of the New Zealand Arbitration
Act 1996 and S.59 and S.61 of the English Arbitration Act 1996 (this latter provision being itself
derived from r.44.2(2) of the English Civil Procedure Rules ("CPR")). Part VI of the Court Rules
which reproduces and adapts in part Parts 44 and 47 of the CPR, has done the same in relation to
costs orders rendered by Mauritian Courts in Court proceedings related to international arbitration
(such Courts proceedings being referred to as "Arbitration Claims" under the Court Rules)
A definite statement of competence was made when Mauritius signed a Host Country Agreement
with the Permanent Court of Arbitration. As a token for recent progress made in the region,
Mauritius has been granted the right to host the 2016 ICCA Congress, a key event in the
international arbitration calendar held every two years, which Copenhagen, Sydney and Hong Kong
were all in the race to organise.
3
LCIA-MIAC provides a state-of-the-art solution for those who seek an integrated Mauritian
solution to their arbitration needs, a Mauritian institution for our Mauritian seat, but the seat has
been created and exists for all forms of arbitration to thrive, be they under the ICC Rules, the SIAC
rules or the SCC rules or, of course, Ad Hoc proceedings under the rules of UNCITRAL.
2.1 Appointment
The mutual functions of the lawyers and the arbitrators tend to be complementary and
co-operational at least on the surface. Just as the appointment of the arbitrator is in the
hands of the parties, they determine, how the proceedings are to be conducted and what
questions the arbitrator will be asked to decide. It is for the parties to agree the
procedural arrangements and to exercise a high degree of control over the handling of
their dispute. The procedural arrangements determine the way in which the arbitration
is to be conducted, where it is to be held and how the proceedings are to be paid to
corporate bodies. Foreign lawyers are entitled to represent parties and to act as
arbitrators in international commercial arbitrations in Mauritius. Arbitrator
appointments may be made and challenged to arbitrators resolved by the Secretary
General of the PCA.
The Foreign Arbitral Awards Act shows a substantial pro-arbitration bias, which
should ensure that the parties' wish to arbitrate and not to litigate. S.2 repeals Article
1028 of the Code de Procedure Civile, which previously set out the regime and
procedure for the enforcement in Mauritius of foreign awards. Amendment was made
to the Foreign Arbitral Awards Act so as to avoid unnecessary translation and ensure
that awards rendered in both anglophone and francophone arbitrations are enforceable
without unnecessary expense and delay in Mauritius.
A losing party to an arbitration award cannot, just because the award was not in his favour,
be allowed, at the stage when the Supreme Court is called upon to adjudicate whether to
enforce or refuse enforcement to ask he Supreme Court to interfere with the decision of the
arbitral tribunal on grounds not laid down in the law. To obtain the recognition and
enforcement the party applying for recognition and enforcement shall, at the time of
the application supply the duly authenticated original award or a duly certified copy
thereof; and the original agreement in writing or a duly certified copy. The party
applying for recognition and enforcement of the award shall produce a translation of
these documents into a translated official language which is certified by an official or
sworn translator.
In order to facilitate the urgent hearing of interim measures the applications are now
heard and determined by a Judge in Chambers in the first instance, but are then
returnable before a panel of 3 Judges. This strikes a balance between the need for
expediency, and the assurance that international arbitration matters ultimately remain the
subject of a collegiate decision.
IAA provide the necessary legal basis for Courts to be able to hold proceedings in private
for applications under the Foreign Arbitral Awards Act, where appropriate. The note on
confidentiality suggests that either the tribunal or the Supreme Court, in the exercise of
its supervisory powers, can deal with the issue. Whilst the seat must remain attractive
to all types of arbitration, there are some niche industries6 that may be particularly
catered for. Interested parties must be given the assurance that their industrial secrets7
will be kept.
For instance, in the area of technology and communication, there is a considerable transfer of
technology, technical know-how and trade secrets between the East and the West in relation to the
production, distribution and servicing of products.
7 Trade and industrial secrets clearly amount to "property" within the meaning of Articles 3 and 8 of
the Constitution. Their secrecy has therefore already been afforded protection under the
Constitution itself.
8
By the act of the law itself, or by mere operation of law.
S 3(8) of the IAA 2008 provides that Subject to this Act, no Court shall intervene in any matter
governed by this Act and S 3(10) stipulates that domestic law principles do not apply as far as
international arbitration is concerned.
arbitri10 will govern the arbitration by default as a result of the seat selection. However
some form of court intervention is inevitable and the notion of seat of arbitration
conserves all its legal importance. As such, the seat designated as the juridical seat is
not affected by the actual place of arbitration proceedings and, in particular, the place
where the award is made as per S 3(2)(a).
The lex loci arbitri is the Latin term for "law of the place where arbitration is to take place" in
the conflict of Laws.
10
11
However, as an exception to the general rule, if the arbitral tribunal has not yet been constituted,
the court or the PCA may make a provisional determination of these threshold issues.
DOMESTIC ARBITRATION
Domestic
arbitration
means
any
arbitration
with
its
juridical
seat
in
Held: Even if there is arbitration clause, the JIC can act as judge for interim relief if
there is matter of urgency. However if a clause arbitration exist, a party cannot send
the case to the SC as the agreement between parties leas lieu of law-art1134 of CCM
arbitrator may be revoked only by unanimous consent of a party. A noter qun etranger
peut agir comme arbitre. Si la convention designe une pax morale, celle-ci ne dispose
que du pouvoir dorganiser larbitrage.
6.0 Composition
The arbitral tribunal is composed of a sole arbitrator or several odd number to avoid a
draw and if in case of two arbitrator named, then a 3rd arbitrator acts as the president.
Under Article 1016 when a dispute before an arbitral tribunal is seized (saisi) in virtue
of an arbitration agreement that is brought before a court of the State, it must declare
itself incompetent. If the arbitral tribunal is not yet seized, the jurisdiction must also
be declared incompetent unless the arbitration agreement is obviously nulle.
Facts and evidence must be stated, (sentence arbitrale doit tre motive) and must be
12
signed by all arbitrator. In case of denial to sign from part of minority, a mention is to
be produced where reasons for the award must be prescribed. The referee has
nevertheless the power to interpret the sentence of repair errors and omissions material
affecting it and the complete when it failed to decide on a leader of request 13.
But if it is agreed otherwise between the parties, the abitrator can act as compositeur a
lamiable, and comply with legal procedures which determine fairness. The award
shall decline jurisdiction the arbitrator of the dispute that it settles. (funtus officio) 14
8.0 Exequature
The Exequatur, is a concept specific to the private international law and refers to the
decision by a court authorising the enforcement in that country of a judgment, arbitral
award, authentic instruments or court settlement given abroad. Exequature can be
Excution amiable Ou Excution force and it is affixed to the minute of the arbitral
award. Decision denying 1'exequatur should be motivated. The arbitral award is likely
enforced pursuant a decision to grant enforcement order issued by the chambers judge.
Article 1026 - 8 state, the minute of the award accompanied by a copy of the arbitration
agreement is filed by one arbitrators or by the more diligent party in the registry of the
Supreme Court. Decision denying 1'exequatur should be motivated. The winning party,
in order to make the award executory enter an application by way of proecipe and
affidavit to the JEC.
Gujadhur v gujadhur 1967 MR 19
There was a refusal for the application for enforcement,for the following reasons:
(1) The award was made after the delay for making it had expired;
(2) The arbitrator dealt with and disposed of shares and assets belonging to companies
Once an arbitration award is made, it is considered final and cannot usually be appealed. There
are some exceptions to this rule. For example, if a party won the award using corruption or fraud,
if the arbitrator engaged of some form of prejudicial misconduct, or if the arbitrator went beyond
the powers stated in the arbitration clause of the contract, the award can be vacated. This means
that the arbitration award has no effect.
13
Functus officio, a branch of the doctrine of res judicata prevents the re-opening of a matter
before the same court, tribunal or other statutory actor which rendered the final decision in the
absence of statutory authority.
14
which were strangers to the arbitration agreement and, by doing so, went outside the
ambit of his "responsibilities".
If public interest is to being undermined, the Public Ministry may oppose the execution
of the arbitral award by extra-judicial act. A copy of this notification must be filed at
the registry of the Supreme Court. If it takes place before the enforcement proceeding,
the opposition makes the claim inadmissible but if it intervenes in progress for instance,
they shall divestiture (emporte de plein droit dessaisissement) either via judge in
chamber or the supreme court for annulment. L'opposition du Ministere Public
constitue une fin de non recevoir toute demande en exequatur.
Following the opposition, the parties may submit to the court, the dispute that was the
subject of the arbitration which will be considered by the court as void. All time limits
of prescription shall be considered by the judge as having suspended from the date of
the referral to the tribunal referees until the day of the opposition of the Public Ministry
according to Article 1026-10
the judgment must still be valid and capable of execution in the country where
it was delivered;
the defendant must have been regularly summoned to attend the proceedings;
the court which delivered the judgment must have had jurisdiction to deal with
the matter submitted toit.
Dallah Albaraka (Ireland) Ltd v Pentasoft Technologies Limited and anor 2015
SCJ 168 (Dallah)
The case of Dallah concerned an application for the recognition and enforcement of
an English judgment delivered on 13 July 2007 (English Judgment) in favour of the
Applicant. The Applicant brought proceedings before the Supreme Court by way of
'exequatur' based on Article 546 of the Mauritian Code of Civil Procedure. The case
of Dallah went beyond the parameters of 'exequatur' as it considered four
fundamental issues namely:
the relevance of Mauritius as a jurisdiction given that the Indian Parent was a
foreign company; and
the status of legal practitioners employed by law firms registered under the
Law Practitioner's Act 1984(Law Practitioner's Act)
It is important to know when the court seized an application for annulment which
cancels the arbitral award, decision on the merits not only limits the mission of the
arbitrator but application for annulment15 ought to be brought before the Supreme court.
These actions ceased to be admissible at the sentencing if not exercised within one
month of sentence toward l'exequature.
15
In regards to Article 1027-7 the appeal or the action for annulment of the award win of right,
within the limits of the seisin(saisine) of the Court Supreme, action against the decision of judge
1'exequatur or divestiture of this judge. The application for annulment are trained, educated and
judged according to the rules on the procedure in matters litigation before the Supreme Court.
16
To get enforcement of an arbitration award pronounced in abroad, the applicant must produce the
original of the award or a copy to the law of the country where it was pronounced. The award must
be definitive and complies with the provisions of the present chapter in Article 1028 - 8. An award
to foreign, or a request for exequatur is drawn up in French or in English, with a certified translation.
11.0 Conclusion
It is a clich that the objective of the users of arbitration is to achieve speedy finality
with fairness and economy of costs in the resolution of disputes. Unfortunately, the
objectives of arbitration in terms of containing costs and avoiding delays are seldom
achieved. Our history is littered with arbitrations mired in never-ending complaints of
spiraling costs and ever-extending delays. There is the lingering question mark as to
whether domestic arbitration as currently practiced in Mauritius lives up to its
expectation of efficiency both in terms of time and cost.
Reference
Available
from:
http://en.wikimediation.org/index.php?title=Permanent_Court_of_Arbitration_at_
the_Mauritius_Chamber_of_Commerce_and_Industry
Mauritius Business Law Review:Available from: http://www.mblr.mu/
Appendix