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ABSTRACT

COMPARE AND CONTRAST DOMESTIC


AND INTERNATIONAL ARBITRATION IN
MAURITIUS

BY
ALLADIN .M. YASEEN

INTERNATIONAL AND
DOMESTIC ARBITRATION
Mauritian law

Disclaimer and Copyright


Section 2 of this paper: Domestic Arbitration is carried out in English in order to not
compromise the quality of the work. However some important french terminology is
bookmarked to provide the essence of certain phrases and meaning. Translation was
made by an online software:
http://www.translatesonline.com/Legal-translation
All rights reserved. No part of this publication may be reproduced, distributed, or
transmitted in any form or by any means, including photocopying, recording, or other
electronic or mechanical methods, without the prior written permission of the author. For
permission requests, write to the author, addressed Attention: Permissions Coordinator,
at the mail address below:
alladinyaaseen@gmail.com

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

International Arbitration Act


United Nations Commission on International Trade Law

PCA

Permanent Court of Arbitration

HCA

Host Country Agreements

LCIA

London Court of International Arbitration

MIAC

Mauritius International Arbitration Centre

SIAC

Singapore International Arbitration Centre

ICCA

International Congress and Convention Association

GBL

Global Business Licence Company

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

The framework comprises the following elements:


(a) The IAA, which is based on the Model Law of the United Nations Commission on International
Trade Law ("UNCITRAL");
(b) The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, as
amended in 2008 (the "Foreign Arbitral Awards Act");
(c) A Host Country Agreement with the Permanent Court of Arbitration at The Hague (the "PCA")
pursuant to which the PCA has delegated a permanent representative and opened an office in
Mauritius, being its only office outside The Hague;
(d) A joint venture agreement with the London Court of International Arbitration ("LCIA") pursuant
to which an international arbitral centre the Mauritian International Arbitration Centre or
"LCIA-MIAC Centre" is now fully operational in Mauritius for the administration of arbitral
proceedings.

Travaux Prparatoires, the Act aims at making of international commercial and


investment arbitration a new area of services, which can further boost the Mauritian
economy. 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.
1.1 Procedure
One of the most salient illustrations of the disconnection of the international arbitral
process from national rules and practices is the very wide discretion granted to arbitral
tribunals in the conduct of arbitral proceedings. Unless the parties have agreed otherwise
and subject to mandatory provisions of the IAA, arbitral tribunals are free to decide on
matters of procedure and evidence applying the rules which they believe are best suited
to the circumstances by ensuring a fair and efficient means for the resolution of the
dispute between the parties IAA, S.24(1)(b) and S.24(3)

1.2 Cost regime


Prior to the enactment of the IAA, there was no specific costs regime2 applicable to
arbitrations, unless the parties had agreed otherwise. International arbitration were
subjected to the same treatment as Court applications where high value and complex
commercial disputes generally result in substantial costs in amounts which were
2

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)

unreasonably disproportionate to the value of the underlying claims. To address this


lacuna, the IAA has created its own costs regime which applies to costs awards rendered
by arbitral tribunals. The purpose of the new costs regime was to pass onto the
unsuccessful party some or all of the actual costs liability of the successful party.

2.0 Permanent Court of Arbitration


The PCA was created in order to facilitate arbitration and other forms of dispute
resolution between states to provide services for the resolution of disputes whereby it
pursued a policy of concluding Host Country Agreements ("HCAs")3 with its member
states, in order to make its dispute resolution services more accessible. Mauritius has
much to gain by establishing itself as an arbitral hub. A preferable alternative location
to the PCA's seat is offered at The Hague, where IAA provide for appointing authority
and other administrative functions in support of arbitrations seated in Mauritius. A
partnerships with PCA and the London Court of International Arbitration led to the
creation the LCIA-MIAC 4 Arbitration Centre. The LCIA-MIAC Centre provides
world-class services to assist with every aspect of the administration of disputes, with
direct access to world-class arbitrators and the knowledge and expertise required to
tailor its processes and arbitral panels to the specific case at issue. It would perhaps be
good if the MIAC could also have a Code for Ethics as does the SIAC. This may prove
to be useful especially that the IAA 2008 contains no specific provisions relating to the
ethical conduct of arbitrators

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.

3.0 Arbitral awards and Enforcement


Section 2C deals with the disconnection between international arbitration and domestic
arbitration for the avoidance of doubt, that the procedure to be applied in applications
under the IAA and the Foreign Arbitral Awards Act is separate from that applied in other
civil matters.

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.

3.1 Cruz City 1 Mauritius Holdings v Unitech and anor2014 SCJ100,


(Cruz City) an application was lodged before the Supreme Court under the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards 2001to recognise and
enforce two arbitral awards delivered by the London Court of International Arbitration in
favour of Cruz City 1
The application was resisted by the Respondents on three grounds. First, the recognition
and enforcement of the Awards breached certain terms of the Constitution of Mauritius .
Secondly, to recognise and enforce the Awards would be contrary to public policy. Finally,
the arbitrators went beyond their jurisdiction.

3.2 Ground to refuse recognition and enforcement of a foreign arbitral award:


Section 40 of the Act sets the regime for the recognition and enforcement of arbitral
awards rendered in international arbitration by not considering arbitral awards as
domestic awards. This solution means he losing party may choose not to challenge it
under Section 20 or 39 of the Act which contain strict time limits), but to wait until
the successful party applies for enforcement, and then seek to resist that enforcement
under the New York Convention. That solution has not been adopted because the
questions:
(i) of supervision of arbitral awards by the Court of the seat
(ii) of enforcement of awards, are conceptually different.
Further, as for the issue of timing, where the losing party decides to await
enforcement proceedings, it is entirely in the hands of the successful party to apply for
enforcement of the award promptly.

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.

4.0 Judge composition


Turning to the Court Rules six "Designated Judges"5 set out a detailed and standalone
procedural regime, completely disconnected from domestic Court practice and
procedure. As with the primary legislation (accompanied by travaux preparatoires), the
Court Rules have been drafted with the aim of being readily understandable and usable
both by Mauritian practitioners and by foreign users of the international arbitration
regime.

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.

5.0 The confidentiality issue


A party awarded compensation in an arbitration may have no other choice but to agree
to a settlement outside arbitration for much less compensation than he actually
deserves when faced with the risk that an award will be challenged before domestic
courts which are not empowered to protect sensitive information. Amendment to the
The six current Designated Judges (nominated by the Chief Justice, each for a term of five years
pursuant to S.43 of the IAA) are Hon. Shaheda Peeroo, Hon. Ah Foon Chui Yew Cheong, Hon.
Asraf Ally Caunhye, Hon. Shaheed Bhaukaurally, Hon. Nirmala Devat and Hon. David Chan Kan
Cheong.
5

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.

6.0 Competence as to jurisdiction


S(20)(1) state that an arbitral tribunal may rule on its own jurisdiction, including on
any objection with respect to the existence or validity of the arbitration agreement. An
arbitration clause which forms part of a contract shall be treated for the purposes of
subsection (1) as an agreement independent of the other terms of the contract, and a
decision by the arbitral tribunal that the contract is null and void shall not entail ipso
jure8 the invalidity of the arbitration clause. A plea that the arbitral tribunal does not
have jurisdiction shall be raised not later than the submission of the statement of
defence. The arbitral tribunal may admit a later plea if it considers the delay justified
but may also rule on a plea as a preliminary question where any party may, within 30
days after having received notice of that ruling, request the Supreme Court to decide
the matter. While such request is pending, the arbitral tribunal may continue the
arbitral proceedings and make one or more awards based on merits.

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.

6.1 Competence-competence principle


Under the separability principle, arbitration have jurisdiction to rule on any dispute
over the existence or validity of the main contract, under the competence-competence
principle they have the power to rule on any question relating to their jurisdiction or,
in other words, to the effectiveness of the arbitration agreement as such. The fact that
arbitrators have jurisdiction to determine their own jurisdiction is among the most
fundamental and contentious rules of international arbitration Act as they can
determine the existence of the arbitration clause, its validity and scope, without the
need to invoke the jurisdiction of a Mauritian national court.
7.0 Interim measures
An interim measure granted by an arbitral tribunal shall, subject to this section, be
recognised as binding and, unless otherwise provided by the arbitral tribunal, enforced
on 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 shall promptly inform the Supreme Court of any termination, suspension or
modification of that measure. The supreme court may request appropriate security to
protect the rights of third parties. The culture of non-interventionism is considered as
one of the pillars that sustain a reliable seat of arbitration. The courts can intervene only
when there is a real urgency and the arbitral tribunal is unable to act effectively. Powers
of the Court within the framework of S 23(3) and 23 (6) as a result of which, for
instance, the Court cannot grant interim measures pursuant to its inherent jurisdiction or
to other statutory powers, which would only be effective in the domestic context9.

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.

8.0 The notion of juridical seat of arbitration


The juridical seat of the arbitration shall be determined by the arbitral tribunal having regard to
the circumstances of the case. If the parties fail to agree on the procedure, then the lex loci

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).

9.0 Composition of the tribunal


S11 of the IAA 2008 provides for a default rule against tribunals comprising an even
number of arbitrators unless the parties have agreed otherwise,. The number of
arbitrators is three and if there is an even number of arbitrators in the agreement, it shall
be understood that an additional one has to be appointed as the presiding arbitrator.

10.0 Decision-making by the panel of arbitrators


To prevent situations of deadlock, which can paralyze the arbitral process, S34 provides
that unless the parties have agreed otherwise, the chairman of the tribunal may decide
alone in the absence of a majority. For instance, when the parties have agreed on an
even-numbered tribunal and the votes are equal, or when there is an odd-numbered
tribunal but each arbitrator has taken a different stand.

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

11.0 Specific powers bestowed on the tribunal


Wide power are conferred11 to the arbitral tribunal to control the arbitral proceedings.
pursuant to S17, in the absence of an agreement to the contrary, the tribunal has
complete discretion as to whether to repeat any stage of the proceedings following the
replacement of an arbitrator. The legislator has purported to give to the tribunal the
maximum level of discretion which in turn reinforces the very essence of arbitration.

12.0 Global Business License Company


Shareholders in GBL Companies may now include Mauritian arbitration clauses in the
constitution of their companies, without the risk of harming pre-existing arrangements or
of limiting their choice of arbitral seat for agreements other than the corporate document
(the constitution). All decisions under the IAA and Foreign Arbitral Awards Act are
appealable as of right to the Privy Council, to ensure that the letter and spirit of the
legislation is fair.

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

Mauritius, other than an international arbitration. Section 1003 of Code de procedure


civil states that the arbitration clause is the convention by which the Parties to a
contract agree to submit to arbitration the disputes which could arise relating to this
contract.
1.0 The arbitration clause
The arbitration clause must, on pain of nullity, be stipulated in writing in the main
convention or in a document to which it refers whereby under section 1004, the
arbitration clause should either appoint their arbitrators, or prescribe the manner of their
designation in the contract. A party can even put a term in contract in contract if dispute
arise. If born case in contract (litige), if constitution of the arbitral tribunal encounters a
difficulty by virtue of one of the parties or in the implementation of the terms of
appointment, the judge in Room refers to the arbitrators. Any dispute that arise will go
to arbitration whereby an arbitrator is selected to clash out dispute by the terms and
conditions of an arbitration agreement.

Food Allied Ltd vs Ujoodha 2007


There was an arbitration clause in the contract and the applicant had refer the case to
Judge In Chamber(JIC) for an injunction instead for the designation of the arbitrator.
It was that the JIC had no jurisdiction to grant injunction in cases where arbitration
clause existed.

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

2.0 Dispute settlement


A dispute between two party resulting to an event whereby both cannot name an
arbitrator on a common term would result to going to court to name a judge. The court
can be the judge in Chamber, (MIAC) or the (PCA). If the arbitration clause is either
patently invalid, either insufficient to constitute the tribunal referees, the chambers
judge finds and declares to be place to no appointment. The dispute is submitted to the
arbitral tribunal or jointly by the parties, or by the more diligent party and where there is
nullit, the arbitration clause is deemed unwritten.

3.0 The compromise


Section 1008 of Code de procedure civil defines the compromise as the convention
by which the parties to a born dispute, submit it to arbitration by one or more persons.
The main element is evidence in writing but can also be in verbal acknowledgment
( procs-verbal) signed by the arbitrator and the parties. The compromise must on
peine de nullit determines the purpose of litigation. Sous larticle 1009, le
compromis doit, soit dsigner le ou les arbitres, soit prvoir les modalits de leur
dsignation. Both parties have the ability to compromise even during a already
proceeding to another court. Three elements needed to complete a compromise:
The dispute of the case
The designation of the arbitrator;
Consent of approval to judge the dispute by arbitrators

4.0 Duty of arbitrator


The compromise is no longer valid when an arbitrator that is appointed does not accept
the mission entrusted to him. The mission cannot be entrusted to a moral person, which
is limited to only organize the arbitration but rather a (Personne Physique) which acts as
the tribunal when appointed and has the duty to accept mission by mandate approved by
both parties. A legal delay of 6 months is imposed to carry out this mandate and the

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.

5.0 Termination of arbitral proceeding Article 1022


1. By the revocation, ( le docks on 1'empechement d'un arbitre) as well as by the loss of
the full exercise of his rights civilians.
2. by forbearance on the recusal of an arbitrator;
3. by expiry of the period of arbitration.

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.

7.0 The arbitral award


The arbitral award12 is rendered by a majority of the votes. The arbitral award shall
contain the indication:

Facts and evidence must be stated, (sentence arbitrale doit tre motive) and must be
12

An arbitral award is a determination on the merits by an arbitration tribunal in an arbitration,


and is analogous to a judgment in a court of law.

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

8.1 Grounds to be satisfied for Exequatur


The conditions are as follows:

the judgment must still be valid and capable of execution in the country where
it was delivered;

it must not be contrary to any principle affecting public order;

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 issue of concurrent Mauritian and Indian proceedings based on the


Murabaha Agreement;

the legal significance of a party labelled as 'Co-Respondent' in proceedings;

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)

The Mauritius Judgment demonstrates an understanding of the environment in which


international commerce operates and the judiciary's willingness to give effect to it in a
manner that is consonant with international trends
9.0 Appeal of arbitration award
The arbitration award is appealable unless the Parties have not waived the appeal in the
convention arbitration but it is not the case in amiable compositeur unless the parties
have expressly reserved for this faculty in the arbitration agreement. Article 1027 states
that the award may be hit by third-party before the Court which would have been
competent to default arbitration. However the arbitration award can be attacked on 6
conditions:

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.

10.0 Challenging arbitration award


An arbitral award pronounced abroad may be declared enforceable in Mauritius by a
decision of the Supreme Court which has the faculty, either refuse 1'exequatur, or order
an execution conditioning. The granting of 1'exequatur is subject condition reciprocity
in the foreign country where the arbitral award has been pronounced. If the defendant
challenge the validity of the arbitration award pronounced in foreign, the Supreme
Court may refuse 1'exequatur or stay the proceedings16.

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

International Arbitration Act 2008

International Arbitration (Miscellaneous Provisions) Act 2013


The Travaux Prparatoires to the International Arbitration Act 2008,
The UNCITRAL Model Law on International Commercial Arbitration 1985, as
amended in 2006
MARC, Arbitration and Mediation Guide
UNCITRAL Arbitration Rules, as revised in 2010
Clark R, The dispute resolution review 3rd edition
Code de procedure civile Mauricien
Dabee D, Introductory Speech-the thirs biennial Mauritius International
Conference: The Litmus Test: Challenges to Awards and Enforcement of Awards
in Africa
Meetarbhan M, International Arbitration- Enhancing the Mauritius IFC
(Mauritius
International Arbitration Conference 2010- Flaws and Presumptions: Rethinking
arbitration law and practice in a new arbitral seat, Mauritius
Moollan S, Introductory Speech(An Evening with the Franco-British Lawyers
Society: The Mauritius International Arbitration Centre-A New Arbitral Seat
Ross A, Mauritius: a blank canvas (2011)
Ross A, The PCAs man in Mauritius (2011)
Permanent Court of Arbitration at the Mauritius Chamber of Commerce and
Industry:

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