A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Republic of Mauritius.

2. Date of entry into force of the New York Convention

17 Sept. 1996.

The Convention was transposed into domestic law on 15 March 2004.

(Source: Procl. No. 6 of 2004, Art. XII.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

Although Mauritius made a reciprocity reservation under the New York Convention, it was neither included in the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 nor in the International Arbitration Act 2008. The inapplicability of the reciprocity reservation was subsequently expressly confirmed by an amendment brought to the law in 2013. Therefore, there is no effective reservation regarding reciprocity under Mauritian law.

(Source: http://treaties.un.org/.)

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

Yes. The New York Convention applies to any award rendered in Mauritius in an arbitration in relation to which one of the following conditions is satisfied:

(i) at the time of concluding the arbitration agreement the parties had their places of business in different States;

(ii) the juridical seat of the arbitration, if determined in accordance with the arbitration agreement, is situated outside the State in which the parties have their place of business;

(iii) any place where a substantial part of the obligations arising from the commercial relationship is to be performed, or the place with which the subject matter of the dispute is most closely connected, is situated outside the State in which the parties have their place of business;

(iv) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one State, or that the International Arbitration Act 2008 applies to their arbitration;

(v) the arbitration arises under an arbitration clause included in the constitution of a company holding a ‘Global Business Licence’ under the Mauritian Financial Services Act 2007 (this special provision is aimed at promoting international arbitration as a means of resolving disputes between shareholders of a Mauritian offshore company, without prejudice to the ability of such a company to be a party to international arbitration of any dispute between itself and a third party).

(Source: International Arbitration Act 2008, ss. 2, 3D and 40.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, incorporating the full text of the New York Convention in its Schedule.

(ii) The International Arbitration Act 2008.

(iii) The Supreme Court (International Arbitration Claims) Rules 2013.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Mauritian law does not provide for a specific limitation period applicable to the commencement of legal proceedings for the recognition and enforcement of foreign awards.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

N/A.

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The Supreme Court constituted by a panel of three (out of the six) Judges ‘designated’ for international arbitration matters.

(Source: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, s. 4(1); International Arbitration Act 2008, ss. 42 and 43.)

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no jurisdictional requirements as such.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision is a provisional order of the Chief Justice for recognition or enforcement, which is granted through ex parte proceedings.

(Source: Supreme Court (International Arbitration Claims) Rules 2013, Rule. 15(5).)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes. The Respondent has a short period of time during which it can bring a claim to set aside the provisional order. Failing this, the provisional order for recognition or enforcement becomes final.

(b) How many levels of appeal or recourse are available against this decision?

Two. First, as stated Q.10(b) above, a party may apply for the setting aside of the provisional order for recognition or enforcement before said provisional order becomes final. Second, the decision of the Supreme Court on such application is subject to an appeal as of right to the Judicial Committee of the Privy Council.

(Source: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, s. 4 (3).)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Execution against assets may be obtained after 14 days from the date of service of the provisional order granting recognition or enforcement of the award upon the respondent. Where such service is to be made outside Mauritius, after such length of time as may have been allocated by the Chief Justice to the Respondent to respond.

(Source: Supreme Court (International Arbitration Claims) Rules 2013, Rule 15(7).)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

(i) A duly authenticated original award or a duly certified copy thereof;

(ii) the original arbitration agreement or a duly certified copy thereof; and

(iii) at least one affidavit or witness statement providing:

  • the applicant’s name;
  • its usual or last place of residence or business or its registered address, as may be applicable;
  • the name of the person against whom the enforcement of the award is sought;
  • and the extent to which the award has been complied with at the date of the application.

(Note: The term ‘arbitration agreement (as used in the New York Convention must be interpreted in the light of the Recommendation regarding the interpretation of Arts. II(2) and VII(1) of the Convention adopted by UNCITRAL at its 39th session on 7 July 2006, https://uncitral.un.org/en/texts/arbitration/explanatorytexts/recommendations/foreign_arbitral_awards.)

(Source: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, s. 3(2), as amended by the International Arbitration Act 2008, s. 43(b); Supreme Court (International Arbitration Claims) Rules 2013, Rules 6 and 15(2), (3) and (4).)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The arbitral award in its entirety must be provided.

Where the arbitration agreement consists of an arbitration clause contained in a contract, only the relevant part containing the arbitration clause is required.

(Source: New York Convention, Art. II.)

(c) Are originals or duly certified copies required?

It is permissible for the party seeking recognition and enforcement to supply duly certified copies.

For the purposes of the New York Convention, a copy may be certified by a person whom the Supreme Court can be expected to rely on for such certification, including any competent officer of the Supreme Court and any notary or attorney-at-law qualified to practice in Mauritius.

(Source: New York Convention, Art. IV(1); The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, s. 5(1).)

(d) How many originals or duly certified copies are required?

One.

(e) Does the authority or court keep the originals that are filed?

Originals are kept but may be returned upon a party’s request and if so ordered by the Supreme Court.

(Source: Supreme Court (International Arbitration Claims) Rules 2013, Rule 12(4).)

13.

(a) Is it necessary to provide a translation of the documents supplied?

If the award is made in a language other than English or French, yes.

(b) If yes, into what language?

English or French.

(Source: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, s. 4A.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

The translation must be certified by a sworn translator or by a diplomatic or consular agent. The diplomatic or consular agent will normally be of a country whose official language is that used in the relevant document. All that is required is a true and faithful translation that may be relied upon by the Supreme Court.

(Source: New York Convention, Art. IV(2), read in the light of Mauritian legal practice.)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

A full translation of the award must be provided. Only a translation of the arbitration agreement or clause is required.

(Source: New York Convention, Art. IV(2).)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes.

(Source: New York Convention, Art. VI.)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

Where the party against whom enforcement is sought has been adjudicated bankrupt or is the subject of a winding-up order, all actions against that party are stayed unless otherwise allowed to proceed by the court.

Furthermore, it is a general principle of Mauritian law that the Supreme Court may stay any proceedings in order to determine a preliminary question of law.

(Source: Insolvency Act 2009, ss. 23 and 105(2).)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

The provision of security is not a condition. However, upon request by a party, the court may order the other party to provide security.

(Source: New York Convention, Art. VI.)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

All documents filed form part of the public record. However, the court may exclude all persons other than the parties or their legal representatives from the proceedings upon a party’s request, so that any documents filed remain inaccessible to the public or any third party. At the end of the proceedings, the court may order that the Master of the Supreme Court keep any documents filed or the record confidential.

(Source: International Arbitration Act 2008, s. 42(1B); Supreme Court (International Arbitration Claims) Rules 2013, Rule 12(2).)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

All hearings for the recognition and enforcement of awards are in principle public. Upon a party’s request, the court may exclude all persons other than the parties or their legal representatives from the proceedings so that the hearings are in fact held in private. The court may also prohibit the publication of all information related to the proceedings.

(Source: International Arbitration Act 2008, s. 42(1B) and (1C); Supreme Court (International Arbitration Claims) Rules 2013, Rule 11(3).)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Judgments on the recognition and enforcement must be published, but they may be edited so as to remove the names of the parties or any sensitive or confidential information that may require protection.

(Source: Supreme Court (International Arbitration Claims) Rules 2013, Rule 12(1)(b).)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

There is nothing to suggest that interim and partial foreign awards cannot be recognized and enforced under Mauritian law. Such awards can therefore be recognized and enforced in accordance with the New York Convention.

Additionally, the International Arbitration Act 2008 specifically provides for the recognition and enforcement of interim measures ordered in the form of a foreign award or in any other form.

(Source: International Arbitration Act 2008, ss. 21(1) and 22.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

Awards granting non-monetary relief are recognized and enforced in Mauritius in the same manner as any other foreign arbitral award.

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

Pursuant to Art. V(1)(c) of the New York Convention, a decision on a matter that is beyond the scope of the submission to arbitration does not render the whole award unenforceable, provided the decisions on the remaining matters can be separated from the former.

Further and more generally, if the part of the relief granted in a foreign award for which enforcement is being sought is severable from the other part of the relief which is not sought to be enforced or which is not enforceable, it is likely that the Supreme Court will allow its enforcement.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

As under Art. V(1) of the New York Convention, the Supreme Court ‘may’ refuse to enforce the award in such a situation, the Supreme Court has the power to carry out its own review of those grounds for refusing the recognition and enforcement of an award as may be raised by a party. The Supreme Court has however indicated that, at least in relation to the grounds laid down in Art. V(1), it will normally defer to the competent authority referred to in Art. V(1)(e), which the parties have themselves chosen, unless it is ‘in presence of exceptional circumstances’.

(Source: New York Convention, Art. V(1)(e); Cruz City 1 Mauritius Holdings v Unitech Limited et al. [2014 SCJ 100], extracts reported in Yearbook Com. Arb. 2014, Vol 39, pp. 447-452.)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

In a number of situations, a party against whom recognition or enforcement is sought may apply for security for costs to be provided by the applicant.

(Source: Supreme Court (International Arbitration Claims) Rules 2013, Rules 28 and 29.)

Country Rapporteur: Jamsheed Peeroo