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( Source of the document: ICC Digital Library )
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 September 1996.
The Convention was transposed into domestic law on15 March 2004.
(Sources: www.uncitral.org; New York Convention, Art. XII; Procl. No. 6 of 2004.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
Although Mauritius has 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 reservation is therefore most probably of no effect under Mauritian law.
(b) commercial relationships?
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?
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 places 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 places of business;
(iv) the parties have agreed that the subject matter of the arbitration agreement relates to more than one State, or that the International Arbitration Act 2008 should apply to their arbitration;
(v) the shareholders of a company holding a Global Business Licence under the Mauritian Financial Services Act 2007 have agreed that any dispute concerning the constitution of the company or relating to the company shall be referred to arbitration under the International Arbitration Act 2008 (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).
The provisions of the Civil Procedure Code that may have remained applicable by virtue of Art. VII(1) of the New York Convention are not applicable to the above international arbitration awards rendered in Mauritius, which are governed solely by the New York Convention, which has been fully incorporated into Mauritian law (see Explanatory note in Q.5 below).
(Source: International Arbitration Act 2008, ss. 3(2)(b), 3(6) 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, as amended by s. 43 of the International Arbitration Act 2008, and incorporating the full text of the New York Convention in its Schedule.
(ii) International Arbitration Act 2008.
(iii) Arts. 1028 and 1028-1 to 1028-11 of the Civil Procedure Code.
(iv) case law.
Explanatory note: The International Arbitration Act 2008 was passed to make Mauritius into an efficient, modern and neutral place for arbitration. It principally governs international arbitrations having Mauritius as their juridical seat and resulting in awards deemed to have been rendered in Mauritius. Mauritian law is already very favourable to recognition and enforcement of foreign awards and guarantees the minimum standards laid down by the New York Convention.
When the New York Convention took effect in Mauritian law in 2004, the old provisions of the Mauritian Civil Procedure Code were not modified by the legislator. The domestic provisions that were already more favourable to the recognition of foreign awards took precedence in accordance with Art. VII(1) of the Convention and the less favourable provisions were implicitly repealed. The Civil Procedure Code therefore remains to a certain extent applicable to the recognition and enforcement of 'foreign' awards, but is not applicable to Mauritian international arbitration awards that are not considered as domestic.
Under the Civil Procedure Code applicable law remains a criterion for classifying awards, so awards resulting from agreements governed by Mauritian law, albeit rendered in another country, are not considered as 'foreign'. Although treated as Mauritian awards, such awards are not considered as domestic and therefore lie outside the scope of the Civil Procedure Code.
As a result, 'Mauritian non-domestic awards', i.e. arbitration awards that are considered under Mauritian law as being neither 'domestic' nor 'foreign', do not benefit from the more favourable provisions that exist under national law by virtue of Art. VII(1) of the Convention.
For the sake of clarity, this report will make specific reference to and deal separately with 'Mauritian non-domestic awards' as defined above when subject to rules different from those governing the enforcement of foreign awards.
C. Limitation periods (time limits)
(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?
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
(Source: The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, s. 4(1); Civil Procedure Code, Art. 1028-2.)
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, nor is there any case law where an objection to jurisdiction has been raised.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision on recognition and enforcement is obtained by way of plaint with summons, i.e. through inter partes proceedings.
(Source: Supreme Court Rules, s. 2(1), as laid down in the Third Schedule to the Judicial and Legal Provisions Act 2000.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
One. Appeal to the Judicial Committee of the Privy Council is of right.
(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 21 days from the date of the judgment granting enforcement of the award. This is also the time limit for filing an appeal against the judgment.
(Source: Supreme Court Rules, s. 42.)
E. Evidence required
(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.)?
Only the award must be supplied by the party applying for recognition and enforcement of a foreign award.
In the case of a 'Mauritian non-domestic award', the applicant must also supply the arbitration agreement (under Mauritian law, the term arbitration agreement as used in the New York Convention must be interpreted in 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).
(Sources: Civil Procedure Code, Art. 1028-8; New York Convention, Art. IV(1); 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).)
(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 produced. Where the arbitration agreement is required, the relevant pages of the document containing it should suffice.
(c) Are originals or duly certified copies required?
It is permissible for the party seeking recognition and enforcement to supply duly certified copies.
Under Mauritian law, for the purposes of the Convention, a copy is duly 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. Further, it is arguable that a copy regarded as duly certified under the laws of the country in which it has been rendered is also admissible for awards other than 'Mauritian non-domestic awards'.
(Sources: Civil Procedure Code, Art. 1028-8(1); New York Convention, Art. IV(1); The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001, s. 5(1), as amended by the International Arbitration Act 2008, s. 43(d).)
(d) How many originals or duly certified copies are required?
The following are required: (i) one original or one copy of the award and (ii) where applicable, one original or one certified copy of the arbitration agreement.
(e) Does the authority or court keep the originals that are filed?
Originals are kept but they may be retrieved, provided duly certified copies of the originals are filed.
(a) Is it necessary to provide a translation of the documents supplied?
(b) If yes, into what language?
English or French are acceptable.
For 'Mauritian non-domestic awards', Mauritian law does not identify any language as being the official language of the country. The courts may, to the extent that they are so empowered, decide that the official language of the country for the purposes of Art. IV(2) of the New York Convention is English and require the translation to be in English, or alternatively recognize English and French equally.
(Source: Civil Procedure Code, Art. 1028-9.)
(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 documents. 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. Where arbitration agreements must be produced, i.e. for the enforcement of 'Mauritian non-domestic awards' (see Q.12(a) above), a translation of the arbitration agreement is required.
F. Stay of enforcement
(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?
(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 ordered by the court.
Further, 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, at the request of the party seeking enforcement, the court may order the other party to provide suitable security.
(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, non-final orders such as interim measures may be sought before a judge in chambers rather than in open court. In such cases, the master is empowered to direct how records of cases dealt with in chambers shall be kept.
(Source: Supreme Court Rules, s. 53(1) and (3).)
(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 public except in those cases where non-final orders such as interim measures are sought before a judge in chambers.
(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 can be published. The court has discretion to decide whether or not to circulate a judgment for publication. If it does so, no steps can currently be taken to remove names or parts of the judgment.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
As a general rule, interim and partial foreign awards are recognized and enforced under Mauritian law.
The Supreme Court is expressly empowered to require, where necessary, an undertaking from the applicant that it will continue with the arbitration until the resolution of the remaining disputes as a condition for granting enforcement of such awards. There seems to be no reason why the court should not have the power to do so for 'Mauritian non-domestic awards', too.
(Source: Civil Procedure Code, Art. 1028-6.)
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 are separable from the former.
Further and more generally, if that part of the relief for which enforcement is being sought is severable from the relief not sought or 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?
Under Mauritian law, as per Art. V(1) of the New York Convention, the Supreme Court 'may' refuse to enforce the award in such a situation. There is no case law indicating whether and when recognition and enforcement would be allowed. It is more likely than not that the Supreme Court will adopt the prevailing position in international arbitration law, commentary and practice in relation to Art. V(1)(e) and deny enforcement of such awards.
(Source: New York Convention, Art. V(1)(e).)
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.)?