There is no clear pronouncement from the Supreme Court in the matter.
While prior practice regarding foreign arbitral awards indicated that certain interim and partial foreign awards may be recognized and enforced under Mauritian law provided that the claimant undertakes to resolve the issues omitted by the arbitral tribunal. However, this is probably no longer the case given that the relevant provisions of the CCP to that effect have been repealed.
Rather, the travaux préparatoires of the IAA 2008 mentions that the position of Mauritius is identical to S. 47 of the English Arbitration Act 1996, which hints that an award should likely make a final determination on an issue affecting the whole claim or on part of the claim or cross-claims submitted to the tribunal.
Additionally, S. 22 of the IAA 2008 provides the possibility for interim measure that are titled as an award by a foreign arbitral tribunal to be enforced on application to the Supreme Court. A party who seeks or has obtained recognition or enforcement of an interim measure must promptly inform the Supreme Court of any termination, suspension or modification of such measure.
Given the repeal of the provisions of the CCP, the current position of the Mauritian Courts with respect to domestic awards remains unsettled.
Yes. There are significant differences between the grounds for the refusal of recognition of domestic and foreign arbitral awards, with the former being subject to stricter judicial scrutiny.
Enforcement of a domestic award can be refused on the grounds that the:
- Arbitrator made an award without the arbitration agreement or based on an agreement that is null or has expired.
- Composition of the arbitral tribunal was incorrect, or the sole arbitrator was wrongly designated.
- Arbitrator(s) acted beyond their mandate.
- Parties were not given an opportunity to present their case.
- Arbitrator violated the public policy of Mauritius.
- Arbitrator(s) failed to state the reason for their decision.
- Arbitral award was not signed by all the arbitrators or by a majority of arbitrators.
- Arbitral award does not contain information on the:
- name of arbitrators who rendered the award;
- date of the award;
- place where the award was made;
- names or titles of the parties; or
- name of the lawyers or any person who represented or assisted the parties.
For foreign arbitral awards and international arbitral awards rendered under the IAA 2008, the New York Convention grounds apply.
Mauritian Courts have interpreted the public policy violation defence in a restrictive manner. While the Supreme Court in Cruz City 1 Mauritius Holdings v Unitech Limited & Anor [2014 SCJ 100] originally adopted the standard of ‘international public policy’, whereby the Court would only verify whether the award is contrary to the international public policy of Mauritius, this standard is probably no longer the prevailing standard.
More recently, in Essar Steel Limited v Arcelormittal USA LLC [2021 SCJ 248] the Supreme Court confirmed that it would only deny enforcement of an arbitral award if it would violate the ‘public policy of Mauritius as the enforcing state’. However, the Court still maintained its high threshold, noting that it would only deny enforcement of awards that would violate the most basic notions of morality and justice of Mauritius.
The Supreme Court’s review powers are also rather limited in light of the Judicial Committee of the Privy Council’s judgment in Betamax v State Trading Corporation [2021 UKPC 14]. In that case, the Board had highlighted that the court had a limited role with regard to an application for the setting aside of an international arbitration award on the ground of public policy. Such restrained review is likely to apply to recognition and enforcement proceedings.