Enforcing arbitral awards in Mauritius

The Mauritian legal framework generally distinguishes between domestic and international arbitration with respect to recognition and enforcement proceedings. While the recognition and enforcement of domestic arbitral awards are governed by the Code of Civil Procedure 1808 (“CCP”), the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (“Convention Act 2001”) governs the recognition of foreign arbitral awards. There is a third category of awards in Mauritius, namely international arbitral awards rendered in Mauritius under the International Arbitration Act 2008 (“IAA 2008”), which are also governed by the Convention Act 2001.  

Recognition and enforcement proceedings under the Convention Act 2001 are also subject to the specialised procedural regime provided by the Supreme Court (International Arbitration Claims) Rules 2013 (“SCR 2013”). 

Mauritius is a party to the 1958 New York Convention, to which it acceded on 19 June 1996. It formally came into force by virtue of the proclamation of the Convention Act 2001 on 15 March 2004. 

While Mauritius initially filed a reciprocity reservation, this has been removed, and it is now possible to enforce foreign arbitral awards from States that are not signatories to the New York Convention in Mauritius.  

Mauritius has also made a declaration under Article X of the New York Convention whereby the Convention is extended to all the territories forming part of the Republic of Mauritius, including the outer islands of the country. 

The Supreme Court has jurisdiction for the recognition and enforcement of all arbitral awards. 

With respect to purely domestic awards rendered under the framework of the CCP, an order for recognition and enforcement would have to be sought before the Judge in Chambers of the Supreme Court who would have jurisdiction. As for foreign arbitral awards and international arbitral awards rendered under the IAA 2008 (‘international arbitral awards”), S. 42 of the IAA 2008 provides that such matters are heard by a panel comprised of 3 ‘designated judges’ who are specially trained in international arbitration . 

Under Article 1026-8 of the CCP, domestic awards can be enforced by submitting an application to the Judge in Chambers of the Supreme Court. This application should be in the form of a ‚motion supported by an affidavit,‘ where the applicant asks the Court to order the enforcement of the arbitral award. 

As for foreign arbitral awards and international arbitral awards, Rule 15 of SCR 2013 provides that an application for the recognition and enforcement shall be initiated in the same manner as an arbitration claim, which is commenced by way of motion, accompanied by the appropriate fee determined in the schedule of the Rules.  

There are no requirements for the Supreme Court to have jurisdiction over an application for the recognition and enforcement of arbitral awards. 

The SCR 2013 provides that all arbitration claims, including applications for the recognition and enforcement of foreign and international arbitral awards, be accompanied by a flat fee provided for in the Schedule, which at present is Rs. 10,000 (around USD 215). The amount in dispute would have no consequence on the applicable court fees, as this is already pre-determined by the applicable Court Rules.  

As for domestic awards rendered under the CCP, the applicable court fees would be determined by the applicable Legal Fees and Costs Rules adopted by the Chief Justice of the Supreme Court, which is updated every few years. The current applicable fee under the Legal Fees and Costs Rules 2019 for exequatur applications is Rs.1500 (around USD 33).  

Under Rule 19(2) of the SCR 2013, the Court would follow the general rule of ordering the unsuccessful party or parties to pay the costs of the successful party or parties. However, the Court maintains the discretion to make a different order or no order at all depending on all relevant circumstances of the case. In exercising its discretion, the Court will take into account factors such as the conduct of the parties, whether a party has partly succeeded in its case and if a party attempted to make an admissible offer to settle. 

The same principles would likely also apply to the enforcement of domestic arbitral awards as the above provision in SCR 2013 is a reflection of established practice of the Mauritian Courts. 

Recognition and enforcement proceedings for foreign arbitral awards and international arbitral awards have both ex parte and adversarial features. An application for the recognition and enforcement of a foreign arbitral award is initially made ex parte without notice to the respondent. The Chief Justice then verifies the compliance of the application with the requirements under the applicable Court Rules and the Convention Act 2001, following which she or he would be able to issue a provisional order granting recognition and enforcement of the award. The order would, within 14 days of receipt, then be served to the respondents and any additional party identified by the applicant.  

The respondent party has 14 days after such service to apply to ‘set aside’ the provisional order. It is therefore upon the initiation of the ‘set aside’ proceedings against the provisional order that the proceedings turn adversarial.  

As for domestic awards, while applications for exequatur can theoretically be made ex-parte, in practice proceedings are almost always inter partes and would require the presence of the respondent’s representative during the application.   

For domestic awards rendered under the CCP, an applicant seeking exequatur should furnish the following documents for enforcement:  

• The original award. 
• The original arbitration agreement. 

Under the SCR 2013 and the Convention Act 2001, an application seeking the recognition and enforcement of a foreign arbitral award or international arbitral award should comprise the following documents:   

• The duly authenticated original award or a certified copy of it. 
• The original arbitration agreement or a duly certified copy of it. 
• The motion paper and supporting evidence. 
• A proposed draft order to grant recognition and enforcement of the award in the same way as a court judgment.  

Under S. 4A of the Convention Act 2001, no translations are necessary for an any arbitral award made in the English or French language. For any other language, the applicant should provide the Court with a duly certified translation of the documentation in English or French.  

The same requirements equally apply to the exequatur proceedings for the enforcement of domestic awards. 

As a matter of practice, parties would need to be represented by a Mauritian-qualified Attorney while seeking an order from the Court to recognize and enforce a foreign arbitral award. Should the process turn adversarial, it is likely that the parties would further have to additionally pay for a Barrister to argue their case.  

While S. 21(3) of the Law Practitioner’s Act does allow the Chief Justice to grant a foreign lawyer a right of audience, this is usually only allowed in extraordinary circumstances. 

It must also be noted that the any foreign company would be required to provide their representatives with a Power of Attorney that complies with the formal procedure laid down in the Deposit of Powers of Attorney Act 1928, which comprises of depositing a written mandate to a notary prior to the initiation of any proceedings.  

Under the Supreme Court Rules 2000, service may either be made by an usher or by registered post with a request for advice of delivery. Service may either be made where a party has given an address for service or at the registered address of a party (address provided to the registrar of companies). 

With regards to service to a party residing outside Mauritius, Rule 9 of the SCR 2013 requires for an applicant to seek leave from the Chief Justice to be able to serve outside the jurisdiction.   

There are some differences between the two regimes, albeit with one caveat. Generally, a purely domestic award in Mauritius is enforced by making an application for “exequatur” pursuant to the CCP, whereby the award-creditor could request the Judge in Chambers for an order rendering the award executory in Mauritius. The exequatur process could be considered ‘more stringent’ as domestic arbitration is only permissible if subject to a certain level of judicial control, and cannot be deemed enforceable unless it has gone through the exequatur process (Mauritius Union Assurance Co. Ltd V GFA Insurance Co. Ltd [2011 SCJ 34]).  

Contrary to purely domestic arbitral awards, foreign arbitral awards and international arbitral awards rendered in Mauritius are subject to the regime under the Convention Act 2001. The most important difference would be the inclusion of potential ‘set aside’ process and the subsequent reference of the matter to a panel of 3 designated judges, which does not apply to the recognition and enforcement of domestic award.  

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.  

Under Rule 42 of the Supreme Court Rules 2000, the execution of the order to enforce an arbitral award against assets may be obtained after 21 days from the date of the judgment granting enforcement of the award. The deadline for filing an appeal against a judgment of the Supreme Court to recognizing or refusing to recognize a foreign arbitral award is also 21 days. This process would apply with respect to all arbitral awards.

Under Section 4(3) of the Convention Act 2001, any decision of the Supreme Court concerning an arbitration claim, including a decision to recognise and enforce an arbitral award, may be appealed to the Judicial Committee of the Privy Council as of right. 

A similar right of appeal to the Judicial Committee of the Privy Council also exists with respect to decisions setting aside domestic awards (S. 81 of the Mauritian Constitution). 

The answer above equally applies to decisions refusing to recognize an arbitral award. 

Respondents can raise a right of set-off as a defence to enforcement, and this seems to have been accepted by the Supreme Court during recognition and enforcement proceedings (vide Cruz City 1 Mauritius Holdings v Unitech Limited & Anor [2014 SCJ 100]). 

There is no reason why a similar approach would not be adopted by the Court with respect to the enforcement of domestic arbitral awards.

Given that the Convention Act 2001 has adopted verbatim the New York Convention, the Mauritian courts have the discretion to enforce an award which has been set aside. However, it is likely that the Mauritian courts would refuse to enforce an award that has been set aside unless there are exceptional compelling reasons to do so.  

Yes. Section 23 of IAA 2008provides the Supreme Court with the power to issue an interim measure in relation to arbitration proceedings, whether the juridical seat of the arbitration is in Mauritius or elsewhere. Additionally, any Judge of the Supreme Court might be empowered under Section 73 of the Courts Act 1945 to grant injunctions as part of the Court’s inherent jurisdiction, which is equally applicable to situations involving enforcement proceedings.  

The most common remedy with respect to enforcement proceedings appears to be freezing injunctions or preservation orders, which are granted to prevent an award-debtor from removing their assets from Mauritius to frustrate the enforcement process. 

Interim measures with respect to domestic arbitrations can also be sought from the Court through the exercise of the Court’s inherent powers under S. 73 of the Courts Act 1945. 

Rule 28 of the SCR 2013 allows for any respondent to any arbitration claim, which includes a motion for the recognition and enforcement of a foreign arbitral award, to apply for security for costs.  

However, under Rule 29 of the SCR 2013 such measure is only granted if the Supreme Court, having regard to all circumstances of the case, finds that it would be just to make such an order, and if one or more of the following conditions are fulfilled: 

• the claimant is resident outside of the jurisdiction; 
• the claimant is a company or other body, whether incorporated inside or outside Mauritius, and there is reason to believe that it will be unable to pay the respondent’s costs if ordered to do so; 
• the claimant has changed its address since the claim was commenced with a view to evading the consequences of litigation; 
• the claimant failed to give its address in the claim form, or gave an incorrect address in that form; 
• the claimant is acting as a nominal claimant and there is reason to believe that it will be unable to pay the respondent’s costs if ordered to do so; 
• the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it. 

It is unlikely that the Supreme Court would award security for costs for purely domestic arbitrations, as such measure would no longer have such pressing rationale given the domestic presence of both parties, which would allow the courts to easily enforce any cost orders.