Rishi Pursem SC and Bilshan Nursimulu discuss how Mauritius has evolved to become an increasingly popular choice for arbitration
On 1 January 2009, the Mauritian International Arbitration Act came into force. It created a completely new regime for international arbitration and expressly provides that it is to be developed in keeping with the international principles underlying the UNCITRAL Model Law.
At that time, it was rare for commercial parties (advised by local or foreign lawyers) to choose to refer their disputes to arbitration seated in Mauritius. Ten years later, the outlook has significantly evolved. More than 50% of our dispute resolution work at Benoit Chambers now involves arbitration matters and arbitration-related litigation. Those matters arise mainly in the context of shareholder disputes, involving foreign investors who have invested in Africa and/or Asia through special-purpose vehicles incorporated in Mauritius. We are also increasingly experiencing a wider breadth of international commercial arbitration matters either seated in Mauritius or subject to enforcement proceedings before the Supreme Court of Mauritius.
The implementation of the Mauritian International Arbitration Act, and the pro-arbitration case law that has developed from it, have been key contributors to building the confidence of investors and financiers in the Mauritian international arbitration system. For commercial stakeholders, the Supreme Court’s non-interventionist approach and its ability to grant urgent relief in aid of arbitration pending the constitution of an arbitral tribunal, are considerations that ensure an effective dispute-resolution system. The Supreme Court’s approach to the interpretation and application of the Act, in conformity with the principles established in Model Law jurisdictions and international materials, adds a further level of confidence in the system. Mauritius is also a signatory to the Convention on the Recognition and Enforcement of Foreign Awards (New York Convention) and, unlike the position in many other jurisdictions, the New York Convention applies to awards issued in international arbitrations seated both in and outside of Mauritius. Further, another feature of the International Arbitration Act, which is positively regarded by foreign parties, is the right of appeal to the Judicial Committee of the Privy Council against a judgment of the Supreme Court of Mauritius. So far, only one out of the 12 judgments delivered by the Supreme Court under the International Arbitration Act since 2011 has been the subject of an appeal, which is currently pending.
While the 2011 Act laid down the largely pro-arbitration legislative framework that Mauritius now enjoys, the country’s progressive development as a regional arbitration hub has become more realistic with the increasing interest and participation of arbitration practitioners from established jurisdictions in matters seated in Mauritius or involving issues of Mauritius law. To some extent, this is due to the provision made in the Act (itself drafted by reputed arbitration practitioners, namely Salim Moollan QC, Toby Landau QC and Ricky Diwan QC) allowing foreign practitioners to represent parties in international arbitrations seated in Mauritius. A foreign lawyer can also be registered in Mauritius to provide services in relation to inter alia arbitration proceedings and, in specific cases, the Chief Justice has granted rights of audience to foreign lawyers to appear before the Supreme Court in arbitration-related disputes. In our experience, the close collaboration between Mauritian arbitration practitioners and their foreign counterparts has, over the last decade, greatly influenced the legal culture and resulted in the development of an international arbitration practice that is on par with international standards. In our experience, nurturing strong relationships with regional practitioners has allowed us to develop familiarity with the jurisdictions that we often deal with in arbitration matters, and to conduct cases efficiently by engaging promptly with our foreign counterparts on matters of foreign law and even sharing their resources when the complexity of a case so requires.
Further, at the time of the implementation of the International Arbitration Act, most commercial contracts that provided for arbitration as the dispute -resolution mechanism, provided for such disputes to be referred to international institutions, such as the London Court of International Arbitration (LCIA), International Chamber of Commerce and SIAC. It was contemplated that the presence of an international arbitral institution in Mauritius would greatly assist in promoting the country as a regional arbitration hub. In that context, the setting up of the LCIA-MIAC Arbitration Centre in 2011 was well perceived and, in the years that followed, the LCIA-MIAC’s initiatives include the hosting of several arbitration conferences and the promotion and organisation of the ICCA Congress 2016, which Mauritius was the first African country to host. In our experience, international investors and financiers became more inclined to include an LCIA-MIAC arbitration clause in their commercial contracts.
‘The Mauritian International Arbitration Act, and the case law that has developed from it, have been key contributors to building the confidence of investors in the system.’
The situation is different today: the joint venture between the LCIA and the Government of Mauritius terminated in July 2018. There are today two competing Mauritian arbitral institutions, which are both highly regarded due to the involvement of reputed international practitioners on their respective boards. On the one hand, MARC, which was set up in 1996 as an initiative of the Mauritius Chamber of Commerce and Industry, has recently revamped its structure in an effort to become the country’s top dispute resolution centre, with an advisory board chaired by Sarah Grimmer (also the secretary-general of the Hong Kong International Arbitration Centre), the MARC Court presided by Neil Kaplan QC, and the organisation of the Mauritius Arbitration Week as an annual conference consisting of seminars and workshops with local and international practitioners. On the other hand, MIAC is a new arbitration centre supported by the government of Mauritius to succeed the defunct LCIA-MIAC Arbitration Centre, with a three-tier structure comprising of an advisory board chaired by Shearman & Sterling’s Emmanuel Gaillard, a board of directors and the secretariat, which is led by the legal counsel at the Permanent Court of Arbitration (PCA) office in Mauritius. (In September 2010, the PCA opened its first overseas office in Mauritius to provide services throughout the African region and also perform certain functions under the Mauritius International Arbitration Act, such as the appointment of arbitrators and the ultimate rulings on challenges to arbitrators.)
Our outlook on the next ten years is an expected growth in our international arbitration practice in terms of the number of African-related matters. What Mauritius has to offer in that regard is a well-respected legislative framework and judiciary system, as well as competent practitioners and arbitral institutions that are cost-competitive.
Rishi Pursem SC and Bilshan Nursimulu (left to right), Benoit Chambers.