MAURITIUS Law and Practice Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
3. Arbitration 3.1 Prevalence
Interim relief is often sought before the Mauritian courts, particularly in commercial and land disputes, and is also available in the context of arbitration pro- ceedings under the International Arbitration Act. 2.7 Final Relief Mauritian law provides for a variety of remedies in commercial litigation, reflecting the jurisdiction’s hybrid legal system. Compensatory damages remain the most commonly sought form of relief. In line with French civil law principles, Mauritian courts may also order specific performance, compelling a party to fulfil its contractual obligations. Additionally, in the exercise of their equitable jurisdic- tion, Mauritian courts may grant permanent injunc- tions to restrain a party from acting in breach of a legal right or obligation. In the context of commercial litigation, the Bankruptcy Division may also order the appointment of a receiver, an administrator or the liq- uidation of Mauritian companies in specific circum- stances. In other cases, the court may give directions to the company or to an insolvency practitioner. 2.8 Damages Mauritian law closely follows French law principles on the award of damages, notably the principle of répa- ration intégrale (complete reparation), which requires that compensation awarded to a successful claimant be commensurate with the actual loss suffered. As a corollary to this principle, punitive damages are not available under Mauritian law. In tort, claimants may only recover damages that are certain and directly attributable to the wrongful act. In contract, recoverable damages are limited to losses that were foreseen at the time of contracting or that were reasonably foreseeable as a consequence of the breach. An exception applies where the contractual breach is attributable to dol – that is, fraud or gross negligence – in which case the defaulting party is liable for all losses that are a direct and certain con- sequence of the breach, regardless of foreseeability.
While litigation remains the predominant dispute resolution mechanism in Mauritius, arbitration is well established, supported by the judiciary and growing in prevalence, particularly in construction, real estate and corporate disputes. In the construction sector, high-value projects are rou- tinely referred to domestic arbitration. Most standard- form contracts already provide for arbitration as the preferred dispute resolution mechanism, and Mauri- tian parties typically amend these clauses to provide for domestic arbitration governed by the Code of Civil Procedure, including in contracts with public entities. Corporate disputes involving shareholder rights, joint ventures and investment agreements are also com- monly submitted to arbitration, particularly where off- shore or global business companies incorporated in Mauritius are concerned. Corporate constitutions and shareholders’ agreements of such entities frequently contain arbitration clauses. Beyond the above sectors, many commercial con- tracts involving foreign parties in a variety of sectors such as intellectual property, energy, media, finance and shipping also contain arbitration clauses, and disputes arising from them are routinely referred to arbitration. 3.2 Restrictions on Use of Arbitration There is no predetermined list of disputes that cannot be referred to arbitration in Mauritius, and the courts have yet to make a definitive pronouncement on the matter. However, a restriction can be presumed to exist on disputes directly adjudicating matters reserved to public order, such as matters involving the capacity of persons, insolvency proceedings, family and mat- rimonial matters, and criminal matters. Further, in the context of international arbitration, the International Arbitration Act 2008 also restricts the arbitration of consumer disputes. Disputes involving consumers can only be referred to arbitration where the consumer enters into a new arbitration agreement after the dispute has arisen and upon the consumer
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