MAURITIUS Law and Practice Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
• extend the duration of the mandate of an arbitral tribunal upon application of a party; and • enforce a domestic arbitral award through the exequatur process. 3.9 Court Intervention For international arbitrations, the International Arbitra- tion Act 2008 enshrines the principle of competence- competence and a strict judicial non-intervention prin- ciple, which Mauritian courts generally follow. Save where the law expressly permits judicial involvement, whether in support of arbitration proceedings or in the exercise of the court’s supervisory jurisdiction, the jurisdiction of the courts is ousted. Under the International Arbitration Act 2008, court intervention is only permitted in the following circum- stances. • To enforce the negative effect of competence- competence: where a party to court proceed- ings invokes an arbitration agreement at the first opportunity, the matter will be referred to arbitra- tion unless the other party can establish, on a prima facie basis, a very strong probability that the arbitration agreement is null and void, inoperative or incapable of being performed. • Where the arbitral tribunal rules on a jurisdictional plea on a preliminary basis, any party may, within 30 days of receiving notice of that ruling, request the Supreme Court to decide the matter. The arbi- tral tribunal may continue proceedings and make awards while the request is pending. • The Supreme Court may set aside an arbitral award on the limited grounds provided under Section 39, including absence of jurisdiction. For domestic arbitrations, the courts adopt a similarly limited approach, though the precise extent of inter- vention will depend on the circumstances. Mauritian courts will typically adhere to the negative effect of the competence-competence principle, pursuant to which courts are prohibited from hearing litigation relating to the exercise, validity or scope of an arbi- tration agreement other than on a prima facie basis. Under the Code of Civil Procedure, a party may chal- lenge a domestic arbitral award either by way of
appeal, where the parties have not waived that right in their arbitration agreement, or by applying for annul- ment of the award by way of appeal for annulment. 3.10 Relief Under the International Arbitration Act 2008, unless the parties have agreed otherwise, an arbitral tribunal has broad powers to grant relief. These include the power to make declarations as to any matter to be determined in the proceedings, order the payment of a sum of money in any currency, and award simple or compound interest for such period and at such rate as the tribunal considers just. The tribunal also has the same powers as a Mauritian court to order a party to do or refrain from doing anything, to order specific performance of a contract, and to order the rectification, setting-aside or cancellation of a deed or other document. This is also the case for domestic arbitrations. In relation to interim relief, the International Arbitra- tion Act also permits arbitral tribunals to grant interim measures at the request of a party before making a final award. Such measures are broad in scope and may include orders to: • maintain or restore the status quo; • prevent action likely to cause imminent harm or prejudice to the arbitral process; • preserve assets out of which a subsequent award may be satisfied; • preserve relevant evidence; or • provide security for costs. The tribunal’s power to grant interim measures may however be excluded by agreement of the parties. The Code of Civil Procedure does not expressly pro- vide for interim measures or relief in cases of domestic arbitration, but this is generally granted in the exercise of the court’s equitable powers.
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