MAURITIUS Law and Practice Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
It is generally presumed that other ADR methods would be equally treated as confidential, but such confidentiality would have to be expressly stipulated under the agreement for ADR and/or resulting out- come, in keeping with the consensual and private character of such processes. 4.6 Costs Unless otherwise agreed by the parties, the alloca- tion of costs in ADR proceedings adjudication is typi- cally addressed by the adjudicator/arbitrator in their decision, in the exercise of their discretion to allocate costs between the parties. This is the case for both domestic and international arbitrations. In the case of international arbitration, and in the absence of any agreement between the parties, when exercising its discretion the arbitral tribunal has regard to the prin- ciples that: • costs should follow the event, except where it appears to the arbitral tribunal that this rule should not apply or not apply fully in the circumstances of the case; and • the successful party should recover a reasonable amount reflecting the actual costs of the arbitra- tion, and not only a nominal amount. In more consensual processes such as negotiation and mediation, parties will generally either agree on costs allocation as part of any settlement or bear their own costs in the absence of such agreement. The judicial mediation framework also reflects this prin- ciple and notes that, while a settlement agreement may include provision for costs, this likely cannot be imposed by the court. There are no other legislative provisions governing the allocation of costs in ADR proceedings in Mauritius. 4.7 Courts and ADR The courts in Mauritius are generally supportive of ADR, recognising its capacity to resolve disputes effi- ciently and to alleviate pressure on the courts’ busy schedules. Judges and magistrates routinely encour- age parties to explore negotiated settlements and afford them reasonable opportunity to pursue ADR where they consider it appropriate, including at vari- ous stages of the proceedings.
In the context of judicial mediation, the courts have set out rules on the framework and procedure, pro- viding a degree of certainty to the parties. The rules would however benefit from further precision, in so far as there are certain practical difficulties to their application – for instance, in the case of a mediation settlement (akin to a judgment) on the subject matter of immovable property, the public authorities apply different (and higher) taxation rules than in judgments delivered by the court in usual litigation proceedings. The framework regulating legal fees for law practition- ers in Mauritius is governed by the respective codes of ethics applicable to barristers and attorneys. In respect of attorneys, the relevant provisions require that fees charged be fair and reasonable, having regard to factors such as the time and labour involved, the complexity and novelty of the matter, the skill required, the fee customarily charged for similar services, and the experience and reputation of the attorney con- cerned. 5. Costs, Fees and Funding 5.1 Legal Fees The Code of Ethics applicable to barristers provides for a similar restriction, requiring that a barrister’s fees be fully disclosed to the client and that they be fair and reasonable. 5.2 Third-Party Funding Third-party funding arrangements are neither express- ly provided for nor prohibited under Mauritian law. Subject to the requirements of public order, such arrangements are therefore likely to be considered permissible in Mauritius. 5.3 Contingency Fee Arrangement Contingency fee arrangements are permitted in Mauri- tius and are regulated by the professional ethical rules governing legal practitioners, which impose specific requirements on both barristers and attorneys. For barristers, the applicable Code of Ethics pre- scribes a formal cap of 10% of the value of the result
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