MAURITIUS Law and Practice Contributed by: Sivakumaren (Robin) Mardemootoo, Natasha Behary Paray and Jeeshna (Kaajal) Radhakissoon, Dentons Mauritius LLP
applications brought under the Code of Civil Proce- dure or the MCC. Under the Code of Civil Procedure, an applicant may seek provisional attachment orders pursuant to saisie - arrêt or saisie conservatoire pro- cedures before the judge in chambers, provided that the applicant is able to establish a clear legal right and that the respondent does not have a valid defence to the claim. Interim relief may also be sought under the equita- ble jurisdiction of the court, in the form of prohibitory injunctions, freezing orders and disclosure orders, among others. Applications for such relief are made before the judge in chambers. In determining whether to grant such relief, Mauritian courts often apply the same tests and criteria as those applied by English courts. 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. 6.2 Interim Relief to Support Arbitration and ADR Mauritian courts may grant interim relief in support of international arbitration proceedings by virtue of the International Arbitration Act 2008, which confers upon the Supreme Court the same powers to issue interim measures as it would have in relation to court proceedings, subject to certain important limitations. In exercising this power, the court is required to have regard to the specific features of international arbi- tration. As a general rule, the arbitral tribunal is the preferred forum for applications for interim relief, and the court will only intervene where the matter is urgent and the tribunal is unable to act effectively at the time of the application. Where urgency is established, the court may act on an ex parte basis; where it is not, the application must be made on notice to the other parties and to the arbitral tribunal, with the permission of the tribunal or the written agreement of the other parties. Any order granted by the court will cease to have effect upon a subsequent order being made by the arbitral tribunal.
There are no specific provisions governing the grant of interim relief in the case of domestic arbitrations, but in practice parties may seek the intervention of the Supreme Court (specifically a judge sitting in cham- bers) if the tribunal is not able to act and to protect the arbitration. There is no specific framework governing the court’s powers to grant interim relief in support of non-arbi- tration ADR processes. 6.3 Timing of Applications for Interim Relief Applications for interim relief are generally made prior to the commencement of main proceedings in order to preserve the rights of the parties pending the final resolution of the dispute. Where injunctive relief is sought, however, the applicant is required to follow up the interim application with the initiation of main proceedings within a reasonable time and as directed by the judge. 6.4 Security for Costs A party is generally free to apply for security for costs subject to certain conditions being met. Mauritian law requires foreign plaintiffs initiating non-commercial actions who hold no immovable property in Mauritius to provide security for costs. Mauritian courts have also extended this principle to commercial matters on a case-by-case basis. Beyond these categories, the court retains a broader discretion to order security for costs regardless of the nationality of the plaintiff or the nature of the dispute – for example, where the plaintiff is known to be insolvent. Such an order for security for costs may be made irrespective of the nationality of the defendant. In order for security for costs to be granted, the apply- ing party must bring its application in limine – that is, before the defendant enters a plea on the merits, fail- ing which the defendant is deemed to have waived its right to seek such an order. As regards quantum, the court exercises its discre- tion by reference to the reasonableness of the security sought, having regard to factors such as the nature of the dispute, the evidence to be adduced and the expenses to be met.
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