MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
a very strong probability that the arbitration agree - ment may be null and void, inoperative or incapa - ble of being performed” (Section 5 of the IAA). • Jurisdiction: Under Section 20 of the IAA, the Supreme Court decides on the issue of jurisdiction when an arbitral tribunal has decided it has juris - diction and also when it has decided it does not have jurisdiction to determine the dispute. • Arbitration Proceedings: Under the IAA, the arbitral tribunal needs to give parties a “reasonable oppor - tunity to present their case”, whereas the Model Law provides that parties should be given “full opportunity”. • Awards: Under the IAA, there are no distinctions between partial awards, interim awards and final interim awards – all awards are final and binding. In setting aside an award, the Supreme Court has the power to make consequential orders (Section 39A of the IAA). • Grounds to Set Aside an Award: Under Section 39 of the IAA, two additional grounds to set aside an award have been added: (a) if the award was induced or affected by fraud or corruption; and (b) if there is a breach of natural justice during the arbitral proceedings or in connection with the making of the award by which the rights of any party have been or will be substantially preju - diced. The Third Schedule to the IAA sets out the provisions of the Model Law to which the provisions of the IAA correspond, in order to assist international users in identifying where the Articles have been incorporated. 2.2 Changes to National Law No significant changes have been made to the nation - al law in the past year and there is no pending legisla - tion relating to international arbitration in Mauritius.
The addition of the term “legal instrument” under the IAA includes investment treaty arbitrations arising under investment treaties. Furthermore, Article II of the New York Convention, as incorporated in the 2001 Act, provides that contracting states should recog - nise agreements in writing, which includes an “arbi - tral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams”. Under Section 4 (2) of the IAA, an arbitration agree - ment is in writing if: • its contents are recorded in any form, whether or not the arbitration agreement or the contract has been concluded orally, by conduct or by other means; • it is concluded by an electronic communication and the information contained in it is accessible so as to be usable for subsequent reference; or • it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. 3.2 Arbitrability No definitive pronouncement has yet been given on subject matters that may not be referred to arbitra - tion. Courts give a broad interpretation to arbitration agreements in order to give effect to the intention of the parties in entering arbitration agreements. Referral to arbitration is governed by Section 5 of the IAA, which provides that, when an action is brought before any court and a party contends that the action is subject to an arbitration agreement, that court should “automatically” transfer the action to the Supreme Court if the party does so after submitting its first statement on the substance of the dispute. The Supreme Court will thereafter refer parties to arbitra - tion, unless the other party shows “on a prima facie basis, that there is a very strong probability that the arbitration agreement may be null and void, inopera - tive or incapable of being performed”, in which case it will itself determine whether the arbitration agreement is indeed null, void, inoperative or incapable of being performed. If the Supreme Court so finds, the matter is transferred back to the court.
3. The Arbitration Agreement 3.1 Enforceability
Under Section 4 of the IAA, an arbitration agreement should be in writing and be in the form of either an arbitration clause in a contract or legal instrument or a separate agreement in order to be enforceable.
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