MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
4. The Arbitral Tribunal 4.1 Limits on Selection
3.3 National Courts’ Approach No court has yet been tasked with determining the law governing an arbitration agreement. Nevertheless, the correct approach would be to give effect to the inten - tion of the parties. In fact, under Section 32 (1) of the IAA, which embod - ies Article 28 of the Model Law, the arbitral tribunal itself will decide the dispute in accordance with the rules of law chosen by the parties as applicable to the substance of the dispute. If there is any designa - tion of the law or legal system of a state, it should be construed (unless otherwise expressly provided) as referring directly to the state’s substantive law and not to its conflict of laws rules (Section 32 (2) of the IAA). If there is no such designation, the arbitral tribunal will apply the law determined by the conflict of law it considers applicable. Parties can expressly authorise an arbitral tribunal to decide the dispute ex aequo et bono or as amiable compositeur, meaning that it will determine the dis - pute on the basis of notions of fairness and equity without being bound by the strict rules of law (Section 32 (4) of the IAA). In any event, disputes are decided in accordance with the terms of the contract, and usages of trade applicable to the transaction are also considered by the arbitral tribunal (Section 32 (5) of the IAA). Courts are willing to enforce arbitration agreements, and this is reinforced by Section 5 of the IAA and Arti - cle II(3) of the New York Convention. 3.4 Validity The principle of the separability of an arbitration agreement is entrenched in Section 20 (2) of the IAA, which provides that an arbitration clause is an agree - ment independent of the other terms of the contracts in which it is contained, and therefore a decision of the arbitral tribunal that the contract is null and void will not invalidate the arbitration clause.
Section 12 (2) of the IAA provides that parties are free to agree on a procedure for appointing the arbitral tri - bunal, subject to the provisions of Sections 12 (4) and 12 (5) of the IAA, which provide for situations where the PCA can intervene to break deadlocks within the selection process, unless the agreement between the parties provides for other means for resolving such issues. Under Section 12 (4) of the IAA, the PCA’s intervention includes situations where: • parties fail to act in accordance with the agreed procedure; • parties or arbitrators are unable to reach an agree - ment; or • a third party (including an arbitral institution) fails to perform any function entrusted to it under that procedure. Any party may request the PCA to take any measures as necessary. The PCA’s power to intervene is further extended by Section 12 (5) of the IAA, which provides that any par - ty may request the PCA to take any necessary meas - ures in the event of any other failure to constitute the arbitral tribunal. 4.2 Default Procedures Where any party has requested the PCA to intervene under Section 12 (4) or 12 (5) of the IAA, Section 12 (6) sets out the measures that may be taken by the PCA, including: • giving directions as to the making of any necessary appointments; • directing that the arbitral tribunal shall be consti - tuted by such appointments (or any one or more of them) as have been made; • revoking any appointment already made; • appointing or reappointing any or all of the arbitra - tors; and • designating any arbitrator as the presiding arbitra - tor.
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