MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
In appointing an arbitrator, the PCA shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such consid - erations as are likely to secure the appointment of an independent and impartial arbitrator. In the case of a sole or third or presiding arbitrator, the PCA shall also take into account the advisability of appointing an arbitrator of a nationality other than those of the parties (Section 12 (7) of the IAA). 4.3 Court Intervention The IAA does not give the court power to intervene in the selection of arbitrators in international arbitrations seated in Mauritius. In domestic arbitrations, a judge in chambers may appoint an arbitrator or the tribunal where the par - ties cannot agree on the identity of arbitrators or an appointment procedure. 4.4 Challenge and Removal of Arbitrators Parties can challenge arbitrators under Sections 13 and 14 of the IAA, or they can terminate the arbitra - tors’ mandate under Section 15 of the IAA for failure or inability to act. The appointment of an arbitrator may be challenged where the arbitrator has failed to disclose any circum - stance giving rise to justifiable doubts as to his/her impartiality or independence, or where the arbitrator is seen to lack such qualifications as agreed by the parties (Section 13 of the IAA). Under Section 13 (4) of the IAA, arbitrators can only be challenged by a party who appointed them for reasons of which that party became aware after the appointment was made. Parties are free to agree on a procedure for challeng - ing an arbitrator (Section 14 (1) of the IAA). However, in the absence of an agreement, a party who intends to challenge an arbitrator shall send a written statement of the reasons for the challenge to the arbitral tribunal within 15 days after becoming aware of the constitu - tion of the arbitral tribunal or after becoming aware of any circumstance giving rise to justifiable doubts as to the arbitrator’s impartiality or independence. Unless the challenged arbitrator withdraws from his/her office or the other party agrees to the challenge, it shall be
up to the arbitral tribunal to decide on the challenge (Section 14 (2) of the IAA). Where a challenge under any procedure as agreed by the parties or as per the above does not succeed, the challenging party may then, within 30 days of receiv - ing notice of the decision rejecting the challenge, request the PCA to decide on the challenge (Section 14 (3) of the IAA). While the request made to the PCA is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make one or more awards (Section 14 (4) of the IAA). With regards to termination, Section 15 of the IAA provides that if arbitrators become de jure or de facto unable to perform their functions, or fail to act with - out undue delay, their mandate shall terminate on their withdrawal from office, or upon agreement of the parties. Parties may request the PCA to resolve any remaining controversy on any of the grounds for termination. 4.5 Arbitrator Requirements An arbitrator’s duty to disclose any circumstance likely to give rise to justifiable doubts as to his/her impar - tiality or independence arises at the time where he/ she is approached in connection with his/her possible appointment as an arbitrator, and is maintained from the time of his/her appointment and throughout the arbitral proceedings (Section 13 of the IAA). There has not yet been any pronouncement on the subject matters that are excluded from arbitration. The following are generally understood to be outside the purview of consensual arbitration: • the making of winding-up orders; and • disputes relating to the status of a person, taxation and the exercise of public law powers. It is worth noting that an arbitration agreement is not discharged by the death, bankruptcy or winding- 5. Jurisdiction 5.1 Challenges to Jurisdiction
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