MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
5.4 Standard of Judicial Review for Jurisdiction/Admissibility
up of a party, as it can still be enforced against the representative(s) of that party (Section 7 of the IAA). 5.2 Circumstances for Court Intervention A party can only challenge the jurisdiction of an arbi - tral tribunal up to the submission of the statement of defence, and it would not be precluded from doing so even if it participated in the appointment of the arbitrator (Section 20 (3) of the IAA). Furthermore, a plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the mat- ter alleged to be beyond the scope of its authority is raised during the arbitral proceedings (Section 20 (4) of the IAA). However, the arbitral tribunal may admit a later plea under Section 20 (3) or 20 (4) if it considers the delay justified. The arbitral tribunal can rule on its jurisdiction as a preliminary question or in an award on the merits of the dispute. If jurisdiction has been determined by the arbitral tribunal as a preliminary question, Section 20 (7) of the IAA states that any party may request the Supreme Court to decide the matter of jurisdiction within 30 days of receiving notice of that ruling. Whilst such request is pending before the Supreme Court, the arbitral proceeding may continue, and one or more awards can be made by the tribunal. Section 20 (7) of the IAA modifies the Model Law in a material aspect as it allows the Supreme Court to review rulings of the arbitral tribunal when it has ruled it has jurisdiction, and also when it has ruled it does not have jurisdiction. This was confirmed in the recent ruling of Digame Investment Company Limited & Ors v Apex Fund and Corporate Services (Mauritius) Ltd 2023 SCJ 273 . 5.3 Timing of Challenge The arbitral tribunal may rule on a plea of jurisdiction as a preliminary question or in an award on the merits. Where the tribunal does so as a preliminary question, any party may request the Supreme Court to decide the matter (Section 20 (7) of the IAA) within 30 days of receiving notice of that ruling. Nevertheless, the arbitral proceeding is not stayed while such a request is pending, and the tribunal can make one or more awards.
The standard of judicial review for jurisdiction is “de novo”, which means that the Supreme Court will make its own determination of the issue of jurisdiction by way of a full rehearing. The notion is that, as a matter of logic, the arbitral tribunal cannot itself finally resolve any matter going to its own jurisdiction and “thereby pull itself up by its own bootstrap” (The Mauritian International Arbitration Act 2008: Text and Travaux Préparatoires, paragraph 77, page 203). 5.5 Breach of Arbitration Agreement Under Section 5 of the IAA, if a party contends that an action before a court is subject to an arbitration agree - ment, the court will automatically transfer the action to the Supreme Court, which in turn shall refer the matter to arbitration unless a party shows, on a prima facie basis, that there is a very strong probability that the arbitration agreement is null and void, inoperative or incapable of being performed. The referral under Section 5 of the IAA therefore caters for circumstanc - es where a party is acting in breach of an arbitration agreement. The high threshold imposed on the party opposing a referral to arbitration is clear evidence of a reluctance to allow parties to act in breach of an arbitration agreement. 5.6 Jurisdiction Over Third Parties An arbitral tribunal will not have jurisdiction over indi - viduals or entities that are neither party to an arbitra - tion agreement nor signatories to the contract con - taining the arbitration agreement. However, third parties may be affected in the follow - ing ways: • If the parties expressly agree, under the arbitration agreement, that the supplementary provisions for international arbitrations under Schedule 1 to the IAA will apply (“Supplementary Provisions”), para - graph 4 of the Supplementary Provisions allows a party to the arbitration to make an application to the Supreme Court to determine that one or more persons be joined in the arbitration as a party, provided that such third person and the applicant party have consented thereto in writing. This would
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