MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
6.2 Role of Courts Generally, court intervention is permitted only in cer - tain circumstances, and in respect of international arbitrations seated in Mauritius. However, the grant or recognition of interim relief is not limited to inter - national arbitrations seated in Mauritius (Section 3A of the IAA). Section 6 of the IAA provides that a party can request an interim measure of protection in support of arbi - tration from the Supreme Court or a court in a for - eign state, before or during arbitral proceedings. An application to the Supreme Court shall be made and determined in accordance with Section 23 of the IAA, which provides for the powers of the Supreme Court to issue interim measures. Section 22 of the IAA deals with the recognition by the Supreme Court of interim remedies granted by an arbitral tribunal. Section 22 (1) of the IAA provides that an interim measure granted by an arbitral tribunal shall be rec - ognised as binding and, unless otherwise provided by the arbitral tribunal, enforced upon application to the Supreme Court, regardless of the country in which it was issued. The party who is seeking or has obtained recognition or enforcement of an interim measure is required to promptly inform the Supreme Court of any termina - tion, suspension or modification of that measure (Sec - tion 22 (2) of the IAA). Upon an application for the recognition or enforce - ment of an interim measure, and if it considers it prop - er, the Supreme Court may order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security, or where such a decision is necessary to protect the rights of third parties (Section 22 (3) of the IAA). Section 22 (4)(a)(i) of the IAA provides that the rec - ognition or enforcement of an interim measure may be refused at the request of the party against whom it is invoked where the court is satisfied that one of the grounds for exclusive recourse against an award
apply regardless of whether the third party is for - eign or domestic. • Unless agreed otherwise by the parties, an arbi - tration agreement is not discharged by the death, bankruptcy or winding-up of a party, so it can be enforced by or against representatives of that party (Section 7 of the IAA), even though the representa - tive was not a party to the arbitration agreement per se. • Another way third parties may be affected is if the “corporate veil” is lifted. • If an entity or individual has conducted itself/him - self/herself in a manner that shows it/he/she is intervening in a contract and agrees to be bound by its terms, that person can be considered to have become a party to the contract and will there - fore be subject to the arbitration agreement. Section 21 of the IAA provides that, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures in the form of an award or in another form, by which it orders a party to do the following at any time before making the award by which the dispute is finally decided: • maintain or restore the status quo pending deter - mination of the dispute; • take action that would prevent the arbitral process itself, or refrain from taking action that is likely to cause current or imminent harm or prejudice to such process; • provide a means of preserving assets out of which a subsequent award may be satisfied; • preserve evidence that may be relevant and mate - rial to the resolution of the dispute; or • provide security for costs. The arbitral tribunal may modify, suspend or terminate an interim measure it has granted upon the applica - tion of any party or, in exceptional circumstances and on prior notice to the parties, on the arbitral tribunal’s own initiative (Section 21 (5) of the IAA). 6. Preliminary and Interim Relief 6.1 Types of Relief
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