MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
under Section 39 (2)(a) applies – namely, that the party making the application has furnished proof that: • it was under some incapacity, or the agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under Mauritius law; • it was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present its case; • the award deals with a dispute not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration; or • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the IAA. Recognition or enforcement may also be refused at the request of the party against whom it is invoked where the court is satisfied that the arbitral tribunal’s decision with respect to the provision of security in connection with the measure issued by the arbitral tribunal has not been complied with (Section 22 (4) (a)(ii) of the IAA), or where the interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the state in which the arbitration takes place or under the law under which that interim measure was granted (Sec - tion 22 (4)(a)(iii) of the IAA). Furthermore, under Section 22 (4)(b) of the IAA, rec - ognition or enforcement of an interim measure may be refused where the court finds that the measure is incompatible with the powers conferred on the court, unless the court decides to reformulate the measure to the extent necessary to adapt it to its own power and procedures for the purposes of enforcing that measure and without modifying its substance, or unless any of the following grounds set out in Section 39 (2)(b) apply to the recognition and enforcement of the measure: • The subject matter of the dispute is not capable of settlement by arbitration under Mauritius law.
• The award is in conflict with the public policy of Mauritius. • The making of the award was induced or affected by fraud or corruption. • A breach of the rules of natural justice occurred 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. Where the arbitral tribunal is unable to exercise its powers in granting or recognising an interim measure as provided for under Section 21 of the IAA, Section 23 sets out the powers of the Supreme Court to issue interim measures. The tribunal shall have the same power to issue an interim measure in relation to arbi - tration proceedings as it has in relation to proceed - ings in court, whether the juridical seat of the arbitra - tion is in Mauritius or not, and whether that power is exercised by a judge in chambers or otherwise. In so doing, the court shall have regard to the specific features of international arbitration. However, the court shall exercise its power in such a manner as to support and not disrupt the existing or contemplated arbitral proceedings (Section 23 (2A) of the IAA). Where the case is one of urgency, the court may make such order as it thinks necessary, on the ex parte application of a party or proposed party to the arbitral proceedings (Section 23 (3) of the IAA). Where the case is not one of urgency, the court shall act only on the application of a party to the arbitral proceedings made on notice to the other parties and to the arbitral tribunal, and with the permission of the arbitral tribunal or the agreement in writing of the other parties (Section 23 (4) of the IAA). Under Section 23 (5) of the IAA, other than in urgent circumstances, the Supreme Court can only order interim measures if the applicant has obtained the permission of the arbitral tribunal or written agree - ment of the other parties. In addition, the Supreme Court can act only if, and to the extent that, the arbi - tral tribunal and any other arbitral or other institution or person vested by the parties with powers regard -
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