MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
the agreement of the parties or, failing such agreement, was not in accordance with the IAA; or • the Court finds that: (a) the subject matter of the dispute is not capable of settlement by arbitration under Mauritius law; (b) the award is in conflict with the public policy of Mauritius; (c) the making of the award was induced or af - fected by fraud or corruption; or (d) a breach of the rules of natural justice occurred during the arbitral proceedings or in connec - tion with the making of the award by which the rights of any party have been or will be sub - stantially prejudiced. An appeal against any final decision of three Desig - nated Judges of the Supreme Court can only be made to the Judicial Committee of the Privy Council (Section 44 of the IAA). Under Section 39 (4) of the IAA, an application for set - ting aside may not be made more than three months after the date on which the party making that applica - tion has received the award or, if a request has been made under Section 38 (for correction or interpretation of an award or for an additional award), from the date on which that request has been disposed of by the arbitral tribunal. When asked to set aside an award, the Court may, where appropriate and so requested by a party, sus - pend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal’s opin - ion will eliminate the grounds for setting aside (Section 39 (5) of the IAA), and may order that any money made payable by the award shall be brought into Court or otherwise secured pending the determination of the application (Section 39 (6) of the IAA). It is for the parties to select which, if any, of the provi - sions of the First Schedule they wish to opt into. In order to avoid any controversy as to whether parties have opted into the Schedule or any specific provision thereof, the IAA requires that the parties expressly
refer to the First Schedule of the IAA or to the specific provision in question in their agreement (Section 3B of the IAA). As an exception, the provisions of the First Schedule apply mandatorily to any disputes arising out of the constitution of a Global Business Licence company, where there is an arbitration clause. The “opt in” options are: • the determination of a preliminary point of Mauri - tius law by the court; • appeals on questions of Mauritius law; • the consolidation of arbitral proceedings; and • joinder. Leave to appeal shall not be granted by the Court unless it considers that, having regard to all circum - stances, the determination of the question of Mauri - tius law concerned could substantially affect the rights of one or more parties (Paragraph 2 (2), First Schedule of the IAA). 11.2 Excluding/Expanding the Scope of Appeal The IAA does not expressly authorise parties to waive any rights of challenge to an award by agreement before the dispute arises. The procedure and grounds for setting aside an award are mandatory provisions of the law. 11.3 Standard of Judicial Review Under Section 39 of the IAA (or an application for the recognition and enforcement of a foreign arbitral award under the 2001 Act), no review on the merits of the dispute is allowed before the courts, so that the arbitral award is truly final on the merits of the dispute, even if an arbitral tribunal may have committed errors of fact and/or errors of law. Where the First Schedule to the IAA applies, the court may overturn the arbitral tribunal’s conclusions on a point of Mauritian law. Therefore, except in relation to interim measures granted by the arbitral tribunal in the form of an award pursuant to Section 21 of the IAA, an award shall be final and binding on the arbitral tribunal with respect to the matters determined therein (Section 36 (8) of the IAA).
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