MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
therefore remains subject to customary international law. 12.3 Approach of the Courts On the whole, the Mauritian courts have taken a pro- enforcement stance in the recognition and enforce - ment of arbitral awards. The Supreme Court in Super- Max Mauritius v Actis Consumer Grooming Products Limited 2024 SCJ 449 confirmed it is not possible to challenge the recognition and enforcement of arbi - tral awards on the basis of procedural formalities that conflict with the spirit of the New York Convention, and that fall outside the IAA and the 2013 Rules. The courts would refuse to engage anew in the mer - its of an award unless the arbitration was seated in Mauritius and the parties had expressly agreed to the Supreme Court of Mauritius having the power to hear appeals on Mauritian law. If the international arbitration is seated in Mauritius, the Supreme Court of Mauritius has the power to set aside the award under Section 39 of the IAA, based on grounds similar to those found in Article V of the New York Convention. If the international arbitration is seated outside Mauritius, the Supreme Court of Mau - ritius may refuse recognition and enforcement under Article V of the New York Convention. Some illustra - tions of the approach taken are set out below. Public Policy Betamax Ltd v State Trading Corporation 2021 UKPC 14 This case concerned an application to set aside an award on the ground that the arbitration agreement was void and the award contravened public policy. The Supreme Court held that an award that gave effect to an illegal contract was contrary to public policy and should be set aside. The Privy Council overturned this decision and held that the Court was debarred from determining the legality of the contract under which the dispute arose when the arbitral tri - bunal had addressed the issue of the illegality of the underlying contract. The award was therefore final and binding. Furthermore, the Supreme Court of Mauritius, whose judgment had been overturned, had previously confirmed that the public policy to be looked at was
international public policy rather than the domestic public policy of Mauritius. Unable to Present Its Case Essar Steel Limited v ArcelorMittal USA LLC 2021 SCJ 248 Essar Steel Minnesota Limited (ESML) and ArcelorMit - tal USA LLC (AMUSA) entered into a contract for the supply of iron pellets, which was then amended to include a holding company, Essar Steel Limited (ESL), as party. Following a dispute, AMUSA terminated the contract and ESML entered into bankruptcy pro - ceedings. Pursuant to an arbitration clause, AMUSA referred its dispute to arbitration and, although ESL had filed an answer and counterclaim, it did not par - ticipate in the evidential hearings. When an award was delivered in favour of AMUSA and a provisional order was granted to recognise and enforce the award, ESL sought to set aside the award on the ground that it had been unable to present its case as, inter alia, it had no access to ESML’s documents. The Court was not persuaded and held that ESL had a substantial burden to show that there was a “serious, grave denial of procedural fairness” and that a party had forfeited its opportunity if it had been notified and refused to participate in the proceedings. Breach of Natural Justice and Public Policy Peepul Capital Fund II LLC And Anor v Vsoft Holdings LLC 2018 PRV 84 Vsoft Holdings LLC appealed against the Supreme Court’s decision to set aside its application under Sec - tion 39 of the IAA to set an award aside on grounds that it was in breach of natural justice (Section 39 (2) (b((iv) of the IAA) and public policy (Section 39 (2)(b)(ii) of the IAA). Vsoft sought to argue that its counsel had not abandoned its case. However, the agreed tran - script of the arbitral proceedings, placed before both the Supreme Court and the Privy Council, confirmed that there was no breach of natural justice as: • the counsel had been afforded an adjournment to seek proper instructions; • it was clear that Vsoft had abandoned its case and conceded the claimants’ claims; and • the arbitrator was right to only determine the quan - tum.
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