MAURITIUS Law and Practice Contributed by: Deephallee Harnaran, André Robert and Ammar Oozeer, BLC Robert & Associates
Furthermore, Vsoft’s case was that the award was in contravention of public policy as it afforded the suc - cessful party (the investors) a form of double recovery as the award did not contain a provision that they could not continue to enjoy the benefit of being equity shareholders once they were paid. The Privy Council found that this was a “hopeless submission”, that the arbitrator had no obligation to include such condi - tion and that, in any event, Vsoft had not taken any administrative steps to remove the investors from the share register. Laxmanbhai & Co (Mauritius) Ltd v Minaco (Pty) Ltd 2025 SCJ 21 It was the contention of Laxmanbhai that it was not open to the arbitrator to depart from the agreed grounds between the parties without giving an oppor - tunity to Laxmanbhai to address the relevant issues and that by doing so the arbitrator had breached the rules of natural justice. Upon consideration of the facts, the Court found that the arbitrator did not go beyond the scope of the arbitration. The Court found that Laxmanbhai had failed to demonstrate that there were any vitiating factors set out in section 39 (2) of the International Arbitration Act warranting the inter - vention of the Court. Breach of Natural Justice as the Wrong Arbitral Rules Had Been Applied Flashbird Ltd v Compagnie de Sécurité Privée et Industrielle SARL (Respondent) (Mauritius) [2021] UKPC 32 This was an appeal against the Supreme Court’s deci - sion to dismiss an application to set aside an arbi - tral award on the ground that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. Under the arbitration clause, the following applied: • The applicable law was that of the Mauritius Cham - ber of Commerce and Industry and the Mediation Centre (MARC). • The applicable rules were the Rules of Arbitra - tion of the International Court of the International Chambers of Commerce (the ICC Rules). • The arbitrators were to be appointed in accordance with the ICC Rules.
The issue to be determined was whether the MARC or the ICC had jurisdiction to arbitrate the dispute. Flashbird contended that the arbitration clause was a “hybrid arbitration” that allowed the arbitrator to follow the ICC Rules and not the MARC Rules, which was agreed by the parties. The Privy Council held that, for an award to be set aside on this ground, the applicant must show “a material breach of the arbitration agree - ment that was not an inconsequential irregularity”. It was held that Flashbird suffered no substantial preju - dice from the alleged breach of the ICC Rules and that, in any event, minor and technical errors will not necessarily lead to an award being set aside. There is no procedure in Mauritius that provides for class action arbitration or group arbitration. However, different persons may jointly enter a case based on a common cause of action. Alternatively, those parties may enter separate cases and retain their respective attorneys and counsel to appear for them. When the respective cases are in shape for hearing, the Court may allow them to be consolidated and heard togeth - er, in accordance with paragraph 3 of the First Sched - ule to the IAA. 13.2 Ethical Codes 13. Miscellaneous 13.1 Class Action or Group Arbitration There are no specific codes of ethics and/or codes of conduct applicable to arbitrators, but the respective Mauritian Codes of Ethics for Barristers and Attorneys at Law are applicable. 13.3 Third-Party Funding Mauritian laws on arbitration do not provide for any rules or restrictions on third-party funders. To the extent that there is no legislation prohibiting third- party funding, it may be considered to be permitted in Mauritius. Although not commonly used in Mauritius, third-party funding is increasingly being considered, especially by parties to complex arbitration matters and enforce - ment proceedings before the Supreme Court of Mau - ritius where the value of the claim involved is signifi - cant. In those cases, litigants have recourse to funders
526 CHAMBERS.COM
Powered by FlippingBook