MAURITIUS Law and Practice Contributed by: André Robert, Ammar Oozeer and Deephallee Harnaran, BLC Robert & Associates
3. The Arbitration Agreement 3.1 Enforceability
a very strong probability that the arbitration agree - ment may be null and void, inoperative or incapa - ble of being performed” (Section 5 of the IAA). • Jurisdiction: under Section 20 of the IAA, the Supreme Court decides on the issue of jurisdiction when an arbitral tribunal has decided it has juris - diction and when it has decided it does not have jurisdiction to determine the dispute. • Arbitration proceedings: under the IAA, the arbitral tribunal needs to give parties a “reasonable oppor - tunity to present their case”, whereas the Model Law provides that parties should be given “full opportunity”. • Awards: under the IAA, there are no distinctions between partial awards, interim awards and final interim awards – all awards are final and binding. In setting aside an award, the Supreme Court has the power to make consequential orders (Section 39A of the IAA). • Grounds to set aside an award: under Section 39 of the IAA, two additional grounds to set aside an award have been added: (a) if the award was induced or affected by fraud or corruption; and (b) if there is a breach of natural justice 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. The Third Schedule to the IAA sets out the provisions of the Model Law to which the provisions of the IAA correspond, in order to assist international users in identifying where the Articles have been incorporated. 2.2 Changes to National Law No changes have been made to the 2001 Act, the IAA or the Supreme Court (International Arbitration Claims) Rules 2013 (the “2013 Rules”). Under the Civil Appeal Act 2025, which came into effect on 5 January 2026, all civil appeal procedures have been consolidated into one framework. However, there are no changes to the right of appeal to the Judicial Committee of the Privy Council (the “Privy Council”) against any deci - sions of the Supreme Court, including international arbitration matters under Sections 42 (2) and 44 of the IAA.
Under Section 4 of the IAA, an arbitration agreement should be in writing and be in the form of either an arbitration clause in a contract or legal instrument or a separate agreement to be enforceable. The addition of the term “legal instrument” under the IAA includes investment treaty arbitrations arising under investment treaties. Furthermore, Article II of the New York Convention, as incorporated into the 2001 Act, provides that contracting states should rec - ognise agreements in writing, which includes an “arbi - tral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams”. Under Section 4 (2) of the IAA, an arbitration agree - ment is in writing if: • its contents are recorded in any form, whether or not the arbitration agreement or the contract has been concluded orally, by conduct or by other means; • it is concluded by an electronic communication and the information contained in it is accessible so as to be usable for subsequent reference; or • it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. 3.2 Arbitrability No definitive pronouncement has yet been given on subject matters that may not be referred to arbitra - tion. Courts apply a broad interpretation to arbitration agreements to give effect to the intention of the parties in entering arbitration agreements. Referral to arbitration is governed by Section 5 of the IAA, which provides that, when an action is brought before any court and a party contends that the action is subject to an arbitration agreement, that court should “automatically” transfer the action to the Supreme Court if the party does so after submitting its first statement on the substance of the dispute. The Supreme Court will thereafter refer parties to arbitra -
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