MAURITIUS Law and Practice Contributed by: André Robert, Ammar Oozeer and Deephallee Harnaran, BLC Robert & Associates
6. Preliminary and Interim Relief 6.1 Types of Relief
IAA if proceedings are initiated before a foreign court in breach of an arbitration agreement. This is “ordinary granted unless the opposing side can show strong reasons to refuse injunctive relief”, where the appli - cation is made promptly and before the “foreign pro - ceedings are too far advanced”. Further, this case also confirms that, if an anti-suit injunction is granted, costs may be awarded on an indemnity basis “irrespective of whether the losing party had acted in deliberate breach of agreement”. 5.6 Jurisdiction Over Third Parties An arbitral tribunal will not have jurisdiction over indi - viduals or entities that are neither party to an arbi - tration agreement nor signatories to the contract containing the arbitration agreement. However, third parties may be affected in the following ways. • If the parties expressly agree, under the arbitration agreement, that the supplementary provisions for international arbitrations under Schedule 1 to the IAA will apply (“Supplementary Provisions”), para - graph 4 of the Supplementary Provisions allows a party to the arbitration to make an application to the Supreme Court to determine that one or more persons be joined in the arbitration as a party, provided that such third person and the applicant party have consented thereto in writing. This would apply regardless of whether the third party is for - eign or domestic. • Unless agreed otherwise by the parties, an arbi - tration agreement is not discharged by the death, bankruptcy or winding-up of a party, so it can be enforced by or against representatives of that party (Section 7 of the IAA), even though the representa - tive was not a party to the arbitration agreement per se. • Another way that third parties may be affected is if the “corporate veil” is lifted. • If an entity or individual has conducted themselves in a manner that shows they are intervening in a contract and agrees to be bound by its terms, that person can be considered to have become a party to the contract and will therefore be subject to the arbitration agreement.
Section 21 of the IAA provides that, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures in the form of an award or in another form, by which it orders a party to do the following at any time before making the award by which the dispute is finally decided: • maintain or restore the status quo pending deter - mination of the dispute; • take action that would prevent the arbitral process itself, or refrain from taking action that is likely to cause current or imminent harm or prejudice to such process; • provide a means of preserving assets out of which a subsequent award may be satisfied; • preserve evidence that may be relevant and mate - rial to the resolution of the dispute; or • provide security for costs. The arbitral tribunal may modify, suspend or terminate an interim measure that it has granted upon the appli - cation of any party or, in exceptional circumstances and on prior notice to the parties, on the arbitral tribu - nal’s own initiative (Section 21 (5) of the IAA). 6.2 Role of Courts Generally, court intervention is permitted only in cer - tain circumstances, and in respect of international arbitrations seated in Mauritius. However, the grant or recognition of interim relief is not limited to inter - national arbitrations seated in Mauritius (Section 3A of the IAA). Section 6 of the IAA provides that a party can request an interim measure of protection in support of arbi - tration from the Supreme Court or a court in a for - eign state, before or during arbitral proceedings. An application to the Supreme Court must be made and determined in accordance with Section 23 of the IAA, which provides for the powers of the Supreme Court to issue interim measures. Section 22 of the IAA deals with the recognition by the Supreme Court of interim remedies granted by an arbitral tribunal. Section 22 (1) of the IAA provides
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