MAURITIUS Law and Practice Contributed by: André Robert, Ammar Oozeer and Deephallee Harnaran, BLC Robert & Associates
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 Supreme 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 Another 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 aside an award 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 transcript 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. 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:
618 CHAMBERS.COM
Powered by FlippingBook