MAURITIUS Law and Practice Contributed by: André Robert and Ammar Oozeer, BLC Robert & Associates
ritian court will decline jurisdiction unless the choice of jurisdiction is against the public policy of Mauritius. If the action concerns a dispute which is covered by the scope of an arbitration agreement, the Mauritian court will decline jurisdiction if the defendant raises their objection before filing a defence on the merits (in the case of a domestic arbitration). In the case of an international arbitration, the defendant must (again, before filing a defence on the merits) ask that the case be referred to a panel of three designated judges of the Supreme Court to decide whether the parties should be referred to arbitration or whether, on a prima facie basis, there is a very strong probability that the arbitration agreement is null and void, inoperative or incapable of being performed. 3.4 Initial Complaint Before the Supreme Court, the originating document is a plaint with summons. In the lower courts, the origi- nating document is called a proecipe (which serves the same purpose as a plaint with summons). Before a judge in chambers, the originating document is also called a proecipe , but it is a simpler document setting out the request, relief or damages sought by the applicant. The proecipe must be supported by affidavit evidence. Certain procedures which require urgency (eg, a judi- cial review) or which are made under specific enact- ments (eg, the Companies Act or the Insolvency Act) are initiated by way of a motion paper supported by affidavit evidence. In judicial review applications, the application must also be accompanied by a statement setting out the grounds of review. The general rule is that originating documents and other pleadings can be amended at any time if the amendment does not cause prejudice to other par- ties and the latter have an opportunity to respond to the amendments. This follows the principle that the purpose of pleadings is to identify the real issues in controversy which the trial court must determine. A judge is unlikely to exercise discretion to allow amendments made after witnesses have started to
depone, or those made to circumvent a valid objection in law raised by another party. 3.5 Rules of Service When service is effected in Mauritius, it has to be effected by a private usher retained by the plaintiff or by a court usher. The usher’s return is conclusive evi- dence that service has been effected (if successful). If service is unsuccessful, the court will order that fresh service be attempted and if there are still unsuccessful attempts, the court may order that the defendant be informed of the case by way of substituted service in several forms, which may include publication in daily newspapers or affixing the document to be served at the door of the party’s last known residence. Service on a company is effected by leaving the documents at its registered office or address of service, by deliver- ing them to one of its directors whose name figures on the register of companies, by delivering them to an employee at the head office or principal place of busi- ness, or in accordance with a prior agreement with the company. When ordering that service be effected on a foreign party in accordance with the provisions of the Courts (Civil Procedure) Act, the Supreme Court will order that such service be effected in accordance with the laws of the country where service is being effected. It is the plaintiff who bears the responsibility of arranging service on a foreign party, including arranging for the evidence of service to be properly legalised before it can be relied upon before a Mauritian court. 3.6 Failure to Respond If a defendant does not respond to a lawsuit (after hav- ing been properly served with the court papers), the court will order the case to be heard in the absence of the defendant but will also order that, before the hear - ing, the defendant is served with a “notice of trial”. At the hearing, the continued absence of the defend- ant does not mean that judgment is automatically given in favour of the plaintiff. It is still incumbent on the plaintiff to prove its case on the balance of prob- abilities and call one or more witnesses to give evi- dence and produce documents in support of its case. A default judgment will only be delivered if the court
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