MAURITIUS Law and Practice Contributed by: Gilles Athaw, Jason Barbe, Deeviya Rughooputh and Sushika Ramlugun, Bowmans
Enforcement of a Pledge of Shares Under the Commercial Code The pledgee must realise the pledged shares by com- pleting and executing the share transfer form. No oth-
property, and which will secure the outstanding pay- ment to be effected by the buyer.
6. Enforcement 6.1 Enforcement of Collateral by Secured Lenders The circumstances for a secured lender to enforce a security will depend on the contractual provisions of the financing and security documents and on the type of security granted to the lender. In general, an event of default must have occurred under the finance and security documents, which will trigger the enforce- ment of the security. Enforcement of a Fixed Charge A secured lender can enforce a fixed charge that it holds over assets by appointing a public or private registered usher to seize the assets, without the need to serve a commandement (notice) on the debtor. If the debt remains unpaid for three weeks follow- ing the date of seizure, the creditor can then sell the seized assets by public auction (in the case of mov- able assets), or by serving a notice in the same man- ner previously described (in the case of immovable assets). Enforcement of a Floating Charge The floating charge must first be converted into a fixed charge. This is known as the crystallisation of the floating charge. This requires the appointment of a court usher to draw a memorandum of inventory, which will then be transmitted to the Conservator of Mortgages to be inscribed in its registers, whereupon the charge is converted to a fixed charge. This pro- cess may entail further costs in terms of taxes or fees. Enforcement of a Special Civil Pledge Over Shares The bank must serve notice on the debtor, stating its intention to proceed with the transfer of the pledged shares. The bank can then cause the pledged shares to be transferred seven days after the notice is served.
er formalities are required. Enforcement of Mortgages
The creditor can enforce a mortgage by serving the debtor a commandement (notice) notifying the debtor that, if it fails to pay the amount claimed, a seizure will be effected on the mortgaged property. The service of the commandement is effected through a public or private registered usher. The seizure of the mortgaged asset cannot be effected until at least ten days have elapsed since the date on which the commandement was served. The usher will then draw up a memo- randum of seizure that must be registered and tran- scribed with the Conservator of Mortgages/Registrar General of Mauritius. A creditor enforcing a mortgage must also register and transcribe a memorandum of charges with the Conservator of Mortgages/Registrar General of Mauritius, containing the desired condi- tions of sale. The property may then be seized and sold, before the Supreme Court of Mauritius, to the highest bidder. 6.2 Foreign Law and Jurisdiction The choice of a foreign law as the governing law of the A foreign judgment or arbitral award against a Mauri- tian company will be enforceable in Mauritius without a retrial of the merits of the case, subject to fulfilling the necessary exequatur procedures to recognise that foreign judgment or arbitral award. 6.4 A Foreign Lender’s Ability to Enforce Its Rights A foreign judgment or arbitral award against a Mauri- tian company will be enforceable in Mauritius without a retrial of the merits of the case, subject to fulfilling the necessary exequatur procedures to recognise that foreign judgment or arbitral award. contract will be upheld in Mauritius. 6.3 Foreign Court Judgments
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