MAURITIUS Law and Practice Contributed by: Professor Michael Katz, Laksha Juddoo Prayag, Anne-Sophie Lenette and Ayesha Rambajun, ENS
• authorising the issue of shares and determining their terms; • authorising distributions, including dividends; • approving major transactions (also requiring share - holder special resolution); • calling annual and special meetings of sharehold - ers; • approving and signing the financial statements; and • preparing the annual report. The board may delegate powers under Section 131 of the CA, but delegation does not relieve it of its duties. Powers listed in the Seventh Schedule of the CA can - not be delegated. Shareholder Decisions Certain matters require shareholder approval by spe - cial resolution (at least 75% or such higher majority as the constitution specifies), namely: • adopting, amending or revoking the company’s constitution; • reducing the stated capital of the company; Other matters require approval by ordinary resolu - tion, subject to the constitution, including: approv - ing directors’ remuneration and benefits; appointing and removing directors (removal of a private com - pany director requires a special resolution); appoint - ing auditors at the annual meeting; and adopting the financial statements together with the auditor’s report. At shareholders’ meetings, the chairperson must afford shareholders reasonable opportunity to discuss and comment on the management of the company. Shareholders may pass resolutions recommending management actions, though such recommendations are non-binding unless passed by special resolution or provided for in the constitution. Company Secretary The company secretary plays a key governance role: ensuring compliance with the constitution and statu - tory requirements; preparing and circulating meeting • approving a major transaction; • approving an amalgamation; and • placing the company into liquidation.
agendas and papers; ensuring board meetings and resolutions are properly convened and passed; and maintaining the register of interests. The secretary has a statutory duty to take reasonable steps to ensure proper maintenance of the share register and prompt recording of transfers. The company secretary must also guide the board on its duties, responsibilities and powers, and inform it of legislation affecting shareholder and director meetings The board may make decisions by written resolution or meeting, in accordance with the CA and the com - pany’s constitution. Shareholders Shareholder decisions are taken by resolution at annual or special meetings, or by written resolution. Resolutions may be ordinary (simple majority), special (at least 75%, or higher if required by the constitution), or unanimous. The CA recognises unanimous shareholder agree - ments as a separate governance mechanism. Share - holders of a private company may unanimously agree to any action, which is deemed validly authorised not - withstanding the constitution, with certain Eleventh Schedule provisions disapplied. Such agreements cover matters including share issues, distributions, repurchases and redemptions, financial assistance, directors’ remuneration and benefits, interested direc - tor transactions, major transactions and post-event ratification. and sanctions for non-compliance. 2.3 Decision-Making Processes Board of Directors Section 272 also allows shareholders to restrict or remove directors’ management powers and confer them on any party to the agreement. That person assumes the rights and duties of a director, and direc - tors are relieved of corresponding responsibilities. A sole shareholder’s written declaration has the same effect. Such an agreement takes effect only once all directors and the Registrar of Companies (the “Reg - istrar”) have been notified.
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