MAURITIUS Trends and Developments Contributed by: Ali Adamjee and Raza Currimjee, Chambers of Sir Hamid Moollan KC
relied on a decision of the French Cour de cassation dated 26 June 2019 and observed that the exequatur of a foreign judgment does not depend on the pres - ence of assets within the jurisdiction, notwithstand - ing that the judgment debtor was a foreign national and a non-resident. In the instant case, the Court was also persuaded to recognise the judgment of the Hong Kong High Court because the judgment creditor satisfied the Court that it had reason to believe that the judgment debtor would return to Mauritius. This decision also aligns with the position in relation to rec - ognition and enforcement of foreign arbitral awards: it is well established that the presence of assets in the enforcing jurisdiction is not a required pre-condition under the New York Convention. The recognition of the foreign judgment integrates it into the Mauritian legal order which then paves the way for execution measures which may include attachments, garnishee orders or winding-up pro - ceedings. Equitable Remedies to Protect the Efficacy of a Judgment Owing to the English colonial heritage of Mauritius, the Supreme Court of Mauritius is vested with full equi - table jurisdiction to grant equitable remedies, and its judges sit and conduct business in the same manner as judges in the High Court of Justice in England (see Sections 16 and 17 of the Courts Act 1945). These are potent provisions that vest the Supreme Court with plenary powers to grant equitable relief, including freezing injunctions (still called Mareva injunctions in Mauritius), asset disclosure orders, and search orders (Anton Piller orders). This was recently confirmed by the Judicial Committee of the Privy Council in Stanford Asset Holdings v AfrAsia Bank [2023] UKPC 35 at [31]- [32]. This decision also confirmed that the Supreme Court of Mauritius possesses equitable jurisdiction to grant Norwich Pharmacal Orders (ie, disclosure orders made against parties mixed up in facilitating a wrong - doing), whether as a free-standing relief or ancillary to a freezing order. One important (and indeed necessary) feature of a modern commercial jurisdiction is the power of its courts to make orders that protect the efficacy of an eventual judgment or indeed a judgment or award that
has already been granted. This is achieved through the equitable remedies of freezing injunctions and asset disclosure orders. In Barclays Bank Mauritius v Karamuth [2017] SCJ 313, the Supreme Court con - firmed that it has the power to grant freezing injunc - tions, including any ancillary orders (eg, asset disclo - sure orders), to assist the efficacy of the injunction. In Appavoo v Buttie [2016] SCJ 118, the Court ordered a party to disclose a list of all assets it owned, whether in Mauritius or abroad, coupled with a freezing injunc - tion. This is an important power that ensures that judg - ment debtors seeking to avoid or defeat a judgment debt cannot dissipate assets out of Mauritius. Equally, the availability of asset disclosure orders and search orders ensures that judgment debtors cannot park assets in Mauritius with a view to escaping their liabili - ties under a foreign judgment or arbitral award. In Manhattan Coffee Investment Holding v Mwagiru [2026] UKPC 21, the Judicial Committee of the Privy Council confirmed that the Mauritian courts should grant ex parte orders only in exceptional circum - stances. Such exceptional circumstances include where notice would frustrate the order sought, as with freezing orders, or where genuine urgency makes the giving of notice impossible. The decision of the Judicial Committee of the Privy Council in Broad Idea International v Convoy Collateral [2021] UKPC 24 at [102] (on appeal from the BVI) now confirms that a court with equitable jurisdiction may grant a freezing injunction: • in relation to a foreign judgment or award that is capable of enforcement in the same way as a judgment of the domestic court using the court’s enforcement powers; and • even where proceedings in which judgment is sought have not yet been commenced or where a right to bring such proceedings has not yet arisen – it is enough that the court can be satisfied with a sufficient degree of certainty that a right to bring proceedings will arise and the proceedings will be brought (whether in the domestic court or before another court or tribunal).
310 CHAMBERS.COM
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