MAURITIUS Trends and Developments Contributed by: Ali Adamjee and Raza Currimjee, Chambers of Sir Hamid Moollan KC
an action en exequatur”. This decision serves as an important reminder to parties that it is key to seek the recognition of a foreign judgment in Mauritius before further execution measures (including debt recovery and insolvency proceedings) are commenced. The Applicable Legal Rules for Recognition and Enforcement of Foreign Judgments Applications for recognition and enforcement of for - eign judgments are made before the Supreme Court of Mauritius. The application is made by the filing of a motion paper which sets out the relief sought (ie, the exequatur of the foreign judgment) supported by affidavit evidence. The judgment debtor (the respond - ent party) may file a responsive affidavit to set out the reasons (if any) why the foreign judgment should not be recognised and enforced. Hearings usually last no longer than one day and are reserved for legal sub - missions. Article 546 of the CPC The courts derive their power to grant exequatur of foreign judgments from Article 546 of the Code de procédure civile (the CPC) which is borrowed from the old French Code de procédure civile (see Ungar v Burton [1977] MR 156). Despite the deceptive simplic - ity of Article 546 of the CPC, the courts have turned to French doctrine to enumerate a core set of grounds which must be met for a foreign judgment to be rec - ognised and enforced in Mauritius. Those grounds are commonly known as the D’Arifat v Lesueur principles (from the leading case of D’Arifat v Lesueur [1949] MR 191 at 196) and are as follows: • the judgment must still be valid and be capable of execution in the country where it was delivered; • it must not be contrary to any principle affecting public order (the authors submit that the proper terminology ought to be “public policy”); • the respondent must have been regularly sum - moned to attend the proceedings (ie, the proceed - ings in the foreign court that granted the judgment); and • the court that delivered the judgment must have had jurisdiction to deal with the matter submitted to it.
No additional grounds are imposed for the recogni - tion and enforcement of foreign judgments. Recogni - tion and enforcement under Article 546 of the CPC is not prescribed by any limitation period (however, the foreign judgment must be capable of execution in the foreign country when exequatur in Mauritius is sought). As a note of caution, following the judgment in Bayer Healthcare v Suvaman Trading [2015] SCJ 356, parties seeking the recognition and enforce - ment of a foreign judgment in Mauritius would be well advised to ensure that their supporting affidavit evidence contains evidence of foreign law (treated as fact in Mauritius) to explain that the foreign judgment is still valid and capable of execution in the country in which it was delivered. It is recommended that a lawyer qualified to practise law in the country where the judgment was delivered provides an affidavit con - firming the validity of the foreign judgment. Indeed, a survey of the cases on the exequatur of for - eign judgment shows that Article 546 of the CPC is the preferred basis for seeking recognition and enforce - ment of foreign judgments. Section 3 (2) of the Reciprocal Enforcement of Judgments Act Money judgments delivered by the superior courts of the United Kingdom in civil proceedings, may be enforced under the Reciprocal Enforcement of Judg - ments Act 1923 (the “1923 Act”). Section 3 (2) of the 1923 Act provides that no judgment will be registered where: • the original court acted without jurisdiction; • the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court; • the judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwith - standing that they were ordinarily resident or were carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court; • the judgment was obtained by fraud;
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