MAURITIUS Trends and Developments Contributed by: Ali Adamjee and Raza Currimjee, Chambers of Sir Hamid Moollan KC
• the judgment debtor satisfied the Supreme Court either that an appeal is pending, or that they are entitled – and intend – to appeal against the judg - ment; or • the judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the Supreme Court. Recognition and enforcement under the 1923 Act must be made within 12 months after the date of the judgment. The Supreme Court has the discretionary power to extend that time period where it is just and convenient to do so. In the case of an English money judgment, parties are free to elect under which regime they wish to seek recognition and enforcement in Mauritius. They may do so under Article 546 of the CPC which is more favourable and which does not provide for any time limit to seek enforcement (see Dallah Albaraka (Ireland) v Pentasoft Technologies [2015] SCJ 168; see also Essar Oilfields Services Ltd v Norscot Rig Manage - ment [2011] SCJ 346, which enforced a decision of the English High Court that rejected a challenge to the jurisdiction of an arbitral tribunal and made an order for costs). The Enforcing Court Will Not Revisit the Merits of the Foreign Judgment The Supreme Court of Mauritius has consistently held that the function of the exequatur judge is to ensure the validity of the foreign judgment ( régularité inter- nationale du jugement étranger – see recently Baba- gee v Madar Saib [2024] SCJ 206) and ensure that it does not offend the international public policy of Mauritius (see Société Epson France v Société Inter- venant Technologie [2012] SCJ 114). The exequatur judge is precluded from revisiting the merits of the foreign judgment ( fond de la decision ). This approach is in keeping with the position in France as set out in the 1964 French Cour de cassation case of Munzer v Meunier and in French doctrinal writings. In Société Epson France , the court added a require - ment that the party seeking enforcement should prove an absence of fraud. This requirement should be con - strued in its proper context. The court meant that it
would not recognise and enforce a foreign judgment that has been obtained through forum shopping or in breach of an exclusive jurisdiction clause. International Public Policy and Not Domestic Public Policy As guardians of public policy of a state, the enforcing courts have a duty to ensure that the foreign judg - ments and arbitral awards that they give legal effect to in their legal order do not offend public policy. In keep - ing with international case law, the Mauritian courts do not apply domestic notions of public policy when recognising and enforcing judgments. Rather, the exequatur judge has regard to the notion of international public policy ( l’ordre public interna- tional ) which is the concept of public policy in pri - vate international law. This means that a mandatory rule of domestic law would not necessarily operate to preclude the enforcement of a foreign judgment or international arbitral award. In Société Epson France (followed by Dallah Albaraka v Pentasoft ), the court observed that the meaning of international public pol - icy is not to be confounded with the general concept of public policy as it is applied in the determination of a legal issue before a domestic court. The Mauritian courts also take an internationalist approach to public policy when enforcing foreign arbi - tral awards. In Cruz City 1 v Unitech Limited [2014] SCJ 100, the Supreme Court held that a respondent had to show with “precision and clarity in what way and to what extent enforcement of the award would have an adverse bearing on a particular international public policy of this country”. A similar approach was adopted in Essar Steel v ArcelorMittal USA [2021] SCJ 248, where the Supreme Court adopted a resolutely comparative and international approach when con - struing a public policy defence under Article V(2)(b) of the New York Convention. The enforcing courts are particularly careful not to allow recalcitrant judgment or award debtors from dressing up unmeritorious due process defences as public policy defences (see Essar Steel v ArcelorMit- tal USA ).
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