MAURITIUS Trends and Developments Contributed by: Ali Adamjee and Raza Currimjee, Chambers of Sir Hamid Moollan KC
of the process by which the court (including a foreign court) will enforce compliance. Lord Nicholls’ words have now been given full effect (“A party must not be allowed to steal a march on the court’s own enforce - ment process”). The authors hope that Broad Idea will be followed by the Supreme Court of Mauritius. Sovereign Immunity and Enforcement Against States There is no legislation addressing the issue of sover - eign (State) immunity and Mauritius is not a party to the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property. The decision in First Global Funds v Republic of Indonesia [2016] SCJ 14 is the only reported decision on the doctrine of sovereign immunity. After a com - parative analysis of the law in England & Wales and France, the Supreme Court held that the doctrine of State immunity applies in Mauritius as a matter of cus - tomary international law. The Supreme Court has held that since restrictive immunity is the accepted position under customary international law, it follows that is it the restrictive doctrine of state immunity which applies in Mauritius. This means that State immunity will not extend to acts of a commercial nature of a state (jure gestionis) but will solely apply to acts of a governmental nature (jure imperii). Recognition and Enforcement of Foreign Arbitral Awards It is beyond the scope of this piece to canvas the law and cases on the recognition and enforcement of foreign arbitral awards in Mauritius. However, a few words are needed. Mauritius is a signatory to the New York Convention which has been incorporated into domestic law by The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (the “2001 Act”). On 24 May 2013, Mauritius withdrew the reciprocity reservation thereby undertaking to also recognise and enforce foreign arbitral awards made in countries that have not acceded to the New York Convention.
The Supreme Court (International Arbitration Claims) Rules 2013 (the “2013 Rules”) operate as a standalone set of procedural rules that set out the procedure mak - ing a claim for the recognition and enforcement of for - eign arbitral awards (the 2013 Rules are largely based on Part 62 of the English Civil Procedure Rules). There are no limitation periods that apply to the rec - ognition and enforcement of an arbitral award in Mau - ritius under the New York Convention. This facilitates the enforcement of international arbitral awards where the identification of assets globally may be laborious and time consuming. Applications for recognition and enforcement of foreign arbitral awards are made without notice (ex parte) before the Chief Justice (see Rule 15 (2) of the 2013 Rules). A party wishing to resist recognition and enforcement has 14 days after service of the provi - sional order granting the recognition and enforcement of the award to apply for its setting aside (see Rule 15 (7) of the 2013 Rules). As prefaced above, all applications for the recognition and enforcement of foreign arbitral awards are heard by a bench comprising three specialist “Designated Judges” of the Supreme Court. There is a direct and automatic right of appeal to the Judicial Committee of the Privy Council. There is an increasing body of pro-enforcement case law that confirms the readiness of the Supreme Court to give effect to Mauritius’s obligation under inter - national law to recognise and enforce international arbitral awards pursuant to Article III of the New York Convention. Most notable is the decision in Essar Steel v ArcelorMittal USA [2021] SCJ 248 where the Supreme Court recognised and enforced an Interna - tional Chamber of Commerce award in favour of Arce - lorMittal USA granting in excess of USD1.3 billion in damages. The Supreme Court rejected Essar Steel’s defences of due process violation (Article V(1)(b) of the New York Convention) and public policy (Article V(2)(b) of the New York Convention). In particular, the Supreme Court recognised that arbitral tribunals are entitled to proceed with the merits hearing of an arbitration where the defaulting party unreasonably decides to stop participating in the arbitral process.
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