International Arbitration

The International Arbitration Act 2008 (the “Act”) governs international arbitrations seated In Mauritius as well as applications made to the Supreme Court of Mauritius in support of international arbitrations seated in and outside of Mauritius (“Arbitration Claims”). The Supreme Court (International Arbitration Claims) Rules 2013 (the “Arbitration Claims Rules”) apply to Arbitration Claims made before the Supreme Court in support of arbitration. The Act is accompanied by its Travaux Preparatoires, which assists in understanding the intent of the legislator in drafting the provisions of the Act,

The IAA applies to ‘international arbitrations’ only, namely, arbitration where –

1. the parties to the arbitration agreement have, at the time of the conclusion of that agreement, their place of business in different States;
2. one of the following places is situated outside the State in which the parties have their place of business –
   
   1. the juridical seat of the arbitration, if determined in, or pursuant to, the arbitration agreement; or
   2. any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected;
3. the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one State or that this Act is to apply to their arbitration; or
4. the arbitration arises under an arbitration clause included in the constitution of a GBL company pursuant to section 3D.

[The Act applies to international commercial arbitrations and to investor-state arbitrations, where the seat of the arbitration is agreed to or determined to be Mauritius.

Domestic arbitrations are governed by the Mauritius Civil Procedure Code.

The Act is based on the 1985 UNCITRAL Model Law on Commercial Arbitration, as amended in 2006 (the “Amended Model Law”), but it takes, in some instances, inspiration from the English Arbitration Act 1996 and the New Zealand Arbitration Act 1996 (as amended in 2007).

The Act does not expressly state when a provision is ‘mandatory’ or not. However, it specifies when the parties are allowed to derogate from a provision of the Act. Some, but not all, provisions of the Act are mandatory.

There is no immediate plan to amend the arbitration legislation.

Mauritius ratified the New York Convention in 1996 and incorporated it into Mauritius law through the enactment in 2001 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (as amended in 2013) (the “Foreign Arbitral Awards Act”). Both foreign awards and arbitral awards not considered as domestic awards (“Non-Domestic Awards”) are subject to the New York Convention, the latter through the enactment of S.40 of the Act, which has expressly made use of the possibility under Art. I.1 of the New York Convention to submit ‘arbitral awards not considered as domestic awards’ in the enforcing state to the regime of the Convention.

Mauritius has signed and ratified over 44 bilateral investment treaties some of which are in force including those concluded with France, the United Kingdom, South Africa, Singapore, Tanzania, Zimbabwe, the Republic of Congo.

Mauritius has also signed and ratified several multilateral investment treaties.

Mauritius is a signatory to the ICSID Convention, which became part of domestic law through the enactment of the Investment Disputes (Enforcement of Awards) Act 1969.

It ratified the COMESA Investment Agreement (2007) and the SADC Protocol on Finance and Investment (2006), which provide for the protection of foreign investment in host states, while allowing treaty disputes to be resolved through international arbitration. However, the COMESA Investment Agreement is not in force since it requires ratification by six signatory states and this condition has not yet been met. The SADC Protocol came into force in 2010.

Mauritius signed and ratified the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (2014), which came into force on 18 October 2017.

Mauritius also signed the United Nations Convention on International Settlement Agreements Resulting from Mediation (2018) on 7 August 2019, but it has not yet ratified that convention.

The Act does not specify the types of disputes which are not arbitrable, nor does it set out a list of, or a general statement relating to, the types of disputes which are arbitrable.

The Act applies as of right to all international arbitrations seated in Mauritius, with no requirement that the underlying dispute be of a commercial nature, thereby allowing for the arbitrability of non-commercial disputes, including investment disputes. Disputes arising out of the constitution of a ‘Global Business Licence Company’ (“GBC”), a type of offshore company incorporated in Mauritius, are expressly stated to be arbitrable (Sect. 3D(1)), but the Travaux expressly note that ‘[t]he extent to which any given dispute arising under the Articles of Association (or constitution) of a company may validly be referred to arbitration has deliberately not been addressed in Section 3D’ as ‘[t]he boundaries of arbitrability under this Section of the Act (as under the Act generally) will fall to be defined by arbitral tribunals and by [the Mauritian] Courts over the years’.

Arbitrations commenced pursuant to an arbitration agreement contained in the constitution of a GBC are invariably seated in Mauritius. Note however that disputes between shareholders concerning or arising out of agreements other than the constitution of the company (e.g., shareholders’ agreements) may be validly seated in any country.

An arbitration agreement may be in the form of an arbitration clause in a contract, or in a separate agreement, or in another type of legal instrument (the latter ensuring that bilateral and multilateral investment treaties are covered by the Act).

An arbitration agreement must be in writing for it to be valid and it will be deemed to be in writing when:

1. its contents are recorded in any form, whether or not the arbitration agreement or the contract has been concluded orally, by conduct or by other means;
2. it is concluded by way of electronic communication and the information contained in it is accessible so as to be usable for subsequent reference;
3. it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other;
4. there is a reference in a contract to a document containing an arbitration clause, where the reference is such as to make that clause part of the contract.

An arbitration agreement which provides for the referral of a consumer dispute to arbitration, must be entered into after the dispute has arisen with the consumer, and the agreement must certify that the consumer has read and understood the arbitration agreement and agrees to be bound by it.

Section 20(2) of the Act states that an arbitration clause, which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. It follows from this principle, that a decision by an arbitral tribunal (“tribunal”) to the effect that the contract is null and void, non-existent or unenforceable, shall not automatically entail the invalidity of the arbitration clause.

The Act is silent on the language of the arbitration save for specifying that, failing agreement of the parties on the language to be used in the proceedings, the tribunal may determine the language to be used in the proceedings (S.24(3)(b)).

S.10(1) of the Act provides that, unless otherwise agreed by the parties, the juridical seat of the arbitration shall be determined by the tribunal having regard to the circumstances of the case. S.3C(2)(b) provides however that where the tribunal has not yet been constituted, the Court or the Permanent Court of Arbitration (“PCA”) may make a provisional determination on the issue pending the determination by the tribunal. The only instance where an arbitration must mandatorily be seated in Mauritius is if the arbitration agreement underlying the arbitration is contained in in the constitution of a GBC company.

A challenge to the tribunal’s jurisdiction may be determined as a preliminary question or together with the merits (S.20(6)). If it is determined as a preliminary question, S.20(7) of the Act provides that a party who is not satisfied with the tribunal’s ruling on jurisdiction may, within thirty days of receipt of that ruling, request the Supreme Court ‘to decide on the matter’.

S.20(7) of the Act allows parties to challenge before the Supreme Court rulings refusing jurisdiction of the tribunal (in addition to those finding in favour of it). While the request is pending before the Supreme Court, the tribunal may continue the arbitral proceedings and make one or more awards (S.20(6)).

A plea that the tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence (S.20(3)(a)).

A party shall not be precluded from raising such a plea by the fact that it has appointed or participated in the appointment of an arbitrator (S.20(3)(b)). A plea that the tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings (S.20(4)). The tribunal may admit later pleas than those prescribed above, if it considers the delay justified (S.20(5)).

Yes, pursuant to S.20, the tribunal may decide on its own jurisdiction, including on any objection relating to the existence or validity of the arbitration agreement and a finding by the tribunal that the underlying contract is invalid should not automatically affect the validity of the arbitration agreement.

If an objection to the jurisdiction of the tribunals is determined as a preliminary question by the tribunal, S.20(7) of the Act provides that a party who is not satisfied with the tribunal’s ruling on jurisdiction may, within thirty days of receipt of that ruling, request the Supreme Court ‘to decide on the matter’. S.20(7) allows challenges to awards refusing jurisdiction of the tribunal in addition to those finding in favour of it.

There are no restrictions in the Act as to the persons, whether natural or legal, who may conclude an arbitration agreement. Therefore, any person may enter into an arbitration agreement, provided that it has the legal capacity to do so under the law(s) applicable to it.

No answer submitted for this question.

The Act contains various provisions dealing with multi-party disputes.

The Act provides for the manner in which arbitrators are to be appointed in multi-party arbitrations (S.12(2) and S.12(3)(d)), failing agreement of the parties. The Act also provides rules on consolidation and joinder (see Q7 below).

The Act is silent on the law applicable to the arbitration agreement and how it must be decided.

The parties are free to choose the substantive law of the contract. If they have not done so, the tribunal shall apply the law determined by the conflict of law rules which it considers appropriate (S.32(3)). In all cases, the tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction (S.32(5)). Any designation of the law or the legal system of a State shall be construed, unless otherwise expressly provided, as directly referring to the substantive law of that State and not to its conflict of law rules (S.32(2)).

Consolidation is provided for under the Act but only if (i) the arbitration agreement is contained in the constitution of a GBC company, (ii) the parties have opted in to the First Schedule of the Act, or (iii) the parties have opted in to the rules on consolidation which are in paragraph 3 of the First Schedule.

Consolidation must be requested by at least one party in each of the proceedings, and may be granted by the tribunal, on such terms as it thinks just. Arbitral proceedings may also be provisionally consolidated by the tribunal of any of the arbitral proceedings, on application of a party in the proceedings, even when two or more arbitral proceedings do not have the same tribunal appointed in respect of each of the arbitral proceedings. Arbitral proceedings may be commenced or continued, even if an application to consolidate them is pending or a provisional order has been made in relation to them.

The Act contains provisions on joinder, but these apply only if (i) the arbitration agreement is contained in the constitution of a GBC company, (ii) the parties have opted in to the First Schedule of the Act, or (iii) the parties have opted in to the rules on consolidation which are in paragraph 4 of the First Schedule.

For joinder, an application must be made to the Supreme Court which may, in the exercise of its discretion, determine that one or more third persons should be joined in the arbitration as a party, provided any such third person and the applicant party have consented to the joinder in writing.

The Act is silent on whether an arbitration agreement binds assignees or third parties.

Absent any agreement on appointment, the default rules of S.12 of the Act apply, providing that if a tribunal is constituted of three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator who shall act as presiding arbitrator. If a party fails to appoint an arbitrator within thirty days of receipt of a request to do so from the other party, or where the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment will be made, on the request of a party, by the PCA. If the tribunal is constituted of a sole arbitrator and the parties have failed to agree on the appointment of an arbitrator within thirty days of receipt of a request from a party, he/she shall be appointed by the PCA, on request of one of the parties. If a tribunal is constituted of a number of arbitrators other than one or three, the arbitrators shall be appointed according to the method agreed upon by the parties, or, if this method fails, the PCA shall appoint them upon the request from one of the parties.

Where the parties have not agreed upon the number of arbitrators in their agreement, the tribunal shall be composed of three arbitrators (S.11(a)).

The Act does not impose any qualification, expertise, nationality or other requirement as a condition for being appointed arbitrator. So long as a person has legal capacity, that person may act as arbitrator. The Act is silent as to whether judges may sit as arbitrators, but S.7(3) of the Mauritius Courts Act 1945, allows a judge to be remunerated for work outside of his judicial role, subject to obtaining the authorisation of the President of the Republic of Mauritius. This provision has to date been interpreted as allowing judges to sit as arbitrators.

An arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence, or if he or she does not possess the qualifications agreed to by the parties (S.13 of the Act). Further, a party may challenge an arbitrator appointed by it, or in whose appointment it had participated, only for reasons of which it becomes aware after the appointment has been made.

If the appointment of an arbitrator is terminated following a successful challenge, a substitute arbitrator shall be appointed according to the procedure that was applicable to the appointment of the arbitrator being replaced (S.16(1)).

S.13(1) of the Act imposes a duty of disclosure on arbitrators from the moment they are appointed and throughout the arbitral proceedings to disclose any circumstance which is likely to give rise to justifiable doubts as to his impartiality and independence, without delay.

(a) Procedure, including evidence?

The parties are free to make their own arrangements on the procedure to be followed by the tribunal (S.24(2)) (but they cannot contract out of the essential safeguards set out in S.24(1) of the Act).

Failing agreement, the tribunal may conduct the arbitration in such manner as it considers appropriate and determine all procedural and evidential matters, including in relation to statements of case, disclosure of documents, examination of witnesses, admissibility, relevance and weight of evidence, and investigation of the facts (S.24(3)).

(b) Interim relief?

A tribunal has the power to grant interim measures at any time before making the award by which the dispute is finally decided, if a party so requests (S.21). The measures which the tribunal is expressly empowered to grant are:

1. To maintain or restore the status quo pending determination of the dispute;
2. To take action that would prevent or refrain a party from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process;
3. To provide a means of preserving assets out of which a subsequent award may be satisfied;
4. To preserve evidence that may be relevant and material to the resolution of the dispute;
5. To provide security for costs.

(c) Parties which do not comply with its orders?

The Act does not deal with the tribunal’s powers in case a party does not comply with an order.

(d) Issuing partial final awards?

The Act does not distinguish between partial and final awards and there are no restriction imposed on the tribunal in issuing partial or final awards.

(e) The remedies it can grant in a final award?

Under S.33(1), unless otherwise agreed by the parties, the tribunal -

1. may make a declaration as to any matter to be determined in the proceedings; and
2. may order the payment of a sum of money, in any currency; and
3. has the same powers as a Court in Mauritius -
   
   1. to order a party to do or refrain from doing anything; and
   2. to order specific performance of a contract; and
   3. to order the rectification, setting aside or cancellation of a deed or other document.

(f) Interest?

The tribunal may award simple or compound interest for such period and at such rate as it considers meets the justice of the case (S.33(1)(d)).

The Act is silent on how to proceed in case a party decides not to participate in the arbitration. However, in Essar Steel Limited v. Arcellormittal USA LLC [2021] SCJ 248, the Supreme Court held, in relation to an attempt from an award debtor to resist the enforcement of an award following arbitral proceedings in which it had not participated, that default in arbitration, after having been duly notified, is not a bar to the enforcement of an award under the New York Convention.

S.19(1) of the Act provides that an arbitrator shall not be liable for anything done or omitted in the discharge or purported discharge of his functions as arbitrator, unless the act or omission is shown to have been in bad faith.

Where an action is brought before any court, and a party contends that the action is the subject of an arbitration agreement, that court shall automatically transfer the action to the Supreme Court (as constituted under S.41(2) of the Act) and stay its proceedings, provided that that party so requests not later than when submitting his first statement on the substance of the dispute. The Supreme Court shall refer the parties to arbitration, unless a party shows, on a prima facie basis, that there is a very strong probability that the arbitration agreement may be null and void, inoperative or incapable of being performed, in which case it shall itself proceed finally to determine whether the arbitration agreement is null and void, inoperative or incapable of being performed. Where the Supreme Court finds that the agreement is null and void, inoperative or incapable of being performed, it shall transfer the matter back to the court which made the transfer. Where the Supreme Court refers the parties to arbitration, it has the power to transfer back to the referring court, one or more claims if (a) the action includes a claim or claims which is or are not contended to be the subject of an arbitration agreement; and (b) it is necessary in the interests of justice for such claim or claims to continue notwithstanding the referral of the parties (S.13 of The International Arbitration Claims Rules).

The powers which the Supreme Court has in relation to an arbitration that is pending or ongoing are to issue interim measures in support of arbitration (S.23 of the Act). Those powers are the same as the powers which a Judge in Chambers has in relation to court proceedings in Mauritius. The Supreme Court’s powers are however non-interventionist, and they shall only be exercised to support – and not to disrupt – arbitrations. Where the case is one of urgency, the Court may, on the ex parte application of a party or proposed party to the arbitral proceedings, make such order as it thinks necessary. Where the case is not one of urgency, the Supreme Court shall act only on the application of a party to the arbitral proceedings made - (a) on notice to the other parties and to the tribunal; and (b) with the permission of the tribunal or the agreement in writing of the other parties. The Supreme Court shall act only if or to the extent that the tribunal, and any arbitral or other institution or person vested by the parties with power in that regard, has no power or is unable for the time being to act effectively. Where the Court so orders, an order made by it under S.23 shall cease to have effect on the order of the tribunal or of any such arbitral or other institution or person having power to act in relation to the subject matter of the order.

The Supreme Court has additional powers where the First Schedule applies (either because in presence of an arbitration agreement contained in the constitution of a GBC company, or if the parties have opted in to the First Schedule or to paragraph 1 of the First Schedule), namely the power to determine any question of Mauritius law arising in the course of the arbitration upon an application to this effect having been made by one or more parties, with the consent of all parties and the tribunal. The Supreme Court shall entertain such an application only if it is satisfied that the determination of the question of law concerned (a) might produce substantial savings in costs to the parties, and (b) might, having regard to all the circumstances, substantially affect the rights of one or more of the parties.

The Act is silent on whether parties can exclude the powers that the Supreme Court’s has under S.23. However, the term ‘shall’ used in S.23(1) when referring to the Supreme Court’s powers under that section, could be interpreted as meaning that the parties cannot exclude such powers by agreement. This issue has however not yet been decided by the Supreme Court.

Failing agreement of the parties, S.33(2)(a) of the Act provides that the costs of the arbitration shall be fixed and allocated by the tribunal in an award, applying the general principles that ‘cost should follow the event, except where it appears to the tribunal that this rule should not apply fully in the circumstances of the case. There is no detailed guideline as to how to exercise that discretion, thereby resulting in very wide powers given by the Act to international tribunals to deal with costs.

In the absence of an award on costs, each party shall bear its own costs and shall share those of the tribunal, the PCA and of any institution in equal share (S.33(2)(b)).

There is no restriction in Mauritius-seated arbitrations as to what parties can agree to in terms of costs.

The Act does not make mention of third-party funding arrangements, leaving parties free to make such arrangements in respect of arbitrations seated in Mauritius.

In the case of Laporte E.G.L. v Laporte M.A.R [2025 SCJ 35), in the context of an application to resist enforcement in Mauritius of an international arbitration award rendered in London, award which ordered the recovery by one party of third-party funding costs from another party, the Supreme Court dismissed the challenge and held that third party funding arrangements were not contrary to public policy. It can be deduced from this judgment that the Supreme Court would take the same position if it were to decide the same case in the context of an international arbitration seated in Mauritius.

In arbitral proceedings with more than one arbitrator, a decision shall be made, unless otherwise agreed by the parties, by a majority of all its members. Decisions on procedures may be decided by a presiding arbitrator, if so authorised by the parties or by all members of the tribunal. Unless otherwise agreed by the parties, where there is no majority, any decision shall be made by the presiding arbitrator alone.

An award must be made in writing and must be signed by the arbitrator or, in arbitral proceedings with more than one arbitrator, by the majority of all members of the tribunal or by the presiding arbitrator alone where he is acting pursuant to sS.34(3), provided that the reason for any omitted signature is stated.

There are no time limits to render an award under the Act.

Foreign awards and Non-Domestic Awards (rendered in international arbitrations seated in Mauritius) are enforced pursuant to the New York Convention and the Foreign Awards Act which domesticates the Convention and clarifies that the reciprocity reservation is of no application. S.40 of the Act is the provision which provides that Non-Domestic Awards are to be enforced in the same manner as foreign awards.

The grounds to resist enforcement of a foreign award or a Non-Domestic Award are those available under Art. V of the New York Convention.

The rules governing enforcement of such awards are provided for in The International Arbitration Claims Rules.

Any recourse against a Non-Domestic Award rendered under the Act may only be by way of an application to the Supreme Court for the setting aside the award (S.39(1)).

The grounds on which the Supreme Court may set aside an award under S.39(2) of the Act are: (a) if a party proves that (i) a party to the arbitration agreement was under some incapacity, or the arbitration agreement was not valid under the applicable law, or (ii) it was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or if it was otherwise unable to present its case, or (iii) the award deals with a dispute not contemplated by, or not falling within the terms of, the submission to arbitration, or contains a decision on a matter beyond the scope of the submission to arbitration, or (iv) the composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the Act, or (b) if the Supreme Court finds that (i) the subject matter of the dispute is not capable of settlement by arbitration under Mauritius law, (ii) the award is in conflict with the public policy of Mauritius, (iii) the making of the award was induced or affected by fraud or corruption, or (iv) a breach of the rules of natural justice occurred during the arbitral proceedings or in connection with the making of the award by which the rights of any party have been or will be substantially prejudiced.

The Act does not allow parties to appeal on the merits, save on a question of law if the First Schedule or paragraph 1 of the First Schedule applies to the arbitration and the conditions required under paragraph 1 are satisfied namely, the tribunal and all parties must have consented to the referral of the question to the Supreme Court, and if the determination of the question of law by the Supreme Court might, having regard to all the circumstances, substantially affect the rights of one or more of the parties and if it might produce substantial savings in costs to the parties.

The time limit to apply to set aside a Non-Domestic Award is 3 months from the date on which the party making that application has received the award or, if a request has been made under S.38 (correction, interpretation and additional award), from the date on which that request has been disposed of by the tribunal.

The Act is silent on whether the parties can agree to exclude the right to apply to set aside an award under S.39 or to challenge an award on jurisdiction under S.20(7). The legislator has not expressly provided that parties may derogate from S.39(1) and S.20(7), and it therefore likely that the intention was to exclude such possibility. However, the question has yet to be decided by the Supreme Court and remains open for argument.

The Act is silent on the question of confidentiality of arbitral proceedings, and parties may agree on the matter. The Travaux (para. 108) clarify that the silence of the Act is not intended to do away with confidentiality in international commercial arbitrations, where parties have an expectation that proceedings will be kept confidential and it is, therefore, only in ‘exceptional and limited circumstances’, that this duty should be overridden.

The Supreme Court has not been called to decide on the question of confidentiality under the Act, and the exceptions to this principle remain open for debate.