The continuing development of Mauritian International Arbitration Law and Institutions

1. The continuing development of Mauritian International Arbitration Law and Institutions Duncan Bagshaw Registrar, LCIA-MIAC Arbitration Centre CIArb and LCIA 10th Annual Joint Seminar Stephenson Harwood, London, 11 September 2014

2. Mauritius - Ile Maurice - Moris

3. Mauritius - Ile Maurice - Moris

4. Introduction • The Mauritius International Arbitration Project • Establishing a centre of excellence • Building capacity and expertise in the region • Encouraging African participation • Promoting legitimacy and acceptance at home • Challenging negative perceptions overseas

5. The project in summary • 2008: International Arbitration Act • 2009: Signed a Host Country Agreement with the PCA and installed a permanent PCA representative • 2011: Establishment of LCIA-MIAC • 2010 – 2014: Mauritius International Arbitration Conferences • Mauritian Chair of the UNCITRAL Working Group • 2015: World-class hearing centre to be opened • Host of ICCA Congress 2016

6. The International Arbitration Act 2008: A summary • UNCITRAL Model Law-based • Challenges and Setting-aside (s. 39) as per Model Law • Competence-competence and separability (s.20) • Spirit of support and non-interference (s. 2A) • Negative competence-competence reinforced (s.5) • Three-judge panel of Supreme Court (s 42)

7. The International Arbitration Act 2008: A summary • Arbitrability of Company Disputes (s 3D) • For Mauritian GBL companies • Mandatory Mauritian seat and application of Schedule 1 on appeal and consolidation/joinder • Role of the PCA • Appointment in default (s 12) • Challenges, even after institutional procedure (s 13) • Replacement following removal in default (s 15)

8. The Journey Continues… • Amendments to the International Arbitration Act 2008 • Strengthening the enforcement regime • Improvements to court procedures • Developing Jurisprudence • Activities of LCIA-MIAC

9. 2013 Legal Developments Amendments to the IAA • Single Judge hears first application for urgent relief (s. 42(1A)) • GBL Company arbitration provisions clarified • Confidentiality (s. 42(1B) • Post set-aside provisions (s. 39A) Other improvements: • Removal of Reciprocity Reservation from NY Convention • French an official language for enforcing awards • Designated Supreme Court Judges

10. New Supreme Court Rules The International Arbitration Claims Rules 2013 • CPR-style • Rapid timetable to hearing • Presumption against oral evidence • Costs (assessed according to expenditure) follow the event • Hearings listed according to party time estimates • Procedure for enforcement applications

11. Developing Jurisprudence • Liberalis Limited v Golf Development Intl Ltd (2013 SCJ 211, SCR No. 107600) • Jurisdictional challenges • Barnwell Enterprises Ltd & ors v ECP Africa FII Investments LLC 2013 SCJ 327 • Injunctions and limits on court powers • Pieter Both Property Development Ltd v CheminGrenier Industries Ltd (2013 SCJ 279) • Separability of arbitration agreement reinforced • Cruz City 1 Mauritius Holdings v Unitech Ltd and others • Enforcement: Constitutionality, meaning of Public Policy, Jurisdiction of tribunal

12. Some Areas for Exploration • New York Convention: clarification of enforcement of annulled awards • New York Convention: enforcement of interim measures and emergency arbitrator awards (IAA section 22(1)) • Confidentiality provisions: establishing the limits to confidentiality • Hard cases involving arbitration of disputes between shareholders/directors of Global Business Companies

13. LCIA-MIAC • Independent, neutral arbitral institution • Established and run with support of LCIA • LCIA-MIAC Arbitration Rules: based on LCIA Rules (to be updated) • Fees at LCIA-MIAC Rates charged for time spent • Arbitrators: Access to LCIA database plus LCIA-MIAC sub-database • LCIA Court performs identical functions for LCIA-MIAC as for the LCIA • Bilingual English and French

14. LCIA-MIAC Activities Developing expertise in the legal profession and judiciary • MIAC 2012 Conference • IA Workshop/Mock Arbitration • RIDAA 2013 (French language conference) • Rules translated into French and Chinese (Portuguese) • LCIA-MIAC Users’ Council • LCIA-MIAC Symposium, Johannesburg 2013 Coming up: MIAC Conference, 15-16 December 2014

15. The Big Picture: Legitimacy “…there exists a hiatus today between a discourse frequently repeated at international conferences, emphasising the “inclusiveness” of international arbitration, and a perception of the field in the developing world as predominantly Euro- or Americano-centric. This gives rise to a risk of arbitration being perceived as a ‘foreign’ process imposed from abroad, as an unwanted but inevitable corollary of trade and investment flows. The conceptual premise of the Mauritian project is that the answer to this is to make sure that the developing world has its say in the process and in its development, and for international arbitration progressively to become part and parcel of the legal culture of developing countries. The aim is accordingly to create a platform run for the benefit of the region as a whole to build capacity in the field of international dispute resolution, so that (within a generation) Africa can draw on the expertise of specialist African arbitrators and lawyers. Salim Moollan, at ICCA 2014, Miami

16. www.lcia-miac.org(+230) 467 3030 Duncan Bagshaw Registrar, LCIA-MIAC Arbitration Centre

17. APPENDIX 1 • LiberalisLimited v Golf Development Intl Ltd (2013 SCJ 211, SCR No. 107600) • Ad Hoc arbitration seated in Mauritius arising out of an international property development deal. • Jurisdiction challenged on the grounds that the arbitration agreement was not binding because it was signed whilst a party was in liquidation. Arbitrator decision: I have jurisdiction. • Application to Court under section 20: Court reconsiders jurisdiction and decides arbitrator was correct • Note Court’s approach: Not an appeal, but noting the arbitrator’s decision on the facts. • Quaere: Necessary for the court to rehear factual evidence when reconsidering jurisdiction? Even if not asked to do so?

18. APPENDIX 2 • Barnwell Enterprises Ltd & ors v ECP Africa FII Investments LLC 2013 SCJ 327 • Ad Hoc arbitration seated in Mauritius arising out of an international M&A contract for purchase of a construction company. • Injunction sought to prevent exercise of a Put Option under the shareholders’ agreement. • Supreme Court (first instance): temporary order granted. • Supreme Court (return date): order discharged. Section 23 IAA; Court should only act to the extent that the tribunal does not have the power to act effectively. • Note Court’s approach: balancing “holding the ring” against the approach required under the Act.

19. APPENDIX 3 • Pieter Both Property Development Ltd v CheminGrenier Industries Ltd (2013 SCJ 279) • Contract between Mauritian parties included arbitration clause • Hence domestic arbitration law applies • Application to refer proceedings to arbitration resisted on the grounds that the contract never came into effect due to an unfulfilled condition. • Supreme Court: The Separability principle applies in Mauritian law generally. French caselaw cited. • The arbitration clause can therefore be binding separately from the contract even if the contract is not effective as a whole. • Case therefore referred to arbitration.

20. APPENDIX 4 • Cruz City 1 Mauritius Holdings v Unitech Ltd and others (2014 SCJ 100) • Indian and US investors in project to develop property in Mumbai • Company incorporated in Mauritius with Shareholders’ Agreement • Governed by Indian Law • LCIA Arbitrations seeking compulsory transfer of shares upon insolvency • Arbitral award in the region of USD 300 million • Challenged in London Commercial Court. Challenge partially successful • Enforced in Mauritian Supreme Court, unsuccessful arguments on constitutionality, jurisdiction and public policy