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INTERNATIONAL ARBITRATION ACT 2008 Act 37 of 2008 – 1 January 2009
P 25/08
ARRANGEMENT OF CLAUSES
PART I – PRELIMINARY
1. Short title 2. Interpretation
3. Application of Act
PART II – INITIATION OF PROCEEDINGS
4. Arbitration agreement
5. Substantive claim before Court 6. Compatibility of interim measures
7. Death or bankruptcy or winding up of
party 8. Consumer arbitration agreement
9. Commencement of proceedings Juridical seat
PART III – THE ARBITRAL TRIBUNAL
10. Number of arbitrators 11. Appointment of arbitrators
12. Grounds for challenge of arbitrator 13. Procedure for challenge of arbitrator
14. Failure or inability to act
15. Replacement of arbitrator 16. Hearing following replacement of arbitrator
17. Fees and expenses of arbitrators
18. Protection from liability and finality of decisions
19. Competence as to jurisdiction PART IV – INTERIM MEASURES
20. Interim measures by Tribunal
21. Recognition and enforcement of interim measures
22. Powers of Supreme Court to issue interim measures
PART V – CONDUCT OF ARBITRAL
PROCEEDINGS
23. Duties and powers of Tribunal
24. Statements of claim and defence
Hearing 25. Default of party
26. Appointment of expert 27. Court assistance in taking evidence
28. Power of PCA to extend time limits
Representation PART VI – THE AWARD
29. Rules applicable to substance of dispute 30. Remedies and costs
31. Decision making by panel of arbitrators
32. Settlement 33. Form and contents of award
34. Termination of proceedings 35. Correction, interpretation and additional
award
36. Exclusive recourse against award 37. Recognition and enforcement
PART VII - MISCELLANEOUS
38. Limitation and prescription 39. Constitution of Supreme Court and appeal
40. Consequential amendment 41. Commencement
42. First Schedule
43. Second Schedule 44. Third Schedule
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PART I – PRELIMINARY
1. Short title
This Act may be cited as the International Arbitration Act 2008.
2. Interpretation
(1) In this Act –
“Amended Model Law” means the Model Law on International Commercial
Arbitration adopted by UNCITRAL on 21 June 1985, as amended on 7 July 2006;
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“arbitration” means any arbitration whether or not administered by a permanent
arbitral institution;
“arbitration agreement” means an agreement by the parties to submit to arbitration
all or certain disputes which have arisen or may arise between them in respect of a
defined legal relationship, whether contractual or not;
“arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
“costs of the arbitration” means the costs of the PCA in discharging its functions
under this Act, the fees and expenses of the arbitral tribunal, the legal and other
expenses of the parties, and any other expenses related to the arbitration;
“Court” –
(a) means a Court in Mauritius; and
(b) includes, where appropriate, a body or organ of the Judicial System of a
foreign state; but
(c) does not include the PCA;
“data message” –
(a) means information generated, sent, received or stored by electronic,
magnetic, optical or similar means; and
(b) includes electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy;
“domestic arbitration” means any arbitration with its juridical seat in Mauritius other
than an international arbitration under section 3(2);
“electronic communication” means any communication between the parties by
means of a data message;
“GBL Company” means a company holding a Global Business Licence under the
Financial Services Act;
“juridical seat” means the juridical seat of an arbitration referred to in section 10;
“New York Convention” means the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards signed at New York on 10 June 1958;
“PCA” means the Permanent Court of Arbitration, having its seat at the Hague,
acting through its Secretary-General;
“UNCITRAL” means the United Nations Commission on International Trade Law.
(2) Unless otherwise agreed by the parties, any request or other written communication
in an arbitration governed by this Act shall be deemed to have been received on the day on which it
is delivered where –
(a) it is delivered to the addressee personally or at its place of business, habitual
residence or mailing address or, if none of these can be found after making a
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reasonable inquiry, it is sent to the addressee’s last-known place of business,
habitual residence or mailing address by registered letter or any other means
which provides a record of the attempt to deliver it; and
(b) the means of communication used is any means of communication,
electronic or otherwise, that provides a record of despatch and receipt of the
communication, including delivery against receipt, registered post, courier,
facsimile transmission, telex or telegram.
(3) Where a provision of this Act, save for section 28, leaves the parties free to
determine a certain issue, such freedom includes the right of the parties to authorize a third party,
including an institution, to make that determination.
(4) Where a provision of this Act refers to the fact that the parties have agreed or that
they may agree or in any other way refers to an agreement of the parties, such agreement includes
any arbitration rules referred to in that agreement.
(5) Where a provision of this Act, other than sections 27(a) and 37(2)(a), refers to a
claim, it also applies to a counterclaim, and where it refers to a defence, it also applies to a defence
to such counterclaim.
3. Application of Act
(1) (a) This Act shall not apply to arbitrations initiated before its commencement.
(b) This Act shall apply to arbitrations initiated on or after its commencement
under an arbitration agreement whenever made.
(c) (i) Subject to subparagraph (ii), this Act shall apply solely to
international arbitrations (as defined in subsection (2)).
(ii) Sections 5, 6, 22 and 23 shall apply to an arbitration which satisfies
the criteria set out in subsection (2)(b), whether or not its juridical
seat is Mauritius.
(d) The fact that an enactment confers jurisdiction on a Court but does not refer
to the determination of the matter by arbitration does not per se indicate that
a dispute about the matter is not capable of determination by arbitration.
(e) Where any other enactment provides for the statutory arbitration of a
dispute, this Act shall not apply to an arbitration arising under that other
enactment.
(2) For the purposes of subsection (1)(c)(i), an arbitration shall, subject to subsection
(6), be an international arbitration where –
(a) the juridical seat of the arbitration is Mauritius; and
(b) (i) the parties to the arbitration agreement have, at the time of the
conclusion of that agreement, their place of business in different States; or
(ii) one of the following places is situated outside the State in which the
parties have their places of business –
(A) the juridical seat of the arbitration if determined in, or
pursuant to, the arbitration agreement; or
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(B) 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; or
(iii) 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
(iv) the shareholders in a GBL company have determined, pursuant to
subsection (6), that any dispute concerning the Constitution of the
company or relating to the company shall be referred to arbitration
under this Act.
(3) For the purposes of subsection (2)(b) –
(a) where a party has more than one place of business, the place of business is
that which has the closest relationship to the arbitration agreement;
(b) where a party does not have a place of business, reference is to be made to
its habitual residence.
(4) Subject to subsection (6), the First Schedule or any of its specific provisions shall
apply to an international arbitration only if the parties so agree by making express reference to that
Schedule or to that specific provision.
(5) (a) Any issue as to –
(i) whether an arbitration is an international arbitration; or
(ii) whether the First Schedule or any of its specific provisions apply to
an international arbitration,
shall be determined by the arbitral tribunal.
(b) Where an issue referred to in paragraph (a) arises before a Court or the PCA
–
(i) that Court or the PCA shall decline to decide that issue and refer it
for determination by the arbitral tribunal; but
(ii) where the arbitral tribunal has not yet been constituted, the Court or
the PCA may make a provisional determination of the issue pending
the determination thereof by the arbitral tribunal.
(6) (a) The shareholders in a GBL company may determine that any dispute
concerning the constitution of the company or relating to the company shall be referred to
arbitration under this Act.
(b) Notwithstanding any agreement to the contrary, the juridical seat of any
arbitration under this subsection shall be Mauritius and the First Schedule shall apply to that
arbitration.
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(c) The shareholders of a GBL company may incorporate an arbitration
agreement in the constitution of the company, whether by reference to the model arbitration clause
contained in the Second Schedule or otherwise –
(i) at the time of the incorporation of the company; or
(ii) at any later time by a unanimous resolution of all current
shareholders.
(7) A party who knows or could with reasonable diligence have known that any
provision of this Act from which the parties may agree to derogate or any requirement under the
arbitration agreement has not been complied with but proceeds with the arbitration proceedings
without stating an objection to the non-compliance within a reasonable time or such time as may
have been agreed by the parties shall be deemed to have waived its right to object.
(8) In matters governed by this Act, no Court shall intervene except where so provided
in this Act.
(9) In applying and interpreting this Act and in developing the law applicable to
international arbitration in Mauritius –
(a) regard shall be had to the origin of the Amended Model Law (the
corresponding provisions of which are set out in the Third Schedule) and to
the need to promote uniformity in its application and the observance of good
faith;
(b) any question concerning matters governed by the Amended Model Law
which is not expressly settled in that law shall be settled in conformity with
the general principles on which that law is based; and
(c) recourse may be had to international materials relating to the Amended
Model Law and to its interpretation, including –
(i) relevant reports of UNCITRAL;
(ii) relevant reports and analytical commentaries of the UNCITRAL
Secretariat;
(iii) relevant case-law from other Model Law jurisdictions, including the
case-law reported by UNCITRAL in its CLOUT database; and
(iv) textbooks, articles and doctrinal commentaries on the Amended
Model Law.
(10) In carrying out the objects of subsection (9), no recourse shall be had to, and no
account shall be taken of, existing statutes, precedents, practices, principles or rules of law or
procedure relating to domestic arbitration.
(11) This Act shall bind the State.
PART II – INITIATION OF PROCEEDINGS
4. Arbitration agreement
(1) An arbitration agreement –
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(a) may be in the form of an arbitration clause in a contract or other
legal instrument or in the form of a separate agreement; and
(b) shall be in writing.
(1) An arbitration agreement is in writing where –
(a) 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;
(b) it is concluded by an electronic communication and the
information contained in it is accessible so as to be usable for
subsequent reference; or
(a) 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.
(2) The reference in a contract to a document containing an arbitration
clause constitutes an arbitration agreement in writing where the reference is such
as to make that clause part of the contract.
1. Substantive claim before Court
(1) 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, provided that that party so
requests not later than when submitting his first statement on the substance of the
dispute.
(2) The Supreme Court shall, on a transfer under subsection (1), 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.
(3) 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.
(4) Where an action referred to in subsection (1) has been brought,
arbitral proceedings may nevertheless be commenced or continued, and one or
more awards may be made, while the issue is pending before any Court.
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2. Compatibility of interim measures
(1) It is not incompatible with an arbitration agreement for a party to
request, before or during arbitral proceedings, from the Supreme Court or a Court
in a foreign state an interim measure of protection in support of arbitration and for
the Court to grant such a measure.
(2) An application to the Supreme Court under subsection (1) shall be
made and determined in accordance with section 23.
3. Death or bankruptcy or winding up of party
(1) Unless otherwise agreed by the parties, an arbitration agreement is not
discharged by the death, bankruptcy or winding up of a party and may be enforced
by or against the representatives of that party.
(2) Subsection (1) shall not affect the operation of any enactment by
virtue of which a substantive right or obligation is extinguished by death,
bankruptcy or winding up.
4. Consumer arbitration agreement
(1) Where –
(a) a contract contains an arbitration agreement; and
(b) a person enters into that contract as a consumer,
the arbitration agreement shall be enforceable against the consumer only if the
consumer, by separate written agreement entered into after the dispute has arisen,
certifies that, having read and understood the arbitration agreement, he agrees to
be bound by it.
(2) For the purposes of subsection (1), a person enters into a contract as
a consumer where –
(a) he is a natural person; and
(b) he enters into the contract otherwise than as a trader; and
(c) the other party to the contract enters into that contract as a
trader.
(3) Subsection (1) shall apply to every contract containing an arbitration
agreement entered into in Mauritius even where the contract provides that it shall
be governed by a law other than Mauritius law.
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5. Commencement of proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect of
a particular dispute commence on the date on which a request by one party for
that dispute to be referred to arbitration is received by the other party.
6. Juridical seat
(1) Subject to subsection 3(5)(b)(ii), unless otherwise agreed by the
parties, the juridical seat of the arbitration shall be determined by the arbitral
tribunal having regard to the circumstances of the case.
(2) Unless otherwise agreed by the parties, and notwithstanding
subsection (1), the arbitral tribunal may meet at such geographical location as it
considers appropriate for consultation among its members, for hearing witnesses,
experts or the parties, or for inspection of goods or other property or documents.
PART III – THE ARBITRAL TRIBUNAL
7. Number of arbitrators
Unless otherwise agreed by the parties –
(a) the number of arbitrators shall be 3; and
(b) an agreement that the number of arbitrators shall be an even number
shall be understood as requiring the appointment of an additional
arbitrator as presiding arbitrator.
8. Appointment of arbitrators
(1) Unless otherwise agreed by the parties, no person shall be precluded
by reason of his nationality from acting as an arbitrator.
(2) Subject to subsections (4) and (5), the parties are free to agree on a
procedure for appointing the arbitral tribunal.
(3) Insofar as there is no agreement pursuant to subsection (2) –
(a) in an arbitration with 3 arbitrators –
(i) each party shall appoint one arbitrator, and the 2
arbitrators thus appointed shall appoint the third arbitrator
who shall act as presiding arbitrator; and
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(ii) where a party fails to appoint an arbitrator within 30 days
of receipt of a request to do so from the other party, or
where the 2 arbitrators fail to agree on the third arbitrator
within 30 days of their appointment, the appointment
shall be made, on the request of a party, by the PCA;
(b) in an arbitration with a sole arbitrator, where the parties have
failed to agree on the arbitrator within 30 days of receipt of a
request from a party, he shall be appointed, on the request of a
party, by the PCA;
(c) where the arbitral tribunal is to be composed of a number of
arbitrators other than one or 3, the arbitrators shall be
appointed according to the method agreed upon by the parties,
or, if those methods fail, in accordance with subsections (4) and
(5); and
(d) where there are multiple claimants or respondents, the multiple
claimants, jointly, and the multiple respondents, jointly, shall
each appoint an arbitrator, and the 2 arbitrators thus appointed
shall appoint the third arbitrator who shall act as presiding
arbitrator or, if this method of appointment fails, the
appointment shall be made in accordance with subsections (4)
and (5).
(4) Where, under an appointment procedure agreed upon by the parties –
(a) a party fails to act as required under that procedure;
(b) the parties, or any arbitrators already appointed, are unable to
reach an agreement expected of them under that procedure; or
(c) a third party, including an arbitral institution, fails to perform
any function entrusted to it under that procedure,
any party may request the PCA to take any necessary measures, unless the
agreement on the appointment procedure provides other means for securing the
appointment.
(5) In the event of any other failure to constitute the arbitral tribunal, any
party may request the PCA to take any necessary measures, unless the agreement
on the appointment procedure provides other means for resolving the failure.
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(6) The measures which the PCA may take under subsections (4) and (5)
shall include –
(a) giving directions as to the making of any necessary
appointments;
(b) directing that the arbitral tribunal shall be constituted by such
appointments (or any one or more of them) as have been made;
(c) revoking any appointment already made;
(d) appointing or reappointing any or all of the arbitrators; and
(e) designating any arbitrator as the presiding arbitrator.
(7) The PCA, in appointing an arbitrator, shall have due regard to any
qualifications required of the arbitrator by the agreement of the parties and to such
considerations as are likely to secure the appointment of an independent and
impartial arbitrator and, in the case of a sole or third or presiding arbitrator, shall
also take into account the advisability of appointing an arbitrator of a nationality
other than those of the parties.
9. Grounds for challenge of arbitrator
(1) Where a person is approached in connection with his possible
appointment as an arbitrator, he shall disclose any circumstance likely to give rise
to justifiable doubts as to his impartiality or independence.
(2) An arbitrator, from the time of his appointment and throughout the
arbitral proceedings, shall without delay disclose any circumstance referred to in
subsection (1) to the parties unless they have already been informed of it by him.
(3) Subject to subsection (4), an arbitrator may be challenged only if
circumstances exist that give rise to justifiable doubts as to his impartiality or
independence, or if he does not possess qualifications agreed to by the parties.
(4) A party may challenge an arbitrator appointed by him, or in whose
appointment it has participated, only for reasons of which it becomes aware after
the appointment has been made.
10. Procedure for challenge of arbitrator
(1) Subject to subsections (3) and (4), the parties are free to agree on a
procedure for challenging an arbitrator.
(2) Failing an agreement pursuant to subsection (1) –
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(a) a party who intends to challenge an arbitrator shall, within 15
days after becoming aware of the constitution of the arbitral
tribunal or after becoming aware of any circumstance referred
to in section 13 (3), send a written statement of the reasons for
the challenge to the arbitral tribunal; and
(b) unless the challenged arbitrator withdraws from his office or the
other party agrees to the challenge, the arbitral tribunal shall
decide on the challenge.
(3) Where a challenge under any procedure agreed by the parties or under
the procedure set out in subsection (2) is not successful, the challenging party
may, within 30 days after having received notice of the decision rejecting the
challenge, request the PCA to decide on the challenge.
(4) While a request under subsection (3) is pending, the arbitral tribunal,
including the challenged arbitrator, may continue the arbitral proceedings and make
one or more awards.
11. Failure or inability to act
(1) Where an arbitrator becomes de jure or de facto unable to perform his
functions or for any other reason fails to act without undue delay, his mandate
terminates if he withdraws from his office or if the parties agree on the termination.
(2) Where a controversy remains concerning any ground referred to in
subsection (1), any party may request the PCA to decide on the termination of the
mandate.
(3) Where, under this section or section 14, an arbitrator withdraws from
his office or a party agrees to the termination of the mandate of an arbitrator, this
does not imply acceptance of the validity of any ground referred to in this section
or section 13(3).
12. Replacement of arbitrator
(1) Where the mandate of an arbitrator terminates under section 14 or 15
or because of his withdrawal from office for any other reason or because of the
revocation of his mandate by agreement of the parties or in any other case of
termination of his mandate save under section 12(6), a substitute arbitrator shall,
subject to this section, be appointed according to the procedure that was
applicable to the appointment of the arbitrator being replaced.
(2) Unless otherwise agreed by the parties, where a party or the other
members of the arbitral tribunal consider that an arbitrator has resigned for
unacceptable reasons or refuses or fails to act without undue delay, that party or
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the other members of the arbitral tribunal may apply to the PCA to request the
replacement of the arbitrator or the authorisation for the other members of the
arbitral tribunal to continue the arbitration without the participation of that
arbitrator.
(3) In determining how and whether to act under subsection (2), the PCA
shall take into account the stage of the arbitration, any explanation made by the
arbitrator for his conduct and such other matters as it considers appropriate in the
circumstances of the case.
(4) Where, following an application under subsection (2), the PCA decides
that the arbitrator is to be replaced, the PCA shall decide whether the replacement
should be made applying the procedure that was applicable to the appointment of
the arbitrator being replaced or whether the PCA should itself appoint the
substitute arbitrator having regard to section 12(7).
13. Hearing following replacement of arbitrator
Unless otherwise agreed by the parties, where under section 14, 15 or 16 an
arbitrator is replaced, the proceedings shall resume at the stage where the
arbitrator who was replaced ceased to perform his functions, unless the arbitral
tribunal decides that the proceedings should resume at an earlier stage.
14. Fees and expenses of arbitrators
(1) The parties shall be jointly and severally liable to pay to the arbitrators
such reasonable fees and expenses as are appropriate in the circumstances.
(2) Where the arbitrators’ remuneration would otherwise be the subject of
no other scrutiny by an arbitral institution chosen by the parties or otherwise, any
party may apply to the PCA, on notice to the other parties and to the arbitrators,
which may order that the amount of the arbitrators’ fees and expenses shall be
adjusted and fixed in such manner and upon such terms as it may direct.
15. Protection from liability and finality of decisions
(1) 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.
(2) An arbitral or other institution or person designated or requested by
the parties to appoint or nominate an arbitrator shall not be liable –
(a) for anything done or omitted in the discharge or purported
discharge of that function unless the act is shown to have been
in bad faith;
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(b) by reason of having appointed or nominated the said arbitrator,
for anything done by the arbitrator or his employees or agents in
the discharge or purported discharge of his functions as
arbitrator.
(3) The PCA shall not be liable for anything done or omitted in the
discharge or purported discharge of its functions under this Act.
(4) Subsections (1), (2) and (3) apply to an employee or agent of an
arbitrator, of an arbitral institution, or of the PCA as they apply to the arbitrator, to
the arbitral institution or to the PCA.
(5) Subject only to the right of recourse under section 39 against awards
rendered in the arbitral proceedings, all decisions of the PCA under this Act shall be
final and subject to no appeal or review.
16. Competence as to jurisdiction
(1) An arbitral tribunal may rule on its own jurisdiction, including on any
objection with respect to the existence or validity of the arbitration agreement.
(2) An arbitration clause which forms part of a contract shall be treated
for the purposes of subsection (1) as an agreement independent of the other terms
of the contract, and a decision by the arbitral tribunal that the contract is null and
void shall not entail ipso jure the invalidity of the arbitration clause.
(3) (a) Subject to subsection (5), a plea that the arbitral tribunal does
not have jurisdiction shall be raised not later than the submission of the statement
of defence.
(b) 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.
(4) Subject to subsection (5), a plea that the arbitral 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.
(5) The arbitral tribunal may admit a later plea under subsection (3) or (4)
if it considers the delay justified.
(6) The arbitral tribunal may rule on a plea referred to in subsection (3) or
(4) as a preliminary question or in an award on the merits.
(7) Where the arbitral tribunal rules on the plea as a preliminary question,
any party may, within 30 days after having received notice of that ruling, request
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the Supreme Court to decide the matter, and, while such a request is pending, the
arbitral tribunal may continue the arbitral proceedings and make one or more
awards.
PART IV – INTERIM MEASURES
17. Interim measures by Tribunal
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at
the request of a party, grant interim measures, in the form of an award or in
another form, by which, at any time before making the award by which the dispute
is finally decided, the arbitral tribunal orders a party to –
(a) maintain or restore the status quo pending determination of the
dispute;
(b) take action that would prevent, or refrain from taking action
that is likely to cause current or imminent harm or prejudice to
the arbitral process itself;
(c) provide a means of preserving assets out of which a subsequent
award may be satisfied;
(d) preserve evidence that may be relevant and material to the
resolution of the dispute; or
(e) provide security for costs.
(2) The party requesting an interim measure under subsection (1) (a), (b)
or (c) shall satisfy the arbitral tribunal that –
(a) harm not adequately reparable by an award of damages is likely
to result if the measure is not ordered, and such harm
substantially outweighs the harm that is likely to result to the
party against whom the measure is directed if the measure is
granted; and
(b) there is a reasonable possibility that the requesting party will
succeed on the merits of the claim.
(3) With regard to a request for an interim measure under
subsection (1)(d) or (e), the requirements in subsection (2) shall apply only to the
extent the arbitral tribunal considers appropriate.
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(4) The arbitral tribunal’s determination of the existence of a reasonable
possibility of success on the merits under subsection (2)(b) shall not affect the
arbitral tribunal’s independence and impartiality, or its power to make any
subsequent determination of the merits.
(5) The arbitral tribunal may modify, suspend or terminate an interim
measure it has granted on application of any party or, in exceptional circumstances
and on prior notice to the parties, on the arbitral tribunal’s own initiative.
(6) The arbitral tribunal may require the party requesting an interim
measure to provide appropriate security in connection with the measure.
(7) The arbitral tribunal may require any party promptly to disclose any
material change in the circumstances on the basis of which the measure was
requested or granted.
(8) The arbitral tribunal may, at any time in the arbitral proceedings, order
the party who requested the interim measure to pay damages and costs to another
party where the arbitral tribunal determines that, in the circumstances, the measure
requested should not have been granted.
18. Recognition and enforcement of interim measures
(1) An interim measure granted by an arbitral tribunal shall, subject to this
section, be recognised as binding and, unless otherwise provided by the arbitral
tribunal, enforced on application to the Supreme Court, irrespective of the country
in which it was issued.
(2) The party who is seeking or has obtained recognition or enforcement
of an interim measure shall promptly inform the Supreme Court of any termination,
suspension or modification of that measure.
(3) The Supreme Court may, on an application for recognition or
enforcement of an interim measure and if it considers it proper, order the
requesting party to provide appropriate security if the arbitral tribunal has not
already made a determination with respect to security or where such a decision is
necessary to protect the rights of third parties.
(4) Recognition or enforcement of an interim measure may be refused
only –
(a) at the request of the party against whom it is invoked where
the Court is satisfied that –
(i) the refusal is warranted on a ground set out in section
39(2)(a);
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(ii) the arbitral tribunal’s decision with respect to the
provision of security in connection with the measure
issued by the arbitral tribunal has not been complied with;
or
(iii) the interim measure has been terminated or suspended by
the arbitral tribunal or, where so empowered, by the
Court of the State in which the arbitration takes place or
under the law of which that interim measure was
granted; or
(b) where the Court finds that –
(i) the measure is incompatible with the powers conferred
on the Court unless the Court decides to reformulate the
measure to the extent necessary to adapt it to its own
power and procedures for the purposes of enforcing that
measure and without modifying its substance; or
(ii) any of the grounds set out in section 39(2)(b) apply to
the recognition and enforcement of the measure.
(5) Any determination made by the Court on any ground in
subsection (4) shall be effective only for the purposes of the application to
recognise and enforce the interim measure. The Court where recognition or
enforcement is sought shall not, in making that determination, undertake a review
of the substance of the interim measure.
19. Powers of Supreme Court to issue interim measures
(1) The Supreme Court shall have the same power of issuing an interim
measure in relation to arbitration proceedings, irrespective of whether their juridical
seat is Mauritius, as a Judge in Chambers has in relation to Court proceedings in
Mauritius, and it shall exercise that power in accordance with the applicable Court
procedure in consideration of the specific features of international arbitration.
(2) Unless the parties otherwise agree, the power to issue interim
measures under subsection (1) shall be exercised in accordance with subsections
(3) to (6).
(3) 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.
(4) Where the case is not one of urgency, the Court shall act only on the
application of a party to the arbitral proceedings made –
18
(a) on notice to the other parties and to the arbitral tribunal; and
(b) with the permission of the arbitral tribunal or the agreement in
writing of the other parties.
(5) The Court shall act only if or to the extent that the arbitral 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.
(6) Where the Court so orders, an order made by it under this section
shall cease to have effect on the order of the arbitral tribunal or of any such arbitral
or other institution or person having power to act in relation to the subject matter
of the order.
PART V – CONDUCT OF ARBITRAL PROCEEDINGS
20. Duties and powers of Tribunal
(1) Every arbitral tribunal shall –
(a) treat the parties with equality and give them a reasonable
opportunity of presenting their case; and
(b) adopt procedures suitable to the circumstances of the case,
avoiding unnecessary delay and expenses, so as to provide a
fair and efficient means for the resolution of the dispute
between the parties.
(2) Subject to this Act, the parties are free to agree on the procedure to
be followed by the arbitral tribunal in conducting the proceedings.
(3) Failing such agreement, the arbitral tribunal may, subject to this Act,
conduct the arbitration in such manner as it considers appropriate, and determine
all procedural and evidential matters including –
(a) where and when the proceedings are to be held;
(b) the language to be used in the proceedings;
(c) whether any written statement of claim and defence are to be
used, when these should be supplied and the extent to which
such statements can be later amended;
(d) whether any document should be disclosed between, and
produced by, the parties and at what stage;
19
(e) whether any question should be put to and answered by the
parties;
(f) whether to apply rules of evidence (or any other rules) as to the
admissibility, relevance or weight of any material sought to be
tendered on any matters of fact or opinion, and the time,
manner and form in which such material should be exchanged
and presented;
(g) whether and to what extent the arbitral tribunal should itself
take the initiative in ascertaining the facts and the law; and
(h) whether and to what extent the arbitral tribunal should
administer oaths or take affirmations from any witness for the
purposes of his examination before the arbitral tribunal.
21. Statements of claim and defence
(1) Subject to section 24, within the time agreed by the parties or
determined by the arbitral tribunal, the claimant shall state the facts supporting its
claim, the points at issue and the relief or remedy sought, and the respondent shall
state its defence in respect of these particulars, unless the parties have otherwise
agreed as to the required elements of such statements.
(2) Subject to subsection 24, unless otherwise agreed by the parties, any
party may amend or supplement its claim or defence during the course of the
arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow
such amendment having regard to the delay in making it.
22. Hearing
(1) Subject to subsection (2), unless otherwise agreed by the parties, the
arbitral tribunal shall decide whether to hold oral hearings for the presentation of
evidence or for oral argument, or whether the proceedings shall be conducted on
the basis of documents and other materials.
(2) Unless otherwise agreed by the parties, the arbitral tribunal shall hold
a hearing at an appropriate stage of the proceedings, if so requested by a party.
(3) The parties shall be given sufficient advance notice of any hearing and
of any meeting of the arbitral tribunal for the purpose of inspection of goods, other
property or documents.
20
(4) Every statement, document or other information supplied to the
arbitral tribunal by a party shall be communicated to all other parties.
(5) Any further statement, document or information received by the
arbitral tribunal (whether from an expert appointed by the arbitral tribunal under
section 28 or otherwise) on which the arbitral tribunal might rely in making its
decision shall also be communicated by the arbitral tribunal to all parties.
23. Default of party
Unless otherwise agreed by the parties, where without showing sufficient
cause –
(a) a claimant fails to communicate its statement of claim in accordance
with section 25, the arbitral tribunal shall terminate the proceedings
either completely or in relation to that claimant where there are
multiple claimants unless a counterclaim is pending against that
claimant;
(b) a respondent fails to communicate its statement of defence in
accordance with section 25, the arbitral tribunal shall continue the
proceedings without treating such failure in itself as an admission of
any of the claimant’s allegations; or
(c) any party fails to appear at a hearing or to produce documentary
evidence, the arbitral tribunal may continue the proceedings and make
one or more awards on the evidence before it.
24. Appointment of expert
(1) Unless otherwise agreed by the parties, the arbitral tribunal may –
(a) appoint one or more experts to report to it on any specific issue
to be determined by the arbitral tribunal; and
(b) require a party to give the expert any relevant information or to
produce, or to provide access to, any relevant documents,
goods or other property for his inspection.
(2) Unless otherwise agreed by the parties, where a party so requests or
the arbitral tribunal considers it necessary, the expert shall, after delivery of his
written or oral report, participate in a hearing where the parties have the
opportunity to put questions to him and to present expert witnesses in order to
testify on the points at issue.
21
25. Court assistance in taking evidence
(1) (a) The arbitral tribunal or a party with the approval of the arbitral
tribunal may request from the Supreme Court assistance in taking evidence.
(b) The Court may execute the request within its competence and
according to its rules on the taking of evidence.
(2) For the purposes of subsection (1) the Supreme Court may –
(a) issue a witness summons to compel the attendance of any
person before an arbitral tribunal to give evidence or produce
documents or other material; or
(b) order any witness to submit to examination on oath before the
arbitral tribunal, or before an officer of the Court, or any person
for the use of the arbitral tribunal.
26. Power of PCA to extend time limits
(1) Unless the parties otherwise agree, the PCA may extend any time limit
agreed by the parties in relation to any matter relating to the arbitral proceedings or
specified in this Act as having effect in default of such agreement, including any
time limit for commencing arbitral proceedings or for making an award.
(2) An application for an order under subsection (1) may be made –
(a) by any party to the arbitral proceedings on notice to all other
parties and to the arbitral tribunal (if already constituted); or
(b) by the arbitral tribunal on notice to the parties.
(3) The PCA shall not exercise its power to extend a time limit unless it is
satisfied that –
(a) any available recourse to the tribunal, or to any arbitral or other
institution or person vested by the parties with power in that
regard, has first been exhausted; and
(b) a substantial injustice would otherwise occur.
(4) An order under this section –
(a) may be made whether or not the time limit has already expired;
and
22
(b) may be made on such terms as the PCA thinks fit; and
(c) shall not affect the operation of any applicable rule of limitation
or prescription.
27. Representation
Unless otherwise agreed by the parties, a party to arbitral proceedings may
be represented in the arbitral proceedings by a law practitioner or other person
chosen by him, who need not be qualified to practise law in Mauritius or in any
other jurisdiction.
PART VI – THE AWARD
28. Rules applicable to substance of dispute
(1) The arbitral tribunal shall decide the dispute in accordance with such
rules of law as are chosen by the parties as applicable to the substance of the
dispute.
(2) Any designation of the law or 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 laws rules.
(3) Failing any designation by the parties, the arbitral tribunal shall apply
the law determined by the conflict of laws rules which it considers applicable.
(4) The arbitral tribunal shall decide ex aequo et bono or as amiable
compositeur only if the parties have expressly authorised it to do so.
(5) In all cases, the arbitral 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.
29. Remedies and costs
(1) Unless otherwise agreed by the parties, the arbitral tribunal –
(a) may make a declaration as to any matter to be determined in
the proceedings; and
(b) may order the payment of a sum of money, in any currency;
and
(c) has the same powers as a Court in Mauritius –
(i) to order a party to do or refrain from doing anything; and
23
(ii) to order specific performance of a contract; and
(iii) to order the rectification, setting aside or cancellation of a
deed or other document; and
(d) may award simple or compound interest for such period and at
such rate as it considers meets the justice of the case.
(2) Unless otherwise agreed by the parties –
(a) the costs of the arbitration shall be fixed and allocated by the
arbitral tribunal in an award, applying the general principles
that –
(i) costs should follow the event except where it appears to
the arbitral tribunal that this rule should not apply or not
apply fully in the circumstances of the case; and
(ii) the successful party should recover a reasonable amount
reflecting the actual costs of the arbitration, and not only
a nominal amount; and
(b) in the absence of an award fixing and allocating the costs of the
arbitration, each party shall be responsible for its own costs,
and shall bear in equal share the costs of the PCA, the fees and
expenses of the arbitral tribunal, and any other expenses related
to the arbitration.
30. Decision making by panel of arbitrators
(1) Subject to subsections (2) and (3), in arbitral proceedings with more
than one arbitrator, any decision of the arbitral tribunal shall be made, unless
otherwise agreed by the parties, by a majority of all its members.
(2) Any question relating to procedure may be decided by a presiding
arbitrator, if so authorised by the parties or by all members of the arbitral tribunal.
(3) Unless otherwise agreed by the parties, where there is no majority,
any decision shall be made by the presiding arbitrator alone.
31. Settlement
(1) Where during arbitral proceedings, the parties settle the dispute, the
arbitral tribunal shall terminate the proceedings and, if requested by the parties and
not objected to by the arbitral tribunal, record the settlement in the form of an
arbitral award on agreed terms.
24
(2) An award on agreed terms shall –
(a) be made in accordance with section 36; and
(b) state that it is an award; and
(c) have the same status and effect as any other award on the
merits of the case.
32. Form and contents of award
(1) Unless otherwise agreed by the parties, the arbitral tribunal may make
more than one award at different points in time during the arbitration proceedings
on different aspects of the matters to be determined.
(2) The arbitral tribunal may, in particular, make an award relating to –
(a) any specific issue in the arbitration; or
(b) a part only of the claims or counterclaims submitted to it for
decision.
(3) An award shall be made in writing and shall be signed by the arbitrator
or, in arbitral proceedings with more than one arbitrator, by the majority of all
members of the arbitral tribunal or by the presiding arbitrator alone where he is
acting pursuant to section 34(3), provided that the reason for any omitted
signature is stated.
(4) An award shall state the reasons on which it is based, unless the
parties have agreed that no reasons are to be given or the award is an award on
agreed terms under section 35.
(5) An award shall state the date on which the award was made and shall
always be deemed to have been made at the juridical seat of the arbitration.
(6) After an award is made, a copy signed by the arbitrators in
accordance with subsection (3) shall be delivered to each party.
(7) An award shall be final and binding on the parties and on any person
claiming through or under them with respect to the matters determined therein, and
may be relied upon by any of the parties in any proceedings before any arbitral
tribunal or in any Court of competent jurisdiction.
25
(8) Except in relation to interim measures granted by the arbitral tribunal
in the form of an award pursuant to section 21, an award shall be final and binding
on the arbitral tribunal with respect to the matters determined therein.
(9) Where an award has been made, the arbitral tribunal shall not, except
as provided in section 21(5), 38 or 39(5), vary, review, add to or revoke the
award.
33. Termination of proceedings
(1) The arbitral proceedings are terminated by the final award or by an
order of the arbitral tribunal in accordance with subsection (2).
(2) The arbitral tribunal shall issue an order for the termination of the
arbitral proceedings where –
(a) all claimants withdraw their claim, unless a respondent objects
and the arbitral tribunal recognises a legitimate interest on its
part in obtaining a final settlement of the dispute;
(b) the parties agree on the termination of the proceedings; or
(c) the arbitral tribunal finds that the continuation of the
proceedings has for any other reason become unnecessary or
impossible.
(3) Subject to sections 38 and 39(5), the mandate of the arbitral tribunal
terminates with the termination of the arbitral proceedings.
34. Correction, interpretation and additional award
(1) Within 30 days of the receipt of an award, or such other period as
may be agreed by the parties –
(a) a party, with notice to all other parties, may request the arbitral
tribunal to correct in the award any errors in computation, any
clerical or typographical errors or any errors of a similar nature;
and
(b) if so agreed by the parties, a party, with notice to all other
parties, may request the arbitral tribunal to give an
interpretation of a specific part of the award.
(2) Where the arbitral tribunal considers a request under subsection (1) to
be justified, it shall make the correction or give the interpretation within 30 days of
receipt of the request and any interpretation shall form part of the award.
26
(3) The arbitral tribunal may correct any error of the type referred to in
subsection (1)(a) on its own initiative within 30 days of the date of the award.
(4) Unless otherwise agreed by the parties, within 30 days of receipt of
an award, any party, with notice to all other parties, may request the arbitral
tribunal to make an additional award as to claims presented in the arbitral
proceedings but omitted from the award, and where the arbitral tribunal considers
the request to be justified –
(a) it may issue further procedural directions or hold further
hearings in relation to the claim omitted from the award if
necessary; and
(b) it shall make the additional award within 60 days.
(5) The arbitral tribunal may extend, if necessary, the period of time
within which it shall make a correction, interpretation or an additional award under
subsection (2) or (4).
(6) Section 36 shall apply to a correction or interpretation of the award or
to an additional award.
35. Exclusive recourse against award
(1) Any recourse against an arbitral award under this Act may be made
only by an application to the Supreme Court for setting aside in accordance with
this section.
(2) An arbitral award may be set aside by the Supreme Court only
where –
(a) the party making the application furnishes proof that –
(i) a party to the arbitration agreement was under some
incapacity or the agreement is not valid under the law to
which the parties have subjected it or, failing any
indication thereon, under Mauritius law; or
(ii) it was not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or 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
27
arbitration, or contains a decision on a matter beyond the
scope of the submission to arbitration; or
(iv) the composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the agreement of
the parties or, failing such agreement, was not in
accordance with this Act; or
(b) the 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.
(3) Notwithstanding subsection (2)(a)(iii) and (iv) –
(a) where decisions on matters submitted to arbitration can be
separated from decisions on matters which were not so
submitted, only those parts of the award which contain
decisions on matters not submitted may be set aside;
(b) the Court shall not set aside an award on a ground specified in
subsection (2)(a)(iv) where the agreement of the parties was in
conflict with a provision of this Act from which the parties
cannot agree to derogate.
(4) An application for setting aside may not be made after 3 months have
elapsed from the date on which the party making that application has received the
award or, if a request has been made under section 38, from the date on which
that request has been disposed of by the arbitral tribunal.
(5) The Court, when asked to set aside an award, may, where appropriate
and so requested by a party, suspend the setting aside proceedings for a period of
time determined by it in order to give the arbitral tribunal an opportunity to resume
the arbitral proceedings or to take such other action as in the arbitral tribunal’s
opinion will eliminate the grounds for setting aside.
28
(6) Where an application is made to set aside an award, the Court may
order that any money made payable by the award shall be brought into Court or
otherwise secured pending the determination of the application.
36. Recognition and enforcement
The Convention on the Recognition and Enforcement of Foreign Arbitral
Awards Act 2001 shall apply to the recognition and enforcement of awards
rendered under this Act.
PART VII – MISCELLANEOUS
37. Limitation and prescription
(1) No enactment relating to limitation or prescription in Mauritius shall
apply to arbitration proceedings merely by reason of the fact that the juridical seat
of the arbitration is Mauritius.
(2) Unless otherwise agreed by the parties, the law or rules of law
determined under section 32 shall apply to any issue of limitation or prescription
arising in arbitral proceedings under this Act.
(3) The Supreme Court may order that, in computing the time prescribed
for the commencement of proceedings in respect of a dispute which was the
subject of –
(a) an award which the Court orders to be set aside or declares to
be of no effect; or
(b) the affected part of an award which the Court orders to be set
aside in part or declares to be of no effect in part,
the period between the commencement of the arbitration proceedings and the date
of an order under paragraph (a) or (b) shall be excluded.
38. Constitution of Supreme Court and appeal
(1) For the purposes of any application or transfer to the Supreme Court
under this Act or of any other matter arising out of an arbitration subject to this
Act before the Supreme Court, the Court shall be constituted by a panel of 3
Judges.
(2) An appeal shall lie as of right to the Judicial Committee of the Privy
Council against any final decision of the Supreme Court under this Act.
29
39. Consequential amendment
The Convention on the Recognition and Enforcement of Foreign arbitral
Awards Act 2001 is amended –
(a) in section 2 –
(i) by deleting the definition of “Minister”;
(ii) by deleting the definition of “Court” and replacing it by the
following definition –
“Court” means the Supreme Court constituted as specified in
section 42 of the International Arbitration Act 2008;
(b) by deleting section 3 and replacing it by the following section –
3. Convention to have force of law
(1) Notwithstanding any other enactment, the Convention
shall have force of law in Mauritius.
(2) In applying the Convention, regard shall be had to the
Recommendation regarding the interpretation of Article II(2) and
Article VII(1) of the Convention adopted by UNCITRAL at its Thirty-
Ninth session on 7 July 2006.
(c) in section 4, by adding immediately after subsection (2), the following
subsection –
(3) An appeal shall lie as of right to the Judicial Committee
of the Privy Council against any final decision of the Supreme Court
under this Act.
(d) in section 5, by deleting subsection (1) and replacing it by the
following subsection –
(1) For the purposes of Article IV(1) of the Convention, a
copy is duly certified if it is certified by any person whom the Court
can be expected to rely on for such certification, including any
competent officer of the Court, and any notary or attorney-at-law
qualified to practise in Mauritius.
(e) by deleting section 6 and replacing it by the following section –
6. Regulations
30
The Chief Justice may make such regulations as he thinks fit for
the purposes of this Act.
40. Commencement
This Act shall come into operation on a date to be fixed by Proclamation.
______________
FIRST SCHEDULE
(section 3)
OPTIONAL SUPPLEMENTARY PROVISIONS FOR INTERNATIONAL ARBITRATIONS
1. DETERMINATION OF PRELIMINARY POINT OF MAURITIUS LAW BY COURT
(1) Notwithstanding section 3(8) of the Act, on an application to the
Supreme Court by any party –
(a) with the consent of the arbitral tribunal; or
(b) with the consent of every other party,
the Court shall have jurisdiction to determine any question of Mauritius law arising
in the course of the arbitration.
(2) The Court shall not entertain an application under subparagraph (1)(a)
with respect to any question of Mauritius law unless 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.
(3) For the purposes of this paragraph, “question of Mauritius law” –
(a) includes an error of law that involves an incorrect interpretation
of the applicable law (whether or not the error appears on the
record of the decision); but
(b) does not include any question as to whether –
(i) the award or any part of the award was supported by any
evidence or any sufficient or substantial evidence; or
31
(ii) the arbitral tribunal drew the correct factual inferences
from the relevant primary facts.
2. APPEALS ON QUESTIONS OF MAURITIUS LAW
(1) Notwithstanding sections 3(8) and 39 of the Act, any party may
appeal to the Supreme Court on any question of Mauritius law arising out of an
award with the leave of the Court.
(2) The Court shall not grant leave under subparagraph (1) unless it
considers that, having regard to all the circumstances, the determination of the
question of Mauritius law concerned could substantially affect the rights of one or
more of the parties.
(3) The Court may grant leave under subparagraph (1) on such conditions
as it thinks fit.
(4) On the determination of an appeal under this paragraph, the Court
may, by order –
(a) confirm, vary, or set aside the award; or
(b) remit the award, together with the Court's opinion on the
question of Mauritius law which was the subject of the appeal,
to the arbitral tribunal for reconsideration or, where a new
arbitral tribunal has been appointed, to that arbitral tribunal for
consideration,
and, where the award is remitted under subparagraph (b), the arbitral tribunal shall,
unless the order otherwise directs, make the award not later than 3 months after
the date of the order.
(5) Where the award of an arbitral tribunal is varied on an appeal under
this paragraph, the award as varied shall have effect (except for the purposes of
this paragraph) as if it were the award of the arbitral tribunal; and the party relying
on the award or applying for its enforcement in Mauritius pursuant to section 40 of
the Act shall supply the duly authenticated original order of the Court varying the
award or a duly certified copy thereof.
(6) Sections 39(5) and (6) of the Act shall apply to an appeal under this
paragraph as they apply to an application for the setting aside of an award under
that section.
(7) For the purposes of the New York Convention as applicable in
Mauritius –
32
(a) an appeal under this paragraph shall be treated as an application
for the setting aside of an award; and
(b) an award which has been remitted by the Court under
subparagraph (4)(b) to the original or a new arbitral tribunal shall
be treated as an award which has been suspended.
(8) For the purposes of this paragraph, “question of Mauritius law” –
(a) includes an error of law that involves an incorrect interpretation
of the applicable law (whether or not the error appears on the
record of the decision); but
(b) does not include any question as to whether –
(i) the award or any part of the award was supported by any
evidence or any sufficient or substantial evidence; or
(ii) the arbitral tribunal drew the correct factual inferences
from the relevant primary facts.
3. CONSOLIDATION OF ARBITRAL PROCEEDINGS
(1) Where 2 or more arbitral proceedings have the same arbitral tribunal
appointed in respect of each of the arbitral proceedings the arbitral tribunal may, on
the application of at least one party in each of the arbitral proceedings, order –
(a) those proceedings to be consolidated on such terms as the
arbitral tribunal thinks just;
(b) those proceedings to be heard at the same time, or one
immediately after the other; or
(c) any of those arbitral proceedings to be stayed on such terms as
it considers appropriate.
(2) Where an application has been made to the arbitral tribunal under
subparagraph (1) and the arbitral tribunal refuses or fails to make an order under
that subparagraph, the Supreme Court may, on application by a party in any of the
proceedings, make any such order as could have been made by the arbitral tribunal.
(3) Where 2 or more arbitral proceedings do not have the same arbitral
tribunal appointed in respect of each of the arbitral proceedings but each arbitral
proceeding is subject to this Act –
33
(a) the arbitral tribunal of any one of the arbitral proceedings may,
on the application of a party in the proceedings, provisionally
order –
(i) the arbitral proceedings to be consolidated with other
arbitral proceedings on such terms as the arbitral tribunal
thinks just;
(ii) the arbitral proceedings to be heard at the same time as
other arbitral proceedings, or one immediately after the
other; or
(iii) any of those arbitral proceedings to be stayed until after
the determination of any other of them;
(b) an order shall cease to be provisional where consistent
provisional orders have been made for all of the arbitral
proceedings concerned;
(c) the arbitral tribunals may communicate with each other for the
purpose of conferring on the desirability of making orders under
this subparagraph and of deciding on the terms of any such
order;
(d) if a provisional order is made for at least one of the arbitral
proceedings concerned, but the arbitral tribunal for another of
the proceedings refuses or fails to make such an order (having
received an application from a party to make such an order), the
Supreme Court may, on application by a party in any of the
proceedings, make an order or orders that could have been
made under this subparagraph;
(e) if inconsistent provisional orders are made for the arbitral
proceedings, the Supreme Court may, on application by a party
in any of the proceedings, alter the orders to make them
consistent.
(4) Where arbitral proceedings are to be consolidated under
subparagraph (3), the arbitral tribunal for the consolidated proceedings shall be that
agreed on for the purpose by all the parties to the individual proceedings, but,
failing such an agreement, the PCA shall appoint an arbitral tribunal for the
consolidated proceedings.
(5) An order or a provisional order may not be made under this paragraph
unless it appears –
34
(a) that some common question of law or fact arises in all of the
arbitral proceedings;
(b) that the rights to relief claimed in all of the proceedings are in
respect of, or arise out of, the same transaction or series of
transactions; or
(c) that for some other reason it is desirable to make the order or
provisional order.
(6) Any proceedings before an arbitral tribunal for the purposes of this
paragraph shall be treated as part of the arbitral proceedings concerned.
(7) Arbitral proceedings may be commenced or continued, although an
application to consolidate them is pending under subparagraph (1) to (3) and
although a provisional order has been made in relation to them under
subparagraph (3).
(8) Subparagraphs (1) and (3) apply in relation to arbitral proceedings,
whether or not all or any of the parties are common to some or all of the
proceedings, provided that each of the parties to each of the arbitral proceedings in
respect of which consolidation is sought have by way of arbitration agreement (as
defined in this Act) consented to consolidation pursuant to subparagraph (1) to (2).
(9) Nothing in this paragraph shall prevent the parties to 2 or more arbitral
proceedings from agreeing to consolidate those proceedings and taking such steps
as are necessary to effect that consolidation.
4. JOINDER
On the application of any party to the arbitration, the Supreme Court 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 thereto in writing.
___________
SECOND SCHEDULE
(section 3)
MODEL ARBITRATION PROVISIONS FOR GBL COMPANIES
1. Shareholders in a Mauritius GBL company (“the Company”) may incorporate
an arbitration clause in the constitution of the Company, as provided in section 3(6)
of the Act, by a unanimous resolution of shareholders in the following form –
35
The shareholders of the Company hereby agree that the constitution
of the Company shall be amended by the inclusion of the arbitration
clause set out in the Second Schedule to the International Arbitration
Act 2008. The chosen arbitral institution is [name of institution]. The
number of arbitrators shall be [one or three].
2. The effect of the resolution referred to in paragraph 1 shall be the
incorporation in the constitution of the Company of the following arbitration
clause –
(1) Any dispute, controversy or claim arising out of or relating to this
constitution or the breach, termination or invalidity thereof, or relating to the
company, shall be settled by international arbitration under the International
Arbitration Act 2008 (referred to as the Act).
(2) The provisions of the First Schedule to the Act shall apply to the
arbitration.
(3) The arbitration shall be conducted pursuant to the Rules of [name of
institution]. Where no institution is chosen, the arbitration shall be conducted
pursuant to the rules set out in the Act.
(4) The number of arbitrators shall be [one or three]. Where no option is
chosen, the default rules set out in the Act shall apply.
(5) The juridical seat of arbitration shall be Mauritius.
(6) The language to be used in the arbitral proceedings shall be the
English language.
______________
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THIRD SCHEDULE
(section 3)
TABLE OF CORRESPONDING PROVISIONS BETWEEN
THE ACT AND THE AMENDED MODEL LAW
Section of the Act Article of the Model Law
“Explanatory Memorandum”
Part I – Preliminary
Section 1 (Short title)
Section 2 (Interpretation)
Section 2(1), (3), (4) and (5)
Section 2(2)
Article 2
Article 3
Section 3 (Application of Act)
Section 3(1)
Section 3(2) and 3(3)
Section 3(7)
Section 3(8)
Section 3(9)
Article 1(1) and 1(2)
Article 1(3)
Article 4
Article 5
Article 2A
Part II – Initiation of
Proceedings
Section 4 (Arbitration
agreement)
Article 7
Section 5 (Substantive claim
before Court)
Article 8
Section 6 (Compatibility of
interim measures)
Article 9
Section 7 (Death or bankruptcy
or winding up of a party)
Section 8 (Consumer arbitration
agreement)
Section 9 (Commencement of Article 21
37
proceedings)
Section 10 (Juridical seat) Article 20
Part III – The Arbitral Tribunal
Section 11 (Number of
arbitrators)
Article 10
Section 12 (Appointment of
arbitrators)
Article 11
Section 13 (Grounds for
challenge of arbitrator)
Article 12
Section 14 (Procedure for
challenge of arbitrator)
Article 13
Section 15 (Failure or inability to
act)
Article 14
Section 16 (Replacement of
arbitrator)
Article 15
Section 17 (Hearing following
replacement of arbitrator)
Section 18 (Fees and expenses
of arbitrators)
Section 19 (Protection from
liability and finality of decisions)
Section 20 (Competence as to
jurisdiction)
Article 16
Part IV – Interim Measures by
Tribunal
Section 21 (Interim measures by
tribunal)
Articles 17-17G
Section 22 (Recognition and
enforcement of interim
measures)
Article 17H-17I
Section 23 (Powers of Supreme
Court to issue interim measures)
Article 17J
Part V – Conduct of Arbitral
Proceedings
38
Section 24 (Duties and powers of
tribunal)
Articles 18, 19 and 22.
Section 25 (Statements of claim
and defence)
Article 23
Section 26 (Hearing) Article 24
Section 27 (Default of party) Article 25
Section 28 (Appointment of
expert)
Article 26
Section 29 (Court assistance in
taking evidence)
Article 27
Section 30 (Power of PCA to
extend time limits)
Section 31 (Representation)
Part VI – The Award
Section 32 (Rules as to
substance of dispute)
Article 28
Section 33 (Remedies and costs)
Section 34 (Decision making by
panel of arbitrators)
Article 29
Section 35 (Settlement) Article 30
Section 36 (Form and contents of
award)
Article 31
Section 37 (Termination of
proceedings)
Article 32
Section 38 (Correction,
interpretation and additional
award)
Article 33
Section 39 (Exclusive recourse
against award)
Article 34
Section 40 (Recognition and
enforcement)
Articles 35 and 36
Part VII – Miscellaneous
39
Section 41 (Limitation and
prescription)
Section 42 (Constitution of
Supreme Court and appeal)
Article 6
Section 43 (Consequential
amendment)
Section 44 (Commencement)
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