The International Arbitration Act 2008
Written By: Mrs. Latasha Bissessur, Team Leader
Banymandhub Boolell Chambers
With the enactment of the International Arbitration Act (IAA 2008), Mauritius has positioned itself as a major jurisdiction for international arbitration. The premise of international arbitration is defined at section 3 of the IAA 2008. The uniqueness of the IAA 2008 is that it provides for frameworks dealing with global business and also a right of appeal to the Judicial Committee of the Privy Council.
Law and Procedure for the enforcement of the Agreement
Under the IAA 2008, an arbitration agreement may spur from a contractual framework, or any other legal relationship. Departing from the existing legal framework of the United Nations Commission on International trade Model Law, the IAA 2008 also caters for consumer contracts.
Key Issues: Composition of Arbitral Tribunal and evidence
The IAA 2008 caters for the composition of the arbitral tribunal. There exist provisions for the challenge of arbitrators and default of arbitrators. For instance, section 19 confers to arbitrators, protection from liability and finality of decisions. The arbitral tribunal must comply with the rules of natural justice and adopt proceedings suitable to the circumstances of the particular case to provide a fair means for the resolution of the dispute. The arbitral tribunal is vested with the authority to issue panoply of interim measures, upon the request of a party under section 1(1) of the IAA 2008.
The interim measure is recognised as binding and its enforcement may be sought at the Supreme Court.
The IAA 2008 also provides for challenge to the jurisdiction of the arbitral tribunal. The party invoking that the tribunal is going ultra vires should exercise celerity in raising the issue which is the subject of a dispute, but any delay would be permissible if just cause is shown. The parties, who may be represented by a law practitioner or any other person, remain free to determine the manner in which evidence is to be adduced and this would be determined while deciding on the lex arbitri which will shape the procedure to be adopted by the arbitral tribunal. The IAA 2008 provides for documentary, oral and expert evidences.
After listening to the submissions of the parties and in the light of evidence adduced, the arbitral panel issues an award. The form and substance of an award are laid down by section 36 of the IAA 2008. The award takes its final and binding form after a copy is delivered to each party, as well as to any person who was linked to the subject matter of the dispute.
Appeal against Arbitral Award
Section 39 provides for an appeal against the arbitral award to the Supreme Court. If the award goes against public policy; if it is tainted with fraud or corruption; or if the object of contention is not „arbitrable‟ under Mauritian law, the Court will quash the award.
Enforcement of Arbitral Award
The IAA 2008, at section 40 makes reference to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act (CREFAAA) 2001 for the „recognition and enforcement of awards rendered under this Act‟. Article III of the Convention embodied in the CREFAAA 2001 lays down the obligation for the Contracting State to „recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon‟ and more onerous obligations or higher fees or charges should not be applied with regard to a foreign award.
The aim of promulgating the IAA 2008 is to promote the use of Mauritius as a jurisdiction of choice in the field of international arbitration. Special attention has been given to companies holding Global Business Licences and also to dispute which may arise from Double Taxation Agreements which Mauritius has signed. With the numerous advantages like exotic atmosphere of Mauritius and the bilingual culture, all is set to provide tough competition to other jurisdictions for international arbitration.