Lise Bosman: “Mauritius is creating a viable home for arbitration in Southern Africa”

Mauritius will be hosting in May the International Council for Commercial Arbitration (ICCA) Congress, which will see the participation of United Nations Secretary General Ban Ki-Moon. Business Magazine spoke to Lise Bosman, Senior Legal Counsel, Permanent Court of Arbitration who is also the Executive Editor of the ICCA.

BUSINESSMAG. What is the purpose of your visit to Mauritius?

I am here to take part in a pre-congress roadshow aimed at the legal profession in Mauritius, because we would like to encourage as many lawyers and judges as possible to attend the International Council for Commercial Arbitration (ICCA) Congress that will take place next month. One of the things the ICCA does is to host these huge congresses – sometimes called the Olympic Games of the arbitration world. We are hosting the next one here in May. It is very significant for us because it is the first time we will be hosting one in the African Union and that recognizes two main things. Firstly, the incredible vitality of the Mauritian arbitration project. It is so ambitious to actually create a jurisdiction that is arbitration friendly and make sure that practitioners, judges and government are all very supportive of using international arbitration.

Secondly, we are hosting it in Africa for the first time because we see positive signs of development and progress in other African countries as well that are favourable to international arbitration.

There are arbitration institutes, for instance, as well as reforms, legislations and private enterprise initiatives to support arbitration generally. That’s why we are bringing the congress to Africa.

BUSINESSMAG. What is the role of the ICCA?

The ICCA is a non-governmental organisation (NGO) and probably the only NGO operating in the whole field of international arbitration that is completely neutral: it is an institute, so we do not administer actual cases; we are not funded by government and are completely independent. We have this unique, neutral position in the field of arbitration really to promote the interests of international arbitration worldwide without necessarily promoting one jurisdiction over another.

BUSINESSMAG. How was the choice of Mauritius made for such an important event?

Well, we hear bids to host congresses and there are always several bids that are heard by the governing board, generally about four years in advance of a congress. We chose Mauritius because the bid itself was very well prepared and showed real support for the Mauritius arbitration project to hold a congress across a wide range of the legal profession and government. We were very impressed by that. The second reason is to support the Mauritius arbitration project, which is creating a viable home for hosting arbitration in Southern Africa. There are no comparably good alternatives at the moment. The third reason is because we are very interested in helping the development of international arbitration on the African continent as a whole and Mauritius is a frontrunner for that. It is in a way showing the way to other African countries on how it could be done.

BUSINESSMAG. Some people would say despite the presence of arbitration organisations in Mauritius, like the London Court of International Arbitration-Mauritius International Arbitration Centre (LCIA-MIAC) and the Permanent Court of Arbitration (PCA), we are still lagging behind in terms of progress. What are your thoughts on that?

I think Mauritius is doing really well. Developing an extensive practice of international arbitration simply takes time. For instance, the PCA, which is my other employer, is a great example. It was founded in 1899 and hosted only 30 cases in its first nearly 100 years of existence, then suddenly became very active and is now one of the busiest arbitration institutes in the whole world. It takes time, but I think you are doing all the right things and I have great confidence that this project will s쳮d.

BUSINESSMAG. The ICCA Congress will be essentially centred on commercial arbitration. We all know about the pros of arbitration, but what about the cons of such a practice?

I think one can debate the use of commercial arbitration within a jurisdiction locally but if you have very well-functioning commercial courts for domestic disputes, it does not make much difference whether you arbitrate or litigate. For cross-border disputes, there is no comparable alternative to commercial arbitration, because it is neutral and does not favour one party or country above the other. It is easy to execute arbitral awards across borders. For all these reasons, it really is the best alternative.

BUSINESSMAG. Is the judgement of an arbitration final?

Yes it is. It is a choice that parties make; when they sign an arbitration contract, this is what they opt for. On the plus side, it does mean that you have legal certainty so you do not get caught up in local court litigation for up to ten years.

BUSINESSMAG. Would you say that arbitration, especially commercial arbitration, is a profitable alternative for jurisdictions like Mauritius which depend largely on the services industry for Gross Domestic Product income?

It is an excellent services industry. Not only can it generate proceeds for the operational institutes that are administering arbitrations, it also has a knock-on effect. For instance, it brings visitors here, lawyers from other jurisdictions who interact with local practitioners, etc. So it has both a direct and indirect benefit.

BUSINESSMAG. How would you assess the legal framework prevalent in Mauritius, particularly its mix of English and French law?

Mauritius has taken a very sophisticated and clever approach because what you have here is an International Arbitration Act which is based very closely on the United Nations standard: the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. You have that as the basis, which makes it a very modern arbitration act; something that foreign users immediately understand. A few features have been added to that act so you have a strong international basis that conforms to best practices, but also acknowledges Mauritius’s own traditions.

BUSINESSMAG. Recently, the Bilateral Investment Treaty (BIT) with France was invoked by a private investor to solicit a forced arbitration with the Mauritian government. Is that not a loophole of some sort?

I am not aware of the facts of that particular case and cannot comment on its rights or wrongs. Generally speaking, the system of investment arbitration based on treaties – which is different from commercial arbitration – has been developed to give foreign investors the confidence to invest. It is one of a series of checks that foreign investors tend to make. They check the economic climate and political climate. They also check whether there is a BIT so that they can recover in case something happens to their investment that is protected by the treaty. I think it is part of a system of protection of foreign investment, which builds on the protection of foreign investors through customary international law. It is one of many mechanisms to protect foreign investors, and to ensure greater levels of Foreign Direct Investment in a country.