Alternative dispute resolution framework

Disputes in Mauritius may be litigated before the courts, mediated or arbitrated. The Supreme Court of Mauritius has recently adopted the Supreme Court (Mediation) Rules 2010 and have been made effective at the beginning of 2011 with the appointment of two judges of the Supreme Court as mediation judges. The rules apply to civil suits and actions pending before the Supreme Court or as the Chief Justice may deem appropriate to refer to mediation.

Furthermore, any party to a civil action may apply to the Chief Justice for the matter to be referred to mediation. The primary purpose of mediation under the rules is to encourage a common agreement or narrow down the issues in dispute. Where the parties have reached a formal agreement, the mediation judge shall record the settlement agreement in the form of a memorandum setting out the terms of the agreement.

Arbitration agreements

The Act specifically provides that it shall apply only to arbitrations started on or after the commencement of the Act and not before. For an arbitration agreement to be valid, it must be in writing. It can be either in the form of an arbitration clause in a contract or other legal instrument, or in the form of a separate agreement.

Parties to the arbitration are free to choose the seat of the arbitration. For the purposes of the Act, arbitration shall be considered an international arbitration where the juridical seat is in Mauritius and the parties to the arbitration agreement have their place of business in different states.

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 the request is not later than when submitting the first statement on the substance of the dispute.

The Supreme Court shall, on such a transfer, 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 the Supreme Court shall itself proceed to determine whether the arbitration agreement is null and void, inoperative or incapable of being performed. Where the Supreme Court finds in favour of the latter, it shall transfer the matter back to the court that made the transfer.

‘‘A decision of the arbitral tribunal that the contract is null and void shall not entail the invalidity of the arbitration clause’’

The agreement may determine the number of arbitrators. If the agreement is silent on the matter, the number of arbitrators shall be three. Furthermore, an agreement that indicates an even number of arbitrators shall be understood as requiring the appointment of an additional arbitrator as presiding arbitrator. As regards procedure, the parties are free to agree on a procedure for appointing the arbitral tribunal and may therefore set out the contractual terms to that effect.

The arbitrator enjoys immunity for anything done or omitted while acting as arbitrator unless the act or omission is shown to have been in bad faith. An interim measure may be granted by the arbitral tribunal at the request of a party and at any time before making the final award. The interim measures may refer to the status quo pending determination of the dispute and may be enforced on application to the Supreme Court irrespective of the country in which it was issued.

An arbitral tribunal may rule on its own jurisdiction, including on any objection with respect to the existence or validity of the arbitration agreement. An arbitration clause that forms part of a contract shall be treated as an agreement, independent of the other terms of same. A decision of the arbitral tribunal that the contract is null and void shall not entail the invalidity of the arbitration clause.

The arbitral tribunal may, subject to the agreement of the parties, order the payment of a sum of money, and will have the same powers as a court in Mauritius to order a party to do or refrain from doing anything, order specific performance of a contract, and to order rectification setting aside or cancellation of a deed or other document. The successful party should recover a reasonable amount reflecting the actual costs of the arbitration and not only the nominal amount.

Arbitration and mediation are a good tool to achieve the following objectives: reduce court backlogs, reduce time necessary for contract enforcement, reduce costs of dispute resolution, increase number of in-court settlements (facilitated by judges or mediators), reduce formality and complexity of the existing processes, and judges learn some elements of case management.