Arbitration: oasis or mirage?

Arbitration… or the art of resolving a dispute outside a court of justice. It is known to transcend the bounds of time-consuming legal technicalities and this is probably where its most appealing feature lies. Over the years, the sore thumb sticking out of legal system, and which has contributed towards sapping confidence in man-made justice, has become what Shakespeare termed as “the law’s delays”. Indeed, as the adage goes, justice delayed is justice denied.

Our local jurisprudence abounds in cases where substantial delay has impaired a party’s right to a fair trial. We recall here the uncompromising words of the then Chief Justice Honourable Sik Yuen in the case of Narayenen & Ors v Chaytoo (2012) SCJ 2012: “History tells us of a war that lasted 100 years. A simple legal claim by an uncontested owner of a Central Housing Authority house, as it then was, against an illegal occupier and, following latter’s demise, against his heirs, has now lasted over 15 years.”

Arbitration, as an alternative dispute resolution mechanism aims at addressing those very situations and finding solutions in a timelier and contained time frame.

In the light of the uncontested advantages of domestic arbitration, what then is the place of international arbitration in Mauritius?

Primo, the association of the Mauritius International Arbitration Centre with the London Court of International Arbitration (LCIA) has been strategic given LCIA’s prominent position as a leading international institution for commercial dispute resolution.

Secundo, we have our very own legal framework. The International Arbitration Act 2008 and the Supreme Court (International Arbitration Claims) Rules 2013 constitute the substantive laws on international arbitration. However, they are fairly new on the island and their application is yet to be fully tried before our Courts.

The fairly nascent status of our laws may serve to explain why Mauritius has so far not occupied a prominent position on the arbitration front. Luckily, this is very likely to change this year. The news was out in the year 2012: Mauritius won the bid to host the 23^rd Congress for the International Council for Commercial Arbitration (ICCA), a worldwide non-governmental organisation dedicated to promoting and developing arbitration and other forms of international dispute resolution. Banymandhub Boolell Chambers Ltd is one of the official sponsors of the congress which will be held from the 8^th to the 11^th May 2016. The various debates will revolve around arbitration and the rule
of law.

According to Salim Moollan, QC, “For Mauritius, hosting the ICCA Congress in 2016 represents a natural step in establishing our country as a venue and centre of excellence for international arbitration in Africa. Mauritius is perfectly suited to play a leading role in developing the theory and practice of international arbitration in Africa, reflecting the institutional development and economic growth of the region. The programme of this first ICCA Congress ever to be held in Africa will address questions of fundamental importance to our discipline as arbitration gains popularity in one of the most rapidly advancing economic regions of the world.”

To efficiently play such an active leading role in the field of arbitration, we believe that Mauritius needs to make the most of its strategic location. We are at a crossroads with Asia, Africa and Australia. We benefit from political stability and good diplomatic relations. We are regarded as Africa’s first tiger economy. We have all the necessary constituents to be prominent in this pacifist arbitration battle! The ICCA Congress is thus expected to enhance our visibility on the market, not only for our sun, sea, sand and maybe golf courses but also as a reliable venue to hold arbitral proceedings.

We can only hope that arbitration will get webbed into our Mauritian culture, and are willing to perpetuate the far sighted views of Benjamin Franklin: “When will mankind be convinced and agree to settle their difficulties by arbitration?”