International Arbitration in Mauritius

8 LegalNotes
3
International Arbitration in Mauritius
New developments in 2013
KENYA
Mushtaq Namdarkhan
Associate
BLC Chambers
[email protected]
Anjarwalla & Khanna is the largest
corporate law firm in Eastern Africa. The
firm is ranked first in Kenya by various
legal guides, including Chambers Global,
IFLR 1000,
Legal
PLCplaces
Which
Lawyer
(b) one
of the500,
following
is situated
outside theGuide
State in which
the parties
have
and Euromoney
to the
World’s
their place of business: (i) the juridical seat
Leading Project Finance Lawyers.
Aleem Tharani I Anjarwalla & Khanna I [email protected]
Undertaking infrastructure projects in Kenya:
Get the contract right!
Introduction
of the arbitration, if determined in, or
pursuant to, the arbitration agreement; or
(ii) 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;
(c) the parties have expressly agreed that the
subject matter of the arbitration agreement
relates
to more than
or that
the
Kenya
has seen a significant rise in infrastructure
developments
in the recent past,
especially
in one
theState
fields
of real
was enacted, together
with the Supreme
Introduction
IAA 2008 applies to their arbitration; or
Court (International
ArbitrationThis
Claims)
estate
development,
and
infrastructure.
has been caused by various factors including a
Mauritius,
aside from beingenergy
known as
a transportation
Rules
2013
(the
IA
Rules).
financial centre
and a gateway
to investment
demand
for housing
by the
rising population, infrastructure demands caused (d)
bythe
growing
investor
interest
in the
arbitration
arises under
an arbitration
into Africa, is increasingly being recognised as
country and the Government’s Vision 2030
development blue print, whose aim clause
is to included
achievein industrialization
the constitution of a by
The IAA 2008
an international arbitration destination – an
global
business
(offshore)
company.
the
year 2030.
The IAA 2008 is an adaptation of the
alternative option to London and Paris.
UNCITRAL Model Law on International
The IAA 2008 applies to international
Commercial
Arbitration (the Model
In 2008, the
International
Act
Putting
together
an Arbitration
infrastructure
project,
be it skyscrapers,
roads,Law).
power projects
or which
a realhave
estate
development
arbitrations
Mauritius
as their
Previously, in international arbitration in
(the IAA 2008) was enacted by the Mauritian
involves amalgamating several constituent
elements.
An
integral
ingredient
to
any
project
the
construction
juridical
seat,
save for is
a few
provisions
which
Mauritius, the IAA 2008 applied alongside the
Parliament. The IAA 2008 set out the rules
apply
whether
the
juridical
seat
is
in
Mauritius
contract
which sets out the terms andConvention
conditions
pertaining
the carrying out of the main building works in
on the
Recognitionto
and
applicable to international arbitration in
or not, these relate to (i) referrals to the
Enforcement
of
Foreign
Arbitral
Awards
Act
respect
of
the
project.
A
well
drafted
contract
that
is
clear
on
the
terms
could have
a significant effect on the cost,
Mauritius and also established the Mauritius
Supreme Court of Mauritius from other courts
2001
(CREFAA
2001),
which
domesticated
the
International
Centre
In
timing
and Arbitration
completion
of(MIAC).
the project.
to determine whether the parties ought to be
New York Convention on the Recognition and
2011, MIAC entered into an agreement with
referred to arbitration instead; (ii) applications
Enforcement of Foreign Arbitral Awards.
the London Court of International Arbitration
to the Supreme Court to obtain interim
What
should a project contract provide for?
(LCIA), giving birth to the LCIA-MIAC
measures in connection with international
Under the IAA 2008, “International
Arbitration Centre.
arbitration proceedings; and (iii) the
defined
any arbitration
The key concerns for most developers ofarbitration”
a projectis are
as as
follows:
recognition in Mauritius of interim measures
where:
In 2013, in a bid to further cement the
granted by an arbitral tribunal.
(a) the parties to an arbitration agreement
position of Mauritius as a venue for
•adjudicating
ensuring
that works are completed in accordance
with
the
construction
have, at the time
of the
conclusion
of the programme for the project;
international disputes, the
The general purport of the IAA 2008 is to
•International
ensuring
that
the
works
are
completed
within
budget;
agreement,
their
place
of
business
in
Arbitration (Miscellaneous
encourage parties to resort to international
different States;
2013 (the are
IAA Amending
Act)
•Provisions)
whereActprojects
to be financed,
ensuring
that the risk allocations in the various project contracts will be
acceptable to potential lenders and financiers; and
3
LegalNotes 9
arbitration, and to limit the intervention by the
Mauritian Courts. Appeals against decisions
made by the Supreme Court under the IAA
2008 are made directly to the Privy Council.
Key changes under the IAA
Amending Act
There are several key changes which offer
clarity and bolster international arbitration
in Mauritius. These are:
(a) The IAA Amending Act offers clarity in
recognition and enforcement or foreign
arbitral awards, as it repeals provisions on
the recognition and enforcement of foreign
arbitral awards contained in the Code of
Civil Procedure. The effect is that the IAA
2008 and the CREFAA 2001 are the
applicable statutes to enforcement of
Aleem Tharani I Anjarwalla & Khanna I [email protected]
foreign awards.
KENYA
Anjarwalla & Khanna is the largest
corporate law firm in Eastern Africa. The
firm is ranked first in Kenya by various
legal guides, including Chambers Global,
IFLR 1000, Legal 500, PLC Which Lawyer
and Euromoney Guide to the World’s
Leading Project Finance Lawyers.
(b)The IAA Amending Act introduces
“Designated Judges”,
being 6 judges
Undertaking
infrastructure
projects
in Kenya:
The
IAA Rules
designated for a period of 5 years by the
The IAA Rules, which are intended to be a
GetChief
theJustice
contract
right!
as being the only judges who
comprehensive and stand-alone procedural
documents, such as shareholders’ agreements
provide for other modes or forums of dispute
resolution. Investors do not therefore, have to
shall hear applications under the IAA 2008
be subject of Mauritius arbitration if they do
code
for
matters
arising
under
the
IAA
2008
Introduction
and CREFAA 2001. This should in the long
not wish for it to be so, since the mandatory
or CREFAA 2001, also impose rigorous case
term enable those judges to acquire an
requirements only relate to disputes arising
management timelines in order to expedite
Kenya
has inseen
a significant
rise in infrastructure
developments
in the
recent out
past,
especially
the fields of real
expertise
the field
of international
of the
company’s in
constitution.
the proceedings
as much as possible.
Those
arbitration.
Designated energy
judges can
exclude
timelines relate
notably to the This
filing has
and been caused by various factors including a
estate
development,
and
transportation
infrastructure.
Conclusion
persons other than the parties and their
serving of infrastructure
written evidence, the
agreement
demand
for housing by the rising population,
demands
caused The
by changes
growing
investor
in the
brought
by theinterest
IAA Amending
legal representatives to attend the court
between the parties of an estimated length of
country
and the
Government’s
Vision 2030
development blue print, whose aim
by
Act is
areto
setachieve
to improveindustrialization
the international
proceedings
and restrict
the publication
hearing of an application, the filing of a court
arbitration
landscape
in
Mauritius,
further
the ofyear
2030. relating to the court
information
bundle or brief of evidence and documents to
providing incentives to make Mauritius the
proceedings in order to preserve
be used at the hearing, and the filing and
destination of choice for both investment
confidentiality.
serving
argumentsroads,
and bundles
Putting
together an infrastructure project,
beofitskeleton
skyscrapers,
power projects
or aresolution.
real estate development
and dispute
of authorities by the parties.
involves
amalgamating several constituent elements. An integral ingredient to any project is the construction
(c) The IAA Amending Act introduces witness
contract
which
sets out
the terms andEffect
conditions
pertaining
to the carrying out of the main building works in
statements
as a method
of adducing
of changes
on investors
evidence
in proceedings
respect
of the
project. before
A wellthedrafted contract
that isBusiness
clear on Companies
the terms could have a significant effect on the cost,
and Global
Supreme Court under the IAA 2008 and
Chambers Global, IFLR 1000
timing
and completion of the project. The IAA Amending Act has clarified that the
CREFAA 2001. A witness statement only
IAA 2008 is to provide that only disputes
and PLC Which Lawyer?
needs to be verified by a statement of truth arising out of the constitution of a global
all recognise BLC Chambers as
What
should
project
by the
witness. a
This
seems to contract
indicate that provide
business for?
company are to be subject to
a top-tier law firm in Mauritius.
witness statements (which, unlike
arbitration under IAA 2008 and not disputes
BLC works closely with AXIS
are not public documents) sworn
to the
company”
as was previously
Theaffidavits,
key concerns
for most developers of“relating
a project
are
as follows:
Fiduciary Ltd, a specialist service
abroad would not need to be subject to
provided in the IAA 2008. The effect of this is
the cumbersome process of apostille before
provider with expertise in
that there is no conflict where the constitution
• being
ensuring
thatasworks
completed
inaaccordance
with
the construction
the project;
admissible
evidenceare
before
the
of
GBC 1 or a GBC
2 company
provides for programme
offshore for
companies,
trusts and
Court.
• Supreme
ensuring
that the works are completed
within
budget;
arbitration
under
IAA 2008, and other investor
fund administration.
• where projects are to be financed, ensuring that the risk allocations in the various project contracts will be
acceptable to potential lenders and financiers; and

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