Loi sur l'arbitrage international 2008, Maurice

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INTERNATIONAL ARBITRATION ACT 2008 Act 37 of 2008 – 1 January 2009

P 25/08

ARRANGEMENT OF CLAUSES

PART I – PRELIMINARY

1. Short title 2. Interpretation

3. Application of Act

PART II – INITIATION OF PROCEEDINGS

4. Arbitration agreement

5. Substantive claim before Court 6. Compatibility of interim measures

7. Death or bankruptcy or winding up of

party 8. Consumer arbitration agreement

9. Commencement of proceedings Juridical seat

PART III – THE ARBITRAL TRIBUNAL

10. Number of arbitrators 11. Appointment of arbitrators

12. Grounds for challenge of arbitrator 13. Procedure for challenge of arbitrator

14. Failure or inability to act

15. Replacement of arbitrator 16. Hearing following replacement of arbitrator

17. Fees and expenses of arbitrators

18. Protection from liability and finality of decisions

19. Competence as to jurisdiction PART IV – INTERIM MEASURES

20. Interim measures by Tribunal

21. Recognition and enforcement of interim measures

22. Powers of Supreme Court to issue interim measures

PART V – CONDUCT OF ARBITRAL

PROCEEDINGS

23. Duties and powers of Tribunal

24. Statements of claim and defence

Hearing 25. Default of party

26. Appointment of expert 27. Court assistance in taking evidence

28. Power of PCA to extend time limits

Representation PART VI – THE AWARD

29. Rules applicable to substance of dispute 30. Remedies and costs

31. Decision making by panel of arbitrators

32. Settlement 33. Form and contents of award

34. Termination of proceedings 35. Correction, interpretation and additional

award

36. Exclusive recourse against award 37. Recognition and enforcement

PART VII - MISCELLANEOUS

38. Limitation and prescription 39. Constitution of Supreme Court and appeal

40. Consequential amendment 41. Commencement

42. First Schedule

43. Second Schedule 44. Third Schedule

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PART I – PRELIMINARY

1. Short title

This Act may be cited as the International Arbitration Act 2008.

2. Interpretation

(1) In this Act –

“Amended Model Law” means the Model Law on International Commercial

Arbitration adopted by UNCITRAL on 21 June 1985, as amended on 7 July 2006;

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“arbitration” means any arbitration whether or not administered by a permanent

arbitral institution;

“arbitration agreement” means an agreement by the parties to submit to arbitration

all or certain disputes which have arisen or may arise between them in respect of a

defined legal relationship, whether contractual or not;

“arbitral tribunal” means a sole arbitrator or a panel of arbitrators;

“costs of the arbitration” means the costs of the PCA in discharging its functions

under this Act, the fees and expenses of the arbitral tribunal, the legal and other

expenses of the parties, and any other expenses related to the arbitration;

“Court” –

(a) means a Court in Mauritius; and

(b) includes, where appropriate, a body or organ of the Judicial System of a

foreign state; but

(c) does not include the PCA;

“data message” –

(a) means information generated, sent, received or stored by electronic,

magnetic, optical or similar means; and

(b) includes electronic data interchange (EDI), electronic mail, telegram, telex or

telecopy;

“domestic arbitration” means any arbitration with its juridical seat in Mauritius other

than an international arbitration under section 3(2);

“electronic communication” means any communication between the parties by

means of a data message;

“GBL Company” means a company holding a Global Business Licence under the

Financial Services Act;

“juridical seat” means the juridical seat of an arbitration referred to in section 10;

“New York Convention” means the Convention on the Recognition and Enforcement

of Foreign Arbitral Awards signed at New York on 10 June 1958;

“PCA” means the Permanent Court of Arbitration, having its seat at the Hague,

acting through its Secretary-General;

“UNCITRAL” means the United Nations Commission on International Trade Law.

(2) Unless otherwise agreed by the parties, any request or other written communication

in an arbitration governed by this Act shall be deemed to have been received on the day on which it

is delivered where –

(a) it is delivered to the addressee personally or at its place of business, habitual

residence or mailing address or, if none of these can be found after making a

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reasonable inquiry, it is sent to the addressee’s last-known place of business,

habitual residence or mailing address by registered letter or any other means

which provides a record of the attempt to deliver it; and

(b) the means of communication used is any means of communication,

electronic or otherwise, that provides a record of despatch and receipt of the

communication, including delivery against receipt, registered post, courier,

facsimile transmission, telex or telegram.

(3) Where a provision of this Act, save for section 28, leaves the parties free to

determine a certain issue, such freedom includes the right of the parties to authorize a third party,

including an institution, to make that determination.

(4) Where a provision of this Act refers to the fact that the parties have agreed or that

they may agree or in any other way refers to an agreement of the parties, such agreement includes

any arbitration rules referred to in that agreement.

(5) Where a provision of this Act, other than sections 27(a) and 37(2)(a), refers to a

claim, it also applies to a counterclaim, and where it refers to a defence, it also applies to a defence

to such counterclaim.

3. Application of Act

(1) (a) This Act shall not apply to arbitrations initiated before its commencement.

(b) This Act shall apply to arbitrations initiated on or after its commencement

under an arbitration agreement whenever made.

(c) (i) Subject to subparagraph (ii), this Act shall apply solely to

international arbitrations (as defined in subsection (2)).

(ii) Sections 5, 6, 22 and 23 shall apply to an arbitration which satisfies

the criteria set out in subsection (2)(b), whether or not its juridical

seat is Mauritius.

(d) The fact that an enactment confers jurisdiction on a Court but does not refer

to the determination of the matter by arbitration does not per se indicate that

a dispute about the matter is not capable of determination by arbitration.

(e) Where any other enactment provides for the statutory arbitration of a

dispute, this Act shall not apply to an arbitration arising under that other

enactment.

(2) For the purposes of subsection (1)(c)(i), an arbitration shall, subject to subsection

(6), be an international arbitration where –

(a) the juridical seat of the arbitration is Mauritius; and

(b) (i) the parties to the arbitration agreement have, at the time of the

conclusion of that agreement, their place of business in different States; or

(ii) one of the following places is situated outside the State in which the

parties have their places of business –

(A) the juridical seat of the arbitration if determined in, or

pursuant to, the arbitration agreement; or

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(B) 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; or

(iii) the parties have expressly agreed that the subject matter of the

arbitration agreement relates to more than one State, or that this Act

is to apply to their arbitration; or

(iv) the shareholders in a GBL company have determined, pursuant to

subsection (6), that any dispute concerning the Constitution of the

company or relating to the company shall be referred to arbitration

under this Act.

(3) For the purposes of subsection (2)(b) –

(a) where a party has more than one place of business, the place of business is

that which has the closest relationship to the arbitration agreement;

(b) where a party does not have a place of business, reference is to be made to

its habitual residence.

(4) Subject to subsection (6), the First Schedule or any of its specific provisions shall

apply to an international arbitration only if the parties so agree by making express reference to that

Schedule or to that specific provision.

(5) (a) Any issue as to –

(i) whether an arbitration is an international arbitration; or

(ii) whether the First Schedule or any of its specific provisions apply to

an international arbitration,

shall be determined by the arbitral tribunal.

(b) Where an issue referred to in paragraph (a) arises before a Court or the PCA

–

(i) that Court or the PCA shall decline to decide that issue and refer it

for determination by the arbitral tribunal; but

(ii) where the arbitral tribunal has not yet been constituted, the Court or

the PCA may make a provisional determination of the issue pending

the determination thereof by the arbitral tribunal.

(6) (a) The shareholders in a GBL company may determine that any dispute

concerning the constitution of the company or relating to the company shall be referred to

arbitration under this Act.

(b) Notwithstanding any agreement to the contrary, the juridical seat of any

arbitration under this subsection shall be Mauritius and the First Schedule shall apply to that

arbitration.

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(c) The shareholders of a GBL company may incorporate an arbitration

agreement in the constitution of the company, whether by reference to the model arbitration clause

contained in the Second Schedule or otherwise –

(i) at the time of the incorporation of the company; or

(ii) at any later time by a unanimous resolution of all current

shareholders.

(7) A party who knows or could with reasonable diligence have known that any

provision of this Act from which the parties may agree to derogate or any requirement under the

arbitration agreement has not been complied with but proceeds with the arbitration proceedings

without stating an objection to the non-compliance within a reasonable time or such time as may

have been agreed by the parties shall be deemed to have waived its right to object.

(8) In matters governed by this Act, no Court shall intervene except where so provided

in this Act.

(9) In applying and interpreting this Act and in developing the law applicable to

international arbitration in Mauritius –

(a) regard shall be had to the origin of the Amended Model Law (the

corresponding provisions of which are set out in the Third Schedule) and to

the need to promote uniformity in its application and the observance of good

faith;

(b) any question concerning matters governed by the Amended Model Law

which is not expressly settled in that law shall be settled in conformity with

the general principles on which that law is based; and

(c) recourse may be had to international materials relating to the Amended

Model Law and to its interpretation, including –

(i) relevant reports of UNCITRAL;

(ii) relevant reports and analytical commentaries of the UNCITRAL

Secretariat;

(iii) relevant case-law from other Model Law jurisdictions, including the

case-law reported by UNCITRAL in its CLOUT database; and

(iv) textbooks, articles and doctrinal commentaries on the Amended

Model Law.

(10) In carrying out the objects of subsection (9), no recourse shall be had to, and no

account shall be taken of, existing statutes, precedents, practices, principles or rules of law or

procedure relating to domestic arbitration.

(11) This Act shall bind the State.

PART II – INITIATION OF PROCEEDINGS

4. Arbitration agreement

(1) An arbitration agreement –

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(a) may be in the form of an arbitration clause in a contract or other

legal instrument or in the form of a separate agreement; and

(b) shall be in writing.

(1) An arbitration agreement is in writing where –

(a) its contents are recorded in any form, whether or not the

arbitration agreement or the contract has been concluded orally,

by conduct, or by other means;

(b) it is concluded by an electronic communication and the

information contained in it is accessible so as to be usable for

subsequent reference; or

(a) it is contained in an exchange of statements of claim and

defence in which the existence of an agreement is alleged by

one party and not denied by the other.

(2) The reference in a contract to a document containing an arbitration

clause constitutes an arbitration agreement in writing where the reference is such

as to make that clause part of the contract.

1. Substantive claim before Court

(1) 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 that party so

requests not later than when submitting his first statement on the substance of the

dispute.

(2) The Supreme Court shall, on a transfer under subsection (1), 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 it shall itself proceed

finally to determine whether the arbitration agreement is null and void, inoperative

or incapable of being performed.

(3) Where the Supreme Court finds that the agreement is null and void,

inoperative or incapable of being performed, it shall transfer the matter back to the

Court which made the transfer.

(4) Where an action referred to in subsection (1) has been brought,

arbitral proceedings may nevertheless be commenced or continued, and one or

more awards may be made, while the issue is pending before any Court.

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2. Compatibility of interim measures

(1) It is not incompatible with an arbitration agreement for a party to

request, before or during arbitral proceedings, from the Supreme Court or a Court

in a foreign state an interim measure of protection in support of arbitration and for

the Court to grant such a measure.

(2) An application to the Supreme Court under subsection (1) shall be

made and determined in accordance with section 23.

3. Death or bankruptcy or winding up of party

(1) Unless otherwise agreed by the parties, an arbitration agreement is not

discharged by the death, bankruptcy or winding up of a party and may be enforced

by or against the representatives of that party.

(2) Subsection (1) shall not affect the operation of any enactment by

virtue of which a substantive right or obligation is extinguished by death,

bankruptcy or winding up.

4. Consumer arbitration agreement

(1) Where –

(a) a contract contains an arbitration agreement; and

(b) a person enters into that contract as a consumer,

the arbitration agreement shall be enforceable against the consumer only if the

consumer, by separate written agreement entered into after the dispute has arisen,

certifies that, having read and understood the arbitration agreement, he agrees to

be bound by it.

(2) For the purposes of subsection (1), a person enters into a contract as

a consumer where –

(a) he is a natural person; and

(b) he enters into the contract otherwise than as a trader; and

(c) the other party to the contract enters into that contract as a

trader.

(3) Subsection (1) shall apply to every contract containing an arbitration

agreement entered into in Mauritius even where the contract provides that it shall

be governed by a law other than Mauritius law.

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5. Commencement of proceedings

Unless otherwise agreed by the parties, the arbitral proceedings in respect of

a particular dispute commence on the date on which a request by one party for

that dispute to be referred to arbitration is received by the other party.

6. Juridical seat

(1) Subject to subsection 3(5)(b)(ii), unless otherwise agreed by the

parties, the juridical seat of the arbitration shall be determined by the arbitral

tribunal having regard to the circumstances of the case.

(2) Unless otherwise agreed by the parties, and notwithstanding

subsection (1), the arbitral tribunal may meet at such geographical location as it

considers appropriate for consultation among its members, for hearing witnesses,

experts or the parties, or for inspection of goods or other property or documents.

PART III – THE ARBITRAL TRIBUNAL

7. Number of arbitrators

Unless otherwise agreed by the parties –

(a) the number of arbitrators shall be 3; and

(b) an agreement that the number of arbitrators shall be an even number

shall be understood as requiring the appointment of an additional

arbitrator as presiding arbitrator.

8. Appointment of arbitrators

(1) Unless otherwise agreed by the parties, no person shall be precluded

by reason of his nationality from acting as an arbitrator.

(2) Subject to subsections (4) and (5), the parties are free to agree on a

procedure for appointing the arbitral tribunal.

(3) Insofar as there is no agreement pursuant to subsection (2) –

(a) in an arbitration with 3 arbitrators –

(i) each party shall appoint one arbitrator, and the 2

arbitrators thus appointed shall appoint the third arbitrator

who shall act as presiding arbitrator; and

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(ii) where a party fails to appoint an arbitrator within 30 days

of receipt of a request to do so from the other party, or

where the 2 arbitrators fail to agree on the third arbitrator

within 30 days of their appointment, the appointment

shall be made, on the request of a party, by the PCA;

(b) in an arbitration with a sole arbitrator, where the parties have

failed to agree on the arbitrator within 30 days of receipt of a

request from a party, he shall be appointed, on the request of a

party, by the PCA;

(c) where the arbitral tribunal is to be composed of a number of

arbitrators other than one or 3, the arbitrators shall be

appointed according to the method agreed upon by the parties,

or, if those methods fail, in accordance with subsections (4) and

(5); and

(d) where there are multiple claimants or respondents, the multiple

claimants, jointly, and the multiple respondents, jointly, shall

each appoint an arbitrator, and the 2 arbitrators thus appointed

shall appoint the third arbitrator who shall act as presiding

arbitrator or, if this method of appointment fails, the

appointment shall be made in accordance with subsections (4)

and (5).

(4) Where, under an appointment procedure agreed upon by the parties –

(a) a party fails to act as required under that procedure;

(b) the parties, or any arbitrators already appointed, are unable to

reach an agreement expected of them under that procedure; or

(c) a third party, including an arbitral institution, fails to perform

any function entrusted to it under that procedure,

any party may request the PCA to take any necessary measures, unless the

agreement on the appointment procedure provides other means for securing the

appointment.

(5) In the event of any other failure to constitute the arbitral tribunal, any

party may request the PCA to take any necessary measures, unless the agreement

on the appointment procedure provides other means for resolving the failure.

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(6) The measures which the PCA may take under subsections (4) and (5)

shall include –

(a) giving directions as to the making of any necessary

appointments;

(b) directing that the arbitral tribunal shall be constituted by such

appointments (or any one or more of them) as have been made;

(c) revoking any appointment already made;

(d) appointing or reappointing any or all of the arbitrators; and

(e) designating any arbitrator as the presiding arbitrator.

(7) The PCA, in appointing an arbitrator, shall have due regard to any

qualifications required of the arbitrator by the agreement of the parties and to such

considerations as are likely to secure the appointment of an independent and

impartial arbitrator and, in the case of a sole or third or presiding arbitrator, shall

also take into account the advisability of appointing an arbitrator of a nationality

other than those of the parties.

9. Grounds for challenge of arbitrator

(1) Where a person is approached in connection with his possible

appointment as an arbitrator, he shall disclose any circumstance likely to give rise

to justifiable doubts as to his impartiality or independence.

(2) An arbitrator, from the time of his appointment and throughout the

arbitral proceedings, shall without delay disclose any circumstance referred to in

subsection (1) to the parties unless they have already been informed of it by him.

(3) Subject to subsection (4), an arbitrator may be challenged only if

circumstances exist that give rise to justifiable doubts as to his impartiality or

independence, or if he does not possess qualifications agreed to by the parties.

(4) A party may challenge an arbitrator appointed by him, or in whose

appointment it has participated, only for reasons of which it becomes aware after

the appointment has been made.

10. Procedure for challenge of arbitrator

(1) Subject to subsections (3) and (4), the parties are free to agree on a

procedure for challenging an arbitrator.

(2) Failing an agreement pursuant to subsection (1) –

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(a) a party who intends to challenge an arbitrator shall, within 15

days after becoming aware of the constitution of the arbitral

tribunal or after becoming aware of any circumstance referred

to in section 13 (3), send a written statement of the reasons for

the challenge to the arbitral tribunal; and

(b) unless the challenged arbitrator withdraws from his office or the

other party agrees to the challenge, the arbitral tribunal shall

decide on the challenge.

(3) Where a challenge under any procedure agreed by the parties or under

the procedure set out in subsection (2) is not successful, the challenging party

may, within 30 days after having received notice of the decision rejecting the

challenge, request the PCA to decide on the challenge.

(4) While a request under subsection (3) is pending, the arbitral tribunal,

including the challenged arbitrator, may continue the arbitral proceedings and make

one or more awards.

11. Failure or inability to act

(1) Where an arbitrator becomes de jure or de facto unable to perform his

functions or for any other reason fails to act without undue delay, his mandate

terminates if he withdraws from his office or if the parties agree on the termination.

(2) Where a controversy remains concerning any ground referred to in

subsection (1), any party may request the PCA to decide on the termination of the

mandate.

(3) Where, under this section or section 14, an arbitrator withdraws from

his office or a party agrees to the termination of the mandate of an arbitrator, this

does not imply acceptance of the validity of any ground referred to in this section

or section 13(3).

12. Replacement of arbitrator

(1) Where the mandate of an arbitrator terminates under section 14 or 15

or because of his withdrawal from office for any other reason or because of the

revocation of his mandate by agreement of the parties or in any other case of

termination of his mandate save under section 12(6), a substitute arbitrator shall,

subject to this section, be appointed according to the procedure that was

applicable to the appointment of the arbitrator being replaced.

(2) Unless otherwise agreed by the parties, where a party or the other

members of the arbitral tribunal consider that an arbitrator has resigned for

unacceptable reasons or refuses or fails to act without undue delay, that party or

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the other members of the arbitral tribunal may apply to the PCA to request the

replacement of the arbitrator or the authorisation for the other members of the

arbitral tribunal to continue the arbitration without the participation of that

arbitrator.

(3) In determining how and whether to act under subsection (2), the PCA

shall take into account the stage of the arbitration, any explanation made by the

arbitrator for his conduct and such other matters as it considers appropriate in the

circumstances of the case.

(4) Where, following an application under subsection (2), the PCA decides

that the arbitrator is to be replaced, the PCA shall decide whether the replacement

should be made applying the procedure that was applicable to the appointment of

the arbitrator being replaced or whether the PCA should itself appoint the

substitute arbitrator having regard to section 12(7).

13. Hearing following replacement of arbitrator

Unless otherwise agreed by the parties, where under section 14, 15 or 16 an

arbitrator is replaced, the proceedings shall resume at the stage where the

arbitrator who was replaced ceased to perform his functions, unless the arbitral

tribunal decides that the proceedings should resume at an earlier stage.

14. Fees and expenses of arbitrators

(1) The parties shall be jointly and severally liable to pay to the arbitrators

such reasonable fees and expenses as are appropriate in the circumstances.

(2) Where the arbitrators’ remuneration would otherwise be the subject of

no other scrutiny by an arbitral institution chosen by the parties or otherwise, any

party may apply to the PCA, on notice to the other parties and to the arbitrators,

which may order that the amount of the arbitrators’ fees and expenses shall be

adjusted and fixed in such manner and upon such terms as it may direct.

15. Protection from liability and finality of decisions

(1) An arbitrator shall not be liable for anything done or omitted in the

discharge or purported discharge of his functions as arbitrator unless the act or

omission is shown to have been in bad faith.

(2) An arbitral or other institution or person designated or requested by

the parties to appoint or nominate an arbitrator shall not be liable –

(a) for anything done or omitted in the discharge or purported

discharge of that function unless the act is shown to have been

in bad faith;

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(b) by reason of having appointed or nominated the said arbitrator,

for anything done by the arbitrator or his employees or agents in

the discharge or purported discharge of his functions as

arbitrator.

(3) The PCA shall not be liable for anything done or omitted in the

discharge or purported discharge of its functions under this Act.

(4) Subsections (1), (2) and (3) apply to an employee or agent of an

arbitrator, of an arbitral institution, or of the PCA as they apply to the arbitrator, to

the arbitral institution or to the PCA.

(5) Subject only to the right of recourse under section 39 against awards

rendered in the arbitral proceedings, all decisions of the PCA under this Act shall be

final and subject to no appeal or review.

16. Competence as to jurisdiction

(1) An arbitral tribunal may rule on its own jurisdiction, including on any

objection with respect to the existence or validity of the arbitration agreement.

(2) An arbitration clause which forms part of a contract shall be treated

for the purposes of subsection (1) as an agreement independent of the other terms

of the contract, and a decision by the arbitral tribunal that the contract is null and

void shall not entail ipso jure the invalidity of the arbitration clause.

(3) (a) Subject to subsection (5), a plea that the arbitral tribunal does

not have jurisdiction shall be raised not later than the submission of the statement

of defence.

(b) A party shall not be precluded from raising such a plea by the

fact that it has appointed, or participated in the appointment of, an arbitrator.

(4) Subject to subsection (5), a plea that the arbitral tribunal is exceeding

the scope of its authority shall be raised as soon as the matter alleged to be

beyond the scope of its authority is raised during the arbitral proceedings.

(5) The arbitral tribunal may admit a later plea under subsection (3) or (4)

if it considers the delay justified.

(6) The arbitral tribunal may rule on a plea referred to in subsection (3) or

(4) as a preliminary question or in an award on the merits.

(7) Where the arbitral tribunal rules on the plea as a preliminary question,

any party may, within 30 days after having received notice of that ruling, request

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the Supreme Court to decide the matter, and, while such a request is pending, the

arbitral tribunal may continue the arbitral proceedings and make one or more

awards.

PART IV – INTERIM MEASURES

17. Interim measures by Tribunal

(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at

the request of a party, grant interim measures, in the form of an award or in

another form, by which, at any time before making the award by which the dispute

is finally decided, the arbitral tribunal orders a party to –

(a) maintain or restore the status quo pending determination of the

dispute;

(b) take action that would prevent, or refrain from taking action

that is likely to cause current or imminent harm or prejudice to

the arbitral process itself;

(c) provide a means of preserving assets out of which a subsequent

award may be satisfied;

(d) preserve evidence that may be relevant and material to the

resolution of the dispute; or

(e) provide security for costs.

(2) The party requesting an interim measure under subsection (1) (a), (b)

or (c) shall satisfy the arbitral tribunal that –

(a) harm not adequately reparable by an award of damages is likely

to result if the measure is not ordered, and such harm

substantially outweighs the harm that is likely to result to the

party against whom the measure is directed if the measure is

granted; and

(b) there is a reasonable possibility that the requesting party will

succeed on the merits of the claim.

(3) With regard to a request for an interim measure under

subsection (1)(d) or (e), the requirements in subsection (2) shall apply only to the

extent the arbitral tribunal considers appropriate.

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(4) The arbitral tribunal’s determination of the existence of a reasonable

possibility of success on the merits under subsection (2)(b) shall not affect the

arbitral tribunal’s independence and impartiality, or its power to make any

subsequent determination of the merits.

(5) The arbitral tribunal may modify, suspend or terminate an interim

measure it has granted on application of any party or, in exceptional circumstances

and on prior notice to the parties, on the arbitral tribunal’s own initiative.

(6) The arbitral tribunal may require the party requesting an interim

measure to provide appropriate security in connection with the measure.

(7) The arbitral tribunal may require any party promptly to disclose any

material change in the circumstances on the basis of which the measure was

requested or granted.

(8) The arbitral tribunal may, at any time in the arbitral proceedings, order

the party who requested the interim measure to pay damages and costs to another

party where the arbitral tribunal determines that, in the circumstances, the measure

requested should not have been granted.

18. Recognition and enforcement of interim measures

(1) An interim measure granted by an arbitral tribunal shall, subject to this

section, be recognised as binding and, unless otherwise provided by the arbitral

tribunal, enforced on application to the Supreme Court, irrespective of the country

in which it was issued.

(2) The party who is seeking or has obtained recognition or enforcement

of an interim measure shall promptly inform the Supreme Court of any termination,

suspension or modification of that measure.

(3) The Supreme Court may, on an application for recognition or

enforcement of an interim measure and if it considers it proper, order the

requesting party to provide appropriate security if the arbitral tribunal has not

already made a determination with respect to security or where such a decision is

necessary to protect the rights of third parties.

(4) Recognition or enforcement of an interim measure may be refused

only –

(a) at the request of the party against whom it is invoked where

the Court is satisfied that –

(i) the refusal is warranted on a ground set out in section

39(2)(a);

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(ii) the arbitral tribunal’s decision with respect to the

provision of security in connection with the measure

issued by the arbitral tribunal has not been complied with;

or

(iii) the interim measure has been terminated or suspended by

the arbitral tribunal or, where so empowered, by the

Court of the State in which the arbitration takes place or

under the law of which that interim measure was

granted; or

(b) where the Court finds that –

(i) the measure is incompatible with the powers conferred

on the Court unless the Court decides to reformulate the

measure to the extent necessary to adapt it to its own

power and procedures for the purposes of enforcing that

measure and without modifying its substance; or

(ii) any of the grounds set out in section 39(2)(b) apply to

the recognition and enforcement of the measure.

(5) Any determination made by the Court on any ground in

subsection (4) shall be effective only for the purposes of the application to

recognise and enforce the interim measure. The Court where recognition or

enforcement is sought shall not, in making that determination, undertake a review

of the substance of the interim measure.

19. Powers of Supreme Court to issue interim measures

(1) The Supreme Court shall have the same power of issuing an interim

measure in relation to arbitration proceedings, irrespective of whether their juridical

seat is Mauritius, as a Judge in Chambers has in relation to Court proceedings in

Mauritius, and it shall exercise that power in accordance with the applicable Court

procedure in consideration of the specific features of international arbitration.

(2) Unless the parties otherwise agree, the power to issue interim

measures under subsection (1) shall be exercised in accordance with subsections

(3) to (6).

(3) Where the case is one of urgency, the Court may, on the ex parte

application of a party or proposed party to the arbitral proceedings, make such

order as it thinks necessary.

(4) Where the case is not one of urgency, the Court shall act only on the

application of a party to the arbitral proceedings made –

18

(a) on notice to the other parties and to the arbitral tribunal; and

(b) with the permission of the arbitral tribunal or the agreement in

writing of the other parties.

(5) The Court shall act only if or to the extent that the arbitral tribunal,

and any arbitral or other institution or person vested by the parties with power in

that regard, has no power or is unable for the time being to act effectively.

(6) Where the Court so orders, an order made by it under this section

shall cease to have effect on the order of the arbitral tribunal or of any such arbitral

or other institution or person having power to act in relation to the subject matter

of the order.

PART V – CONDUCT OF ARBITRAL PROCEEDINGS

20. Duties and powers of Tribunal

(1) Every arbitral tribunal shall –

(a) treat the parties with equality and give them a reasonable

opportunity of presenting their case; and

(b) adopt procedures suitable to the circumstances of the case,

avoiding unnecessary delay and expenses, so as to provide a

fair and efficient means for the resolution of the dispute

between the parties.

(2) Subject to this Act, the parties are free to agree on the procedure to

be followed by the arbitral tribunal in conducting the proceedings.

(3) Failing such agreement, the arbitral tribunal may, subject to this Act,

conduct the arbitration in such manner as it considers appropriate, and determine

all procedural and evidential matters including –

(a) where and when the proceedings are to be held;

(b) the language to be used in the proceedings;

(c) whether any written statement of claim and defence are to be

used, when these should be supplied and the extent to which

such statements can be later amended;

(d) whether any document should be disclosed between, and

produced by, the parties and at what stage;

19

(e) whether any question should be put to and answered by the

parties;

(f) whether to apply rules of evidence (or any other rules) as to the

admissibility, relevance or weight of any material sought to be

tendered on any matters of fact or opinion, and the time,

manner and form in which such material should be exchanged

and presented;

(g) whether and to what extent the arbitral tribunal should itself

take the initiative in ascertaining the facts and the law; and

(h) whether and to what extent the arbitral tribunal should

administer oaths or take affirmations from any witness for the

purposes of his examination before the arbitral tribunal.

21. Statements of claim and defence

(1) Subject to section 24, within the time agreed by the parties or

determined by the arbitral tribunal, the claimant shall state the facts supporting its

claim, the points at issue and the relief or remedy sought, and the respondent shall

state its defence in respect of these particulars, unless the parties have otherwise

agreed as to the required elements of such statements.

(2) Subject to subsection 24, unless otherwise agreed by the parties, any

party may amend or supplement its claim or defence during the course of the

arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow

such amendment having regard to the delay in making it.

22. Hearing

(1) Subject to subsection (2), unless otherwise agreed by the parties, the

arbitral tribunal shall decide whether to hold oral hearings for the presentation of

evidence or for oral argument, or whether the proceedings shall be conducted on

the basis of documents and other materials.

(2) Unless otherwise agreed by the parties, the arbitral tribunal shall hold

a hearing at an appropriate stage of the proceedings, if so requested by a party.

(3) The parties shall be given sufficient advance notice of any hearing and

of any meeting of the arbitral tribunal for the purpose of inspection of goods, other

property or documents.

20

(4) Every statement, document or other information supplied to the

arbitral tribunal by a party shall be communicated to all other parties.

(5) Any further statement, document or information received by the

arbitral tribunal (whether from an expert appointed by the arbitral tribunal under

section 28 or otherwise) on which the arbitral tribunal might rely in making its

decision shall also be communicated by the arbitral tribunal to all parties.

23. Default of party

Unless otherwise agreed by the parties, where without showing sufficient

cause –

(a) a claimant fails to communicate its statement of claim in accordance

with section 25, the arbitral tribunal shall terminate the proceedings

either completely or in relation to that claimant where there are

multiple claimants unless a counterclaim is pending against that

claimant;

(b) a respondent fails to communicate its statement of defence in

accordance with section 25, the arbitral tribunal shall continue the

proceedings without treating such failure in itself as an admission of

any of the claimant’s allegations; or

(c) any party fails to appear at a hearing or to produce documentary

evidence, the arbitral tribunal may continue the proceedings and make

one or more awards on the evidence before it.

24. Appointment of expert

(1) Unless otherwise agreed by the parties, the arbitral tribunal may –

(a) appoint one or more experts to report to it on any specific issue

to be determined by the arbitral tribunal; and

(b) require a party to give the expert any relevant information or to

produce, or to provide access to, any relevant documents,

goods or other property for his inspection.

(2) Unless otherwise agreed by the parties, where a party so requests or

the arbitral tribunal considers it necessary, the expert shall, after delivery of his

written or oral report, participate in a hearing where the parties have the

opportunity to put questions to him and to present expert witnesses in order to

testify on the points at issue.

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25. Court assistance in taking evidence

(1) (a) The arbitral tribunal or a party with the approval of the arbitral

tribunal may request from the Supreme Court assistance in taking evidence.

(b) The Court may execute the request within its competence and

according to its rules on the taking of evidence.

(2) For the purposes of subsection (1) the Supreme Court may –

(a) issue a witness summons to compel the attendance of any

person before an arbitral tribunal to give evidence or produce

documents or other material; or

(b) order any witness to submit to examination on oath before the

arbitral tribunal, or before an officer of the Court, or any person

for the use of the arbitral tribunal.

26. Power of PCA to extend time limits

(1) Unless the parties otherwise agree, the PCA may extend any time limit

agreed by the parties in relation to any matter relating to the arbitral proceedings or

specified in this Act as having effect in default of such agreement, including any

time limit for commencing arbitral proceedings or for making an award.

(2) An application for an order under subsection (1) may be made –

(a) by any party to the arbitral proceedings on notice to all other

parties and to the arbitral tribunal (if already constituted); or

(b) by the arbitral tribunal on notice to the parties.

(3) The PCA shall not exercise its power to extend a time limit unless it is

satisfied that –

(a) any available recourse to the tribunal, or to any arbitral or other

institution or person vested by the parties with power in that

regard, has first been exhausted; and

(b) a substantial injustice would otherwise occur.

(4) An order under this section –

(a) may be made whether or not the time limit has already expired;

and

22

(b) may be made on such terms as the PCA thinks fit; and

(c) shall not affect the operation of any applicable rule of limitation

or prescription.

27. Representation

Unless otherwise agreed by the parties, a party to arbitral proceedings may

be represented in the arbitral proceedings by a law practitioner or other person

chosen by him, who need not be qualified to practise law in Mauritius or in any

other jurisdiction.

PART VI – THE AWARD

28. Rules applicable to substance of dispute

(1) The arbitral tribunal shall decide the dispute in accordance with such

rules of law as are chosen by the parties as applicable to the substance of the

dispute.

(2) Any designation of the law or legal system of a State shall be

construed, unless otherwise expressly provided, as directly referring to the

substantive law of that State and not to its conflict of laws rules.

(3) Failing any designation by the parties, the arbitral tribunal shall apply

the law determined by the conflict of laws rules which it considers applicable.

(4) The arbitral tribunal shall decide ex aequo et bono or as amiable

compositeur only if the parties have expressly authorised it to do so.

(5) In all cases, the arbitral tribunal shall decide in accordance with the

terms of the contract and shall take into account the usages of the trade applicable

to the transaction.

29. Remedies and costs

(1) Unless otherwise agreed by the parties, the arbitral tribunal –

(a) may make a declaration as to any matter to be determined in

the proceedings; and

(b) may order the payment of a sum of money, in any currency;

and

(c) has the same powers as a Court in Mauritius –

(i) to order a party to do or refrain from doing anything; and

23

(ii) to order specific performance of a contract; and

(iii) to order the rectification, setting aside or cancellation of a

deed or other document; and

(d) may award simple or compound interest for such period and at

such rate as it considers meets the justice of the case.

(2) Unless otherwise agreed by the parties –

(a) the costs of the arbitration shall be fixed and allocated by the

arbitral tribunal in an award, applying the general principles

that –

(i) costs should follow the event except where it appears to

the arbitral tribunal that this rule should not apply or not

apply fully in the circumstances of the case; and

(ii) the successful party should recover a reasonable amount

reflecting the actual costs of the arbitration, and not only

a nominal amount; and

(b) in the absence of an award fixing and allocating the costs of the

arbitration, each party shall be responsible for its own costs,

and shall bear in equal share the costs of the PCA, the fees and

expenses of the arbitral tribunal, and any other expenses related

to the arbitration.

30. Decision making by panel of arbitrators

(1) Subject to subsections (2) and (3), in arbitral proceedings with more

than one arbitrator, any decision of the arbitral tribunal shall be made, unless

otherwise agreed by the parties, by a majority of all its members.

(2) Any question relating to procedure may be decided by a presiding

arbitrator, if so authorised by the parties or by all members of the arbitral tribunal.

(3) Unless otherwise agreed by the parties, where there is no majority,

any decision shall be made by the presiding arbitrator alone.

31. Settlement

(1) Where during arbitral proceedings, the parties settle the dispute, the

arbitral tribunal shall terminate the proceedings and, if requested by the parties and

not objected to by the arbitral tribunal, record the settlement in the form of an

arbitral award on agreed terms.

24

(2) An award on agreed terms shall –

(a) be made in accordance with section 36; and

(b) state that it is an award; and

(c) have the same status and effect as any other award on the

merits of the case.

32. Form and contents of award

(1) Unless otherwise agreed by the parties, the arbitral tribunal may make

more than one award at different points in time during the arbitration proceedings

on different aspects of the matters to be determined.

(2) The arbitral tribunal may, in particular, make an award relating to –

(a) any specific issue in the arbitration; or

(b) a part only of the claims or counterclaims submitted to it for

decision.

(3) An award shall be made in writing and shall be signed by the arbitrator

or, in arbitral proceedings with more than one arbitrator, by the majority of all

members of the arbitral tribunal or by the presiding arbitrator alone where he is

acting pursuant to section 34(3), provided that the reason for any omitted

signature is stated.

(4) An award shall state the reasons on which it is based, unless the

parties have agreed that no reasons are to be given or the award is an award on

agreed terms under section 35.

(5) An award shall state the date on which the award was made and shall

always be deemed to have been made at the juridical seat of the arbitration.

(6) After an award is made, a copy signed by the arbitrators in

accordance with subsection (3) shall be delivered to each party.

(7) An award shall be final and binding on the parties and on any person

claiming through or under them with respect to the matters determined therein, and

may be relied upon by any of the parties in any proceedings before any arbitral

tribunal or in any Court of competent jurisdiction.

25

(8) Except in relation to interim measures granted by the arbitral tribunal

in the form of an award pursuant to section 21, an award shall be final and binding

on the arbitral tribunal with respect to the matters determined therein.

(9) Where an award has been made, the arbitral tribunal shall not, except

as provided in section 21(5), 38 or 39(5), vary, review, add to or revoke the

award.

33. Termination of proceedings

(1) The arbitral proceedings are terminated by the final award or by an

order of the arbitral tribunal in accordance with subsection (2).

(2) The arbitral tribunal shall issue an order for the termination of the

arbitral proceedings where –

(a) all claimants withdraw their claim, unless a respondent objects

and the arbitral tribunal recognises a legitimate interest on its

part in obtaining a final settlement of the dispute;

(b) the parties agree on the termination of the proceedings; or

(c) the arbitral tribunal finds that the continuation of the

proceedings has for any other reason become unnecessary or

impossible.

(3) Subject to sections 38 and 39(5), the mandate of the arbitral tribunal

terminates with the termination of the arbitral proceedings.

34. Correction, interpretation and additional award

(1) Within 30 days of the receipt of an award, or such other period as

may be agreed by the parties –

(a) a party, with notice to all other parties, may request the arbitral

tribunal to correct in the award any errors in computation, any

clerical or typographical errors or any errors of a similar nature;

and

(b) if so agreed by the parties, a party, with notice to all other

parties, may request the arbitral tribunal to give an

interpretation of a specific part of the award.

(2) Where the arbitral tribunal considers a request under subsection (1) to

be justified, it shall make the correction or give the interpretation within 30 days of

receipt of the request and any interpretation shall form part of the award.

26

(3) The arbitral tribunal may correct any error of the type referred to in

subsection (1)(a) on its own initiative within 30 days of the date of the award.

(4) Unless otherwise agreed by the parties, within 30 days of receipt of

an award, any party, with notice to all other parties, may request the arbitral

tribunal to make an additional award as to claims presented in the arbitral

proceedings but omitted from the award, and where the arbitral tribunal considers

the request to be justified –

(a) it may issue further procedural directions or hold further

hearings in relation to the claim omitted from the award if

necessary; and

(b) it shall make the additional award within 60 days.

(5) The arbitral tribunal may extend, if necessary, the period of time

within which it shall make a correction, interpretation or an additional award under

subsection (2) or (4).

(6) Section 36 shall apply to a correction or interpretation of the award or

to an additional award.

35. Exclusive recourse against award

(1) Any recourse against an arbitral award under this Act may be made

only by an application to the Supreme Court for setting aside in accordance with

this section.

(2) An arbitral award may be set aside by the Supreme Court only

where –

(a) the party making the application furnishes proof that –

(i) a party to the arbitration agreement was under some

incapacity or the agreement is not valid under the law to

which the parties have subjected it or, failing any

indication thereon, under Mauritius law; or

(ii) it was not given proper notice of the appointment of an

arbitrator or of the arbitral proceedings or was otherwise

unable to present its case; or

(iii) the award deals with a dispute not contemplated by, or

not falling within the terms of, the submission to

27

arbitration, or contains a decision on a matter beyond the

scope of the submission to arbitration; or

(iv) the composition of the arbitral tribunal or the arbitral

procedure was not in accordance with the agreement of

the parties or, failing such agreement, was not in

accordance with this Act; or

(b) the Court finds that –

(i) the subject matter of the dispute is not capable of

settlement by arbitration under Mauritius law;

(ii) the award is in conflict with the public policy of

Mauritius;

(iii) the making of the award was induced or affected by

fraud or corruption; or

(iv) a breach of the rules of natural justice occurred during

the arbitral proceedings or in connection with the making

of the award by which the rights of any party have been

or will be substantially prejudiced.

(3) Notwithstanding subsection (2)(a)(iii) and (iv) –

(a) where decisions on matters submitted to arbitration can be

separated from decisions on matters which were not so

submitted, only those parts of the award which contain

decisions on matters not submitted may be set aside;

(b) the Court shall not set aside an award on a ground specified in

subsection (2)(a)(iv) where the agreement of the parties was in

conflict with a provision of this Act from which the parties

cannot agree to derogate.

(4) An application for setting aside may not be made after 3 months have

elapsed from the date on which the party making that application has received the

award or, if a request has been made under section 38, from the date on which

that request has been disposed of by the arbitral tribunal.

(5) The Court, when asked to set aside an award, may, where appropriate

and so requested by a party, suspend the setting aside proceedings for a period of

time determined by it in order to give the arbitral tribunal an opportunity to resume

the arbitral proceedings or to take such other action as in the arbitral tribunal’s

opinion will eliminate the grounds for setting aside.

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(6) Where an application is made to set aside an award, the Court may

order that any money made payable by the award shall be brought into Court or

otherwise secured pending the determination of the application.

36. Recognition and enforcement

The Convention on the Recognition and Enforcement of Foreign Arbitral

Awards Act 2001 shall apply to the recognition and enforcement of awards

rendered under this Act.

PART VII – MISCELLANEOUS

37. Limitation and prescription

(1) No enactment relating to limitation or prescription in Mauritius shall

apply to arbitration proceedings merely by reason of the fact that the juridical seat

of the arbitration is Mauritius.

(2) Unless otherwise agreed by the parties, the law or rules of law

determined under section 32 shall apply to any issue of limitation or prescription

arising in arbitral proceedings under this Act.

(3) The Supreme Court may order that, in computing the time prescribed

for the commencement of proceedings in respect of a dispute which was the

subject of –

(a) an award which the Court orders to be set aside or declares to

be of no effect; or

(b) the affected part of an award which the Court orders to be set

aside in part or declares to be of no effect in part,

the period between the commencement of the arbitration proceedings and the date

of an order under paragraph (a) or (b) shall be excluded.

38. Constitution of Supreme Court and appeal

(1) For the purposes of any application or transfer to the Supreme Court

under this Act or of any other matter arising out of an arbitration subject to this

Act before the Supreme Court, the Court shall be constituted by a panel of 3

Judges.

(2) An appeal shall lie as of right to the Judicial Committee of the Privy

Council against any final decision of the Supreme Court under this Act.

29

39. Consequential amendment

The Convention on the Recognition and Enforcement of Foreign arbitral

Awards Act 2001 is amended –

(a) in section 2 –

(i) by deleting the definition of “Minister”;

(ii) by deleting the definition of “Court” and replacing it by the

following definition –

“Court” means the Supreme Court constituted as specified in

section 42 of the International Arbitration Act 2008;

(b) by deleting section 3 and replacing it by the following section –

3. Convention to have force of law

(1) Notwithstanding any other enactment, the Convention

shall have force of law in Mauritius.

(2) In applying the Convention, regard shall be had to the

Recommendation regarding the interpretation of Article II(2) and

Article VII(1) of the Convention adopted by UNCITRAL at its Thirty-

Ninth session on 7 July 2006.

(c) in section 4, by adding immediately after subsection (2), the following

subsection –

(3) An appeal shall lie as of right to the Judicial Committee

of the Privy Council against any final decision of the Supreme Court

under this Act.

(d) in section 5, by deleting subsection (1) and replacing it by the

following subsection –

(1) For the purposes of Article IV(1) of the Convention, a

copy is duly certified if it is certified by any person whom the Court

can be expected to rely on for such certification, including any

competent officer of the Court, and any notary or attorney-at-law

qualified to practise in Mauritius.

(e) by deleting section 6 and replacing it by the following section –

6. Regulations

30

The Chief Justice may make such regulations as he thinks fit for

the purposes of this Act.

40. Commencement

This Act shall come into operation on a date to be fixed by Proclamation.

______________

FIRST SCHEDULE

(section 3)

OPTIONAL SUPPLEMENTARY PROVISIONS FOR INTERNATIONAL ARBITRATIONS

1. DETERMINATION OF PRELIMINARY POINT OF MAURITIUS LAW BY COURT

(1) Notwithstanding section 3(8) of the Act, on an application to the

Supreme Court by any party –

(a) with the consent of the arbitral tribunal; or

(b) with the consent of every other party,

the Court shall have jurisdiction to determine any question of Mauritius law arising

in the course of the arbitration.

(2) The Court shall not entertain an application under subparagraph (1)(a)

with respect to any question of Mauritius law unless it is satisfied that the

determination of the question of law concerned-

(a) might produce substantial savings in costs to the parties; and

(b) might, having regard to all the circumstances, substantially

affect the rights of one or more of the parties.

(3) For the purposes of this paragraph, “question of Mauritius law” –

(a) includes an error of law that involves an incorrect interpretation

of the applicable law (whether or not the error appears on the

record of the decision); but

(b) does not include any question as to whether –

(i) the award or any part of the award was supported by any

evidence or any sufficient or substantial evidence; or

31

(ii) the arbitral tribunal drew the correct factual inferences

from the relevant primary facts.

2. APPEALS ON QUESTIONS OF MAURITIUS LAW

(1) Notwithstanding sections 3(8) and 39 of the Act, any party may

appeal to the Supreme Court on any question of Mauritius law arising out of an

award with the leave of the Court.

(2) The Court shall not grant leave under subparagraph (1) unless it

considers that, having regard to all the circumstances, the determination of the

question of Mauritius law concerned could substantially affect the rights of one or

more of the parties.

(3) The Court may grant leave under subparagraph (1) on such conditions

as it thinks fit.

(4) On the determination of an appeal under this paragraph, the Court

may, by order –

(a) confirm, vary, or set aside the award; or

(b) remit the award, together with the Court's opinion on the

question of Mauritius law which was the subject of the appeal,

to the arbitral tribunal for reconsideration or, where a new

arbitral tribunal has been appointed, to that arbitral tribunal for

consideration,

and, where the award is remitted under subparagraph (b), the arbitral tribunal shall,

unless the order otherwise directs, make the award not later than 3 months after

the date of the order.

(5) Where the award of an arbitral tribunal is varied on an appeal under

this paragraph, the award as varied shall have effect (except for the purposes of

this paragraph) as if it were the award of the arbitral tribunal; and the party relying

on the award or applying for its enforcement in Mauritius pursuant to section 40 of

the Act shall supply the duly authenticated original order of the Court varying the

award or a duly certified copy thereof.

(6) Sections 39(5) and (6) of the Act shall apply to an appeal under this

paragraph as they apply to an application for the setting aside of an award under

that section.

(7) For the purposes of the New York Convention as applicable in

Mauritius –

32

(a) an appeal under this paragraph shall be treated as an application

for the setting aside of an award; and

(b) an award which has been remitted by the Court under

subparagraph (4)(b) to the original or a new arbitral tribunal shall

be treated as an award which has been suspended.

(8) For the purposes of this paragraph, “question of Mauritius law” –

(a) includes an error of law that involves an incorrect interpretation

of the applicable law (whether or not the error appears on the

record of the decision); but

(b) does not include any question as to whether –

(i) the award or any part of the award was supported by any

evidence or any sufficient or substantial evidence; or

(ii) the arbitral tribunal drew the correct factual inferences

from the relevant primary facts.

3. CONSOLIDATION OF ARBITRAL PROCEEDINGS

(1) Where 2 or more arbitral proceedings have the same arbitral tribunal

appointed in respect of each of the arbitral proceedings the arbitral tribunal may, on

the application of at least one party in each of the arbitral proceedings, order –

(a) those proceedings to be consolidated on such terms as the

arbitral tribunal thinks just;

(b) those proceedings to be heard at the same time, or one

immediately after the other; or

(c) any of those arbitral proceedings to be stayed on such terms as

it considers appropriate.

(2) Where an application has been made to the arbitral tribunal under

subparagraph (1) and the arbitral tribunal refuses or fails to make an order under

that subparagraph, the Supreme Court may, on application by a party in any of the

proceedings, make any such order as could have been made by the arbitral tribunal.

(3) Where 2 or more arbitral proceedings do not have the same arbitral

tribunal appointed in respect of each of the arbitral proceedings but each arbitral

proceeding is subject to this Act –

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(a) the arbitral tribunal of any one of the arbitral proceedings may,

on the application of a party in the proceedings, provisionally

order –

(i) the arbitral proceedings to be consolidated with other

arbitral proceedings on such terms as the arbitral tribunal

thinks just;

(ii) the arbitral proceedings to be heard at the same time as

other arbitral proceedings, or one immediately after the

other; or

(iii) any of those arbitral proceedings to be stayed until after

the determination of any other of them;

(b) an order shall cease to be provisional where consistent

provisional orders have been made for all of the arbitral

proceedings concerned;

(c) the arbitral tribunals may communicate with each other for the

purpose of conferring on the desirability of making orders under

this subparagraph and of deciding on the terms of any such

order;

(d) if a provisional order is made for at least one of the arbitral

proceedings concerned, but the arbitral tribunal for another of

the proceedings refuses or fails to make such an order (having

received an application from a party to make such an order), the

Supreme Court may, on application by a party in any of the

proceedings, make an order or orders that could have been

made under this subparagraph;

(e) if inconsistent provisional orders are made for the arbitral

proceedings, the Supreme Court may, on application by a party

in any of the proceedings, alter the orders to make them

consistent.

(4) Where arbitral proceedings are to be consolidated under

subparagraph (3), the arbitral tribunal for the consolidated proceedings shall be that

agreed on for the purpose by all the parties to the individual proceedings, but,

failing such an agreement, the PCA shall appoint an arbitral tribunal for the

consolidated proceedings.

(5) An order or a provisional order may not be made under this paragraph

unless it appears –

34

(a) that some common question of law or fact arises in all of the

arbitral proceedings;

(b) that the rights to relief claimed in all of the proceedings are in

respect of, or arise out of, the same transaction or series of

transactions; or

(c) that for some other reason it is desirable to make the order or

provisional order.

(6) Any proceedings before an arbitral tribunal for the purposes of this

paragraph shall be treated as part of the arbitral proceedings concerned.

(7) Arbitral proceedings may be commenced or continued, although an

application to consolidate them is pending under subparagraph (1) to (3) and

although a provisional order has been made in relation to them under

subparagraph (3).

(8) Subparagraphs (1) and (3) apply in relation to arbitral proceedings,

whether or not all or any of the parties are common to some or all of the

proceedings, provided that each of the parties to each of the arbitral proceedings in

respect of which consolidation is sought have by way of arbitration agreement (as

defined in this Act) consented to consolidation pursuant to subparagraph (1) to (2).

(9) Nothing in this paragraph shall prevent the parties to 2 or more arbitral

proceedings from agreeing to consolidate those proceedings and taking such steps

as are necessary to effect that consolidation.

4. JOINDER

On the application of any party to the arbitration, the Supreme Court may in

the exercise of its discretion determine that one or more third persons should be

joined in the arbitration as a party, provided any such third person and the applicant

party have consented thereto in writing.

___________

SECOND SCHEDULE

(section 3)

MODEL ARBITRATION PROVISIONS FOR GBL COMPANIES

1. Shareholders in a Mauritius GBL company (“the Company”) may incorporate

an arbitration clause in the constitution of the Company, as provided in section 3(6)

of the Act, by a unanimous resolution of shareholders in the following form –

35

The shareholders of the Company hereby agree that the constitution

of the Company shall be amended by the inclusion of the arbitration

clause set out in the Second Schedule to the International Arbitration

Act 2008. The chosen arbitral institution is [name of institution]. The

number of arbitrators shall be [one or three].

2. The effect of the resolution referred to in paragraph 1 shall be the

incorporation in the constitution of the Company of the following arbitration

clause –

(1) Any dispute, controversy or claim arising out of or relating to this

constitution or the breach, termination or invalidity thereof, or relating to the

company, shall be settled by international arbitration under the International

Arbitration Act 2008 (referred to as the Act).

(2) The provisions of the First Schedule to the Act shall apply to the

arbitration.

(3) The arbitration shall be conducted pursuant to the Rules of [name of

institution]. Where no institution is chosen, the arbitration shall be conducted

pursuant to the rules set out in the Act.

(4) The number of arbitrators shall be [one or three]. Where no option is

chosen, the default rules set out in the Act shall apply.

(5) The juridical seat of arbitration shall be Mauritius.

(6) The language to be used in the arbitral proceedings shall be the

English language.

______________

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THIRD SCHEDULE

(section 3)

TABLE OF CORRESPONDING PROVISIONS BETWEEN

THE ACT AND THE AMENDED MODEL LAW

Section of the Act Article of the Model Law

“Explanatory Memorandum”

Part I – Preliminary

Section 1 (Short title)

Section 2 (Interpretation)

Section 2(1), (3), (4) and (5)

Section 2(2)

Article 2

Article 3

Section 3 (Application of Act)

Section 3(1)

Section 3(2) and 3(3)

Section 3(7)

Section 3(8)

Section 3(9)

Article 1(1) and 1(2)

Article 1(3)

Article 4

Article 5

Article 2A

Part II – Initiation of

Proceedings

Section 4 (Arbitration

agreement)

Article 7

Section 5 (Substantive claim

before Court)

Article 8

Section 6 (Compatibility of

interim measures)

Article 9

Section 7 (Death or bankruptcy

or winding up of a party)

Section 8 (Consumer arbitration

agreement)

Section 9 (Commencement of Article 21

37

proceedings)

Section 10 (Juridical seat) Article 20

Part III – The Arbitral Tribunal

Section 11 (Number of

arbitrators)

Article 10

Section 12 (Appointment of

arbitrators)

Article 11

Section 13 (Grounds for

challenge of arbitrator)

Article 12

Section 14 (Procedure for

challenge of arbitrator)

Article 13

Section 15 (Failure or inability to

act)

Article 14

Section 16 (Replacement of

arbitrator)

Article 15

Section 17 (Hearing following

replacement of arbitrator)

Section 18 (Fees and expenses

of arbitrators)

Section 19 (Protection from

liability and finality of decisions)

Section 20 (Competence as to

jurisdiction)

Article 16

Part IV – Interim Measures by

Tribunal

Section 21 (Interim measures by

tribunal)

Articles 17-17G

Section 22 (Recognition and

enforcement of interim

measures)

Article 17H-17I

Section 23 (Powers of Supreme

Court to issue interim measures)

Article 17J

Part V – Conduct of Arbitral

Proceedings

38

Section 24 (Duties and powers of

tribunal)

Articles 18, 19 and 22.

Section 25 (Statements of claim

and defence)

Article 23

Section 26 (Hearing) Article 24

Section 27 (Default of party) Article 25

Section 28 (Appointment of

expert)

Article 26

Section 29 (Court assistance in

taking evidence)

Article 27

Section 30 (Power of PCA to

extend time limits)

Section 31 (Representation)

Part VI – The Award

Section 32 (Rules as to

substance of dispute)

Article 28

Section 33 (Remedies and costs)

Section 34 (Decision making by

panel of arbitrators)

Article 29

Section 35 (Settlement) Article 30

Section 36 (Form and contents of

award)

Article 31

Section 37 (Termination of

proceedings)

Article 32

Section 38 (Correction,

interpretation and additional

award)

Article 33

Section 39 (Exclusive recourse

against award)

Article 34

Section 40 (Recognition and

enforcement)

Articles 35 and 36

Part VII – Miscellaneous

39

Section 41 (Limitation and

prescription)

Section 42 (Constitution of

Supreme Court and appeal)

Article 6

Section 43 (Consequential

amendment)

Section 44 (Commencement)

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