Indeed, in OGD Services Holdings Ltd v Norscot Rig Management Pvt Limited (Mauritius) 2023 SCJ 455, OGD moved for the following orders, namely:
(i) a declaration that the sole arbitrator was mistaken in his determination that he had jurisdiction to entertain the question of litigation funding to which Norscot Rig Management Pvt Limited (Mauritius) (Norscot) had availed itself for the arbitration proceedings;
(ii) the setting aside of the Costs Award issued by the sole arbitrator in favour of Norscot; and
(iii) the setting aside of the Provisional Order.
OGD emphasised before the Supreme Court that it had complied with all the other aspects of the Arbitral Award except for 2 issues relating to costs set out at Items (i) and (ii) above.
The Supreme Court declined to interfere with the Arbitral Award in respect of the above matters on the premise that Article V of the New York Convention does not empower the Supreme Court to grant the declaratory order that an arbitrator lacked jurisdiction in respect of Items (i) and (ii).
As regards the setting aside of the Provisional Order, the Supreme Court took the view that section 39 of the International Arbitration Act 2008, which provides for the setting aside of an award under limited circumstances, did not find its application in the present matter. This was so because the juridical seat of the arbitration was not Mauritius.
The Supreme Court relied on the decision of the Judicial Committee of the Privy Council in Betamax Ltd v State Trading Corporation (Mauritius) 2021 UKPC 14. In particular, the Supreme Court found support in the following dicta:
‘[i]n treating international arbitration as distinct from domestic arbitration the policy of the International Arbitration Act is to treat setting aside or enforcement of awards made under the International Arbitration Act in the same way as it treats the enforcement of foreign awards. The award which is the subject of this appeal, even though the seat of the arbitration was in Mauritius, is an award in an international arbitration’
The Supreme Court also stood guided by its earlier determination in Cruz City 1 Mauritius Holdings v Unitech Limited 2014 SCJ 100 in which it held that the setting aside of an arbitral award would be justified where the applicant demonstrates that there are exceptional circumstances which prevail such as public policy considerations. In the instant matter, the Supreme Court took the view that there was no Mauritian public policy consideration which would justify the setting aside of the Arbitral Award. Hence the Provisional Order was maintained as correct.
In taking a firm stand in the OGD v Norscot matter, the Supreme Court once again confirms its support to international arbitration and thereby lends support to Mauritius as a preferred jurisdiction for arbitration whether domestic or international.