Enforcement of Arbitral Awards
First prepared in Appleby’s Mauritius Newsletter, August 2019.
Before embarking into the enforcement of arbitral awards, it is important to distinguish between a domestic award and an international award, as this demarcation will dictate the procedure to be adopted for the enforcement of the award. A domestic award corresponds to an award with its juridical seat in Mauritius, whereas an international award on the other side, relates to an award with its juridical seat outside of Mauritius.
The legislative framework pertaining to the enforcement of an international award is derived from two pieces of legislation and a rule of the Mauritian Supreme Court (Supreme Court), namely, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (CREFAA), the International Arbitration Act 2008 (IAA) and the Supreme Court (International Arbitration Claims) Rules 2013 (SCR). The framework applicable to domestic awards is, on the other hand, found under the Mauritian Code of Civil Procedure (CPC).
Procedure for enforcement of an international award
An international award is enforced pursuant to the procedure under the CREFAA. An application must be made before the Supreme Court and it must be made by way of motion and affidavit. Further to that, the application must be accompanied with the following documents:
- a duly authenticated original award or a certified copy of same;
- the original arbitration agreement or a certified copy of same; and
- the certified English translated copy of the arbitration agreement.
It is worth noting that for the purposes of the application, a document is deemed to be certified where it is done by either a competent officer of the Court, a notary or an attorney at law.
The party against which the application is being made, may resist the application and make a parallel application to set aside or suspend the award in the state where the award has been made.
Public policy as a valid ground against the enforcement of an international award
An objection may be raised on the ground that the enforcement of the international award would be against the principle of public policy in Mauritius. The concept of public policy was defined in Cruz City 1 Mauritius Holdings v Unitech Limited & Anor 2014 SCJ 100 as that ‘part of the public policy of a state which, if violated, would prevent a party from invoking a foreign law or foreign judgement or foreign award’. Public policy as a ground against enforcement was again tested in the recent case of State Trading Corporation v Betamax 2019 SCJ 154 and the Court made a finding that public policy would be upheld as a valid ground where the award would be an obvious and real breach of the fundamental legal order of Mauritius.
Procedure for enforcement of a domestic award
A domestic award is enforced by making an application for “exequatur” proceedings pursuant to the CPC. An applicant who would like to enforce a domestic award should proceed by way of affidavit evidence, requesting the Judge for an order rendering the judgment declared executory in Mauritius.
Indeed articles 1003 and following of the CPC provides for the possibility to private parties to entrust the resolution of their disputes to an arbitrator. It has been held in the case of Mauritius Union Assurance Co. Ltd V GFA Insurance Co. Ltd 2011 SCJ 34 that although the availability of voluntary arbitration is allowed by virtue of a statutory provision, the whole process is akin to a system of private justice, but obviously under judicial control, whereby a dispute is taken away from the jurisdiction of the common law courts to be entrusted to an arbitrator who is given the power and authority to make an award in the cause that is submitted to him for decision. As the award of an arbitrator does not fall within the ambit of the exercise of the functions of a public body, it cannot be executed without first having obtained the exequatur of a court of law.
Although there is no conclusive authority on the test to be applied with respect to the enforcement of a domestic award, the Judges in the case of the Mauritius Union Assurance C. Ltd V GFA Insurance Co. Ltd (supra) found it useful to refer to the case of D’Arifat v. Lesueur 1949 MR 191 which remains the landmark case for exequatur applications for the enforcement of foreign judgements in Mauritius, must at least be considered.
Conclusion
Although as of date, the number of arbitration cases that have reached the doorstep of our courts for enforcement are relatively few, there is no doubt that with the growing trend of arbitration, this will in the near future become a common feature of applications lodged with the Supreme Court . It will be interesting to see how the Supreme Court will develop the pool of precedents and consolidate the principles applicable to the enforcement of arbitral awards from a Mauritius law perspective.
