In terms of legislation, this sphere of the law is governed by the Code de Procédure Civileand the Reciprocal Enforcement of Judgments Act 1923.
The Code de Procédure Civile was promulgated in Mauritius at a time when Mauritius was still a French colony and as such was part of the set of Napoleonic codes which were extended to French colonies. When Mauritius became a British colony, the Reciprocal Enforcement of Judgments Act 1923 was enacted to simplify the enforcement of United Kingdom (UK) judgments within the overseas British colonies by way of registration. However, its application is very specific and is limited to judgments or orders given or made by a superior court of England and Wales in any civil proceedings whereby any sum of money is made payable.
One would note that nowadays, in most cases in Mauritius, it is article 546 of the Code de Procédure Civile which is used to enforce foreign judgments:
Les jugements rendus par les tribunaux étrangers, et les actes reçus par les officiers étrangers, ne seront susceptibles d’exécution en France, que de la manière et dans les cas prévus par les (anciens) articles 2123 et 2128 du Code civil.
It is to be noted that “France” in the above quote is now customarily read as referring to Mauritius and understood to have been a typographical mistake, and Articles 2123 and 2128 of the French Civil Code no longer deal with execution of foreign judgments. The guidelines for enforcement of foreign judgments in Mauritius have been set out by the Supreme Court in the landmark case of D’Arifat v Lesueur (1949) MR 191 as follows:
a. The judgment must still be valid (ait “une existence légale”) and capable of execution in the country where it was delivered;
b. It must not be contrary to any principle affecting public order;
c. The defendant must have been regularly summoned to attend the proceedings; and,
d. The court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.
These guidelines have been generally followed in matters of enforcement of foreign judgments by the courts in Mauritius.
The issue we seek to look at today is the enforcement of a foreign judgment when the defendant (be it an individual or a legal person) is not a Mauritian resident and whether the courts in Mauritius would consider enforcing a foreign judgment in such a case.
An analysis of article 546 of the Code de Procédure Civile and of D’Arifat v Lesueur (supra) shows that the point is not taken therein. The only requirement regarding the defendant is that the latter must have been regularly summoned to attend the proceedings. However, in order to bring enforcement proceedings before the courts of Mauritius, one would need to show connexity between the proceedings and the jurisdiction of Mauritius. The usual link of the judgment with the jurisdiction of Mauritius is the nationality of the parties but a question arises as to whether there would be enforcement of a foreign judgment in a case in which there is no Mauritian party but the link is instead through the subject matter, such as for example an asset located in Mauritius and held by one of the parties.
The point was raised in the matter of Dallah Albaraka (Ireland) Ltd v Pentasoft Technologies Limited & anor 2015 SCJ 168, which dealt with an application to enforce an order issued by the High Court of England, Queen’s Bench Division. The matter was lodged in Mauritius by a foreign applicant against a foreign respondent ‘in the presence of’ the Mauritian subsidiary of the foreign respondent as co-respondent. The latter was not however a party to the original proceedings. The foreign respondent raised the point that the applicant should not be allowed to proceed as the applicant was shopping for jurisdiction given that the proceedings in the High Court of England involved only two foreign companies namely, the applicant and the respondent and that their only link with Mauritius was the respondent’s subsidiary company, namely the co-respondent, a Mauritian incorporated company.
Counsel for the foreign applicant, on the other hand explained that as the respondent is the shareholder of the co-respondent and therefore has assets within the jurisdiction, in the nature of the shares it holds in the co-respondent, it is perfectly legitimate for the applicant to seek to register and enforce a judgment in the jurisdiction where the assets of its judgment debtor are sited. The justification for joining the co-respondent as a party is essentially to put it on notice of the judgment obtained by the applicant against the respondent in the English Court and of the application.
After having considered the submissions by all the parties, the Supreme Court found that:
Applying the above principles to the facts of the present application, I find that it is perfectly legitimate and reasonable for a judgment creditor who has obtained a judgment against a debtor whose assets are not found within the jurisdiction where the judgment was obtained to enforce the judgment in the country where the assets are located. The physical location of the debtor’s assets is an important factor in determining the jurisdiction in which the judgment creditor would seek to have the judgment recognized and enforced to satisfy the judgment debt. The foreign judgment being a money judgment and the judgment debtor having assets in the recognizing jurisdiction which is Mauritius, the judgment creditor should not be denied access to justice and to all the enforcement remedies on ground of inadequate connection or on the ground that the parties to the judgment are foreign companies. Hence the Mauritian jurisdiction is competent to deal with the present matter.
Clearly in Dallah Albaraka (supra) the Mauritian Supreme Court expressed its understanding of the environment in which international commerce operates and its willingness to give effect to it in a manner which is consonant with international trends and does not breach Mauritius law. However, it is our view that while Dallah Albaraka has set a precedent the fact remains that each similar application will be determined on a case-to-case basis.