Mauritius: Mauritius Taking Centre Stage In International Arbitration

Last Updated: 26 July 2016
Article by Mushtaq Namdarkhan, Manisha Meetarbhan and Yohann Rajahbalee

The Congress of the International Council for Commercial Arbitration (commonly known as "ICCA") is the largest regular conference devoted to international arbitration. It takes place every two years, on each occasion in a different city and country, bringing together eminent Judges, arbitrators and practitioners specialised in the field of commercial arbitration under one roof. The 23rd ICCA Congress was held in Mauritius, the first held in the African Continent in its 50 years history, from the 8th to 11th of May 2016.

By choosing Mauritius, ICCA recognised the considerable and continuing efforts of Mauritius to establish itself as a neutral and state-of-the art arbitration venue for a region of the world that could derive great benefit from more effective dispute resolution processes in light of the ever-increasing number of arbitrations involving Africa related parties and projects. ICCA Mauritius 2016 was attended by over 800 delegates, of whom about a third came from Africa.

This year's theme was centred on international arbitration's contribution to, and conformity with, the rule of law. As the new ICCA president, Mr Donald Donovan, put it in his welcome message to the delegates prior to the Congress: "We have a lot to absorb and much to gain". And indeed we did.

An intrinsic link between international arbitration and the rule of law

The principle of the rule of law is at the heart of international arbitration. They are inherent to each other since international arbitration must be governed by a system of clear and predictable laws, which are applied equally and fairly, so to constitute an effective system of dispute resolution.

Dr Mohamed ElBaradei, prominent Nobel Laureate, provided a reality check at the opening ceremony of the Congress, observing that international arbitration still requires some fine-tuning to fully conform to the rule of law and highlighting possible avenues which could improve the dispute resolution process.  These included increased transparency, an international framework in furtherance of a coherent development of case law and the possible establishment of an appellate body to correct erroneous arbitral awards. His concluding words however in respect of the ever-increasing development of international arbitration as a dispute resolution mechanism were to the effect that the aim is to "strengthen the foundation, not destroy the temple".

In his first official visit in Mauritius, Ban Ki-moon, the Secretary General of the United Nations, applauded the role of the United Nations and UNCITRAL, its core legal body in the field of international commercial law, in the harmonisation and development of the Model Law on international commercial arbitration. He further saluted the strides made by Mauritius in developing its legislation in line with the global trend of internalisation of arbitration.

A panel of economists, political scientists and jurists focussed on one's necessity, both for economic development and human rights protection, to ensure the protection of the rule of law by a robust legal system. International arbitration is in effect a system separate from, and in addition to, national court systems, and offers an alternative to resolving disputes before the national courts. There is hence need for strong collaboration between national courts and arbitral tribunals to enjoy fully the ends of justice.

Participants in further lively panel sessions discussed the extent of the powers of the arbitral tribunal to ensure conformity with the rule of law, such as policing the examination of witnesses, placing limits on the length of written submissions or the volume of documentary evidence. It further emerged from the dialogues that there is a link between ineffective advocacy or poor preparation and ineffective arbitral deliberations, which in turn may result to awards open to criticisms. In that respect, practitioners in the field of international arbitration also shoulder the duty of ensuring conformity with the rule of law.

Mauritius: a window on Africa for international arbitration

Mauritius is perfectly suited to play a leading role in developing the theory and practice of international arbitration in Africa, reflecting the institutional development and economic growth of the region. The Congress was an opportunity for Mauritius to showcase the steps taken by the country over the last few years to establish itself as a venue and centre of excellence for international arbitration.

The Mauritian legal framework on international arbitration brings into play international arbitration principles, in an entirely new body of rules, completely separate from those governing domestic arbitration, and which are applied and furthered in keeping up with international principles and practices underlying the UNCITRAL Model Law. The rules and procedures under the Mauritius regime are clear, predictable and set up the conditions for a harmonious co-existence between the national court and arbitral tribunal.

The Mauritian judiciary is also keen to encourage the efficient progress of international arbitration, as facilitated by the concept of "Designated Judges", specialised in the field of international arbitration and hence safeguarding a coherent development of the jurisprudence. How did the judiciary in Mauritius perform as it took the stage? You, informed readers, are invited to peruse the book "Why Mauritius: A National Court in Support of International Arbitration"[1], which provides a comprehensive report of the salient judgments of the Supreme Court of Mauritius in matters of international arbitration to date.

To further show the commitment of the judiciary in support of international arbitration, there were no sittings at the Supreme Court of Mauritius on the days of the Congress as all the 20 Judges of the Supreme Court in addition to 15 Magistrates attended the event.

Moreover, in addition to the already existing MCCI Permanent Court of Arbitration, the creation of an office in Mauritius of the Permanent Court of Arbitration of the Hague and the launch of the LCIA-MIAC, set up in cooperation with the London Court of International Arbitration, are testimony to Mauritius' aspiration to become a major place for international arbitration.

The march towards becoming a leading venue for international arbitration, both in Africa and worldwide, has been relentless and the commitment stands firm, if not firmer. It is a long journey but Mauritius is on the right track. After all, it is marathon, not a sprint.

Footnote

[1] "Why Mauritius: A National Court in Support of International Arbitration", M. Namdarkhan, M. Meetarbhan, Y. Rajahbalee, BLC Robert & Associates, 2016

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Authors
Manisha Meetarbhan
Yohann Rajahbalee
 
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