Mauritius: Guide To Law Types In Mauritius

Last Updated: 6 June 2017
Article by Fayaz Hajee Abdoula, Javed Niamut and Padmini Bheekharry

What systems of law are used within your jurisdiction and what are they used for (i.e. English law for project development, New York law for high yield issues)

The Mauritian legal system is a reflection of the history of Mauritius over time. Mauritius has a hybrid legal system, which is the direct result of its two successive colonization by France and Great Britain respectively. Our legal system was shaped by the laws inherited from the two colonial powers and continues to be inspired from same. The French originated Code Napoleon and Code de Commerce still largely govern many aspects of our civil, contractual, property and commercial rights; the Code de Procedure Civil still governs procedural matters with respect to the enforcement of those rights to some extent and our criminal law is largely based on the French Code Penal. Post-independence laws and modern business laws such as company law, banking and financial services laws are of Anglo-Saxon inspiration and furthermore, many laws have been passed taking into consideration the evolution of the laws in England and France and the interpretation by the English and French Courts of such laws. The end result is the unique hybrid system of law, whereby put in more simplistic way, our substantive law is generally French based and our procedural laws are English based.

Businesses in Mauritius may be structured as companies, societés, limited partnerships, trusts and foundations. Mauritius' statute law on companies is contained in the Companies Act 2001 (the Companies Act), which was modelled after its counterpart from New Zealand. The Companies Act has been regularly amended by the legislature to keep track of the changes in law having an incidence on Mauritius incorporated companies. Societés, often described in Mauritius as civil or commercial partnerships are based on a form of French partnership law and are set up under the provision of the Civil Code or Commercial Code whereas the Mauritius limited partnerships retains the essential attributes of the United Kingdom limited partnerships. Trusts which are generally used for wealth preservation and management are based on common law. While trust is a common law concept, foundations introduced in 2012, appeal to clients based in civil law territories where they are less familiar with the trust concept.

Banking is key to the financial services sector and operates in a business friendly environment. Mauritius has a hybrid legal system and its banking legal regime imports concepts both from the common law and civil law. Some of the common law inspired legislation in force the Banking Act, the Bank of Mauritius Act, the Borrower Protection Act 2007 and the Financial Intelligence and Anti Money Laundering Act 2002 (FIAMLA). Civil law inspired concepts relate to the general contractual regime of debt as well as taking collateral, whether over movable or immovable property. Personal guarantees are also civil law inspired and while the concept of fixed and floating charges is borrowed from English law, it is codified under the relevant provisions of the Mauritian Civil Code.

The statutory footing of Mauritian insolvency law is primarily the Mauritian Insolvency Act 2009 as well as other pieces of legislation. The Insolvency Act is also modelled after the New Zealand equivalent legislation and consolidates and modernises the legal framework for insolvency in Mauritius. It brings in a single integrated framework previous corporate insolvency regime and also deals with the bankruptcy of individuals. The key features of the Act are the corporate insolvency procedure options of administration, receivership and liquidation. It also includes provisions in relation to the recognition of netting arrangements. Other relevant pieces of legislation are the Mauritian Civil Code for the winding up of societés, the Limited Partnership Act for limited partnerships as well as industry/entity specific pieces of legislation (e.g. Banking Act for the insolvency of banks).

International arbitration is governed by the International Arbitration Act 2008 which is based on the International Commercial Arbitration (as amended in 2006), the UNCITRAL Arbitration Rules, the English Arbitration Act 1996 and the New Zealand Arbitration Act 1996 (as amended in 2007) while domestic arbitration remains French based and is codified in the Mauritian Code de Procédure Civile.

Mauritius is a good example of a mixed legal system where civil law and common law systems are complementary. The legal system has over the years emerged into a unique system of Mauritian law through the promulgation of laws tailored to the socio-economic environment of Mauritius while keeping its roots in the civil and common law traditions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Javed Niamut
Padmini Bheekharry
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