Mauritius used to rely mainly on its sugar and tourism industries, but the Government of Mauritius has sought to diversify and remains active in trying to develop new sectors to create growth in the economy. The 1980s created a boom in the textile industry, and the Government of Mauritius has sought to develop its services industry since then. The 1990s called for the development of the financial services sector, and Mauritius has since firmly established itself as a sound and reliable financial services jurisdiction on an international level. Since the early 21st century, Mauritius has sought to develop its Information and Communication Technology (ICT) industry so as to make it one of the pillars of the economy and to position itself as a hub in Africa. Mauritius has therefore sought to implement various laws to cater for the development of the ICT industry, including the Information and Communication Technologies Act 2001, the Computer Misuse and Cybercrime Act 2003, and the Data Protection Act 2017 (replacing the former Data Protection Act 2004).
The Information and Communication Technologies Authority is the regulatory body and provides guidelines to industry players. It also issues licences, and monitors and supervises the ICT industry in Mauritius.
The Ebene Cybercity in Mauritius was developed with the idea of being a hi-tech hub, and has now developed into a modern financial centre providing high-quality offices and amenities. It is now regarded as the second business city of Mauritius after Port-Louis, and many businesses have subsequently moved there.
Since 2016, Mauritius has started to look at developing the Fintech sector and providing facilities for the development of this industry. Though still in the early stages, the Fintech industry is slowly developing. As a jurisdiction, Mauritius is friendly to Fintech innovation and is trying to implement the necessary regulations to encourage the development of the Fintech industry.
In the World Block Chain Summit 2018 which was held in Mauritius on 30 November 2018, the Mauritian Minister of Technology, Communication and Innovation re-affirmed the support of the Mauritian Government to Blockchain and made public the Government's ambition to make of Mauritius a Blockchain hub for the African region. His statement is worthy of note:
“The Age of Blockchain has dawned upon us, and the technology is painting a new vista of advanced solutions for businesses, individuals and governments. For Small Island Developing states (SIDS) like Mauritius, Blockchain represents an opportunity to accelerate development in line with the Sustainable Development Goals.”
1. Who is responsible for regulating FinTech companies?
Specified activities in Mauritius are generally offered and regulated by the Bank of Mauritius for all banking activities, and by the Financial Services Commission (FSC) for all non-banking financial activities. The Fintech industry is just developing in Mauritius, with operators starting to show interest; hence there are very few Fintech companies in Mauritius. To date, the regulators have not been conducting examinations of Fintech companies but should this industry develop further and become fully operational with various operators it is anticipated that the regulators will conduct regular examinations, as is already the case with other regulated activities in Mauritius.
The FSC regulates Fintech activities such as peer-to-peer lending and funding on Peer to Peer Lending platforms. The Financial Services (Peer to Peer Lending Rules) 2020 aim to establish a sound and conducive automated environment for the offer and execution of alternate peer-to-peer lending other than bank lending for the benefit of borrowers and stakeholders in the Mauritian non-banking financial sector. The Finance (Miscellaneous Provisions) Act 2020, which implements the proposed changes of the National Budget 2020/2021, has defined ‘Peer-to Peer Lending' as a financial business activity which enables a person to lend funds through an online portal or electronic platform which matches lenders and borrowers.
2. Are there any “sandbox” or other regulatory neutral zones?
The Economic Development Board (formerly known as the Board of Investment) has issued a new type of licence: the Regulatory Sandbox Licence (RSL), which was announced in the National Budget 2016-2017 of Mauritius and proclaimed on the 20th October 2016. The RSL offers the possibility for an investor to conduct a business activity for which there is neither a legal framework nor adequate provisions under existing legislation in Mauritius. The RSL is issued by the Economic Development Board to eligible companies which are willing to invest in innovative projects according to an agreed set of terms and conditions and for a defined period.
3. Are there any special economic zones, or similar initiatives to promote increased investment?
There are no designated economic zones for the conduct of offshore business including Fintech. Activities for the promotion of offshore business would be conducted by the EDB for and on behalf of the Mauritian Government.
4. Are there any barriers to entry for foreign companies?
The Companies Act 2001 of Mauritius provides for circumstances under which a foreign company may be registered with the Mauritian Registrar of Companies for the conduct of offshore business.
5. Have traditional institutions embraced FinTech?
The market is still dominated by traditional banking in Mauritius but there is a lot of interest in the FinTech industry among entrepreneurs. There have also been talks of developing Mauritius as a FinTech hub for Africa due to the buoyant ICT sector and the country's highly qualified bilingual workforce, Mauritius is well placed to develop its Fintech industry further and position itself highly in the African region.
6. What forms of legal entity are available for technology companies?
There are 3 types of companies in Mauritius:
- domestic companies that may conduct business in Mauritius subject to any licence that may be required for licensed activities;
- Global Business Corporations which are companies holding a Global Business Licence and which are tax resident companies but may not conduct business in Mauritius save for certain specific activities; and
- Authorised Companies which are non-resident companies for tax purposes but may not conduct business in Mauritius.
7. What AML requirements apply to FinTech businesses in Mauritius?
We consider that the same AML requirements would apply to FinTech businesses as a financial institution under the Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA).
Therefore, FinTech businesses would be required to adhere to the Anti-Money Laundering and Counter-Terrorist Financing (AML/CFT) related laws, regulations and codes in Mauritius including the FSC Code on the Prevention of Money Laundering and Terrorist Financing.
8. Are electronic signatures valid?
The Electronic Transactions Act provides that no signature will be denied legal effect, validity or enforceability solely because it is in electronic form.
An “electronic signature” means an electronic sound, symbol or process attached to or logically associated with an electronic record, and executed or adopted by a person with the intent to sign the electronic record.
The Electronic Transactions Act also provides for secure electronic signatures, which may be useful in the application of a prescribed security procedure or a commercially reasonable security procedure agreed to by the parties involved. In such a case, an electronic signature will be verified as a secure electronic signature if, at the time it was made, it was:
- unique to the person using it;
- capable of identifying such person;
- created in a manner or using a means under the sole control of the person using it; and
- linked to the electronic record to which it relates in a manner such that the electronic signature would be invalidated had the record been changed.
Initial Coin Offerings (ICOs)
1. How are ICOs regulated?
In light of recent developments in the FinTech industry in Mauritius, the FSC and the Bank of Mauritius have taken an active role in regulating ICOs.
On 09 February 2018, the FinTech and Innovation-driven Financial Services Regulatory Committee held its first meeting to assess the current regulatory set up with respect to Fintech and Innovation-driven Financial Services Regulations in Mauritius, and make recommendations on the need to introduce new sets of regulations for FinTech and lnnovation. It also identified priority areas within the regulatory space of Fintech activities. The RSL was also introduced in the 2016-2017 National Budget in Mauritius and offers the possibility for an investor to conduct a business activity for which there exists no legal framework, or adequate provisions under existing legislation in Mauritius. The RSL is issued by the Economic Development Board to eligible companies which are willing to invest in innovative projects according to an agreed set of terms and conditions and for a defined period.
2. Are ICOs subject to the local AML regime?
The FIAMLA, which is the main legislation with respect to Anti-Money Laundering in Mauritius, does not explicitly provide for ICOs.
However, the Bank of Mauritius has so far been very cautious in its approach to cryptocurrencies. They issued a warning on the 18 December 2013, advising members of the public to exercise utmost care and diligence when dealing with virtual currencies, and further explaining that members of the public need to be aware of the risks associated with unregulated virtual currencies, which do not provide the same protection as ‘hard' or ‘real' money. Again, on the 9 August 2017, the Bank of Mauritius issued a public notice to the effect that cryptocurrencies are not issued or guaranteed by the Bank and that users of cryptocurrencies are exposed to risks and that exchange platforms for cryptocurrencies are unregulated.
3. Is a physical presence required in Mauritius to conduct a token sale?
Since token sales are not regulated in Mauritius, we consider that a company will have to apply to the Board of Investment for a RSF which can be granted without the need for physical presence in Mauritius.
4. Can a crypto-to-crypto exchange be established?
This is not regulated presently.
5. Can a crypto-to-fiat exchange be established?
In theory, it would be possible to do so, although as noted above the FSC is cautious as regards virtual currencies, so detailed plans which demonstrate plans to comply with local legislation (in particular AML/CFT) would be required.Is a money services licence required for crypto-to-fiat conversion through an OTC desk?
This is not regulated presently.
6. Can an ICO project establish a local bank account?
This is not regulated presently.
7. Are gambling platforms permitted?
The law does not expressly provide for gambling platforms with respect to ICOs.
8. Are any legal or regulatory changes expected?
As tabled in the National Budget 2018/2019, the Government proposed to take the following measures to support the FinTech Industry:
- The Government will set up a National Regulatory Sandbox Licence Committee for activities relating to Sandbox licensing for FinTech activities.
- The FSC will create new licenses to provide investors with a regulated environment for the safe custody of digital assets and to enable digital assets exchange
- The introduction of a Custodian of Digital Assets Licence and Digital Asset Marketplace Licence
- The FSC will implement guidelines on investment in crypto currency as a digital asset.
- The FSC will ensure that applicants for FinTech activities have appropriate cyber-security and cyber-resilience policies and capacities.
In this regard we confirm that the National Regulatory Sandbox Licence Committee was recently set up under the administrative charge of the FSC, Mauritius held its first meeting recently and will:
(i) operate as an independent committee to coordinate the processing of all RSL applications made to the Economic Development Board in relation toFinTech;
(ii) be the focal point for assessing:
- all FinTech related RSL applications; and
- all newly announced FinTech related applications as announced in the National Budget 2018/2019.
(iii) assign the supervisory function for the holder of the FinTech RSL to either the Bank of Mauritius or the FSC, depending on the nature of the proposed FinTech activity.
1. Are tokenised funds regulated in Mauritius?
Tokenised funds are not expressly regulated under the laws of Mauritius. However, the FSC recognises that Digital Assets may constitute an asset-class for investment by Expert Funds.
The FSC considers ‘digital asset' as any token, in electronic form, which is representative of either the holder's access rights to a service or ownership of an asset.
2. What service providers are required for a tokenised fund?
This is not regulated presently.
3. What AML/KYC is required for token holders?
This activity is not regulated presently, however, the same quotient of AML/KYC would currently apply, as it would to other applicants.
4. Is there a minimum investment amount?
This is not regulated presently.
5. Can token holders redeem their tokens or transfer the tokens they hold?
This is not regulated presently.
Privacy and Data Protection
The Data Protection Act 2017 provides for data privacy and protection in Mauritius, and was proclaimed on 15 January 2018. It repealed and replaced the Data Protection Act 2004 which was enacted to provide protection for individuals' privacy rights in view of developments in the techniques used to capture, transmit, manipulate, record or store data relating to individuals. The new Data Protection Act 2017 has been enacted to provide for new legislation that will strengthen the control and personal autonomy of data subjects over their personal data, in line with current international standards, and for related matters, including GDPR. It provides an obligation on all persons collecting individuals' data to register as data controllers, and to keep such data secure. Data controllers have strict limitations as to how they can use and process data that they have collected. Any data subject is strictly protected, and his data cannot be amended or used without his authorisation.
The Information and Communication Technologies Authority (ICTA) is the Controller of Certification Authorities (CCA). As the “Root” Authority, the CCA certifies the technologies, infrastructure and practices of all the Certification Authorities (CA) licensed, recognised or approved to issue Digital Signature Certificates.
It is the CCA's responsibility to monitor that certification service providers comply with the obligations imposed on them by law. In this respect, the CCA will maintain a publicly accessible database containing a CA disclosure record for each licensed/recognised/approved CA.
The CCA is therefore the authority that issues digital certificates to Mauritian end-users, who will in turn use these certificates to secure their online transactions in a comprehensive manner. The CCA certifies the public keys of CAs using its own private key, which enables users in the cyberspace to verify that a given certificate is issued by a licensed CA.
The ICTA has issued an Information Guide for the Mauritian Public Key Infrastructures (PKI) Ecosystem, the purpose of which is to flag out to the public in general the basic information they need to be aware of in order to understand the PKI concepts so as to be able to make full use of this dedicated security infrastructure.
In Mauritius, the Patents, Industrial Designs and Trademarks Act 2002 (“PIDTA”) provides for the protection of industrial property rights, being patents, industrial designs or marks. The Copyright Act aims to provide more effective protection of copyright and related rights, namely for works in the artistic, literary or scientific domains. In 2019, the National Assembly adopted the Industrial Property Act 2019 which, when it comes into force, will repeal the PIDTA and will set up an innovative IP regime which builds on the scheme laid down under the PIDTA and introduces new concepts. It is to be noted that in order that legislation comes into force in Mauritius it must be proclaimed in the Government Gazette. The Industrial Property Act 2019 has not yet been proclaimed.
On 31 July 2014, the Copyright Act 2014 (“Copyright Act”) came into force in Mauritius to provide better protection to copyright and related rights. The Copyright Act repeals the Copyright Act 1997.
The definition of “copyright” has been expressly widened so that it now not only means an economic right but it also captures “moral” rights, i.e., the right to claim authorship of a piece of work and the right to prevent any act to be done that would be prejudicial to the honour and reputation of a copyright owner.
Every artistic, literary or scientific work shall be an original intellectual creation in the artistic, literary or scientific domain.
2. Trade Marks
The PIDTA, which we understand is under review, captures the following with respect to trade marks:
- “collective mark” which means any visible sign designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic, including the quality of goods or services, of different enterprises which use the sign under the control of the registered owner of the collective mark;
- “mark” which means any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an enterprise from those of other enterprises; and .
- “tradename” which means the name or designation identifying and distinguishing an enterprise
The exclusive right to a trade mark in Mauritius is gained through registration with the Controller of Industrial Property Office (Controller).
Under the PIDTA an application to register a trademark, collective mark or trade name is submitted to the Controller together with the following:
- the prescribed fee;
- a reproduction of the trademark, collective mark or trade name, as the case may be;
- the list of classes of goods and services in respect of which the application is made in conformity with the international classification of the same as contemplated under the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of Registration of Marks of 15 June 1957 (Nice Classification).
The PIDTA authorises an applicant to claim priority as contemplated under the Paris Convention for the Protection of Industrial Property 1883 (Paris Convention).
A registered trademark, collective mark or trade name is valid for a period of ten years from the filing date of the application. At the expiry of the registered period, a registered owner may apply for the renewal of the registration for consecutive periods of ten years provided (a) the renewal fee is paid and (b) any conditions as may be prescribed by the PIDTA are fulfilled.
Under the PIDTA, patents have been defined as the title granted to protect an invention which means an idea of an inventor which provides the solution to a specific problem in the field of technology. However, the PIDTA sets out an exhaustive list of “inventions” which shall be excluded from patent protection.
In order to achieve the exclusive right to a patent, an application is to be lodged with the Controller as follows:
- an application form in the English language and in the form set out at either of the Second, Ninth or Fourteenth Schedule of the Patents, Industrial Designs and Trademarks Regulations 2004, as the case may be (PIDTA Regulations);
- documents in support of the application together with translations in the English language where the documents in support are in a foreign language;
- an original Power-of-Attorney duly registered with the Registrar General of Mauritius where the applicant appoints an approved agent to submit its application; and
- an application fee of Rs 5,250.
Once registered, a patent is valid for a period of 20 years from the filing date. The validity of a registered patent during this period is conditional upon the payment of an annual fee to the Controller of Industrial Property Office. The PIDTA expressly declares that a failure to pay the annual registration fee will mean that “the patent application [has] been withdrawn and the patent shall lapse”.
4. Trade Secrets
Trade secrets are not contemplated in the PIDTA. However, in Mauritius, they may be protected in the following ways:
- non-disclosure agreements and confidentiality clauses can be
provided in commercial contracts to protect trade secrets;
- In cases where there are risks that confidential information might be used and/or disclosed to third parties, an application for an injunction may be made to the Honourable Judge in Chambers, to restrain disclosure of confidential information to third parties and/or use of the confidential information; and
- Damages may be claimed by a party aggrieved by disclosure of confidential information and/or the use of such.
The Mauritian taxation system is regulated by the Income Tax Act 1995 and sets a taxation rate of 15% on chargeable income. The Mauritius Revenue Authority (MRA) is the regulator for taxation.
Personal tax is based on the concept of residence for individuals who become taxable for a given financial year if they are physically present in Mauritius in an income year or an aggregate period of 183 days or more, of for the 2 preceding income years for an aggregate period of 270 days or more. The non-resident is liable to tax on all income derived from Mauritius where he has remained in Mauritius for less than 183 days in a tax year or 20 days for 2 consecutive tax years.
Corporate tax is also subject to 15% and applies to profits of the accounting period ending in the tax year and captures companies, trusts, ‘sociétés' and partnerships. Within the offshore category, a company licensed as a Global Business Company is liable to a maximum tax rate of 3% by reason of the application of Anti Double Taxation Agreements that the Mauritian Government has entered into with various foreign Governments. Furthermore, a company licensed as an Authorised Company is not considered to be resident in Mauritius for taxation matters and is therefore exempt from taxation under the enabling legislation.
Dividends paid by Mauritian resident companies are exempt from income tax whilst interests are taxed as ordinary income, subject to available exemptions and tax credits. Royalties are taxed as ordinary income, subject to available exemptions and tax credits. As to fees, both directors' and consultant fees are taxable at 15%.
As to indirect taxation, there is a compulsory registration for Value Added Tax (VAT) at 15% for a company where its annual turnover of taxable supplies exceeds MUR 6 million [USD 167,000] or it is engaged in any business or profession such as liberal profession including accountants, lawyers in respect of which there is no minimum threshold. There is an online fast track system for processing VAT claims.
Alternative Tax Dispute Resolution (ATDR) is a fast track system to resolve tax disputes by which tax payers may apply for a review of assessment raised in excess of MUR 10 million [USD 278,000]. The applicant must have objected to the assessment or lodges representations at the Assessment Review Committee (ARC) or appealed to the Mauritian Supreme Court or Judicial Committee of the Privy Council. (section 21C(1)(c) of the MRA Act). On receipt of an application, the Director General of the MRA has an obligation to refer the case to the ATDR Panel within one month and inform the applicant accordingly. The ADTR Panel has an obligation to make a decision within a period of 6 months from the date on which it has been referred the case for review. The Director General of the MRA may then amend or maintain the assessment in conformity with the decision of the ATDR Panel.
Doing Business in Mauritius
1. Trade Licences
This will depend on the type of business carried out.
2. Visas and Work Permits
Foreign nationals coming for business activities or applying for an Occupation Permit should enter Mauritius on a Business Visa. As provided in the Employment (Non-Citizens) (Restriction) Exemptions Regulations 1970, certain categories of foreigners workers in the artistic and creative fields, , amongst others, are allowed to work in Mauritius on a business visa for a maximum of 90 days only in one calendar year. Such categories of expatriates shall apply for a work and residence permit after the 90 days. It is issued for up to 120 days per calendar year.
Multiple entry business visa will be granted for a period of 2 years at the rate of 120 days in a calendar year. The stay per trip should not exceed 90 days. Foreign nationals coming to work in companies in the Information Communication Technologies sector should enter Mauritius on a Business Visa, pending the issue of the relevant work permit.
The Non-citizen (Employment Restriction) Act 1972 provides that a Non-citizen shall not engage in any occupation in Mauritius for reward or profit or be employed in Mauritius unless there is in force in relation to him, a valid permit. The Act also provides that “no person shall have a Non-citizen in his employment in Mauritius without there being in force a valid permit in relation to that employment.
The Work Permit entitles the foreign national to work in Mauritius for a specific employer and for a designated period of time. It is personal and non-transferable.
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.