Please give us an overview of the current legal market in Mauritius and how any recent developments have impacted your practice?
There are three recent developments that will impact the Mauritian offshore commercial market.
First, the introduction of GDPR.
Secondly, the termination of the 2011 joint venture between the London Court of International Arbitration and the Government of Mauritius to set up the LCIA-MIAC arbitration centre for international arbitration. As from 28 July 2018, the MIAC will operate as an independent arbitration centre with rules built on the UNCITRAL model. It is built on a 3-tier system namely, the Government of Mauritius, an Advisory Board headed by Professor Emmanuel Gaillard and, a Secretariat which will stand advised by the Advisory Board. The MIAC will also derive support from the Permanent Court of Arbitration which has established presence in Mauritius of which there is an advisory board which will be chaired by Professor Emmanuel Gaillard. The withdrawal of a prestigious institution as the LCIA from the Mauritian jurisdiction will attract mixed views on the reasonableness of the Mauritian Government’s ambition to establish Mauritius as a hub for international arbitration within the African region given the volatile nature of the global economy and the ferocious competition within the global village. The challenge for Mauritius will be to prove that it has the dynamics and stamina to weather through the challenge ahead of it.
Thirdly, recent announcements for the National Budget 2018-2019 will no doubt have its imprint on the offshore commercial practice both for the corporate and dispute resolution aspects. Thus the judiciary will be strengthened so that cases heard by the Supreme Court will be streamlined. A fiscal regime is being specifically tailored for the banking and non-banking (i.e. offshore) institutions. For the offshore practice, the taxation regime will be reviewed so as to bring it in line with prevailing international best practices. The Financial Services Commission (i.e. regulator of offshore global business activities) will have extended powers so it may regulate custodian services, global shared services and compliance services and remove all restrictions applicable to dealings in Mauritius. Furthermore, the FSC will issue a single harmonised global business licence to be known as ‘Global Business Licence’ and the category 2 global business licence will be abolished by 2021 but there will be grandfathering provisions for such companies incorporated before 16 October 2017. Also, a new framework will be developed to supervise management companies (i.e. companies licensed by the FSC to provide fiduciary services to global business companies). Finally, in order to promote the growth of the FinTech sector, a National Regulatory Sandbox License Committee will be set up and guidelines will be issued on the investment of crypto currency as a digital asset. In this regard, the FSC, as regulator, will be called upon to create new licensable activities, namely Custodian of Digital Assets and Digital Asset Marketplace. Through these licences, the Government seeks to establish a regulated environment for the safe custody of digital assets by investors and enable the exchange of digital assets. In the same breath, the FSC will put in place guidelines on investment in cryptocurrency as a digital asset. It will ensure as well that applicants for FinTech activities have appropriate cyber-security and cyber-resilience policies and capacities.
What significant trends exist in the M&A market presently? Are you seeing these just domestically or internationally as well?
The Mauritian market closely follows international trends in order to retain its competitive edge and while the rapid development of FinTech and blockchain globally has not yet affected the market, it is definitely being tracked by the industry so that we are ready to ‘get started’ when needed. The Appleby Mauritius and Cayman offices were involved in the setting up of the revolutionary digital identity token sale by SelfKey which is a transformative blockchain-based digital identity solution.
What are the three biggest challenges to practising M&A in Mauritius at the moment?
The challenge is to remain competitive and be level with global trends. The market is highly dynamic and our laws need constant monitoring to ensure that in the interests of our economy and in the ambition to be an international financial hub for the African region, we are in a position to offer the standard of services to the international business community. Achieving a balance between the need to have a solid legal system amidst the non-stop threat of money laundering and a certain flexibility to accommodate novelty is a tough challenge.
How does M&A fit into the firm as a whole? Is it easy to collaborate with other teams?
Appleby has experts in offshore corporate, finance, funds, restructuring and dispute resolution. The M&A team plays a central role in Appleby’s wider corporate and finance offering, and is comprised of industry experts with deep knowledge of private equity, energy, insurance, banking, healthcare, real estate, media, telecommunications, investment products, regulatory matters and FinTech. The revolutionary digital identity token sale for instance is such an example.
Given the cross-jurisdictional nature of many M&A transactions that we work on, our Mauritius team routinely work closely alongside the corporate and finance practices of other Appleby offices. Our unique global footprint enables us to provide a seamless cross-border service to our clients.
What advice would you give to the next generation of M&A lawyers?
M&A lawyers need to be as knowledgeable as they can be about not only corporate law, but also finance, capital markets, tax and competition law, so they can understand the transaction they are working on and provide good advice. In addition, M&A lawyers must understand what is most important for their client's businesses and their strategic goals, in order to most effectively represent them. They must know what is worth being tenacious about and what is not – for example, you not only know what a warranty is and why it is there, but to also know whether it is relevant to your client’s business or not, meaning whether you should insist on it or can do without it. Therefore, always be prepared, and focus on developing from being just another average lawyer to being a true trusted strategic advisor for your clients. In addition, understand that whilst it is your role to provide advice, it is ultimately the client who makes the business decisions.
What are your predictions for M&A in Mauritius over the next five years?
If adopted as outlined, the measures of the National Budget 2018-2019, as outlined above, have laid the foundations for taking Mauritius into the next step of its growth into a solid international financial centre with an increased activities within its M&A landscape portfolio and a solid legal structure to support this growth and combat the threat of money laundering.
Originally published by Legal 500, November 2018
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