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INTERNATIONAL ARBITRATION ACT 2008

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INTERNATIONAL ARBITRATION ACT 2008ACT,Act,act

    INTERNATIONAL ARBITRATION ACT 2008

Act No. 37 of 2008

    Proclaimed by [Proclamation No. 25 of 2008] w.e.f. 1 January 2009

Government Gazette of Mauritius No. 119 of 13 December 2008

    I assent

    SIR ANEROOD JUGNAUTH

    President of the Republic

    11th December 2008

    __________

    ARRANGEMENT OF SECTIONS

Section

    PART I - PRELIMINARY

1. Short title

    2. lnterpretation

    3. Application of Act

    PART II INITIATION OF PROCEEDINGS

4. Arbitration agreement

    5. Substantive claim before Court

    6. Compatibility of interim measures 7. Death or bankruptcy or winding up of party 8. Consumer arbitration agreement

    9. Commencement of proceedings

10. Juridical seat

    PART III - THE ARBITRAL TRIBUNAL

11. Number of arbitrators

    12. Appointment of arbitrators

    13. Grounds for challenge of arbitrator 14. Procedure for challenge of arbitrator 15. Failure or inability to act

    16. Replacement of arbitrator

    17. Hearing following replacement of arbitrator 18. Fees and expenses of arbitrators 19. Protection from liability and finality of decisions

    20. Competence as to jurisdiction

    PART IV - INTERIM MEASURES

21. Interim measures by Tribunal

    22. Recognition and enforcement of interim measures

    23. Powers of Supreme Court to issue interim measures

    PART V - CONDUCT OF ARBITRAL PROCEEDINGS

    24. Duties and powers of Tribunal 25. Statements of claim and defence 26. Hearing

    27. Default of party

    28. Appointment of expert

    29. Court assistance in taking evidence 30. Power of PCA to extend time limits 31. Representation

    PART VI - THE AWARD

    32. Rules applicable to substance of dispute 33. Remedies and costs

    34. Decision making by panel of arbitrators 35. Settlement

    36. Form and contents of award

    37. Termination of proceedings

    38. Correction, interpretation and additional award 39. Exclusive recourse against award

    40. Recognition and enforcement

    PART VII - MISCELLANEOUS

41. Limitation and prescription

    42. Constitution of Supreme Court and appeal 43. Consequential amendment

    44. Commencement

    First Schedule

    Second Schedule

    Third Schedule

    An Act

    To promote the use of Mauritius as a jurisdiction of choice in the field of

    international arbitration, to lay down the rules applicable to such

    arbitrations and to provide for related matters

    ENACTED by the Parliament of Mauritius, as follows -

    PART I - PRELIMINARY

1. Short title

    This Act may be cited as the International Arbitration Act 2008.

    2. Interpretation

    (1) In this Act -

"Amended Model Law" means the Model Law on International Commercial

    Arbitration adopted by UNCITRAL on 21 June 1985, as amended on 7 July 2006;

"arbitration" means any arbitration whether or not administered by a

    permanent arbitral institution;

    "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or may arise between them in respect of a defined legal relationship, whether contractual or not;

    "arbitral tribunal" means a sole arbitrator or a panel of arbitrators;

    "costs of the arbitration" means the costs of the PCA in discharging its functions under this Act, the fees and expenses of the arbitral tribunal, the legal and other expenses of the parties, and any other expenses related to the arbitration;

“Court” -

(a) means a Court in Mauritius; and

    (b) includes, where appropriate, a body or organ of the Judicial System of

    a foreign state; but

(c) does not include the PCA;

“data message” -

    (a) means information generated, sent received or stored by electronic,

    magnetic, optical or similar means; and

    (b) includes electronic data interchange (EDI), electronic mail, telegram,

    telex or telecopy;

"domestic arbitration" means any arbitration with its juridical seat in

    Mauritius other than an international arbitration under section 3(2);

    "electronic communication" means any communication between the parties by means of a data message;

    "GBL Company" means a company holding a Global Business Licence under the Financial Services Act;

“juridical seat" means the juridical seat of an arbitration referred to in

    section 10;

    "New York Convention" means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed at New York on 10 June 1958;

"PCA" means the Permanent Court of Arbitration, having its seat at the

    Hague, acting through its Secretary-General;

"UNCITRAL" means the United Nations Commission on International Trade

    Law.

    (2) Unless otherwise agreed by the parties, any request or other written communication in an arbitration governed by this Act shall be deemed to

    have been received on the day on which it is delivered where

    (a) it is delivered to the addressee personally or at its place of business,

    habitual residence or mailing address or, if none of these can be found

    after making a reasonable inquiry, it is sent to the addressee’s last-

    known place of business, habitual residence or mailing address by

    registered letter or any other means which provides a record of the

    attempt to deliver it; and

    (b) the means of communication used is any means of communication,

    electronic or otherwise, that provides a record of despatch and receipt

    of the communication, including delivery against receipt, registered

    post, courier, facsimile transmission, telex or telegram.

    (3) Where a provision of this Act, save for section 28, leaves the parties free to

    determine a certain issue, such freedom includes the right of the parties to

    authorize a third party, including an institution, to make that determination.

(4) Where a provision of this Act refers to the fact that the parties have agreed

    or that they may agree or in any other way refers to an agreement of the

    parties, such agreement includes any arbitration rules referred to in that

    agreement.

    (5) Where a provision of this Act, other than sections 27(a) and 37(2)(a), refers

    to a claim, it also applies to a counterclaim, and where it refers to a defence

    it also applies to a defence to such counterclaim.

    3. Application of Act

(1) (a) This Act shall not apply to arbitrations initiated before its

    commencement.

    (b) This Act shall apply to arbitrations initiated on or after its

    commencement under an arbitration agreement whenever made.

    (c) (i) Subject to subparagraph (ii), this Act shall apply solely to

    international arbitrations (as defined in subsection (2)).

    (ii) Sections 5, 6, 22 and 23 shall apply to an arbitration which

    satisfies the criteria set out in subsection (2)(b), whether or not

    its juridical seat is Mauritius.

    (d) The fact that an enactment confers jurisdiction on a Court but does not

    refer to the determination of the matter by arbitration does not per se

    indicate that a dispute about the matter is not capable of determination

    by arbitration.

(e) Where any other enactment provides for the statutory arbitration of a

    dispute, this Act shall not apply to an arbitration arising under that

    other enactment.

    (2) For the purposes of subsection (1)(c)(1), an arbitration shall, subject to

    subsection (6), be an international arbitration where -

(a) the juridical seat of the arbitration is Mauritius; and

(b) (i) the parties to the arbitration agreement have, at the time of the

    conclusion of that agreement, their place of business in different

    States; or

    (ii) one of the following places is situated outside the State in which

    the parties have their places of business -

    (A) the juridical seat of the arbitration if determined in, or

    pursuant to, the arbitration agreement; or

    (B) any place where a substantial part of the obligations of the

    commercial relationship is to be performed or the place

    with which the subject matter of the dispute is most closely

    connected; or

    (iii) the parties have expressly agreed that the subject matter of the

    arbitration agreement relates to more than one State, or that

    this Act is to apply to their arbitration; or

    (iv) the shareholders in a GBL company have determined, pursuant

    to subsection (6), that any dispute concerning the Constitution of

    the company or relating to the company shall be referred to

    arbitration under this Act.

    (3) For the purposes of subsection (2)(b) -

    (a) where a party has more than one place of business, the place of

    business is that which has the closest relationship to the arbitration

    agreement;

    (b) where a party does not have a place of business, reference is to be

    made to its habitual residence.

    (4) Subject to subsection (6), the First Schedule or any of its specific provisions shall apply to an international arbitration only if the parties so agree by

    making express reference to that Schedule or to that specific provision.

    (5) (a) Any issue as to -

    (i) whether an arbitration is an international arbitration; or

    (ii) whether the First Schedule or any of its specific provisions apply

    to an international arbitration,

    shall be determined by the arbitral tribunal.

    (b) Where an issue referred to in paragraph (a) arises before a Court or

    the PCA -

    (i) that Court or the PCA shall decline to decide that issue and refer

    it for determination by the arbitral tribunal; but

    (ii) where the arbitral tribunal has not yet been constituted, the Court

    or the PCA may make a provisional determination of the issue

    pending the determination thereof by the arbitral tribunal.

    (6) (a) Without prejudice to the right of a GBL company to agree to the

    arbitration of any dispute between itself and any third party under this

    Act, its shareholders may determine that any dispute concerning the

    constitution of the company or relating to the company shall be

    referred to arbitration under this Act.

    (b) Notwithstanding any agreement to the contrary, the juridical seat of any

    arbitration under this subsection shall be Mauritius and the First

    Schedule shall apply to that arbitration.

(c) The shareholders of a GBL company may incorporate an arbitration

    agreement in the constitution of the company, whether by reference to

    the model arbitration clause contained in the Second Schedule or

    otherwise -

    (i) at the time of the incorporation of the company; or

    (ii) at any later time by a unanimous resolution of all current

    shareholders.

    (7) A party who knows or could with reasonable diligence have known that any provision of this Act from which the parties may agree to derogate or any requirement under the arbitration agreement has not been complied with

    but proceeds with the arbitration proceedings without stating an objection to the non-compliance within a reasonable time or such time as may have been agreed by the parties shall be deemed to have waived its right to object.

    (8) In matters governed by this Act, no Court shall intervene except where so

    provided in this Act.

    (9) In applying and interpreting this Act and in developing the law applicable to international arbitration in Mauritius -

    (a) regard shall be had to the origin of the Amended Model Law (the

    corresponding provisions of which are set out in the Third Schedule)

    and to the need to promote uniformity in its application and the

    observance of good faith;

    (b) any question concerning matters governed by the Amended Model

    Law which is not expressly settled in that law shall be settled in

    conformity with the general principles on which that law is based; and

(c) recourse may be had to international materials relating to the

    Amended Model Law and to its interpretation, including -

    (i) relevant reports of UNCITRAL;

    (ii) relevant reports and analytical commentaries of the UNCITRAL

    Secretariat;

    (iii) relevant case-law from other Model Law jurisdictions, including

    the case-law reported by UNCITRAL in its CLOUT database;

    and

    (iv) textbooks, articles and doctrinal commentaries on the Amended

    Model Law.

    (10) In carrying out the objects of subsection (9), no recourse shall be had to, and no account shall be taken of, existing statutes, precedents, practices,

    principles or rules of law or procedure relating to domestic arbitration.

    (11) This Act shall bind the State.

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