In Arvee Family Foundation v Actis Consumer Grooming Products Ltd¹ (‘Arvee Family Foundation’) and Super-Max Mauritius v Actis Consumer Grooming Products Limited² (‘Super-Max Foundation’), the Supreme Court set aside objections that were raised under Article V of the New York Convention for the recognition and enforcement of one partial arbitral award which the London Court of International Arbitration (‘LCIA Awards’) granted in in each of these cases in favour of Actis Consumer Grooming Products Limited (‘Actis’).
In line with the terms of the Supreme Court (International Arbitration Claims) Rules 2021 (‘International Arbitration Rules’), Actis applied to the Chief Justice for and was granted a provisional order to recognise and enforce the LCIA Awards (‘Provisional Order’).
However, each of the Arvee Family Foundation and the Super-Max Foundation applied to the Supreme Court under Article V of the New York Convention in order that the Provisional Order in each case was set aside or quashed or stayed. In effect, the application sought was to defeat the recognition and enforcement of the LCIA Awards in favour of Actis.
In setting aside the objections of Arvee Family Foundation and the Super-Max Foundation, the Designated Judges held that the objections which each raised were “purely formal and outside the scope of the permissible objections under Article V of the [New York] Convention.”
The objections were as follows:
- the enforcement claim should have included another claimant [i.e. Super-Max Offshore Holdings – SMOH];
- the respondent’s director was not mandated to affirm the affidavit supporting the enforcement claim;
- the amounts due to the respondent had been wrongly computed.
Both the Arvee Family Foundation and the Super-Max Foundation argued that their objections were based on the premise that the application to recognise and enforce the LCIA Awards should be governed by the Mauritian laws of procedure. Accordingly, since ‘some elementary procedural prerequisites had not been complied with by [Actis] at the time that the application was made before the Chief Justice’ it followed that the LCIA Awards should not be recognised and enforced in Mauritius.
In setting aside these objections, the Designated Judges considered the following:
(a) the language of Article III of the New York Convention which was mandatory in nature and was to the effect that a pro-enforcement approach should be adopted by contracting States as it requires that each State “shall recognise arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon’;
(b) the terms of authorities which favour a pro-enforcement approach of the courts of contracting States towards international arbitration awards with the effect that once the award creditor establishes that the award to be recognized and enforced satisfies the applicable jurisdictional requirements, there is a presumption under the New York Convention in favour of the recognition of the arbitral award “subject to narrow enumerated exceptions”.
Thus, in Betamax Ltd v State Trading Corporation [2021] UKPC 14 the Judicial Committee of the Privy Council specifically held that:
- in relation to the Mauritian International Arbitration Act (‘IAA’), ‘the intervention of the [Supreme Court] is specifically limited to setting aside the award on the grounds set out in section 39(2) of the [IAA]’. This was so because the Model Law on which the IAA is based “is premised on the principle that where a matter has been submitted to an arbitral tribunal and is within the jurisdiction of the arbitral tribunal, the arbitral tribunal’s decision is final whether the issue is one of law or fact’;
- the IAA sets out the clear principles applicable in international arbitration to the jurisdiction of the arbitral tribunal to determine its own jurisdiction, the separability of the arbitration agreement, the finality of awards and the limited scope for intervention by the [Supreme Court]’;
Furthermore, in OGD Services Holdings Ltd v Norscot Rig Management Pvt Limited (Mauritius) 2023 SCJ 455 the Supreme Court held that the Arbitration Rules were designed to address the requirements of Article IV of the New York Convention as regards the recognition and enforcement of awards. The first step towards this end precisely involves the application lodged by Actis to the Chief Justice who must verify that the requirements of Rule 15(3) of the International Arbitration Rules have been met and, this requires “an appearance of there being a valid award based upon a compliant arbitration agreement”;
(c) the Rules 1 & 3 of the International Arbitration Rules which confirm that the legislator has ensured that there is in place a distinct set of procedural rules under our laws which ‘promote an informal approach towards the recognition and enforcement of foreign arbitral awards ../… in line with section 2A of the IAA’ namely, the International Arbitration Rules; and
(d) the terms of Article V of the New York Convention which specifically declares that “recognition and enforcement of the award may be refused …. only if [the party resisting the recognition] furnishes to the competent authority where the recognition and enforcement is sought: proof that one of several specifically-defined exceptions is applicable.”
These recent pronouncements of the Supreme Court upholding the pro-enforcement approach of the Supreme Court to international arbitral awards come at an opportune time when the international business community is increasingly turning to arbitration as the preferred mode of dispute resolution and serves to enhance the choice of Mauritius as a hub for international arbitration within the African and global markets.
