BREXIT: Potential Legal Implications for Mauritius

As share prices plunged dramatically across the globe and the pound sterling reached a 30-year low last Friday 24 June, the world was made brutally aware of the results of the so-called “Brexit” referendum whereby the United Kingdom (UK) decided by a small majority of 51.9% to leave the European Union (EU). The next step in the formal process to withdraw from the EU would be for the UK government to serve notice on the EU under article50 of the Treaty on European Union (the “EU Treaty”). The EU Treaty provides for a period of 2 years during which the terms of exit would be negotiated between the UK and the UK, unless a different date is agreed.

Mauritius has a number of treaties in place with the UK and a large number of them predate 1973 when the UK became a full-fledged number of the European Economic Community. Going further back in time, there were treaties in place between Mauritius and the UK dating from before our independence in 1968 and which were extended and continued after independence.

It is difficult at this stage to identify what the consequences of a Brexit would have on Mauritius as this would be largely determined by the terms of the exit deal agreed with the UK. A few of the exit options are: the UK remains part of the European Economic Area but not the EU (like Norway and Iceland), the UK joining the European Free Trade Association but remain outside of the EEA (such as Switzerland) or the UK could join a customs union (like Turkey). However, this article purports to highlight a few of the potential areas of concern from a Mauritius legal perspective:

1. International conventions between Mauritius and the EU

There are a number of sectors where our relationship with the UK is inextricably linked to an agreement with the EU. Such agreements would having a binding effect on the UK since it is currently a fully-fledged member of the EU. This includes, for instances, the Economic Partnership Agreement and the Fisheries Partnership Agreement. We will now have to see how such agreements with the UK will be “continued” (or not continued) bilaterally between the UK and Mauritius after the UK’s exit from the EU.

There are other agreements which are entered directly between the UK and Mauritius, such as the double taxation treaty. Any such agreements will continue to exist as they operate irrespective of the UK’s membership to the EU.

2. Visa Requirements

Another relevant issue to consider are visa requirements to enter the UK border. Currently the UK operates a visa exempt regime for Mauritian nationals wishing to visit the UK for tourism purposes; in principle a Brexit should not have any direct impact on this regime as this has been agreed outside the EU framework. However, given that one of the main reasons for Brexit was concerns over the UK’s immigration policies, we cannot rule out the risk that the UK may review all its immigration laws and visa regime with all countries, including Mauritius.

3. UK Privy Council

It will be interesting to follow the stance of the Privy Council in its interpretation of our laws. The House of Lords, in its judicial capacity, has been subject to the European Court of Justice. It may well be that, following a Brexit, the Supreme Court of England & Wales, will no longer be subject to appeal to the European Court of Justice. Over the years, our Privy Council (which is often constituted of the Law Lords, members of the House of Lords) was much influenced by the European Court of Justice. All of this did influence our decision and case law in Mauritius as regards enlarging the rights of citizens on matters such as the right to a fair hearing or a fair trial before local courts. We do not expect a change within the Privy Council in the way it judges cases on appeal from Mauritius. In addition, a substantial portion of the case law developed in that area relates to the European Convention on Human Rights which has a supra-national court, the European Court of Human Rights. The Convention has been established by the Council of Europe, which operates independently from the EU, albeit that there may be some areas of overlap. Ultimately, it will depend on of the terms of the exit deal and what agreements the UK will be party to.

4. English law as the governing law of international transactions

Another important issue is the power of English law (technically the laws of England & Wales) and common law worldwide. Although large parts of the world namely: Latin America, Russia, China, part of Africa and of continental Europe follow civil law concepts, English common law is still very strong specially in the field of international business law. Geographically, English law is predominant in a vast majority of international contracts from Sydney, Singapore, Hong Kong, Mumbai, Dubai to Kenya and South Africa. Within Europe, the city of London is a significant hub and as regards the Americas, transactions involving New York, Chicago or Silicon Valley will tend to follow Anglo Saxon common law. The geographical repartition of power keeps English law high up on the global scale.

A huge part of “offshore” business comes from Jersey, Guernsey, Isle of Man, Bermuda, British Virgin and their business interlinked with the city of London. The power of such a network should not be underestimated.

5. Commonwealth of Nations

Let’s not forget what remains of the British Commonwealth with its 53 Member States! Should Scotland leave the UK and Northern Ireland be reunified with the Republic of Ireland, this may open the door for jurisdictions like Canada, Australia or New Zealand to enter into various types of economic agreements with the UK. Conversely, other jurisdictions, such as Bermuda, the Cayman Islands, the British Virgin Islands, which are currently British overseas territories may aspire to become independent like Mauritius but remain a member of the British Commonwealth.

Download PDF – l’express, 05.07.16, Page 8

By Marc Hein,
Juristconsult Chambers