Enforcement of foreign judgments as well as foreign and international arbitral awards in Mauritius
It is often said that the world is a global village. For one reason or the other, judgments or arbitral awards which are given outside Mauritius may need to be executed in Mauritius whilst judgments and arbitral awards given in Mauritius might have to be executed abroad. As a consequence, if someone is a party to a foreign judgment or a foreign or international arbitral award, it is essential for him to know whether he will be able to enforce that judgment or arbitral award worldwide. This article will deal with enforcement in Mauritius of foreign judgments as well as of foreign and international arbitral awards.
The general rule is that a judgment of a foreign Court needs exequatur to become executory. The law in Mauritius on the execution of foreign judgments is governed by both legislation and case law. There are three main pieces of legislations which deal with execution of foreign judgments in Mauritius. The nature of those legislations which are both of French and British origin is a perfect example of the hybrid nature of the Mauritian legal system. The legislations are: (i) The Code de Procédure Civile; (ii) the Reciprocal Enforcement of Judgments Act 1923; and (iii) The Foreign Judgments (Reciprocal Enforcement) Act 1961. The biggest challenge is to find out which legislation is to be applied in a specific situation and it must be noted at the outset that this area of our law is not straightforward.
Code de Procédure Civile (the ’CPC’)
The CPC was promulgated in Mauritius as far back as the 29th July 1808 in the then Ile de France, by the French. Even after the British took possession of the island in 1810, the CPC continued to apply by virtue of Article 8 of the Treaty of Capitulation. The articles of the CPC relevant to the enforcement of foreign judgments have since then undergone no changes.
Generally, the enforcement of foreign judgments of a civil nature in Mauritius is governed by the CPC and most of the foreign judgments which seek to be executed in Mauritius are so executed
by following the procedure under the CPC.
The only exception is when the foreign judgment falls within the ambit of the two other legislations which will be discussed below.
Article 546 of the CPC is to the effect that: « Les jugements rendus par les tribunaux étrangers, et les actes reçus par les officiers étrangers, ne seront susceptibles d’exécution en France, que de la manière et dans les cas prévus par les articles 2123 et 2128 du Code Civil ».
Surprisingly enough, this article which forms part of our law has never been amended to replace “susceptible d’exécution en France” to “susceptible d’exécution à Maurice”. Articles 2123 and 2128 of the Civil Code no longer deal with execution of foreign judgments. However, case law comes to our rescue on this point. In the case of Renggli v Davie Shaw & Anor, (1998) MR 143, the Supreme Court pointed out that the conditions for granting exequatur of a foreign judgment under article 546 of the CPC have been set out in the classic case of D’Arifat v Lesueur (1949) MR 191, by the full bench of the Supreme Court as follows:
- The judgment must still be valid (ait “une existence légale”) and be capable of execution in the country where it was delivered;
- It must not be contrary to any principle affecting public order;
- Defendant must have been regularly summoned to attend the proceedings; and
- The Court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.
In practice, a case for exequatur of a foreign judgment is entered before the Supreme Court by way of motion supported by affidavit, praying from the Court for an Order making executory the judgment delivered/granted in the foreign country. The affidavit will have as annexure a duly authenticated copy of the judgment, bearing on each page the seal of the registry of the relevant foreign court which gave the judgment and the signature of an authorized officer of the registry on the last page. As evidence to show that the foreign judgment is a final one, when possible, a duly authenticated certificate that the judgment has not been appealed against is also annexed to the affidavit.
Reciprocal Enforcement of Judgments Act 1923 (the “REJA”)
The REJA was enacted when Mauritius was still under British colonial rule. This Act is British inspired and it was enacted to simplify the enforcement of United Kingdom (UK) judgments by way of “registration” instead of “exequatur” under the CPC. Section 6 provides for the possibility of extending the scope of the REJA to any part of Her Majesty’s Dominions outside the UK where the President is satisfied that reciprocal provisions have been made by the legislature. However, up to now, no such reciprocal provisions have been made.
The application of the REJA is very specific. It applies to monetary judgments or orders only, that is, judgments or orders whereby a sum of money is made payable. Section 3 of the REJA goes on to describe the procedure to be followed as regards the registration of UK judgments.
According to section 3(1) of the said Act, where a judgment has been obtained in a Superior Court in the United Kingdom, the judgment creditor (who is defined in the Act as the person by whom the judgment was obtained, and includes the successors and assigns of that person) may apply to the Supreme Court, within 12 months after the date of the judgment, or such longer period as may be allowed by the Supreme Court, to have the judgment registered in the Supreme Court. No difference is made between a judgment made by default and one obtained in a contested action.
According to section 3(2) of the REJA, no judgment shall be ordered to be registered under the Act where:
- The original court acted without jurisdiction;
- The judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that court;
- The judgment debtor, being the defendant in the proceedings, was not duly served with the process of the original court and did not appear, notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that court or agreed to submit to the jurisdiction of that court;
- The judgment was obtained by fraud;
- The judgment debtor satisfies the Supreme Court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment; or
- The judgment was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the Supreme Court.
Once the judgment is registered, the REJA provides that:
- The judgment shall, as from the date of registration, be of the same force and effect, and proceedings may be taken thereon, as if it had been a judgment originally obtained or entered upon on the date of registration in the Supreme Court;
- The Supreme Court shall have the same control and jurisdiction over the judgment as it has over similar judgments given by itself, but in so far only as it relates to execution under this section;
- The reasonable costs of and incidental to the registration of the judgment, including the costs of obtaining a certified copy of the judgment from the original court and of the application for registration shall be recoverable in like manner as if they were sums payable under the judgment.
The procedure to be followed for the registration of UK judgments under the REJA is provided for under Government Notice No. 178 of 1924. According to the latter, leave must first be obtained to register in the Supreme Court of Mauritius a judgment obtained in a Superior Court in the UK. The application shall be made ex parte or by summons to a Judge. If the application is made ex parte, the Judge to whom it is made may direct that summons be issued. The application shall be supported by an affidavit of the facts exhibiting the judgment or a verified or certified or otherwise duly authenticated copy thereof. The said affidavit must state that to the best of the information and belief of the deponent, the judgment creditor is entitled to enforce the judgment and that the judgment does not fall within any of the cases for which a judgment cannot properly be ordered to be registered. The affidavit must also, so far as the deponent can, give the full name, title, trade or business and usual or last known place of abode or business of the judgment creditor and judgment debtor.
The Foreign Judgments (Reciprocal Enforcement) Act 1961 (the “FJREA”)
The FJREA, for the reasons given below is as at today almost not used, though fully operational. This is another piece of legislation which was enacted whilst Mauritius was under British colonial rule. The aim of the FJREA is to simplify the enforcement of foreign monetary judgments of all countries, including Commonwealth countries. The only requirement for the FJREA to apply is the existence of reciprocity of treatment between the countries involved. The FJREA provides that where the President is satisfied that the benefits conferred by registration of a foreign judgment in Mauritius shall be likewise conferred to the registration of a judgment of the Supreme Court in that foreign country, he may by Proclamation direct the judgment of that country to be registered in Mauritius. Up to now, there does not seem to have been any such proclamation made by the President. In the case of Renggli v Davie Shaw & Anor (1998) MR 143 where an application to make executory a UK judgment was made, the Supreme Court said that Part I of the FJREA does not appear to have been extended to the Commonwealth countries by proclamation pursuant to section 9 of the FJREA so that it would be the REJA which will still be applicable for the enforcement of UK judgments.
One could venture to say that the FJREA has been left unused. However, in the case of Holborn College Ltd v Samputh (2009) SCJ 355, an application was made under the FJREA to declare executory in Mauritius two orders granted by the High Court of England, Queen’s Bench Division and the application was granted.
It is to be noted that as regards enforcement of foreign judgments of divorce or judicial separation, specific regulations have been made by the Chief Justice under section 198 of the Courts Act and which are known as the Supreme Court (Exequatur of Foreign Judgments in Divorce Cases) Rules 2004. According to the said regulations, an application for an order declaring executory a foreign judgment of divorce or judicial separation shall be made by way of motion supported by affidavit and any other relevant document including the foreign judgment which is sought to be made executory.
Foreign Arbitral Awards and Arbitral Awards under the International Arbitration Act 2008
When one deals with foreign arbitral awards in Mauritius, a difference has to be made between arbitral awards rendered outside Mauritius and arbitral awards rendered in Mauritius in an international arbitration under the International Arbitration Act 2008.
In the first case, the exequatur of the “foreign” arbitral award is governed by the CPC whereas as regards the second case, the enforcement of the “international” arbitral award is governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001.
Articles 1028-1042 of the CPC deal with the exequatur of foreign arbitral awards.
According to article 1028-2 of the CPC, an arbitral award given in a foreign country can only be rendered executory in Mauritius following a decision of the Supreme Court.
Article 1028-3 enumerates those conditions which one must abide by for the arbitral award to be made executory in Mauritius and article 1028-4 enumerates those instances when the arbitral award will not be made executory in Mauritius. What is important to note is that one of the conditions for the Supreme Court to grant exequatur to a foreign arbitral award under Article 1028-5 is that there should exist some reciprocity between Mauritius and the country where the arbitral award which is sought to be made executed has been given.
The International Arbitration Act 2008
The International Arbitration Act 2008 (the “IAA”) came into force on the 1st January 2009. With the IAA, Mauritius has positioned itself as a centre for international arbitration.
According to section 3 of the IAA, an arbitration shall be deemed an international one where inter alia the juridical seat of the arbitration is Mauritius and the parties to the arbitration agreement have, at the time of the conclusion of that agreement, their place of business in different states.
Section 21 of the IAA provides that, the arbitral tribunal may, at the request of a party, grant interim measures, in the form of an award or in another form. These interim measures granted by an arbitral tribunal shall be recognized as binding and, unless otherwise provided by the arbitral tribunal, enforced on application to the Supreme Court, irrespective of the country in which it was issued.
According to section 40 of the IAA, it is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 2001 (the “CREFAA”) which applies to the recognition and enforcement of awards rendered under the IAA. The CREFAA is in fact the law which has incorporated the Convention on the Recognition and Enforcement of Foreign Arbitral Awards signed in New York (the New York Convention) on the 10th June 1958 into our national law.
The party seeking to obtain the recognition and enforcement of an international arbitral award shall at the time of application to the Supreme Court, supply:
- The duly authenticated original award or a duly certified copy thereof; and
- The original agreement or a copy of the agreement in writing, which may be in the form of an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
Should the said award or agreement be in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents and the translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.
It is to be noted that recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the Court proof that:
- The parties to the arbitral clause or arbitration agreement were, under the law applicable to them, under some incapacity, or the said agreement was not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
- The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
- The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
- The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
- The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made; or
- The subject matter of the difference is not capable of settlement by arbitration under the law of the country where recognition and enforcement is sought; or
- The recognition or enforcement of the award would be contrary to the public policy of the country where recognition and enforcement is sought.
It is to be noted that an appeal shall lie as of right to the Judicial Committee of the Privy Council against any final decision of the Supreme Court under the CREFAA.
As a concluding remark regarding the enforcement of foreign judgments, it would seem from the above process of reasoning that:
- As regards the enforcement of UK monetary judgments, the REJA will apply for the registration of such judgments;
- As regards the enforcement of judgments other than UK judgments, the CPC will apply for the exequatur of such judgments.
It can be said that due to the several legislations that have been enacted for the execution of foreign judgments in Mauritius, the applicability of each of those legislations may appear to be somewhat confusing. It is high time that reciprocal agreements be signed between Mauritius and other countries and proclamations be made by the President so that the FJREA finds its application for the registration of foreign judgments, other than UK monetary judgments, in Mauritius. Those reciprocal agreements will also be important for making arbitral awards executory in Mauritius under the CPC.
Shalinee Dreepaul Halkhoree
Senior Associate – Barrister