Recently the Supreme Court of Mauritius (Supreme Court)  in the case of Barnwell Enterprises Ltd and anor v ECP Africa FII Investments LLC 2013 SCJ 327 (Barnwell) had the opportunity of providing clarity on its jurisdiction under the International Arbitration Act 2008.

In Barnwell an urgent application was lodged with the Supreme Court for an interim order under the International Arbitration Act 2008 (IAA).

The interim order prayed for was aimed at preventing the Respondent and the Co-Respondent from exercising their rights under a share pledge agreement to which they were parties and pending the outcome of on-going arbitral proceedings before the London Court of International Arbitration (LCIA).

The Supreme Court granted the interim order and confirmed the fundamental principles underpinning applications arising under the IAA. These are set out below:

  • First, interim orders will be issued as a measure of protection with a view to supporting as opposed to disrupting existing or contemplated arbitration proceedings;
  • Secondly, applications for interim measures are determined in accordance with section 23 of the IAA having regard to specific features of international arbitration.

The Supreme Court further held that its powers in relation to applications for interim measures varied according to the urgency of the applications.  These are set out below:

  • its powers for urgent applications are wider so much so that it will entertain ex parte applications and can award such order as it deems necessary in the circumstances.  However the circumstances must be such that the arbitral tribunal is not in a position or has no power to act effectively for the time being; and
  • the exercise of its powers for applications that are not urgent demands that two conditions are satisfied.  First, the party to arbitral proceedings has served notice both to the arbitral tribunal and the other party.  Secondly, notice has been served with leave of the arbitral tribunal.

Another feature of applications lodged under the IAA that the case of Barnwell highlights relates to the composition of the Supreme Court.  Indeed the requirement under the IAA that applications (including urgent applications) are heard by the Supreme Court composed of three judges has nurtured the perception that the IAA has expressly curtailed what has always been revered as an almost sacrosanct feature of the powers of the Judge in Chambers in our legal system namely the inherent powers of the Judge sitting in Chambers to hear all ex parte and urgent applications.  The standpoint taken by the Supreme Court vis-à-vis this aspect of its jurisdiction in matters of international arbitration therefore resets matters in their proper perspective and authoritatively.

The decision of the Supreme Court in Barnwell undoubtedly comes at an opportune time in the wake of the increasing interest shown by parties to international agreements to have recourse to arbitration rather than litigation for dispute resolution. Barnwell establishes beyond doubt the role of the Supreme Court in matters of international arbitration.  In so doing, the Supreme Court brings its contribution to the efforts deployed in the recent years by the Government of Mauritius to promote Mauritius as a preferred jurisdiction for international arbitration given the establishment of the LCIA-MIAC in 2011 in Mauritius as a result of the joint venture by the Government of Mauritius and the LCIA.

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