It is no secret that plans to allow foreign law firms to
operate in Mauritius have met with a mixed reception since
the announcement made in the Budget Speech 2007 to bring
amendments to the existing Law Practitioners Act 1984. Two
schools of thought emerged in the public discussions in the
press and other fora prior to the presentation of the Law
Practitioners (Amendment) Bill 2008 in Parliament. One thing
for sure, there was consensus over the urgent need for the
modernization and overhauling of the existing Law
Practitioners Act 1984. However, there was debate on the way
forward and modus operandi of the new law. The legal
professionals have certainly come to realize that the sector
must live with the realities of globalization and Mauritius,
as an IFSC, must be able to compete with other financial
centres by providing world class services.
The Law Practitioners (Amendment) Act
2008
The Law Practitioners (Amendment) Bill (the "Bill") was voted by Parliament on 4 April 2008 to amend the Law Practitioners Act 1984 ( the " principal Act ') and has now come into effect.
The Act's main object is to provide for:
- the setting up and functioning of law firms;
- the status of a legal consultant;
- the registration of law firms, foreign law firms, joint
law ventures and foreign lawyers; and
- the framework for the regulation of the practice of
foreign law and international law in Mauritius.
Setting up and functioning of law firms
Pursuant to the new clause, in particular Section 10A inserted in the principal Act, written applications must be submitted to the Attorney-General in the prescribed form for the setting up of a law firm. The Constitution of the law firm should provide that its main object is to provide legal services and the name of the law firm should not be misleading or inappropriate.
Where the name of a law firm has been registered, the law firm should mention on every correspondence, invoice or other document issued by it or on its behalf, the fact that it is a law firm registered under this Act.
Furthermore, the new amendments provide that a law firm may perform any function that a law practitioner can lawfully perform; and shall do everything that a law practitioner is lawfully required to do. However, a law firm shall not perform any of the functions of a barrister, an attorney or a notary, unless the law firm comprises at least one member who is a barrister, an attorney or a notary, as the case may be.
Status of a legal consultant
The Act defines a legal consultant as:
- a person who has retired from office as a Judge; or
- a person authorised to act as such by the Chief Justice
where his name has, at his request, been erased from the Roll
after he has, for not less than 10 years in the aggregate
been a barrister, an attorney, a law officer or a Magistrate;
or held a combination of 2 or more of the above professions
or occupations.
The registration of law firms, foreign law firms, joint law ventures and foreign lawyers
Section 10G of the Act provides that a corporate entity licensed or registered as a law firm in a foreign country may make a written application to the Attorney-General, in such form and manner as may be prescribed, for registration of a local office.
The Attorney-General should be satisfied that:
- it has given a written undertaking not to provide or put
itself forward as providing advice or legal services on, or
in relation to, Mauritian law;
- it is qualified, licensed or regulated as a firm in the
home jurisdiction, the law of which it professes to
practise;
- it has at least 2 lawyers in its office in Mauritius who
are qualified under the law of the home jurisdiction to
practise the law of that jurisdiction, and have been
registered and it has a physical establishment in
Mauritius.
Under section 10H, the Attorney-General may, on written application made to him in such form and manner as may be prescribed, approve the setting up of a joint law venture by a foreign law firm and a law firm, on such terms and conditions as may be prescribed. However, a foreign law firm already registered in Mauritius shall not be a constituent of a joint law venture unless it gives notice of its intention to constitute a joint law venture to the Attorney-General and asks to be deregistered as a foreign law firm.
Similarly, a foreign lawyer may make a written application to the Attorney- General, in such form and manner as may be prescribed, for registration and the right to provide legal services within a law firm, foreign law firm or a joint law venture.
Section 10M provides that a foreign lawyer may provide legal services –
(a) in relation to arbitration proceedings;
(b) in relation to proceedings before bodies other than Courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the law of a country other than Mauritius is essential;
(c) for conciliation, mediation and such other forms of consensual dispute resolution as may be prescribed; or
(d) by tendering legal advice in relation to foreign law or international law.
Notwithstanding the above, a foreign lawyer may advise on the effect of a Mauritian law where –
(a) the giving of advice on Mauritian law is necessarily incidental to the practice of foreign law or international law; and
(b) the advice is expressly based on advice given on the Mauritian law by a law practitioner.
Our views
The houseview is that the enactment of the Law Practitioners (Amendment) Act 2008 was inevitable and essential, if Mauritius is to emerge as a reputable IFSC of substance, and can only be beneficial to the whole economy, leading to upgrading of the skills set of the legal profession in Mauritius. It remains to be seen whether the foreign law firms which have been knocking on the door to enter into Mauritius would rush in or just want to hang another plate in another jurisdiction for convenience!
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