Mauritius is situated just above the Tropic of Capricorn, in the South West of the Indian Ocean, some 2000 kilometers off the east coast of Africa. We are geographically at the crossroads of Africa, Asia and Europe. Mauritius can be said to be an example of social peace and unity in a multi-cultural society. The population comes from different origins, mainly from the European and the African continents, as well as India and China, and the spoken languages are English, French and Creole.
The Mauritian Legal System
Mauritius is a sovereign democratic society, upholding the separation of powers and the rule of law. The Constitution of Mauritius guarantees in its Chapter II, to every citizen, the enjoyment of the Fundamental rights and freedoms, which are largely inspired from the European Convention on Human Rights.
Mauritian law is a hybrid system of law, which draws its inspiration from France and England. It is therefore characterised by a duality of concepts and of language. This is due to the very history of the island which was colonised successively by France and Great Britain. The French Civil Code was first implemented in Mauritius. But then the island fell to the English. However, at the time, the British signed a Capitulation Treaty which expressly provided that the inhabitants of the island would be free to retain their religion, laws and customs. Over the years, the Civil Code has undergone many changes, some inspired by French reforms, and some to adapt to the specific circumstances of Mauritius.
The English colonisation period introduced further layers of complexity in terms of procedure, substantive law, and legal culture. At the procedural level, for example, a system of English-Style courts was put in place, with a district court, an intermediate court and a Supreme Court. Two centuries have since elapsed and Mauritius is now an independent country since March 1968.
Our procedural law and law of evidence remain largely of British inspiration while substantive provisions of our civil and criminal law are derived from the French Civil Code, the Penal Code or the Code of Commerce. The judicial system in Mauritius remains largely inspired by British traditions which advocate the adversarial system of litigation. The law relating to trade and commerce, shipping, company law, banking and finance etc have been borrowed from English law but also from several Commonwealth and former Commonwealth jurisdiction including India or New Zealand.
Our Court Structure
Mauritius has a single-structured judicial system consisting of two parts: the Supreme Court and the subordinate Courts. The Supreme Court for Mauritius, which has unlimited jurisdiction to hear and determine civil and criminal proceedings, is divided into two parts: the Supreme Court in its original jurisdiction, where the court exercise jurisdiction at first instance in civil and criminal matters, and its Appellate jurisdiction, where the Court of Appeal hear and determine civil and criminal appeals from the decisions of the subordinate Courts.
Criminal offences under the exclusive jurisdiction of the Supreme Court are tried at the Assizes sessions either held before a Presiding Judge and a jury consisting of 9 persons who are qualified to serve as jurors or before a Presiding Judge without a jury. In the exercise of its criminal jurisdictions, the Supreme Court is empowered to inflict life imprisonment for certain serious offences.
The Supreme Court also has full power and jurisdiction to supervise any criminal or civil proceedings before any subordinate court and has an appellate jurisdiction whereby it can review the decision of one of its own judges or those of subordinate courts.
The Supreme also has a Commercial Division which has jurisdiction to deal with all matters of bankruptcy, insolvency, matters arising out of the Companies Act; banking, insurance, bills of exchange, offshore, Industrial Property, Patents and dispute between traders in relation to dispute of commercial nature.
The decisions of the appellate division are in turn subject to appeal to the Judicial Committee of the Privy Council (JCPC). A litigant can in fact appeal from the decisions of the Supreme Court or the Court of Criminal Appeal or Court of Civil Appeal to the JCPC which is the ultimate court of appeal.
The Intermediate Court and the District Court are presided over by a Magistrate. They hear criminal matters in which they have limited powers of sentencing while the jurisdiction of these courts in respect of civil matters is subject to monetary threshold.
Mauritian lawyers include barristers, attorneys and notaries. Litigation before the courts generally requires the involvement of both a barrister and a solicitor. The vast majority of barristers are trained in England and are called to the Bar at one of the Inns of Court in London or are trained and qualify in Mauritius after passing the Vocational Examination. There is however now the possibility for prospective barristers to train in France, New Zealand, Canada and Australia also.
Foreign Legal Firms
In the interest of opening up Mauritius to foreign law firms and opening new legal markets to our local lawyers, the Government has amended the Law Practitioners Act to allow the formation of law corporations.
A foreign lawyer, who wishes to provide legal services within a law firm, foreign law firm or a joint law venture, may apply to the Attorney- General for registration and the right to do so.
He may provide legal services in relation to arbitration proceedings, proceedings before bodies other than Courts, for conciliation, mediation and such other forms of consensual dispute resolution as may be prescribed; or by tendering legal advice in relation to foreign law or international law.
Furthermore, a corporate entity licensed or registered as a law firm in a foreign country who wishes to register a local office in Mauritius may do so by applying to the Attorney-General, on condition that it would not provide or put itself forward as providing advice or legal services on, or in relation to, Mauritian law; and 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.
There is also the possibility for a foreign law firm and a law firm to set up a joint law venture. A joint law venture may be constituted as a limited company or a “société”.
Mauritius has established itself as a new platform for international arbitration in Africa, following passage of the enactment of the International Arbitration Act in 2008, which is based on the UNICITRAL Model Law. In 2010, pursuant to the 2009 Host Country Agreement between Mauritius and the Permanent Court of Arbitration (PCA), the PCA opened its first office outside The Hague in Mauritius. From its Mauritius office, the PCA carries out case management, promote PCA dispute resolution services in the African region, and through education and outreach builds the capacity of Mauritius as an arbitral centre.
Recently, the London Court of International Arbitration has also launched a joint venture with the Mauritian Government in creating a Mauritian International Arbitration Centre for the handling of commercial dispute in the region. These initiatives, intend to establish Mauritius as an enduring platform of excellence and reliability in the domain of International Arbitration.
Of the arbitrations administered by the PCA, many involve parties from Africa, Asia or the Indian Ocean. As arbitration of International disputes proliferates in these regions, Mauritius is perfectly placed geographically, culturally and legally.
Mauritius offers a very favourable environment for International Arbitration. The country is politically stable, with a good long tradition of democracy, good governance and profound respect for the Rule of Law. We have embarked on bold reforms to diversify and internationalise our economy. While restructuring the traditional pillars of our economy, we are consolidating new sectors such as financial services. Further, the extensive network of Double Taxation Agreements, which Mauritius have concluded with a large number of investor countries, as well as developing countries, makes Mauritius a perfect conduit for International Investment and an ideal place for the resolution of investment disputes.