In a judgment delivered on 06 November 2023 (OGD Services Holdings Ltd v Norscot Rig Management Pvt Limited (Mauritius), the Supreme Court of Mauritius affirmed, among other principles, that the enforcement of arbitration awards under the New York Convention and the International Arbitration Act 2008 is subject to a stand-alone procedural regime. The Court held that an enforcement claim is not required to comply with the procedural rules that apply in other civil matters, such as the procedural requirements under the Deposit of Powers of Attorney Act. The judgment was given in favour of the award creditor, represented by Orison Legal (Bilshan Nursimulu, Rajesh Bucktowonsing SA and Keseven Nair).
The case concerned a London-seated arbitration between two offshore companies incorporated in Mauritius. The arbitration was administered by the ICC. The arbitral tribunal determined the dispute in favour of Norscot Rig Management Pvt Limited (“Norscot”). On the issue of costs, the arbitral tribunal found that the conduct of the losing party (“OGD”) in the arbitration was unreasonable and out of norm so as to justify an award of legal costs assessed on an indemnity basis, including the costs that Norscot had to pay to a third-party litigation funder. OGD unsuccessfully challenged that award before the English High Court. Subsequently, it opposed the recognition and enforcement of the final award in Mauritius, which the Supreme Court rejected in the judgment under consideration.
The stand-alone procedural regime for international arbitration matters
Norscot’s enforcement claim was supported by a witness statement signed by one of its directors. That director stated therein that he was duly authorised by the Board of directors of Norscot to give evidence on its behalf and to that effect, he annexed a copy of the Board resolution in which the authorisation was given. OGD argued that under Mauritius law, to the extent that the Board resolution was made outside of Mauritius, it had to be deposited before a public notary and filed in the registry of the Supreme Court before Norscot could rely on it. Norscot did not consider that this procedure was applicable in an enforcement matter but adopted it nevertheless out of an abundance of caution. However, OGD argued that Norscot failed to adduce evidence to establish that the person who deposited the Board resolution on behalf of Norscot was properly mandated to do so and that the Board resolution was passed in conformity with Norscot’s constitution.
The Supreme Court refused to entertain OGD’s arguments and instead agreed with Norscot’s submission that the only procedural rules that apply to an enforcement claim are those set out in the Supreme Court (International Arbitration Claims) Rules 2013 (the “2013 Rules”). The Court referred to rule 15 of the 2013 Rules and Article IV of the New York Convention, which comprehensively list out the evidence to be provided in an enforcement claim. The Court held that these are the only documents that need to be verified by the Chief Justice before issuing a provisional order of recognition and enforcement under the 2013 Rules. It further held that compliance with the Deposit of Powers of Attorney Act was not required for an enforcement claim.
The Court’s decision is in line with section 2C(2)(b) of the International Arbitration Act 2008, which provides that the 2013 Rules should be read as a comprehensive and stand-alone procedural code. The intention of the Mauritius legislator in that respect was to ensure that user-friendly rules are adopted and promulgated for international arbitration matters, which rules are meant to be readily understandable and usable both by Mauritian practitioners and foreign users of the Mauritian international arbitration regime, and therefore completely disconnected from domestic court practice and procedure. For example, the 2013 Rules make allowance for the filing of evidence by way of signed witness statements with minimal formality rather than by way of sworn affidavits and set out strict time limits for the exchange of pleadings and evidence in arbitration-related court proceedings.
- Parallel enforcement proceedings – OGD also argued that Norscot was debarred from seeking the enforcement of the final award in Mauritius pending parallel enforcement proceedings in other jurisdictions. The Court rejected that argument and referred to the well-established principle that the New York Convention should not be construed as limiting the forums in which a party may seek to enforce an award in its favour but should instead be read to facilitate the maximum enforceability of awards in all available forums.
- Jurisdiction to award litigation funding costs – Regarding OGD’s contention that the arbitral tribunal lacked jurisdiction to award the costs of litigation funding, the Supreme Court reiterated the position that it previously held in Cruz City 1 Mauritius Holdings v Unitech Limited to the effect that it would not normally re-verify the issue of jurisdiction where it has been considered and rejected by the supervisory court unless in presence of exceptional circumstances. The Supreme Court observed that the English High Court had already verified and confirmed the arbitral tribunal’s determination of his jurisdiction to award litigation funding costs and that OGD did not put forward any exceptional circumstances to justify its re-verification of the jurisdictional objection.
- Public policy exception – The Supreme Court also rejected OGD’s attempt to invoke the public policy exception to oppose the enforcement of the final award. The Court observed that OGD did not state with precision which public policy of Mauritius the award allegedly contravened and instead cast the net wide by referring to various issues concerning the validity and enforceability of the litigation funding agreement, which is governed by English law. In that respect, the Court’s observation is consistent with the principle that it laid down in Cruz City 1 that an award debtor has to show with precision and clarity in what way and to what extent enforcement of the award would have an adverse bearing on a particular international public policy of Mauritius and that a specific public policy must be identified and established by a party relying on it. As regards the parameters within which the public policy exception is to be considered, the Supreme Court referred to the judgment that the Judicial Committee of the Privy Council delivered on this issue in Betamax Ltd v State Trading Corporation, highlighting that the public policy exception does not generally allow the re-opening of an issue, whether of fact or law, that fell within the jurisdiction of the arbitral tribunal and which it determined in the award.
  SCJ 455
 Essar Oilfields Services Limited v Norscot Rig Management Pvt Limited  EWHC 2361 (Comm)
 Salim A. H. Moollan, ‘A brief introduction to the Mauritian International Arbitration Act 2008’, The Mauritian International Arbitration Act 2008 Text and Materials (Updated 2016 Edition)
 Gary B.Born, International Arbitration: Law and Practice (Second Edition), §17.06
  SCJ 100
  UKPC 14