Transcript International Arbitration: Relevant, Efficient Dispute

Redressing the Balance:
LCIA-MIAC and International Dispute
Resolution in Africa
Duncan Bagshaw
Registrar, LCIA-MIAC Arbitration Centre
ALN Annual Conference, Mauritius, 22 November 2013
Introduction
• Mauritius: committed to global-standard dispute
resolution
• History:
1996:
Signed New York Convention
2001:
Enforcement of Foreign Arbitral Awards Act
2008:
International Arbitration Act 2008
2009:
Permanent Representative of the Permanent Court of Arbitration
2011:
Agreement Government of Mauritius & LCIA establishes LCIAMIAC Arbitration Centre
2012:
LCIA-MIAC becomes fully operational and adopts Arbitration and
Mediation Rules
LCIA-MIAC Arbitration Centre
• Independent arbitral institution
• Established and run with support of LCIA
– tried-and-tested procedures
– same service standards
– Logistical support from LCIA
• Arbitrators: Access to LCIA database plus LCIA-MIAC database
• LCIA Court performs identical functions for LCIA-MIAC as for the
LCIA
• Bilingual English and French
• Based in a stable, convenient jurisdiction with top-level ancillary
services
International Arbitration Act 2008:
A summary
• UNCITRAL Model Law-based
• The spirit of the Act
• Negative competence-competence reinforced
• Role of the PCA
• Three-judge panel of Supreme Court
• International Lawyers can act in arbitrations
The Journey Continues…
• Amendments to the IAA
– Single Judge hears first application for urgent relief
– Company Arbitration provisions clarified
– Confidentiality
– Post set-aside provisions
• Other improvements:
– Removal of Reciprocity Reservation
– French an official language
– Designated Judges
New Supreme Court Rules
• CPR-style
• Rapid timetable to hearing
• Presumption against oral evidence
• Costs (assessed according to expenditure)
follow the event
• Hearings listed according to party time estimates
• Procedure for enforcement applications
Developing Jurisprudence
• Liberalis Limited v Golf Development Intl Ltd
(2013 SCJ 211, SCR No. 107600)
– Jurisdictional challenges
• Barnwell Enterprises Ltd & ors v ECP Africa FII
Investments LLC 2013 SCJ 327
– Injunctions and limits on court powers
• Pieter Both Property Development Ltd v Chemin
Grenier Industries Ltd (2013 SCJ 279)
– Separability of arbitration agreement reinforced
The future?
• Are foreign parties waking up?
• A move away from Fishing-Boat investment and
trade?
• Enlightened attitude to African dispute
resolution?
• Broadening of potential venues for ADR
The future?
BUT…
• Foreign perceptions (US, Europe, India, China)
of African legal systems remain negative, often
unfairly
• African jurisdictions need to build credibility
• Not all attempts to modernise are attractive
Moving Forward
Challenging the established order:
• Improve legislation and procedures
• Address negative attitudes to arbitration
• Raise awareness of facilities, supportive laws
and court decisions in African jurisdictions
• Build specialisation and expertise in major
economic centres
www.lcia-miac.org
(+230) 467 3030
Duncan Bagshaw
Registrar, LCIA-MIAC Arbitration Centre
ALN Annual Conference, Mauritius, 22 November 2013
APPENDIX 1
• Liberalis Limited v Golf Development Intl Ltd (2013 SCJ 211, SCR
No. 107600)
- Ad Hoc arbitration seated in Mauritius arising out of an international
property development deal.
- Jurisdiction challenged on the grounds that the arbitration
agreement was not binding because it was signed whilst a party was
in liquidation. Arbitrator decision: I have jurisdiction.
- Application to Court under section 20: Court reconsiders jurisdiction
and decides arbitrator was correct
- Note Court’s approach: Not an appeal, but noting the arbitrator’s
decision on the facts.
- Quaere: Necessary for the court to rehear factual evidence when
reconsidering jurisdiction? Even if not asked to do so?
APPENDIX 2
• Barnwell Enterprises Ltd & ors v ECP Africa FII Investments LLC
2013 SCJ 327
- Ad Hoc arbitration seated in Mauritius arising out of an international
M&A contract for purchase of a construction company.
- Injunction sought to prevent exercise of a Put Option under the
shareholders’ agreement.
- Supreme Court (first instance): temporary order granted.
- Supreme Court (return date): order discharged. Section 23 IAA;
Court should only act to the extent that the tribunal does not have
the power to act effectively.
- Note Court’s approach: balancing “holding the ring” against the
approach required under the Act.
APPENDIX 3
• Pieter Both Property Development Ltd v Chemin Grenier Industries
Ltd (2013 SCJ 279)
- Contract between Mauritian parties included arbitration clause
- Hence domestic arbitration law applies
- Application to refer proceedings to arbitration resisted on the
grounds that the contract never came into effect due to an unfulfilled
condition.
- Supreme Court: The Separability principle applies in Mauritian law
generally. French caselaw cited.
- The arbitration clause can therefore be binding separately from the
contract even if the contract is not effective as a whole.
- Case therefore referred to arbitration.