1. What are the applicable legal frameworks relating to the recognition and enforcement of foreign court judgments?

Mauritian general law governs the enforcement of foreign judgments through a specific procedure called exequatur, the legal basis of which is Article 546 of the Code de Procedure Civile. Once a judgment is granted exequatur, it may be enforced in Mauritius in the same way as a Mauritian judgment. Exequatur can only be availed of if the foreign judgment is final and has not been appealed against.  Otherwise, there are specific statutory provisions regarding the enforcement of
UK judgments that are contained in the Reciprocal Enforcement of Judgment Act 1923 (REJA). This procedure is only available for money judgments rendered by superior courts in the United Kingdom. However, the Supreme Court of Mauritius has held in the case of Dallah Albaraka (Ireland) Ltd v. Pentasoft Technologies Ltd & Anor [2012] SCJ 463 that a judgment creditor seeking to register and enforce a UK judgment can also avail him or herself of the procedure of exequatur under the Code de Procedure Civile.

What are the main international treaties or conventions that apply?

Mauritius is not a party to any international convention, treaty or arrangement in respect of the recognition and enforcement of foreign judgments.

What legal principles apply if there is no applicable international treaty or convention?

The Code de Procedure Civile does not set out the conditions that are to be fulfilled for an application for exequatur to be granted. The test which is applied by the court to determine whether a foreign judgment may be granted exequatur was set out in the landmark case of D’Arifat v. Lesueur [1949] MR 191. Any final judgment or order obtained in a foreign court would be enforceable in Mauritius without re-examination of the merits of the case provided certain conditions (see Question 2, below) are met. Exequatur is applicable to any type of relief. On the other hand, enforcement under the REJA is relevant only to money judgments delivered by
superior courts in the United Kingdom.

2. What are the principal requirements for a judgment to be recognised and enforced and what are the key defences?

The test which is applied by the court to determine whether a foreign judgment may be granted exequatur was set out in the case of D’Arifat v. Lesueur [1949] MR 191. Any final judgment or order obtained in a foreign court would be enforceable in Mauritius without re-examination of the merits of the case, provided that:

• the foreign judgment is still valid and capable of execution in the country where it was delivered;
• it is not contrary to any principle affecting public order in Mauritius;
• the defendant was summoned to attend the proceedings in accordance with the prescribed procedure; and
• the court which delivered the judgment had jurisdiction to determine the
  matter.

A foreign judgment will not be enforceable in the following cases:

• where it has not been given on the merits of the case;
• where it has been obtained by fraud; or
• where it appears on the face of the proceedings to be grounded on an incorrect view of international law or a refusal to recognise the law of Mauritius where such law is applicable.

Recognition and enforcement by way of exequatur is not prescribed by any limitation period, provided that the foreign judgment is still valid and capable of execution in the country where it was delivered. It is therefore advisable, at the time of lodging exequatur proceedings in Mauritius, to include evidence that the foreign judgment is still valid and enforceable in the country of origin. It is customary to include the opinion or affidavit of a lawyer qualified to practice in the country where the judgment was delivered, confirming that the judgment is still capable of execution. For a judgment creditor seeking to enforce a foreign judgment under the REJA, that is where a monetary judgment is delivered by a superior court in the United Kingdom, a judgment creditor may apply to the Supreme Court of Mauritius within 12 months of the date of the foreign judgment. However, the Supreme Court has the discretion to allow a longer period and will generally do so. The application must be made ex parte or by summons to a judge and is supported by an affidavit enclosing an authenticated copy of the foreign judgment.

3. What are the applicable legal principles relating to the recognition and enforcement of arbitration awards made in foreign states and what are the defences?

The recognition and enforcement of foreign arbitration awards in Mauritius is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (“New York Convention”), which has been incorporated in our domestic laws through the Convention on the Recognition and Enforcement of Foreign Arbitral Award Act 2001 (“Foreign Arbitral Award Act”). Our jurisdiction follows the legal principles laid out in the New York Convention and the practical aspects of enforcement are covered by the International Arbitration Act 2008 (IAA) and the rules thereunder, that is, the Supreme Court (International Arbitration Claims) Rules 2013 (“IAA Rules”).

4. What are the practicalities of the process for recognising and/or enforcing a foreign judgment or arbitration award?

Foreign judgment

To enforce a foreign judgment in Mauritius, a judgment creditor must file a motion paper supported by an affidavit before the Supreme Court of Mauritius, requesting an order making executory the judgment delivered in another jurisdiction. This affidavit must include a duly authenticated copy of the foreign judgment and evidence of its finality and non-appeal status. It shall also be accompanied by a legal opinion delivered on the laws of the foreign country, confirming:

• that the judgment is still valid and capable of execution in that country (including any limitation period for execution under the laws of that country);
• that the laws of the foreign country have been complied with regarding the method of service of the court proceedings; and
• that the foreign court had jurisdiction to determine the dispute, together with the legal basis for such jurisdiction. The legal opinion is required because, under Mauritian law, foreign law is a matter of fact which must be proved through legal expertise.

The Supreme Court typically sets a maximum two-month deadline for the respondent to contest the application. If no challenge is made, the judgment will be registered and declared executory. If the enforcement application is challenged, it will typically take two to six months for such an application to be heard, following which we can expect judgment to be delivered in the next three to six months. It should be noted that if the respondent is a foreign entity, leave must be sought from the courts in Mauritius before the exequatur proceedings can be lodged and served on the respondent outside jurisdiction. Court fees do not exceed USD 100.

Arbitral award

An application for the enforcement of an arbitral award shall be made under the Foreign Arbitral Awards Act and the IAA Rules. The enforcement claim is initially made without notice to any respondent. The written evidence filed in support of an enforcement claim shall:

• exhibit the documents required by Article IV of the New York Convention;
• state the name and the usual or last known place of residence or business
  of the applicant and of the person against whom it is sought to enforce the
  award;
• state either:
  • that the award has not been complied with; or
  • the extent to which it has not been complied with at the date of the
    application; and
• attach a proposed draft order granting recognition of the award and, where
  appropriate, authorising the enforcement of the award in the same manner as
  a judgment of the court and containing a statement of:
  • the right to make an application to set the order aside; and
  • the restrictions on enforcement

Upon receipt of an enforcement claim, the Chief Justice shall verify compliance with the IAA Rules and issue a provisional order granting recognition of the award or authorising the enforcement of the award in the same manner as a judgment of the court, in the terms requested by the applicant or in such amended terms as are necessary. Within 14 days after receipt of the said provisional order, the applicant shall cause the enforcement claim motion and the provisional order to be served on the respondent and on any additional party, where applicable. Within 14 days after service of the enforcement claim motion and of the provisional order upon him or her, or, if the enforcement claim motion and the provisional order are to be served out of the jurisdiction, within such other period as may be specified in the order, a respondent may apply to set aside the
provisional order.

The award shall not be enforced until after:

• the end of the period referred to above; or
• any application made by the respondent within that period has been finally
  disposed of.

If there is an application to set aside the enforcement claim, it will be heard by the Designated Judges of the Supreme Court. The fee payable for starting any arbitration claim under the IAA Rules is MUR 10,000 (i.e. approximately USD 250). Enforcement of arbitral award claims is usually determined within a year of the lodging of the claim.

5. What rights are there to appeal against a decision on recognition/ enforcement and do appeals prevent enforcement?

It is possible to appeal a decision recognising or enforcing a foreign judgment in Mauritius, within 21 days of the decision. The notice of appeal containing the grounds of appeal must be filed and served on the respondent(s) within that 21-day period. The effect of the appeal of the judgment will be a stay on the execution of the judgment.

6. What measures are available to obtain information about a judgment debtor’s assets (in the context of the enforcement of a foreign judgment or award) and what are the sanctions for non- compliance?

It is important to note that the Supreme Court of Mauritius is also a court of equity and has the powers to grant equitable remedies. Furthermore, section 17 of the Courts Act provides that the judges sit and proceed to conduct, and carry on business in the same manner as the High Court of Justice in England and its judges. In that respect, the Supreme Court is vested with wide powers not only to issue interim orders such as Mareva injunction orders but also asset disclosure orders, and — less frequently — Anton Piller orders (which are search and seizure orders). The judgment of Stanford Asset Holdings v. AfrAsia Bank [2023] UKPC 35 delivered by the Judicial Committee of the Privy Council confirmed that the Supreme Court of Mauritius possesses equitable jurisdiction to grant Norwich Pharmacal orders, whether as a standalone order or ancillary to a freezing order.
The court has the powers to order a party to disclose a list of all assets it owns, whether in Mauritius or abroad, coupled with a freezing injunction order — as has been held in Appavoo v. Buttie [2016] SCJ 118 and Barclays Bank Mauritius v. Karamuth [2017] SCJ 313. Non-compliance with court orders in general, let alone disclosure orders, constitutes contempt of court for which sanctions include imprisonment and fines. In addition to court procedures, it is possible to conduct searches at the office of the Conservator of Mortgages to identify any immovable property owned by the judgment debtor in Mauritius and any related charges on the said immovable property. It is also possible to inspect company files of domestic companies by seeking the permission of the Registrar of Companies. These filings are publicly available upon the payment of a fee.

7. What interim measures are available to preserve assets pending enforcement and what are the territorial limits of these measures?

As stated above, the courts have the power to issue interim measures, including freezing orders, to prevent judgment debtors from dissipating assets. Certain criteria must, however, be satisfied, such as the judgment creditor having a good arguable case, that the debtor possesses assets within the jurisdiction, and that there is a real risk of those assets being dissipated.

8. Once a foreign judgment or award has been recognised, what procedures are available for enforcement against the following types of assets?

Bank accounts

Judgment creditors can apply for a saisie-arret (attachment order) which will allow the creditor to freeze and ultimately recover a debt from a debtor’s bank account. The application for attachment is a two-step procedure made by way of praecipe and affidavit before the judge in chambers. The court will issue a provisional order for attachment, which must be served on the respondent and the bank. Upon service, the bank is legally forbidden from disposing of the attached funds up to the specified amount. The bank must then, within eight days, deliver a declaration in writing specifying the amount held for the debtor and any prior attachments.

Shares

Shares are considered to be movable properties under Mauritian law. Please see below for movable properties.

Debts due to the judgment debtor from third parties.

A judgment obtained can be enforced by attaching the assets of the judgment debtor that are in the hands of a third party (the garnishee). The application for attachment is a two-step procedure made by way of praecipe and affidavit before the judge in chambers. The court will issue a provisional order for attachment, which must be served on the respondent and the garnishee. The application for validation of the attachment must then be lodged and served within eight days. The garnishee then needs to file an affidavit confirming the amount that is owed to the judgment debtor. This is known as an affirmative declaration, further to which the attachment is validated.
In the event the garnishee states that it is not indebted to the judgment debtor or that he owes less than the amount of the judgment debt, the judge in chambers will need to determine the matter and decide whether or not to validate the attachment.

Real estate

Judgment creditors can proceed with the seizure of immovable properties owned by the judgment debtor. The seizure of immovable property is preceded by a notice that is served on the judgment debtor in person, at least ten days earlier. In the notice, the judgment creditor who elects domicile at the office of an attorney, where all acts in connection with the proceedings must be served, will notify the judgment debtor that, on failure to pay the amount of the judgment debt, his or
her immovable property will be seized. Once the writ of execution is issued, it is executed by a registered usher, who seizes the immovable property belonging to the judgment debtor.
After the seizure is effected, the procedure under the Sale of Immovable Property Act 1864 must be followed for the purposes of realisation. The application for sale is heard before the Master and Registrar of the Supreme Court regardless of the value of the property and notice of it is given to the debtor and invited creditors. The sale of the immovable property is done by public auction before the Master and Registrar of the Supreme Court of Mauritius.

Movable property

Once the Supreme Court recognises a foreign judgment or award, the judgment creditor can apply to the Master and Registrar of the Supreme Court for a writ of execution. At the request of the judgment creditor, the Master and Registrar must issue a warrant of execution against movable properties, under the seal of the court. The writ is then executed by a registered usher without any other formality.

9. Will the court allow enforcement against assets that are beneficially owned by the judgment debtor but are not legally owned or registered in its name?

Enforcement against assets that are beneficially owned by the judgment debtor is possible, but it is a complex process as the legal principle of separate corporate personality needs to be overcome. For a jurisdiction like Mauritius, this usually implies international enforcement, which adds layers
of complexity.

10. Will the court allow enforcement against assets that are jointly owned by the judgment debtor and a third party?

Enforcement against assets that are jointly owned by the judgment debtor and a third party is possible but is not straightforward like in most jurisdictions. Enforcement will usually be restricted to the judgment debtor’s undivided rights in the property only. The same principles mentioned under Question 8, above, will apply.