Redressing the Balance: LCIA-MIAC and International Dispute Resolution in Africa

1. 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

2. 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 LCIA- MIAC Arbitration Centre 2012: LCIA-MIAC becomes fully operational and adopts Arbitration and Mediation Rules

3. 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

4. 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

5. 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

6. 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

7. 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 CheminGrenier Industries Ltd (2013 SCJ 279) • Separability of arbitration agreement reinforced

8. 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

9. 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

10. 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

11. www.lcia-miac.org(+230) 467 3030 Duncan Bagshaw Registrar, LCIA-MIAC Arbitration Centre ALN Annual Conference, Mauritius, 22 November 2013

12. APPENDIX 1 • LiberalisLimited 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?

13. 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.

14. APPENDIX 3 • Pieter Both Property Development Ltd v CheminGrenier 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.