The MCCI Arbitration and Mediation Center (MARC) is pleased to host the first edition of the Mauritius Arbitration Week, from 21 to 25 May 2018, a week marked by a series of events, presentations and discussions on hot topics by leading practitioners. The week was launched yesterday by Mr Neil Kaplan QC, President of the MARC Court.
During the conference, MARC unveiled its innovative new arbitration rules. The new rules “reflect best international practice” and include a “comprehensive tool kit of tried and tested provisions as well as innovative provisions,” according to Cheng-Yee Khong, member of the MARC Court, introducing them at the conference in Port Louis yesterday. She chaired the Rules Drafting Committee together with Jamsheed Peeroo and Jalal El Ahdab, both members of the MARC Advisory Board.
The e-version of the New Rules is available here.
The aim of the new MARC Arbitration Rules is to facilitate the conduct of arbitrations as swiftly as possible with a view to minimising time and costs.
In the spirit of the Mauritius Convention that applies to investment treaty arbitration, they also provide for greater transparency in the commercial cases that MARC administers.
They include a suggested clause referring disputes to MARC arbitration, with options to select Mauritian law and the island’s capital as seat. If parties desire, they can also specify in the clause their preferred number of arbitrators and the language of proceedings.
There’s also an emergency arbitrator procedure – that provides for an arbitrator to be appointed to within 24 hours and decide any application for urgent interim or conservatory relief that cannot wait for the constitution of a tribunal within 14 days. In addition, for small claims for less than 25 million Mauritian rupees, parties can opt for an expedited procedure lasting six months. And there’s a procedure for the summary dismissal of claims or defences. Both of these are only applicable where the arbitration agreement is entered after 21 May 2018, the date on which the new rules come into effect.
Further articles provide for jurisdictional objections that can be raised to be decided prima facie by the MARC Court if raised prior to the tribunal’s constitution and otherwise by the tribunal itself, and allow joinder and consolidation of claims.
The rules require more information at the commencement of the arbitration than previously, to ensure efficiency and allow parties a free choice of arbitrators, without restricting the to a list. A special mechanism is provided for the appointment of three-member arbitral tribunals in cases with multiple claimants or respondents.
Striking and innovative opt-in provisions provide for the blind appointment of arbitrators so they do not know which party picked them and for parties to agree to only produce documents that they intend to rely on in their pleadings, subject to the tribunal’s power to order production of additional documents in exception circumstances.
A special procedure is offered for claims involving more than one arbitration agreement and direction provided for early disclosure on third party funded cases.
The rules state that unless otherwise agreed, tribunals may adopt any procedure they see fit to avoid unnecessary delay or expense, having regard to the complexity of the issues and amount in dispute, and provided that the procedure ensures equal treatment of parties and allows them a reasonable opportunity to present their case. It also includes a requirement that the tribunal and parties “do everything necessary to ensure the fair and efficient conduct of the arbitration”.
In line with this, tribunals have a new power to exclude new legal counsel from a case if their appointment may result in or potentially result in a conflict of interest.
Of and innovative interest, arbitrators have absolute discretion to state reasons in awards as succinctly as possible without any need to re-state the procedural history or the parties’ submissions save to the extent necessary for its reasons.
Parties can request correction or interpretation of awards or additional award – and, as another opt-in, can agree to the appeal of the award on points of law only.
These rules will shortly be translated into French.