This article was featured in Jus Mundi‘s 2025 Arbitration Year in Review, an annual publication analyzing arbitration developments across 40+ jurisdictions on 6 continents. This edition brings together young practitioners and senior experts to capture the year’s most significant legislative reforms, enforcement trends, and institutional innovations.
THE AUTHORS:
Alexis Merle, Founder, Merle Practice, Registrar, Mediation and Arbitration Center (Mauritius) Ltd (“MARC”)
Mauritius continues to position itself as a credible and arbitration-friendly seat for international disputes, particularly those connected to Africa-related commerce and investment. Its arbitration regime remains anchored in the International Arbitration Act 2008, a statute closely modelled on the UNCITRAL Model Law on International Commercial Arbitration 1985, and is supported by a judiciary that has regularly demonstrated deference to party autonomy, Kompetenz-Kompetenz, and the finality of arbitral awards.
The year 2025 did not bring structural legislative reform. Instead, it was marked by judicial and institutional developments. A series of Supreme Court decisions clarified the scope of court intervention in support of arbitration agreements, the consequences of defective arbitration clauses, and the treatment of enforcement and security issues at the post-award stage. In parallel, institutional innovation emerged through the launch of the MARC Mediation Rules 2025 and MARC’s Protocol on Mediation for Climate Change-Related Disputes, currently the only dedicated protocol worldwide addressing environmental disputes through mediation, situating Mauritius at the forefront of climate-conscious dispute resolution.
Anti‑Suit Injunctions and the Protection of the Parties’ Agreement to Arbitrate
SBM Africa Holdings Ltd v Khimji S [2025 SCJ 445]
In SBM Africa Holdings Ltd v Khimji S [2025 SCJ 445], the Supreme Court of Mauritius delivered one of its most authoritative pronouncements to date on the availability of anti-suit injunctions in support of international arbitration, confirming its willingness to act decisively to protect the integrity of the negative and positive obligations arising from the arbitration agreement.
The dispute arose from a share acquisition governed by a Sale and Purchase Agreement containing an LCIA-MIAC (London International Court of Arbitration – Mauritius International Arbitration Centre) arbitration clause with Mauritius as the seat. Notwithstanding this agreement, the respondent commenced anti-suit proceedings in Kenya and sought relief aimed at preventing the applicant from initiating arbitration. The applicant applied to the Supreme Court of Mauritius for an anti-suit injunction restraining the respondent from pursuing litigation in any forum in breach of the arbitration agreement.
A panel of three designated judges, constituted under section 42 of the International Arbitration Act 2008 (the “IAA”), granted the injunction. The Court restrained the respondent not only from continuing existing foreign proceedings, but also from commencing, procuring, or assisting any proceedings outside arbitration in relation to the dispute. The breadth of the relief granted underscores the Court’s view that anti-suit injunctions serve to enforce both the positive obligation to arbitrate and the negative obligation not to litigate elsewhere.
The Court’s reasoning reflects a clear presumption in favour of enforcing arbitration agreements. Relying expressly on the Aggeliki Charis Compania Maritima SA v Pagnan SPA [1995] 1 Lloyd’s Rep 87 (The Angelic Grace) and subsequent English and Privy Council authority, the Court held that where foreign proceedings are brought in breach of a valid and operative arbitration clause, an anti-suit injunction will ordinarily follow unless the respondent can demonstrate strong reasons why such relief should be refused.
The burden of persuasion thus lies squarely on the party seeking to escape the arbitral forum to which it contractually committed.
Of particular significance is the Court’s confirmation (by reference to Ust-Kamenogorsk Hydropower Plant LLP v AES Ust-Kamenogorsk) that its jurisdiction to grant anti-suit relief derives from the contractual right to arbitrate, rather than from the existence of pending arbitral proceedings. Anti-suit injunctions may therefore be granted even before arbitration has been formally commenced, provided that the arbitration agreement is valid and the relief sought is necessary to prevent its frustration.
In exercising its discretion, the Court placed considerable weight on the need to avoid parallel and duplicative proceedings, which it regarded as inherently vexatious where they undermine an agreed dispute resolution mechanism. It also emphasised the importance of promptness, noting that applicants must act before foreign proceedings have advanced to a stage where injunctive relief would risk undue interference or procedural unfairness.
The Court further rejected potential arguments based on international comity, reiterating that an anti-suit injunction is directed at the litigant rather than the foreign court and does not purport to restrain the exercise of foreign judicial authority. Finally, it ordered the respondent to pay the applicant’s costs on an indemnity basis, recognising that the application had been rendered necessary by the respondent’s breach of the arbitration agreement.
Pathological Arbitration Clauses, Parallel Proceedings, and the Limits of Tribunal Discretion
- Compagnie de Sécurité Privée et Industrielle v Flashbird Limited [2025 SCJ 471]
In Compagnie de Sécurité Privée et Industrielle v Flashbird Limited [2025 SCJ 471], the Supreme Court of Mauritius confronted the procedural consequences of a pathological arbitration clause and clarified the limits of arbitral discretion where parallel proceedings and due process concerns intersect.
The dispute arose from two successive contracts between the parties, with the second contract purporting to annul and replace the first. The arbitration clause contained in the second contract referred ambiguously to the “Mauritius Chamber of Commerce” while providing that disputes were to be resolved under the ICC Rules. This hybrid formulation failed to identify a single arbitral institution with sufficient clarity and ultimately facilitated the commencement of parallel arbitrations before the Mauritius Mediation and Arbitration Center (“MARC”) and the International Chamber of Commerce.
Compagnie de Sécurité Privée et Industrielle commenced arbitration before MARC, seeking rescission of the second contract. The MARC tribunal declared the second contract void ab initio under Malagasy law, with retroactive effect, an award subsequently upheld by both the Supreme Court and the Judicial Committee of the Privy Council. Notwithstanding this and in parallel, Flashbird pursued ICC arbitration under the same clause, initially advancing claims on the basis of the first contract.
The arbitral tribunal in the ICC arbitration, in its award, granted damages on the basis of the second contract, notwithstanding its prior rescission by the MARC tribunal, and did so without inviting submissions from the parties on this decisive legal shift. The result was the coexistence of two irreconcilable arbitral awards addressing overlapping factual and legal issues.
The Supreme Court of Mauritius set aside the ICC award pursuant to sections 39(2)(a)(ii), 39(2)(a)(iii), and 39(2)(b)(iv) of the International Arbitration Act 2008, holding that the arbitral tribunal had both exceeded its mandate and violated fundamental principles of natural justice. The Court reaffirmed that while arbitral tribunals enjoy wide procedural discretion, that discretion is not unbounded. A tribunal may not decide a dispute on a legal or factual basis not advanced by the parties without affording them a reasonable opportunity to be heard.
Of particular significance is the Court’s treatment of the risk of conflicting arbitral awards. While the Court stopped short of articulating a freestanding doctrine of res judicata between arbitral proceedings conducted under competing institutional frameworks, its reasoning may reflect an implicit concern with preserving the systemic coherence of arbitral justice, even in the absence of express statutory guidance on parallel proceedings.
The decision also underscores the central role of arbitration clause drafting in managing jurisdictional risk. The Court’s intervention was not driven by institutional preference but by procedural failure: ambiguity in the arbitration agreement created a vacuum in which parallel proceedings became possible, and the tribunal’s failure to observe basic due process principles ultimately proved fatal to the award.
Viewed in its broader context, the Flashbird case stands as a cautionary illustration of how defective arbitration clauses can erode the very efficiencies arbitration is intended to deliver. It simultaneously confirms that Mauritian courts will intervene decisively (but only exceptionally) where procedural irregularities strike at the core of arbitral legitimacy.
Enforcement, Security, and Appeals to the Privy Council
- Laporte E.G.L v Laporte M.A.R [2025 SCJ 35]
In Laporte E.G.L v Laporte M.A.R [2025 SCJ 35], the Supreme Court of Mauritius delivered a decision of particular importance for post-award strategy and enforcement risk management in international arbitration. The judgment clarifies both the scope of Article VI of the New York Convention (1958) (“Convention”) and the Court’s powers to order security for costs in arbitration-related appeals to the Judicial Committee of the Privy Council (“JCPC”).
Following a MARC arbitral award rendered in Mauritius, the respondent unsuccessfully applied to set aside the award and subsequently appealed to the JCPC. Although the appeal had the practical effect of suspending enforcement proceedings in Mauritius, the respondent resisted the provision of security, arguing that Article VI of the Convention was only engaged where a party formally applies for an adjournment of enforcement.
The Supreme Court rejected that restrictive construction. Emphasising the functional purpose of Article VI, the Court held that it retains a broad discretion to order “suitable security” whenever enforcement is effectively delayed by set-aside or appellate proceedings, irrespective of the procedural route by which that delay arises. In doing so, the Court confirmed that Article VI is not a technical or formalistic provision, but a protective mechanism designed to balance the award debtor’s right to pursue recourse with the award creditor’s right to effective enforcement.
The Court ordered the respondent to provide security by way of a bank guarantee for the full amount of the award, signalling a clear preference for security that offers genuine and immediate protection against asset dissipation. This approach aligns Mauritius with pro-enforcement jurisdictions that interpret Article VI as empowering courts to neutralise dilatory tactics and to preserve the economic value of the award pending the outcome of appellate proceedings.
The decision is equally significant in its treatment of security for costs. The Court held that the International Arbitration Act 2008 and the Supreme Court (International Arbitration Claims) Rules 2013 constitute lex specialis in arbitration matters and therefore prevail over the general regime governing appeals to the JCPC. Rule 30 of the 2013 Rules was interpreted as conferring an express and autonomous power to order security for costs in arbitration-related appeals, reflecting the realities and expense of international arbitration litigation before the JCPC.
This decision provides valuable guidance on the interaction between enforcement, appeals, and security, and confirms Mauritius’ position as a jurisdiction that combines respect for due process with a decidedly enforcement-oriented approach.
Institutional Developments: Climate-Conscious Dispute Resolution in Comparative Perspective
- MARC Mediation Rules 2025 and its Protocol on Climate-Change related Disputes
A significant institutional development in Mauritius in 2025 was the launch by the MARC of a Protocol on Mediation for Climate Change-Related Disputes, accompanied by the revised MARC Mediation Rules 2025. These initiatives position Mauritius at the forefront of procedural innovation in environmentally conscious dispute resolution. The adoption of the Protocol for Climate Change-Related Disputes is currently the only such framework in the world and distinguishes Mauritius within an otherwise limited international landscape, signalling a proactive effort to adapt dispute resolution processes to the distinctive procedural and stakeholder complexities of climate and sustainability related disputes.
At the international level, comparable efforts have included the work of the ICC Commission on Arbitration and ADR Task Force on Climate Change, as well as the Permanent Court of Arbitration’s Environmental Rules, both of which recognise that climate-related disputes often transcend traditional bilateral commercial models. Such disputes frequently involve public-interest considerations, scientific and technical complexity, regulatory overlay, and multiple stakeholders with diverging interests. Against this backdrop, MARC’s Climate Change Protocol adopts a procedural approach rather than a substantive redefinition of rights and obligations.
The Protocol encourages procedural adaptations tailored to the characteristics of climate-related disputes, including the use of co-mediation as a default design, combining legal expertise with scientific, environmental, or community-based competence; calibrated approaches to confidentiality to facilitate appropriate information-sharing; and mechanisms to encourage inclusive stakeholder participation. In doing so, it resonates with international discussions emphasising the need for dispute resolution frameworks capable of managing multi-party dynamics and long-term relational interests, while remaining compatible with fundamental principles of neutrality and party autonomy.
Notably, the Climate-Change Protocol does not impose substantive environmental standards or outcomes. Its normative significance lies instead in treating procedure as an instrument of sustainability, promoting digital engagement, reducing unnecessary travel, and encouraging early and structured dialogue. In this respect, it parallels broader international initiatives seeking to reduce the environmental footprint of dispute resolution processes, while preserving procedural fairness and efficiency.
The revised MARC Mediation Rules 2025 provide the procedural foundation within which the Climate Change Protocol operates. The Rules modernise mediation practice through clearer provisions on scope, commencement, and termination; enhanced disclosure obligations, including in relation to third-party funding; express recognition of technology-assisted mediation; and a transparent, revised schedule of costs, including targeted reductions for SMEs. Together, the Rules and the Protocol reflect an institutional willingness to engage with evolving categories of disputes and to experiment with procedural innovation in a manner consistent with internationally recognised ADR standards.
Discover more insights into the latest developments in arbitration in 2025 from around the world now
ABOUT THE AUTHORS
Alexis Merle is a practising Barrister-at-Law admitted to the Bar of Mauritius and to the Bar of England and Wales. He is a Member of the Honourable Society of Gray’s Inn, the Chartered Institute of Arbitrators (“CIArb”), and the Young International Council for Commercial Arbitration (“ICCA”). He completed a Licence en Droit at Université Toulouse 1 Capitole (France), followed by an LL.M in International and Comparative Law at Trinity College Dublin (Ireland), a Graduate Diploma in Law from BPP Law School, Bristol, (UK) and the Bar Professional Training Course at The City Law School, University of London (UK). Alexis is the Founder of Merle Practice, a private law practice in Mauritius focusing on civil and commercial matters, encompassing both litigation and advisory work. Since September 2021, Alexis has also served as Registrar of the Mediation and Arbitration Center (Mauritius) Ltd (“MARC”), where he oversees the administration of arbitration and mediation proceedings under the MARC Rules.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
