Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 174

AFRICA SPECIAL ISSUE
D. Is the remedy of winding-up arbitrable?
For obvious public policy reasons (which are dealt with in more detail below),
the remedy of winding-up is not arbitrable; it is a remedy that is exclusively
within the jurisdiction of national courts across the globe. Under Mauritius law,
the " Court " with jurisdiction to make a winding-up order under the Mauritius
Insolvency Act is the " Bankruptcy Division of the Supreme Court " . Similarly, the
jurisdiction of the Bankruptcy Court to set aside a statutory demand can only be
exclusive for the same reason. The use of the term " may " in S.101(1) and S.181(4)
does not, in the author's view, mean that there are other routes to wind-up a
Mauritius company or set aside a statutory demand issued against a Mauritius
company, but is simply an acknowledgement of the discretion of the Bankruptcy
Court to not make a winding-up order or not set aside the statutory demand,
even when one of the grounds relied on to seek the remedy is proved. While
the non-arbitrability of the remedy of winding-up or setting aside of a statutory
demand poses no great difficulty, the arbitrability of the grounds relied on to seek
such remedies has been the subject of much debate and disagreement among the
national courts of common law jurisdictions.
E. Which forum decides on the grounds
for winding-up and to what standard?
When a court with jurisdiction to order the winding-up of a company is
asked to refer the decision on the merits of the insolvency ground to international
arbitration under S.5 of the Mauritius IAA, this raises the question of whether the
court seized has jurisdiction, or potentially exclusive jurisdiction, to decide on
the merits of that ground and hence, whether the insolvency ground relied on
is arbitrable. The Mauritius courts have yet to consider these questions in the
context of international arbitration and it remains to be seen, which of the English,
Singapore, Hong Kong or BVI approach, the Mauritius courts are likely to follow
when the point is taken before them.
(1) English Law: a pro-arbitration approach which bypasses
arbitration law
In a non-insolvency context, the position of the English courts was summarised
by the Court of Appeal in Sadruddin Hashwani, Zaver Petroleum Corporation
Limited, Ocean Pakistan Limited v OMV Maurice Energy Limited [2015] EWCA
Civ 1171, which considered positively the appeal judgment of Al Naimi v. Islamic
Press Agency [2000] 1 Lloyd's Rep. 522 and applied the judgment of the High
Court in Albon v. Naza Motor Trading [2007] EWHC 2613. A court can only
stay its proceedings under S.9 of the English AA, if it is satisfied that (i) there
is an arbitration agreement, and (ii) the subject matter of the proceedings falls
within it. If these two conditions are met, then the court must refer the matter to
448
The Paris Journal of International Arbitration 2023‑2
Revue - Les Cahiers de l'Arbitrage N°2 - 2023

Table des matières de la publication Revue - Les Cahiers de l'Arbitrage N°2 - 2023
