Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 181

NUMÉRO SPÉCIAL AFRIQUE
must therefore always refer the question of whether the matter must be referred
to arbitration, to the Specially Constituted Court first. This process seeks to give
comfort to parties, particularly foreign parties, that the bench deciding on the
referral has the required specialist knowledge to decide on questions of validity
of arbitration agreements and arbitrability. Once the Specially Constituted Court
is seized of the request to refer the matter to arbitration, it is only if the applicant
is able to meet the very high threshold on a prima facie basis, that it will itself
proceed to consider fully the question of the nullity of the arbitration agreement to
make the Nullity Decision. The travaux préparatoires explain that this mechanism
is meant to ensure that the parties will be referred to international arbitration,
save in the most exceptional circumstances. In its initial assessment of whether
there exists a 'very strong probability' that the arbitration agreement is null and
void, inoperative or incapable of being performed, the Supreme Court should not
engage in a full trial (or even a mini-trial) of the relevant issues, but should assess
them on a prima facie basis. The burden of proving that the parties did not validly
agree to arbitration lies on the party seeking to impugn the arbitration agreement.
Where doubt remains after a prima facie assessment, that doubt must be resolved
in favour of referral to international arbitration without a full trial (or mini-trial)
of the unresolved issues. It will then fall to the arbitrators to resolve these issues
pursuant to S.20 of the Mauritius IAA (which enacts the principle of CompétenceCompétence
contained in Article 16 of the Model Law), subject to the parties'
right to return to court, if they so choose, after the arbitral tribunal's determination
pursuant to S.20(7) of the Mauritius IAA (tribunal may review decision of arbitral
tribunal on a preliminary matter) or S.39 (setting aside).
The travaux préparatoires clarify that the deviation from Article 8 of the
Model Law was adopted in order to ensure that the courts of Mauritius " do not
follow English precedent [under S.9(4) of the English AA, citing for instance, Al
Naimi and Albon], according to which a court, because it must decide whether
the clause is 'void, inoperative or incapable of being performed' before referring
the parties to arbitration, settles the question of jurisdiction itself once and for all,
thereby denying any real effect to the principle of Compétence-Compétence " . It is
noteworthy, however, that the English precedents cited in the travaux préparatoires,
namely Al Naimi and Albon, were ordinary actions, not Setting Aside Proceedings
or Winding-Up Proceedings and that the travaux préparatoires date back to 2014,
prior to Salford. It is not clear therefore, whether this statement was intended to
exclude or include such proceedings from the scope of S.5.
A request for referral of an action from the Bankruptcy Court to the Specially
Constituted Court under S.5 was dealt with by the Mauritius courts in Trikona
Advisers Limited v Sachsenfonds Asset Management GmbH 2011 SCJ 440A. In
this case, the Specially Constituted Court dismissed the S.5 application on the
ground that the Mauritius IAA did not apply to the case at hand (the arbitration
the subject of the application had been filed prior to the coming into force of the
Mauritius IAA). The Specially Constituted Court nonetheless noted in its judgment
the parties' respective pro-arbitration and pro-insolvency arguments, without taking
a clear position either way. The concluding remark of the Specially Constituted
Court is, however, indicative of a pro-arbitration approach similar to that taken by
the Singapore court in the case of AnAn:
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Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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