Revue - Les Cahiers de l'Arbitrage N°2 - 2023 - 183

NUMÉRO SPÉCIAL AFRIQUE
to refer the matter to arbitration, it would need to remit the matter back to the
Bankruptcy Court for decision. The Bankruptcy Court would then have to decide
whether there is a substantial dispute as to whether the debt is due. If it finds that
there is, then the alleged creditor would have to initiate an ordinary claim before
another court, resulting in an overly burdensome and costly dispute resolution
process for both the parties and the courts. It is noteworthy, however, that these
issues would not arise in Winding-Up Proceedings, because the party seeking to
refer the matter to arbitration would in that case be the alleged debtor respondent.
Nonetheless, it would make no sense to have S.5 applying to Winding-Up
Proceedings, but not to Setting Aside Proceedings, because the question as to
whether there is a substantial dispute as to whether the debt is due can arise in
both proceedings, and because the winding-up remedy is in Mauritius, within the
powers of the Bankruptcy Court in Setting Aside Proceedings. Carving out Setting
Aside Proceedings and Winding-Up Proceedings from the scope of S.5 would
not, however, deal a blow to the intention of the Mauritius legislator to uphold
the parties' agreement to arbitrate, as the Bankruptcy Court has the discretionary
powers it needs as part of its inherent jurisdiction under the Mauritius Insolvency
Act, to stay its proceedings pending the resolution of the dispute through
arbitration, where appropriate.
F. Conclusion
The above comparative law analysis shows that, when deciding on objections
to the jurisdiction of the court in favour of arbitration, courts across the common
law world outside of Africa, have adopted materially
different approaches,
including when interpreting legal provisions which are similar in substance. It
is expected that common law jurisdictions in Africa, which have similar legal
provisions to the ones considered above, will readily seek guidance from the case
law dealt with in this article as they seek to develop their own law on the subject.
Kenya for instance, has in S.6 of its Arbitration Act 1995, a provision similar
to S.6 of the Singapore IAA. South Africa has recently adopted its International
Arbitration Act 2017, which adopts Article 8 of the Model Law. Tanzania has
recently enacted its Arbitration Act 2020, with S.12 and S.13 being inspired
from Article 8 of the Model Law and the English AA respectively. The Tanzanian
courts have recently rendered a number of judgments, in which they considered,
among other foreign case law, the cases of Salford, AnAn and Dayang, and from
which stem a pro-arbitration stance, subject to the application of the genuine and
substantive dispute test. Other African common law jurisdictions do not appear
to have had a similar in-depth debate on the approaches taken by the English,
Singapore, Hong-Kong and BVI courts. It is however likely to be just a matter of
time until this comparative law debate reaches their shores.
Les Cahiers de l'Arbitrage 2023‑2
457
Revue - Les Cahiers de l'Arbitrage N°2 - 2023

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