Speech of Dr Jamsheed Peeroo at the International Arbitration Conference organised on 25 July 2017 at the Labourdonnais Hotel, Port-Louis.

Can Mauritius become a regional centre for international arbitration?
Quite naturally, I shall be speaking on this topic primarily from a Mauritian arbitration practitioner’s perspective. I have had the opportunity to work closely with the LCIA-MIAC a few years ago and I have recently been invited to be part of the advisory board of MARC, the arbitration institution of the Mauritius Chamber of Commerce and Industry (MCCI). I have been involved in arbitrations in various jurisdictions, including Mauritius, so I will be guided by acquired experience in the world of international arbitration generally.

I am happy to be given this opportunity to talk about a more wide-ranging and general topic rather than to talk about the technical aspects of the law, and I am thankful to the organisers and to Tal for this. That may be good news to you as well because I shall not burden you with complex legal provisions or legal theories today.

The answer to the question: can Mauritius become a regional centre for international arbitration is simply yes. Yes, Mauritius has great potential. But are all the requirements of a winning recipe already in place? This not quite simple to answer.

Brief background
Let us start by briefly looking atthe context. The Mauritian arbitration project began at a time when the local, regional and international businesscommunity had been feeling the need for a proper legislative framework for international arbitration in Mauritius. Because when it came to international or cross-border business, in the event ofdispute, parties needed to be sure that an international arbitration award would be enforced in Mauritius. Additionally, there was a need to make sure that international arbitration would be properly supported and protected by the legal system, should Mauritius be chosen as arbitration seat.

Facing these needs, in the 1990s, the Mauritius Chamber of Commerce and Industry, which is probably the leading voice for the business community, requested the government to make Mauritius a party to the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958. There had been regular consultation with the Chamber of Commerce for several years on how to make Mauritius become a recognised and preferred seat for international arbitration. The New York Convention was signed in 1996 and it was incorporated in Mauritian law in a statute of 2001.

Then, in 2008, the International Arbitration Act was passed. It is based on the UNCITRAL Model Law which, in a way, sets the international standard when it comes to International Arbitration. So, when it comes to the necessary legal framework, we can say that we already have it.

However, this simply and only gives Mauritius what numerous other countries already have. At the moment, 157 countries are parties to the New York Convention. The UNCITRAL Model Law has now been adopted in more than 70 countries worldwide. It is true that our laws may have their own tweaks and perks, but so do many of these other countries. It is true that we have an independent judiciary, but again, so do many other countries.

In fact, the question for discussion in this session is really, how can Mauritius further distinguish itself from these 157, or perhaps 70 other countries, to become a preferred hub for arbitration? It really struck me when I realised that we are still, in 2017, talking about making Mauritius a preferred arbitration seat for the region. This is more than 20 years after the project started back in the 1990s!

But I must say that a lot has been achieved over the last years. We have designated arbitration judges to deal with international arbitration claims, the LCIA has taken interest in the project and has opened the LCIA-MIAC in collaboration with the government, and we have the PCA here in Mauritius to deal with arbitrator appointments and challenges. These are important achievements and I am glad to conclude that, in fact, we have now reached the stage of fine-tuning.

In fact, the arbitration business is not like an exact science, it is not like a mathematical equation that is bound to give a specific result. Many subtle considerations also come into play.

I shall focus on two main areas where, in my view, there should be improvement.

Ownership
Let me start with the topic which, in my view, is the most important one in this arbitration project. It is the ownership of the project. By ownership, I do not mean the proprietor of the project. That would be nonsensical as there can be no such thing. What I mean is participation by stakeholders so that they can develop a sense of ownership with regard to the Mauritian project. Why is this important? Simply because human nature is such that one will tend to promote what one owns or what one belongs to.

Now, who are the main stakeholders who should be given the chance to participate, who should be involved and recognised to be so involved, that they are closely associated with the Mauritian arbitration project and so that they develop this sense of ownership of it or a sense of belonging to it?

The most important stakeholders in my view are local practitioners. I am not stating this as a self-serving statement because I also practise in Mauritius and I want to be promoted.

I am saying this because parties considering to choose Mauritius as a seat of arbitration will need to see a pool of lawyers capable of assisting in relation to a potential arbitration seated here. Quite to the contrary, therefore, what I am saying is that I would like to see all Mauritian arbitration practitioners who, by the way, may often also be my competitors, be promoted.

So, where are these lawyers? Many local lawyers have studied or have been trained in this field. Where are they? They should be promoted to the world. The best way to do this is by involving them in some way or another with the Mauritian arbitration project, and then, more importantly, acknowledging their involvement and participation.

No exclusive clubs

Let me give you a real example. A group of Mauritian and foreign arbitration practitioners prepared the initial draft of the Supreme Court (International Arbitration Claims) Rules 2013. This was ultimately submitted to the Drafting Committee of the Supreme Court. Who knows about the efforts and time dedicated to this project by all these people? Not many people. Why was it not publicly announced?

In the UK in the late 1990s, a team worked on a comparable project, the team was publicly acknowledged. I know at least one of the members of that team. He is now a leader in this field.

Another real example. In 2013 the LCIA-MIAC translated their rules into French. This was done mostly with the help of Mauritian practitioners. Again, not many people know about it. In comparison, when the LCIA in London published its own French version in the Revue de l’Arbitrage several years ago, the efforts of the French arbitration specialist who had translated them were duly acknowledged. This could have been a great opportunity to show to the world that all these Mauritian arbitration practitioners are bilingual and work in both languages.

Therefore, more must be done by arbitration institutions too to promote our local practitioners and create this sense of ownership or belonging. The people who have helped and not been acknowledged should not be allowed to feel left out, abandoned or exploited, because they might stop promoting Mauritius, and this is completely unnecessary.

All these practitioners who have participated in any activity relating to the Mauritian arbitration project and who are acknowledged and associated with it become ambassadors for it. And we want as many ambassadors as we can. They are the first point of contact in their respective networks for anything to do with Mauritius. And we do not want them to give a negative answer on arbitrating in Mauritius.

Indeed, little exclusive clubs should not be tolerated as they can only serve to defeat the Mauritian project and waste all the tax-payers’ investment in it. History has shown that creating an arbitration hub rests on the participation of the many, so that the project is beneficial to all, and not just to a select few.

I was glad to see that a few days ago, the MARC, that is the arbitration institution of the MCCI, announced that it was about to launch MARC 45. MARC 45 is a group similar to the ICC YAF or the LCIA YIAG or HK 45 for “young” practitioners and arbitration specialists up to the age of 45 to get more involved in the world of arbitration, to network internationally and to actually participate in assisting the MARC to respond to the ever-growing needs of the business community, and more importantly, for them to be known to the arbitration world.

I am also happy to see that the Chartered Institute of Arbitrators, the CIArb, is running its courses on international arbitration in Mauritius and many lawyers are following these courses. These lawyers should be involved in one way or the other.

When local practitioners develop this sense of ownership or belonging, they will go out of their way to promote Mauritius as an arbitration seat. Further, when they are themselves promoted, the international business community and foreign law firms will have visibility on them and access to them so that they are comforted in the idea that they will easily find legal support in Mauritius in the event of an arbitration here.

Equally important are foreign arbitration practitioners. Ndanga Kamau is working hard to go and meet as many as she can all over the world to promote the LCIA-MIAC and, by doing so, she is promoting Mauritius as a seat. Duncan Bagshaw, the former Registrar, did the same. This is very important and their efforts must be praised.

However, the Mauritian project must actually belong to foreign practitioners too. And this is probably a challenge that Ndanga is facing. Because what would they have to gain from sending legal work to Mauritius if they are not themselves acknowledged and promoted, so that they are known to be associated with Mauritius and so that they may get a chance to work in relation to arbitrations in Mauritius? We have to get realistic about this! Calling them to speak at some conferences here is a start. But that is not enough. How to keep them involved with the Mauritian project?

MARC 45 is a platform on which foreign practitioners under 45 can work on projects with its Mauritian members. And I hope the members of MARC 45 will initiate and organise many activities and events. But what about those above 45?

Perhaps MARC has identified this problem of getting the international arbitration community involved and it is perhaps one of the reasons why it has also set up its own MARC Arbitration Court chaired by Neil Kaplan QC CBE together with 12 other internationally recognised arbitration practitioners from various parts of the world.

Indeed, when a party and his lawyer from any continent see that there is such a varied and diverse panel of specialists coming from several countries and origins such as India, China, Nigeria, Kenya, South Africa, England, France, Germany, Pakistan, the Middle-East, America or Australia constituting a Court in Mauritius, they may develop at least an affinity with it, if not a sense of belonging to it. They naturally and instinctively feel more comfortable with the institution. They are then more likely to choose Mauritius as a seat.

Now, this is a fantastic achievement by MARC. However, as far as I know, the MARC is not sending anyone all over the world to promote its clauses. So, much can be done at that level too.

Competition
The second item I wish to talk about is competition between arbitral institutions. The MARC has been administering international arbitrations for decades. When the LCIA-MIAC opened in Mauritius in the last few years, the LCIA-MIAC’s challenge was to be competitive. And equally, the effect of the LCIA-MIAC’s presence on MARC was similar because of new competition.

The result of such competition, from a practitioner’s perspective, is identifiably positive. Arbitration is no exception to the general principle that there should be fair competition. Because in the end, the users, that is the parties, will benefit. I have seen these centres propose low fees, be extremely responsive and be very attentive to the users’ concerns.

The effect of this competition is therefore very positive. Two questions come to mind. Firstly, what kind of competition and on what issues? Secondly, should we prevent other institutions from having a link or a base in Mauritius so that they would be able to administer arbitrations seated in Mauritius?

As Neil Kaplan said in his keynote speech at a conference in Mauritius last year: “There is enough work for everyone.” And this reflects a profound understanding of the international arbitration world. After all, he is widely acclaimed as the father of Hong Kong arbitration, which is today a leading arbitration hub.

Let me illustrate his statement by using a real situation which a fellow practitioner in Mauritius faced a few months ago. An Indian party and an English party were setting up a company in Mauritius. The English party proposed the LCIA in London, and the Indian party, the SIAC in Singapore, in the event of dispute. The Mauritian lawyer proposed the LCIAMIAC in Mauritius. The English party agreed, but the Indian party did not. The Mauritian lawyer then proposed the MARC. The Indian party agreed, but the English party did not. In the end, they all went elsewhere.

This shows, first of all, that our two centres should be careful not to engage in unfair competition so as to unnecessarily and unfairly bring the other into disrepute. Rather, they should compete on fair grounds, such as costs, speed and efficiency and focus on giving users an excellent experience. In fact, they shouldwork together to promote Mauritius as an arbitration hub, because they would themselves benefit from this.

Because, in this example, there was no direct competition between the centres. Rather, it was a question of the subjective preferences of each party, how comfortable they were with each set-up and perhaps their own perception of neutrality, however far-fetched it might be. This further supports the point I made before. Short of actual belonging or ownership, parties should at least have an affinity or feel comfortable with an institution here.

Unfair methods

Additionally, this is a case where both parties were at equal strength in negotiations. We all know that in many transactions, there is one stronger party and one weaker party. Assuming that English parties might feel more comfortable with the LCIA-MIAC, and Indian parties with say MARC, it would be good to see more English parties dealing in this region directly proposing LCIAMIAC in Mauritius and more Indian parties proposing MARC directly.

Also, perhaps if LCIA-MIAC and MARC worked together in promoting Mauritius, such parties would in the future stay here with either one of them. But if unfair methods of competition are used, the reputation of both centres will be damaged and such parties will not even consider their services.

Now, technically the parties could have chosen SIAC, ICC or HKIAC arbitration seated in Mauritius. Perhaps if these centres had some sort of presence in Mauritius, the parties would have instinctively agreed at least on holding their arbitration in Mauritius.

In Hong Kong, which is now a leading arbitration hub, about seven or eight arbitral institutions have established some sort of presence so that they can administer arbitrations seated in Hong Kong.

The International Chamber of Commerce which is based in Paris regularly administers arbitrations in Switzerland. Hence, whilst to a certain extent, there will be competition between arbitral institutions, the amount of arbitrations seated in the country will be much higher. And all these institutions would be promoting Mauritius as a seat, and they would themselves indirectly reap the benefits of this. I do not think this is rocket science; it is rather quite elementary.

In spite of the fact that the government owns the MIAC and therefore has a direct interest in the profit the LCIAMIAC derives, I was pleased to see that the Attorney General publicly stated, on the occasion of the announcement of the MARC Arbitration Court members two weeks ago, that the government fully supports the MARC and praised the initiative of setting up such a prestigious and internationally diverse MARC Court.

Finally, when it comes to arbitration lawyers and institutions seeking to promote the Mauritian arbitration project, it is really a choice between attempting to bake a small cake in order to eat it all or working together to bake a big cake so that everyone can each get a much bigger portion.