With Mauritius vying for the status of the leading regional centre of alternative dispute resolution (ADR) in Africa, Jessica T. Naga, Managing Director of Digital Associates Limited and member of the Chartered Institute of Arbitrators, UK, looks at how Mauritius ADR forum providers can embrace innovation and global best practices to help the island economy realise its ambitions.

Mauritius has ambitions of becoming the preferred regional alternative dispute resolution (ADR) seat of Africa, having a very strong legal system and being one of the most financially and politically stable countries within the continent.

ADR systems refer to arbitration, mediation, conciliation and negotiations. To address issues such as protracted timelines, cost and jurisdiction impartiality, a paradigm shift occurred to innovate such systems that allowed for flexibility and party autonomy while seeking to preserve the relationship between disputing parties. Over the years, ADR has been formalised and is recognised by national courts worldwide.

How Mauritius can serve as the Switzerland of Africa

Mauritius can follow the lead of Switzerland in the context of ADR. Switzerland is a country at the heart of Europe, but not part of the European Union. It is well known for its political neutrality. According to the International Chamber of Commerce (ICC) Dispute Resolution 2020 Statistics, approximately 14% of ICC arbitral proceedings were seated in Switzerland, which makes Switzerland the most chosen seat for ICC arbitration in the world. Further, Switzerland hosts dozens of public international organisations, such as the United Nations, World Trade Organisation and World Intellectual Property Organisation, as well as dozens of international sports federations, such as the International Olympic Committee and FIFA, and the Court of Arbitration for Sport, which can all be involved in some shape or form in cross-border ADR.

In a similar fashion, Mauritius forms part of the African continent, is a member of many African organisations such as the African Union, Southern African Development Community (SADC), Common Market for Eastern and Southern Africa (COMESA) but remains politically and financial independent. Further, being outside the African mainland gives Mauritius a perceived independence that sits well with the idea of neutrality that one necessarily associates with a trustworthy international ADR jurisdiction, for the resolution of even the most sensitive disputes involving an African state.

Currently, Mauritius is home to several International/African organisations such as the Indian Ocean RIM Association for Regional Cooperation (IOR-ARC), the Africa Training Institute (ATI), and most importantly, in the context of arbitration, the Permanent Court of Arbitration (PCA) which has its only permanent African office, beyond its headquarters at the Hague in the Netherlands, in Mauritius.

How Mauritius began its journey along the arbitration route

The beginning of Mauritius’ journey as an international arbitration centre can be traced back to the island’s unique colonial history – Mauritius being probably the only country that has been colonised by the Portuguese, Dutch, French and the British. This multiculturalism is well reflected in its robust legal system which is derived from codified and common law while the island has also liberalised the legal sector to allow for the practice of foreign and international law in the country from 2008.

The oldest ADR forum provider in Mauritius is the MCCI Arbitration and Mediation Centre (MARC), the dispute resolution arm of the Mauritius Chamber of Commerce and Industry (MCCI). Even though established in 1996, it revamped its structure in 2017 and released a more modern and adapted set of procedural rules in 2018.

A second ADR forum provider appeared in 2011 in the form of the Mauritius International Arbitration Centre (MIAC), which until 2018 operated as part of a joint venture with the London Court of International Arbitration (LCIA-MIAC Arbitration Centre) and, since 27 July 2018, operates as an independent arbitration centre. The MIAC’s arbitration rules are closely based on the UNCITRAL Arbitration Rules, which are tried and tested internationally.

The development of Mauritius as an international ADR centre has been aided by investments made in Africa and Asia, through global business companies set up in Mauritius. These businesses make use of the extensive network of double taxation treaties and Investment Promotion and Protection Agreements existing between Mauritius and many African countries, the fluency of Mauritians in English and French, the presence of international as well as strong local banks, the prevailing political neutrality and also the pool of internationally trained legal professionals, who can act as advocates and arbitrators. Further, since 2008, international law firms can operate from Mauritius and can thus assist in managing substantial multi-jurisdictional disputes more easily, piggy backing on their branches in other countries.

The future of ADR in Mauritius

Looking ahead, ADR forum providers in Mauritius must contemplate new methods for the speedy and efficient management as well as resolution of multi-jurisdictional disputes.

In this area, Mauritius can seek inspiration from successful global instances, where technology has been used to assist with the management of the ongoing dispute process. Online dispute resolution (ODR) systems can, with the use of varied technologies, facilitate record keeping, virtual submission of claims/responses/evidence and online hearings. One such example is the European Online Dispute Resolution platform, which is in fact established by EU regulation geared specifically towards online sales of goods and services within the European Union.

In terms of the substantive dispute resolution aspects, ADR forum providers in Mauritius could consider making available technological and Artificial Intelligence (AI) powered tools to assist arbitrators to resolve disputes optimally, while balancing cost, accuracy and speed in the delivery of justice. Such tools already exist to aid in sifting through evidence, in carrying out legal research and in drafting determinations. This could be a differentiating factor for ADR forum providers in Mauritius.

To its advantage, Mauritius is a relatively young arbitration jurisdiction and therefore has less historical legacy to free itself from, so it can adopt such innovation with far more ease and agility than more mature arbitration centres.

Conclusion

The future of ADR in Mauritius is a promising one, with the potential to attract a great deal of interest from Africa and Asia. Interestingly, Delos’s Guide to Arbitration Places identified Mauritius as the “safe seat” of arbitration in Africa in July 2021.

By embracing innovation, Mauritius ADR forum providers hold the key to make the island economy the ADR jurisdiction of choice in Africa.