Over the last few years, Mauritius has been overhauling its business landscape and consistently establishing itself as a unique investment destination. The upgrade of Mauritius’ profile in the business and financial services’ world has been the result of a combination of fiscal and non fiscal advantages; beamed by a hybrid legal system making the island an altogether more attractive destination for investors, financial institutions and companies.
The Mauritian legal system is a composite system which draws its legal principles from both French civil law and British common law traditions. The statutes regulating the enforcement of foreign judgments (including money judgments) in Mauritius are the Foreign Judgments (Reciprocal Enforcement) Act 1961, the Reciprocal Enforcement Judgments and Article 546 of the Mauritian Code of Civil Procedure.
It is apposite to note that requirements of enforcement under the respective acts are different and particular enforcement regimes are applicable to judgments issued from different countries. For example, under the Reciprocal Enforcement of Judgments Act 1923, a judgment obtained in the Superior Courts of England and Wales will be enforceable by the Mauritian Supreme Court if the judgment was not obtained by fraud, the judgment debtor was legitimately served with the process of the original court, he voluntarily appeared in the proceedings or submitted to the jurisdiction of the court, he either carried on business or was ordinarily resident within the jurisdiction of the court and the judgment is final and conclusive.
Whereas, under the Foreign Judgments (Reciprocal Enforcement) Act 1961, enforcement in respect of any judgment emanating from a superior court in a foreign country including a Commonwealth country can be sought if it is final and conclusive between the parties, and it is not related to penalty fines and taxes. However, as upheld by the Mauritian courts in the landmark cases of RUTNAH A D (MRS) v RUTNAH S P (2017 SCJ 84) and SUMPUTH V. v HOLBORN COLLEGE LIMITED (2012 SCJ 193), although the 1961 Act appears in our statute book, resort cannot be had to it in the absence of Proclamation. Therefore, enforcement of foreign judgments (other than UK judgments) will require the fallback application of the Code of Civil Procedure by way of exequatur.
Procedurally, a case for exequatur of a foreign judgment is entered before the Supreme Court by way of motion supported by affidavit, praying from the Court for an Order to make executory the judgment delivered in the foreign country. As annexure, the affidavit should contain a duly authenticated copy of the judgment, bearing on each page the seal of the registry of the foreign court which decreed the judgment and the signature of an authorized officer of the registry on the last page. An authenticated certificate from the foreign court substantiating that the judgment has not been appealed should also be provided. A Mauritian Court will not delve into the re-examination of the merits of the case; and it equally has the power to enforce the foreign judgment in its foreign currency. It is judicious to highlight that under the Reciprocal Enforcement of Judgments Act 1923, an application for enforcement of a UK judgment must be lodged with the Supreme Court of Mauritius within 12 months from date of judgment.
The Mauritian Courts have seen an upsurge in the enforcement of foreign judgments in the last few years. It is often essential for parties to be informed whether a judgment given in one country can be enforced abroad or worldwide. With increased globalization and the ‘breaking down of geographical barriers’, legal systems need to constantly evolve and further adapt themselves to offer the flexibility and dynamism congruous to a growing global legal and business hub. The Proclamation of the Foreign Judgments (Reciprocal Enforcement) Act 1961, for instance, would be an important step in that direction.