MAURITIUS: An Introduction to Corporate/Commercial

The beginning of the year has been marked with drastic changes on the political front. Following the general elections which were held on 10 November 2024, a new government was formed with the “Alliance of Change”, which won the seats in all but one of the island’s 21 constituencies.

As part of the electoral programme of the new government for the period 2025 to 2029, one of the first measures announced is the creation of a Constitutional Review Commission (the “Commission”) within the next six months, entrusted with the responsibility of making recommendations on, inter alia, constitutional and electoral reforms, enhanced protection of fundamental rights and the introduction of a Freedom of Information Act to promote more transparency in relation to decisions taken by public institutions. The Commission is also to consider legislative amendments in areas of administrative law to cater for public interest litigation and class actions.

Its mandate is also to include examination of the setting up of an Electoral College which will elect the President of the Republic to ensure that the President has a mandate from a broader base.

The Financial Crimes Commission (FCC), which was set up under the FCC Act in 2023, might soon see its end as the newly formed government contemplates setting up a national crime agency better equipped to deal with financial crimes and other serious crimes of similar nature, by repealing the FCC Act, while ensuring that prosecutorial powers remain vested in the Director of Public Prosecutions.

It now seems impossible to speak about legal developments without measuring the impact of Artificial Intelligence (AI). The emergence of AI over the recent years has brought major benefits and challenges in the legal profession across the world. While there is an objective apprehension by law practitioners that some aspects of their work might become redundant with AI taking over, they appear to have become less wary of it over time.

AI is now being used by legal professionals in an endeavour to boost their productivity while saving time. For instance, tasks run through AI include drafting, reviewing, editing and analysis of documents such as contracts, as well as legal research. Law practitioners also run through AI tedious tasks such as summarising documents and editing texts in seconds over what would otherwise take a large chunk of the workflow.

In a nutshell, AI is proving to be a powerful tool for the legal profession and while it is still evolving, the challenge for law practitioners would be to stay on top of the new developments and adopt a positive mindset towards it.

In that vein, the Financial Services Commission issued the Financial Services (Robotic and Artificial Intelligence Enabled Advisory Services) Rules 2020 in 2021, with a view to regulating companies providing digital and personalised advisory services through AI-enabled algorithms and/or computer programs with limited human intervention.

The consolidation of data protection legislation is also among the important decisions taken by the new government. In its endeavour to protect personal data of individuals and to consolidate the aims and objectives of data protection legislation in Mauritius, the government discontinued the requirement for mandatory registration of SIM cards through the enactment of the Information and Communication Technologies (ICT) (Registration of SIM) (Revocation) Regulations 2024, thereby repealing the ICT (Registration of SIM) Regulations 2023 (the “2023 Regulations”).

Under the 2023 Regulations, information required for the registration of sim cards included identification details, proof of address and biometric information in the form of photographs. By April 2024, nearly 1.2 million SIM cards, out of approximately 2.3 million, had been re-registered in Mauritius. As a consequence of the decision to repeal the 2023 Regulations, mobile operators had to destroy their databases containing photographs of persons who previously registered their SIM cards.

We have witnessed some important judgments which were delivered by the Judicial Committee of the Privy Council (JCPC) and the Supreme Court.

For instance, following the judgment delivered by the JCPC in Stanford Asset Holdings Ltd v Afrasia Bank Limited [2023] UKPC 35, granting the disclosure order sought for by the appellants as a matter of urgency notwithstanding the obligation of confidentiality imposed on banks under Section 64 of the Banking Act, the Supreme Court was faced with an application for disclosure in Taukoordass v The Mauritius Commercial Bank & Ors [2024] SCJ 44.

In this case, the applicant averred that he and co-respondent one incorporated a société civile which offers audit, accounting, tax and consulting services and carries out its business through respondents two and three, and he alleged in essence that he had been defrauded by co-respondent one of his share of the proceeds and revenue of the société. He applied for a disclosure order directing the bank to disclose all bank accounts held by respondents two and three and co-respondents one and two (wife of co-respondent one) for the last six years preceding the application and to provide statements of accounts relating to those bank accounts. The court found that the relevant subsections of Section 64 of the Banking Act relied upon by the applicant to seek the disclosure order did not apply to him.

The court proceeded to consider whether he was entitled to be granted Norwich Pharmacal relief in the circumstances despite not having invoked any common law remedy. Upon considering the affidavit and documentary evidence on record, the court concluded that the applicant was already in possession of precise information which he was seeking through the disclosure application. The court, in setting aside the application, concluded that it was exaggeratedly wide in its scope and was not an appropriate and proportionate response bearing in mind the exceptional nature of the jurisdiction.

In Katra Holdings Ltd v Standard Chartered Bank (Mauritius) Ltd [2024] UKPC 8, which was a challenge against the grant of a winding up order and the refusal to set aside the statutory demand served against Katra Holdings, the Board dismissed the appeal and held that where in Mauritius the court refuses an application to set aside a statutory demand, it has a choice under Section 181(6)(a)(ii) of the Insolvency Act 2009, either to leave the creditor to present a winding up petition based upon the unsatisfied demand in the usual way, or to make an immediate order for winding up. The reasons why the court might make an immediate order include where there is perceived to be a threat to the remaining assets, which could be mitigated by the immediate appointment of a liquidator, or where requiring the creditor to go through the process of presenting a petition would just be a waste of time and money. The Board then lifted the stay on the judge’s winding up order for a winding up to immediately be proceeded with.

With the new government programme for the next five years, drastic changes in legislation are on the way.