Under the provisions of the Mauritian Civil Procedure Code (“the Code”) which govern domestic arbitrations in Mauritius, the mandate of an arbitrator – if no time limit is fixed by the arbitration agreement – lasts for six months from the date of appointment (article 1015). This period may be extended by agreement of the parties.
One of the grounds (set out in article 1027-3 of the Code) on which an arbitration award may be annulled is if the arbitrator’s decision is not within the mandate conferred on him by the parties (“l’arbitre a statué sans se conformer à la mission qui lui avait été conférée”).
The arbitrator was originally appointed in May 2009; he resigned after making three interim orders and a new arbitrator was appointed in 2015. The latter was granted an extension of time by consent of the parties to deliver his award by 31 December 2018. A signed copy of the award was eventually provided to the parties on 03 January 2019.
On 22 January 2018, the District Council applied to the Supreme Court for an order annulling the “purported award dated 31 December 2018” and “the signed award delivered on 03 January 2019” on the ground that the award was delivered after the expiry of the mandate of the arbitrator.
The context in which the hearing in the arbitrator’s chambers on 31 December 2018 took place was that:
- the arbitrator’s mandate was due to expire at midnight on that day (New Year’s Eve);
- the arbitrator was ill, suffering from bad flu, and clearly struggling to complete his award;
- the next working day was 03 January 2019 (as 1 and 2 January were public holidays); and
- although the arbitrator had managed to prepare a draft award, it had not yet been properly formatted and still required editing.
THE ISSUE
The issue before the Board was whether the Supreme Court of Mauritius was wrong to annul an award on the ground that it was delivered after the arbitrator’s mandate had expired. On the one hand, the Appellant argued that there was a “tacit prorogation” of the arbitrator’s mandate with the result that delivery of the award on 3 January 2019 was within the mandate.
On the other hand, the Respondent main contention was that arbitrator’s statement that the final version of the award would be provided “later on” meant later during the course of the day. Had it been intended that any extension of the mandate beyond midnight on 31 December 2018 would be necessary, a written agreement would have been prepared or this would at least have been spelt out in the minutes of the hearing, as had happened on all previous occasions when an extension of the arbitrator’s mandate had been agreed. Alternatively, Senior Counsel for the Respondent argued that the phrase “later on” was at the very least ambiguous so that it is not possible to infer an unequivocal common intention to extend the mandate.
THE DECISION
The JCPC allowed the appeal of Appellant and declared that the signed award delivered on 03 January 2019 is valid and enforceable in accordance with article 1027-9 of the Civil Procedure Code inasmuch as the communications and conduct, viewed as a whole, demonstrate an unequivocal common intention of the parties formed and manifested on 31 December 2018 that delay until 3 January 2019 in providing the final, signed version of the award would not result in the award being invalid.
• JUDGEMENT: ALPHAMIX LTD V THE DISTRICT COUNCIL OF RIVIÈRE DU REMPART (MAURITIUS) 2023 UKPC 20 ›
For further information, please contact:
Yahia Nazroo, Partner, Appleby
ynazroo@applebyglobal.com
