The Mauritius Chamber of Commerce and Industry (MCCI) Arbitration and Mediation Center (MARC) is led by Paris and Mauritius admitted lawyer, Dipna Gunnoo. MARC was established by the MCCI in 1996 based on the model of the International Court of Arbitration of the International Chamber of Commerce in Paris. In 2017, MARC unveiled its new structure, including a governance structure based on the highest standards of governance and best practices as well as the MARC Court and the MARC Advisory Board, both composed of many renowned international arbitration specialists of diverse origins. Dipna discusses the latest trends in arbitration as well as the top reasons for clients to refer their disputes to MARC.
What are the main trends shaping international arbitration at the moment?
This year, several key trends and geopolitical events have been - and are still - shaping the international arbitration landscape, such as:
- the use of artificial intelligence but also the importance of cybersecurity and data protection which are essential components in this field;
- the future of intra-EU bilateral investment treaties (BITs) following the Achmea decision delivered by the Court of Justice of the European Union in 2018 and the potential impact that it might have on non-member States of the EU, especially in Africa. Indeed, it is in the wake of a joint declaration issued in January 2019 by 22 EU Member States that Mozambique even tried to raise an objection in an ICSID case against an Italian investor by invoking that the Achmea decision should also apply to BITs between EU member States and non-member States. However, the arbitral tribunal dismissed in its award the African State’s objection that the Achmea decision precluded the tribunal from hearing a dispute under a BIT signed between an EU Member State and a third country;
- the reforms to Investor-State Dispute Settlement (ISDS), following discussions held in October 2019 during the session of the UNCITRAL Working Group III on ISDS;
- the China’s Belt and Road Initiative (BRI), which is currently one of the largest investment programmes ever undertaken and heading soon into its 8th year, should lead to a significant number of disputes being referred to arbitration, even if it is important to take into account the cultural positive attitudes of Chinese parties towards mediation and settlement of disputes. Indeed, CIETAC 2018 statistics (of 2962 cases) and HKIAC 2018 Statistics (of 521 cases, indicating Hong Kong and Mainland China at the first and second ranks of its top ten geographical origins or nationalities of parties) clearly demonstrate that international arbitration seems to be a viable means of dispute resolution for matters involving Chinese parties. However, will the current political turmoil in Hong Kong potentially affect the use of Hong Kong as a neutral seat and the use of HKIAC as one of the ideally positioned institutions to manage disputes involving Chinese parties? Only time will tell. Moreover, Africa is also trying to promote its local arbitration institutions for disputes between Chinese and African parties. Nevertheless, it is mainly the party that has the strongest bargaining powers that will be able to have a real influence on the selection of the seat, arbitration institution, and geographic convenience;
- the promotion of diversity on arbitral tribunals, especially in arbitrations connected to Asia and/or Africa. Following Jay-Z’s complaint in November 2018 regarding the lack of ethnic diversity for the appointment of arbitrators and the Arbitration in Africa Survey published in 2018 by the School of Oriental and African Studies (SOAS), Dr. Emilia Onyema of SOAS and other international arbitration practitioners have launched, in September 2019, The African Promise which is a pledge undertaken by arbitration practitioners and entities (such as counsel, arbitrators, representatives of corporates, States, arbitral institutions, academics and others) to achieve main objectives such as the increase of appointments of Africans as arbitrators, especially in cases connected with Africa but also the improvement of profiles and representations of African arbitrators;
- finally, certain regions kept on pushing, during this year, for their desire to be recognized as Regional Arbitration Hubs, especially in Asia-Pacific and Africa. The ambition showcased by these centers is not an unrealistic goal as it forms part of the development of international arbitration and the will of various continents, regions, and countries to be more involved in this field.
What does your role as Head of MARC involve?
As the Head of this institution, I supervise the administration of arbitration and mediation matters under the MARC Rules or other rules or cases. I am also responsible for maintaining state-of-the-art case management and procedures at the center. I also ensure that high standards of governance are followed at MARC as I am also in charge of the running of the MARC Secretariat.
With the support of the MCCI Board and Secretary-General, the MARC Court and the MARC Advisory Board, I am also responsible for developing and promoting international arbitration in Mauritius and the MARC, on domestic, regional and international levels. I also work on consolidating and developing strong relationships with other arbitration centers, with professional associations, legal and business professionals as well as entities from both the private and public sectors. To do so and to promote MARC, my team and I often organize arbitration events and training sessions, locally and internationally. I also participate in and speak at various events in Mauritius and abroad. These business development tasks, undertaken in Mauritius and abroad, are essential to market this arbitration center and to raise awareness about its activities and services.
What are the challenges that come with this role?
Even if I am extremely grateful for this amazing opportunity as I have the chance to work in international arbitration and to bring my contribution towards the development of this field in my country and in the region, I have to admit that this role also comes with some challenges.
Indeed, it is not an easy task to develop and promote an arbitration institution in an international market that is extremely competitive and dominated by leading institutions. Therefore, it is extremely important for regional arbitration centers, like MARC, to stand out and to display its strengths and unique characteristics.
Another challenge - that I currently have to deal with - comes from the domestic market itself. An arbitration institution and/or a seat can only become successful with the support of the local legal and business community. However, it seems that companies and counsel in Mauritius have been, in the past, more inclined to use judicial proceedings before domestic courts or to even use proceedings rather than institutional ones when they were using arbitration to resolve their disputes. Consequently, additional, and collaborative efforts need to be made so that domestic contracts include an arbitration clause (with a local arbitral institution ideally indicated in that clause) and that the legal and business community in Mauritius would use more often institutional arbitration to resolve their disputes.
Recently we have seen new arbitration centers being established globally. How is MARC standing out in a crowded field?
One of the major strengths of MARC is its independent and robust governance structure involving Mr. Neil Kaplan CBE QC SBS who is often described as “the father of Hong Kong arbitration” and who has been spearheading significant developments in the international outreach of MARC.
This independent and neutral institution has been providing to the business and legal community a cost-effective, confidential, fast, and efficient way to resolve their disputes by means of arbitration and/or mediation. A dedicated mediation package has also been launched for SMEs and the Secretariat is currently working on an arbitration procedure for small claim disputes, with a document only option. MARC is also devoted towards actively promoting ADR methods on a local, regional, and international scale by organizing prestigious training sessions and events (often with foreign law firms and arbitration institutions), including the Mauritius Arbitration Week (MAW). The MAW is a week dedicated to arbitration and its role in facilitating investment and trade across the globe. It is marked by a series of events on hot topics by leading practitioners addressing important issues and development in this field. Events for the MAW include conferences, seminars and workshops, social and networking events.
The first edition of the MAW took place in May 2018 during which the latest version of the MARC Arbitration Rules (‘Rules’) was launched. These Rules reflect the best international practices and have been reviewed by a broad range of experts globally. They are a comprehensive tool kit of tried and tested provisions as well as innovative provisions that offer great transparency to users. Moreover, the overarching aim of these Rules is to facilitate the conduct of arbitrations as swiftly as possible with a view to minimizing time and costs. These Rules were translated in French and Chinese to become more user-friendly to potential users located in Africa, in particular for French-speaking countries, and in Asia, in particular for Chinese parties.
The second edition of the MAW took place in June 2019 and attracted many speakers from Europe, Asia, and Africa as the theme was ‘Mauritius as a bridge between Asia and Africa’. Indeed, MARC positions itself as a Neutral Dispute Solution Interface within Africa as well as between Asia and Africa.
Moreover, it participates actively in the national and regional development of ADR methods in collaboration with regional organizations such as the Indian Ocean Commission and the Union of Chambers of Commerce and Industry of the Indian Ocean Islands, notably through a platform it launched with other arbitral institutions in the region: the Business Bridge Indian Ocean. MARC has also established partnerships and special relations with other arbitration centers in Europe, Asia and Africa, such as the Centre de Mediation et d’Arbitrage de Paris, the Hong Kong International Arbitration Centre, the Shenzhen Court of International Arbitration, the Arbitration Foundation of Southern Africa, amongst others. Through its MARC Advisory Board, it also strives for excellence in the field of ADR through continuous consultation work with the legal and business community of Mauritius and of foreign country partners.
MARC also launched, in July 2017, MARC45 which is an official group for young practitioners, pupils, and students of the arbitration community in Mauritius, Africa, Asia and beyond.
In terms of services and facilities, MARC has sophisticated hearing venues as well as support services such as transcription, translation, tribunal secretary services, document storage facilities, and usual business center services. The functional facilities provided by MARC for the conduct of arbitration hearings at its premises in Port Louis can benefit users of both domestic and international arbitrations, whether involved in MARC arbitrations or other arbitration rules. MARC is amongst the few centers providing such functional facilities in the Indian Ocean Region. Mr. Anthony Canham, a Civil Engineer by profession and a renowned international arbitrator, having been appointed 17 times as an international arbitrator and in more than 200 construction arbitration cases was recently at the MARC for a major construction arbitration case under the MARC Arbitration Rules. He has congratulated MARC on its ability to provide excellent hearing facilities for this four-party international arbitration, which was held, for more than a week, at the MARC premises, involving foreign parties, 14 Counsel and advisers (both foreign and local), a state-of-the-art transcription facility, tribunal room and dedicated party break-out rooms with catering and support services.
Moreover and for the first time in 2019, the MARC hearing facilities were used twice to host Privy Council hearings, via video-conference, after having passed tests to check that the MARC hearing room and facilities are in conformity with the criteria required by the IT Team of the Judicial Committee of the Privy Council in London.
Finally, MARC has been paving its way towards establishing itself as one of the region’s top dispute resolution centers in the Indian Ocean as it is currently the arbitration center with the highest caseload, managing both international and regional/domestic cases (the current ratio is 40% - 60% respectively).
Can you tell us a bit about the MARC arbitration & mediation rules? What makes them distinctive?
MARC launched its latest arbitration rules in 2018. The new MARC Arbitration Rules aim to facilitate the conduct of arbitrations as swiftly as possible with a view to minimizing time and costs.
- New features that were introduced include the emergency arbitrator procedure. This provides for an arbitrator to be appointed within 24 hours and decide any application for urgent interim or conservatory relief that cannot wait for the constitution of a tribunal within 14 days.
- In addition, for small claims for less than 25 million Mauritian rupees (approx. €625,000), parties can opt for an expedited procedure lasting six months.
- A procedure for the summary dismissal of claims or defenses has also been introduced.
- Further articles provide for jurisdictional objections that can be raised to be decided prima facie by the MARC Court if raised prior to the tribunal’s constitution and otherwise by the tribunal itself and allow joinder and consolidation of claims.
- The rules require more information at the commencement of the arbitration than previously, to ensure efficiency and allow parties a free choice of arbitrators, without restricting this to a list.
- Striking and innovative opt-in provisions provide for the blind appointment of arbitrators so they do not know which party picked them and for parties to agree to only produce documents that they intend to rely on in their pleadings, subject to the tribunal’s power to order the production of additional documents in exceptional circumstances.
- The rules state that unless otherwise agreed, tribunals may adopt any procedure they see fit to avoid unnecessary delay or expense, having regard to the complexity of the issues and amount in dispute, and provided that the procedure ensures equal treatment of parties and allows them a reasonable opportunity to present their case.
- It also includes a requirement that the tribunal and parties “do everything necessary to ensure the fair and efficient conduct of the arbitration”. In line with this, tribunals have a new power to exclude new legal counsel from a case if their appointment may result in or potentially result in a conflict of interest.
- Furthermore, parties can request correction or interpretation of awards or additional awards and, as another opt-in, can agree to the appeal of the award on points of law only.
Can you tell us why clients should refer their dispute to MARC?
If you are looking for an arbitration center that provides an excellent quality of services with international standards and at competitive rates, then MARC was made to assist you with your arbitration and/or mediation disputes. Potential users should also consider MARC if they are looking for a bilingual Secretariat which is amongst the few arbitration teams in Africa to be able to manage cases in both French and English. Moreover, if disputes involve parties coming from Asia and Africa and if they are looking for an independent institution in a neutral seat, then MARC and Mauritius should be considered as options. The choice of Mauritius as the neutral seat for arbitration should be a triggering component for potential users to refer their disputes to MARC.
Mauritius has a state-of-the-art legal framework for arbitration. Its legislation, based on the UNCITRAL Model Law, has been enhanced for parties' convenience and its judiciary is independent, efficient, and usually adopts a pro-arbitration stance. Its hybrid legal system - mixing Common Law and Civil law - its long-standing political stability and bilingual, experienced, and independent legal professionals have also made of Mauritius an ideal arbitration and mediation seat over the past years.
Given that international and local clients already use the financial system of Mauritius for their business activities regularly, they should also try to use more often a Mauritian arbitration institution and Mauritius as a seat for the resolution of their disputes.
- Sneha Ashtikar