The Mauritius International Arbitration Centre ("MIAC"), which was recently established in Mauritius to succeed the LCIA-MIAC Arbitration Centre, has published its first Arbitration Rules.
As recently reported in an earlier blog (here), LCIA-MIAC recently terminated operations after the LCIA decided to withdraw from the agreement with the Government of Mauritius under which the LCIA-MIAC Arbitration Centre operated.
The transitional provisions for this change have the effect that arbitrations under agreements providing for LCIA-MIAC arbitration, made before 31 August 2018, will be administered by the LCIA in London (unless the parties reach another agreement in writing). MIAC has said that it will administer arbitrations under agreements made after 1 September 2018, whether providing for LCIA-MIAC or MIAC arbitration.
The MIAC Arbitration Rules have been drafted along familiar lines, based on the UNCITRAL Arbitration Rules. Some notable features include:
A panel of three arbitrators will be appointed unless the parties agree to a sole arbitrator, or the claimant has proposed a single arbitrator and the respondent fails to respond to that proposal (and the appointing authority considers a sole arbitrator appropriate).
The Secretary General of the Permanent Court of Arbitration (based in The Hague) is designated as the appointing authority which will appoint arbitrators if the parties do not agree.
The Rules do not provide (unlike the UNCITRAL Arbitration Rules) for the parties to agree on an appointing authority other than the Secretary General of the PCA.
The Rules do not provide for expedited or summary procedures, or for the appointment of an emergency arbitrator.
The seat of the arbitration is deemed to be Mauritius if the parties have not otherwise agreed.
The tribunal is empowered to grant interim measures but there is no express provision for the tribunal to do so without notice to the party against whom an order is sought.
The rules provide that awards will be final and binding but do not provide that there can be no appeal from the award (so that, for example, they may not be taken to rule out an appeal under s.69 of the Arbitration Act 1996, if the seat is England).
The rules do not include provisions for the rates to be charged by the Arbitral Tribunal.
A model arbitration clause providing for MIAC arbitration has been published which does not exclude the right of appeal.
Parties considering entering into contracts providing for arbitration under the MIAC Arbitration Rules should therefore take advice on their intended agreements, and may wish to consider (amongst other things):
- Providing for any right of appeal to be excluded or expressly providing for a right of appeal if the seat is Mauritius (because Mauritius law provides for no appeal but allows the parties to opt-in to an appeal mechanism);
- Providing for a single arbitrator (if preferred);
- Providing for an appointment process other than that set out in the MIAC Rules.
It appears that the MIAC rules have been drafted simply, avoiding controversy by being closely based on the UNCITRAL Arbitration Rules. Whilst they lack innovations adopted by many institutions, such as provision for an emergency arbitrator, the format of the rules is at least tried and tested.
The MIAC rules may be contrasted with the rules of the MARC Arbitration Centre, the other arbitral institution based in Mauritius, which was established by the Mauritius Chamber of Commerce and Industry and which recently revamped its constitution, Court and Advisory Board and adopted new arbitration rules. The MARC Rules include emergency arbitrator procedures, an optional appeal procedure and a summary procedure for dismissal of claims or defences "manifestly without merit".
* Counsel, Stephenson Harwood