HOW TO SERVE LEGAL PAPERS IN MAURITIUS

Mauritius is not a signatory of The Hague Service Convention. Most nations, whether or not they signed the Hague Service Convention, allow private Mauritius Process Service to serve papers. Customs and traditions in various parts of Mauritius tend to contribute to a slower pace and less rigorous process service norms. Service occasionally may take a month, or more, although informal service is often far quicker than the official technique.

Service by mail is possible only in states that have not objected to that method under Article 10(a) of the convention and if the jurisdiction where the court case takes place allows it under its applicable law. The formal method in Mauritius is Letters Rogatory. 

INTERNATIONAL process SERVICE OF LEGAL PAPERS IN MAURITIUS

Private Mauritius Process Service may serve documents in most countries, whether a signatory of The Hague Service Convention or not. Service is normally handled in a manner similar to methods used in the United States, although completion of the service usually takes longer. Currently, the time frame for the completion of informal service is approximately four weeks. The time frame is shorter than the formal method but the judgment ‘may’ not be enforceable in Mauritius.

One reason why a court may request help from a foreign court is to gather evidence from a witness. This evidence may be to answer questions important to the decision of an issue of fact, or for disclosure of documents

Courts normally have the right to summon witnesses only from within the jurisdiction of their own legislature unless they are supported by foreign judicial, or occasionally legislative, authorities.  Insofar as petitions to US courts are concerned, the use of letters rogatory for asking the collection of evidence has been superseded in great part by applications under 28 USC 1782, or Section 1782 Discovery.

The witness may be willing to deliver testimony in numerous circumstances. If a witness refuses to testify, the court may compel their testimony. Letters Rogatory would be used for obtaining evidence or serving pleadings in countries that are not signatories of the Hague Service Convention. They are a request from a court in the United States to a court in a foreign country requesting international judicial assistance related to service of process. The use of this method may result in habitual time delays of up to one year in the execution of requests. This method should only be used if no treaty is in force or if the individual is serving a Subpoena.

In effect, this creates a case in the country where the documents are served and make judgment enforceable. Most countries require the documents to be translated into the official language of the nation where they are to be served. The U.S. State Department recommends translation, but it is not a requirement unless the formal method is used. It is possible, although rare, that a demurer could be filed based upon a lack of understanding by the defendant as to the nature and meaning of un-translated documents. 

Requests for international judicial aid in the form of letters rogatory are sent from a US court to a foreign court. They are typically utilized to acquire evidence overseas, but may also be deployed in achieving service of process, especially in those nations that ban other means of service. In certain nations service via letters rogatory is the sole recognized mode of service. Service of a court summons in criminal circumstances may also be conducted according to letters rogatory. Service of process by judicial authorities in the receiving State pursuant to letters rogatory from a court in the sending State is founded on the concept of comity. Different countries have different criteria for procedural standards. 

how to serve legal papers BY MAIL-IN MAURITIUS

Service via registered or certified mail, return receipt desired is an option in several places throughout the globe. Except when the law of the foreign nation forbids it, this manner of service may be employed. It has been held by US courts that countries party to a multilateral treaty or convention on process service that formal objections to service by mail made at the time of accession or later in accordance with the treaty are honored as a treaty obligation and litigants should refrain from using such a method of service. Service by registered mail will thus not be employed in the nation’s signatory to the Hague Service Convention that objected to the technique stated in Article 10(a) (postal channels) (postal channels). 

how to serve legal papers VIA AN AGENT in Mauritius

If personal service is authorized in a specific nation, the quickest option may be to employ the services of a foreign attorney or process server. FRCP 4(f)(2)(C) permits for personal service unless forbidden by the legislation of the foreign nation. Alternatively, an affidavit of service may be signed before a foreign notary public or the closest U.S. embassy or consulate. It should be noted, however, that this manner of service may not be regarded legitimate under the laws of the foreign nation. If potential execution of a U.S. decision in the foreign nation is envisaged, this procedure may be vulnerable to dispute. In order to find out what techniques of service are accessible and deemed effective under domestic law in the nation where service is done, it may be necessary to engage with foreign counsel at an early stage. U.S. process servers and other agents may not be permitted by the laws of the foreign nation to accomplish service overseas, and such conduct might result in their arrest or deportation.

how to serve legal papers BY PUBLICATION in Mauritius

Service by publishing may also be a possible alternative. However, this may not be a recognized manner of service under the laws of the foreign nation. If potential enforcement of a U.S. judgment in a foreign nation is envisaged, it may be wise to engage foreign lawyers or U.S. foreign legal experts overseas before continuing with such a mode of service.

LEGAL SYSTEM IN MAURITIUS

The Supreme Court is the primary court and has exclusive jurisdiction in most civil disputes if the demand is over MUR2 million. In most business disputes, the Supreme Court is the only court having jurisdiction over the parties involved, and the cases are brought and tried in its Commercial Division. Any start of proceedings and future pleadings before the Commercial Division of the Supreme Court has to be made online using electronic filing. While the regulations that set up the electronic filing of papers apply to all courts, the electronic filing system is now only accessible in the Commercial Division of the Supreme Court.

Any party that has a claim pending before the Supreme Court may submit an application, with proof, to the Chief Justice for the issue to be sent to mediation. Mediators’ primary goal is to help the parties reach an agreement on how to resolve their civil litigation or to help them narrow down the specifics of their disagreements.

The mediation judge supervises the proceedings while giving assistance with a casual and flexible attitude. Any formal agreement reached is documented by the mediation judge putting forth the contents of the agreement in the form of a memorandum. In reality, there have not been many business issues submitted to the Mediation Court.

The Courts Act is the primary piece of legislation governing the courts’ authority to adjudicate disputes. Under the Courts Act, the Supreme Court Rules 2000 (SCR) regulate procedures before the Supreme Court. The Supreme Court has complete original jurisdiction to hear, conduct and deliver judgments in civil suits, actions, causes, and other issues that are presented and are ongoing before the Supreme Court. As with the English High Court of Justice and its judges, the Supreme Court and its justices must meet, hold sessions, and conduct business in the same way.

Commercial disputes over MUR 2 million may be brought before the Supreme Court through a plaint and summons. There is a Commercial Division responsible for commercial disputes, and a Bankruptcy Division handles all problems related to company insolvency and bankruptcy.

However, the Commercial Division of the Supreme Court is vested with unlimited jurisdiction to hear and determine any civil matter including cases under the jurisdiction of the Companies Act 2001 (including bankruptcy proceedings) and non-commercial cases.

Any appeals from the Supreme Court sitting in its original jurisdiction must be lodged with the Court of Civil Appeal, which is a division of the Supreme Court and is composed of the Judges of the Supreme Court presided by the Chief Justice or the Senior Puisne Judge.

DISPUTE RESOLUTION METHODS IN MAURITIUS

The main dispute resolution methods in Mauritius are [A.] out of court dispute resolution: arbitration and mediation; [B.] court dispute resolution: commercial litigation and [C.] court dispute resolution: mediation.

The system in Mauritius is adversarial and the Supreme Court of Mauritius (Supreme Court) has held that the rules of evidence are derived from an adversarial model of justice. The Supreme Court has the ability to make any order or offer any direction to achieve the fair, quick and inexpensive disposition of the case or issue. Direct parties are required to attend pre-trial conferences pertaining to the topics arising in the action or proceedings allow the Chief Justice to submit any civil suit, action, cause, or issue to a judge for mediation before or during any proceedings. The standard of evidence utilized in business issues is to satisfy the court on a balance of probabilities.

Mauritian law provides for both internal and foreign arbitration. Domestic arbitration is accepted and governed by the Code of Civil Procedure. The International Arbitration Act 2008 (IAA), based on the UNCITRAL Model Law on International Commercial Arbitration, was likewise passed into law in Mauritius.

The IAA is explicitly autonomous from the home arbitration process and relevant domestic law. Arbitration agreements entered into on or after the date of the IAA’s passage, regardless of when the arbitration agreement was signed, are covered by the IAA. Under the IAA, the only way to overturn an arbitral judgment is to apply to the Supreme Court for a writ of mandamus.

The arbitration is considered international if one of the following is situated outside the jurisdiction in which the parties conduct their business: [A.] the juridical seat of the arbitration under the arbitration agreement;[B.]any place where a substantial part of the obligations of the commercial relationship is to be performed; or [C.]  the place with which the subject matter of the dispute is most closely connected.

In judicial review concerns, first instance procedures must be heard by two judges. In this case, the single-judge rule does not apply (section 35, Courts Act). 

DOMESTIC PROCESS SERVICE IN MAURITIUS

A claim before the Supreme Court must be initiated by means of a plant with a summons. However, when the claim is for a prerogative order (for example, writs of injunction needing urgency), it may also be started by means of motion, backed by affidavit, mandated by legislation, or before the Judge in Chambers.

A plaint with a summons is registered at the Supreme Court Registry, with the signature of the Master.   Any beginning of proceedings and future pleadings before the Commercial Division must be made electronically using the electronic filing system. However, only the Commercial Division has an electronic filing system, despite the fact that the requirements apply to all courts.

The defendant or other party must be served with a plaint and summons no later than fourteen days prior to the returnable date. The plaint with summons must state the substance of the cause of action, with a tender of evidence.  Service may be done by registered post, with a request for advice of delivery or by an usher and signed by the party’s attorney. An attorney-represented party has the right to be served with all relevant documents relating to the case and to any connected issues until judgment is rendered in that action. Any response made on the occasion of the serving of process may be addressed in writing to the attorney who has caused the process to be issued

If there is a solid justification, the court might mandate an alternate manner of serving. Permissible means include affixing the document to be served to the door of the party’s last known house or business address, publishing in a daily newspaper, or any other authorized mode of service.

Any document the plaintiff plans to use as evidence may be examined by the defendant, who can request a copy of the plaint and any relevant information. The defendant may enter a plea after submitting all of the required information, including the charges against him, the answers to his questions, and any other relevant papers. If a counterclaim is appropriate, it may be included in the plea

The plea and the counterclaim, if any, must also be accompanied by an offer of evidence if the party wants to adduce documentary evidence at the hearing where the claimant by way of particulars might test the evidence). In order to determine the merits of a complaint, plea, or counterclaim, all relevant facts must be included in the pleading. No pleading shall mention any truth that the law presumes in favor of the party pleading and in respect to which the burden of proof falls on the opposing party unless the fact has been clearly rejected (rule 13(3), SCR). Noncompliance might result in a pleading being struck or amended without costs by the court or master 

A document in any judicial action may be served on a firm by [A.]delivery to a person identified as a director of the firm on the registry of companies;[B.]to a company employee at the firm’s primary location or main office; [C.] leaving it at the company’s registered office or location for servicing; or [D.] serving it in line with any service instructions issued by the court with jurisdiction over the case.

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Sources

1. Mediation as an alternative dispute resolution (ADR) technique in significant business disputes is still quite unusual in Mauritius. The Mediation Court was established by the Supreme Court (Mediation) Rules 2010 and the Courts Act 1945. (a division of the Supreme Court).

2. For any situation in which there is no express provision for legal recourse, the Supreme Court serves as a court of equity, with the authority and ability to administer justice and carry out any act necessary to carry out its equitable jurisdiction (sections 16 and 17, Courts Act.

3. Mauritius Commercial Bank Ltd v Maudarbocus (2015 SCJ 448)).

4. When the Court of Civil Appeals overturns a Supreme Court ruling, an appeal must be filed with England’s Judicial Committee. Any concerns connected to intellectual property, competition, and marine which are of a commercial character are under the jurisdiction of the Commercial Division.

5. Mrs Ho Niook Sen v A S Sen Wong Chin 1995 SCJ 296

6. Saturn Investments Sarl v Wah Bon Ching Edmond & Ors 2016 SCJ 5

7. The parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country or that the IAA will apply to their arbitration.

8. A notice describing the documentary evidence that the claimant intends to adduce at the hearing and indicating where the documents can be examined within a reasonable time before the hearing

9. If there is a counterclaim, the claimant must enter a plea to the counterclaim on a day to be specified by the Master (rule 11(5), SCR

10. SCR Rule 13(1) and (2) prohibits the inclusion of any assertion in a complaint that does not need to be proven.

11. Part XXVII of the Companies Act 2001 governs how legal papers are sent to a corporation (CA).

12. For foreign corporations in Mauritius, a document in any judicial action may be served by one of the following ways (section 325, CA):

  • Delivery to a person designated in the record, held at the Registrar of Companies, as a director of the foreign company and who is living in Mauritius.
  • Delivery to a person specified in the register, held at the Registrar of Companies, as being allowed to receive service in Mauritius of papers on behalf of the foreign firm.
  • Delivery to an employee of the foreign company at the foreign company’s place of business in Mauritius or, if the foreign company has more than one place of business in Mauritius, at the foreign company’s major place of business in Mauritius.
  • Serving it in line with any directives as to service made by the court having jurisdiction in the proceedings.
  • based on a contract with the foreign business

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