Lloyd's Maritime and Commercial Law Quarterly
Arbitration Law
Matthew McGhee *
CASES
33. Alphamix Ltd v Riviere du Rempart DC 1
Tacit prorogation of arbitrator’s mandate—Mauritian Civil Procedure Code
A claimed to be owed substantial sums under a contract with R. An arbitrator was appointed on the terms of an agreement made in April 2015. The period of the arbitrator’s mandate was extended on several occasions by agreement of the parties. On 29 November 2018, a “final extension” was agreed to 31 December 2018. Arrangements were made for the arbitrator to deliver his award in person on 27 December 2018. This was postponed to 31 December 2018 due to the arbitrator’s illness. At that hearing, the arbitrator read out the operative part of his award and told the parties that they would at that stage be provided with only an unedited version of the award. Both counsel stated that they had no objection. The unedited (and unsigned) version was sent by email to the parties immediately after the hearing, and an edited and signed version was sent by email to the parties on 3 January 2019 (the next working day).
R applied for an order annulling both the unedited and edited awards. At first instance, the Supreme Court of Mauritius granted the application, finding that the unedited award was not valid because it was unsigned (pursuant to art.1026-4 and art.1026-5 of the Mauritian Civil Procedure Code) and that the edited award was not valid because it was delivered after the arbitrator’s mandate had expired. A appealed to the Privy Council.
Decision: Appeal allowed.
Held: (1) As A acknowledged, the unedited award was not and could not be a valid award, because it was unsigned.
(2) Under the law of Mauritius, the mandate of an arbitrator may be extended by the express or implied consent of the parties. No formalities are required and the necessary consent may be implied from conduct.
(3) The communications and conduct of the parties, viewed as a whole, demonstrated an unequivocal common intention of the parties formed and manifested on 31 December 2019 that delay until 3 January 2023 in providing the final, signed version of the award would not result in the award being invalid. That amounted to a tacit agreement to extend the time limit for rendering the award until (at the earliest) 3 January 2019. The award provided on that day was therefore within the arbitrator’s mandate.
* Barrister, Twenty Essex, London. The author is grateful for the assistance of Charles Connor (Barrister at Twenty Essex) in preparing this chapter.
The following abbreviations are used:
Arbitration Act 1996: Hereafter “AA”. Unless otherwise stated, references to “the Act” or to “s.” are to this Act.
New York Convention: Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
1. [2023] UKPC 20.
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