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The Supreme Court of Mauritius re-affirmed the criteria that need to be satisfied for an application to recognise and enforce a foreign judgment based on Article 546 of the Mauritian Code of Civil Procedure in La Banque Française Commerciale Ocean Indien v Lauret P 2015 SCJ 284 to be successful. These are the applications that are better known as 'exequatur'.
Background
The exequatur application before the Supreme Court related to two guarantee agreements that the Banque Française entered into with Lauret on 10 August 2001 and 17 November 2005. In its judgment dated 27 October 2010, the Tribunal de Grande Instance de St Denis (Réunion Island) found that Lauret was indebted to the Banque Française in the amount of (a) €420,090.96 plus interest on the first guarantee agreement and (b) €132,495.26 with contractual interest of 4.15% on the second guarantee agreement.
In granting exequatur, the Supreme Court re-affirmed as correct the conditions that it laid down in D'Arifat v Lesueur 1949 MR 191 for a successful exequatur application, these are:
(a) the judgment must still be valid and capable of execution in the country where it was delivered;
(b) it must not be contrary to any principle affecting public order;
(c) the defendant must have been regularly summoned to attend the proceedings; and
(d) the court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.
Key Point for Exequatur Applications
The Respondent (i.e. Lauret) argued before the Supreme Court that there was a technical defect in the exequatur application. Lauret stated that the certificate issued by the registrar of the Court of Appeal of St Denis did not bear the apostille of the Hague Convention. Accordingly, condition (a) set out in D'Arifat v Lesueur was not fulfilled.
The Supreme Court held that it was not fatal to the exequatur application that the certificate issued by the registrar of the Court of Appeal of St Denis did not bear the apostille of the Hague Convention. This was because the Respondent had himself admitted before the Supreme Court that he did not appeal against the judgment delivered by the Tribunal de Grande Instance de St Denis. Based on this admission by Lauret and the fact that the judgment of the Tribunal de Grande Instance de St. Denis had been apostilled under the Hague Convention, the Supreme Court was satisfied that Condition (a) in D'Afrifat had been met. As a result the Supreme Court ruled that the judgment of the Tribunal de Grande Instance de St. Denis was valid and capable of being executed in Réunion Island.
Commercial Impact of the Supreme Court Decision
The decision of the Supreme Court in La Banque Française Commerciale Ocean Indien v Lauret P is an important decision in two respects. First, it highlights the readiness of the Mauritian judiciary to look beyond what could be perceived as technical defects and focus on substantive issues, following the recommendations of the Judicial Committee of the Privy Council when hearing appeals from Mauritius. Secondly, it demonstrates the Mauritian judiciary's understanding of the environment in which international commerce operates and its willingness to give effect to it in a manner that is consonant with international trends and does not breach Mauritius law.
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