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Editorial

Execution of foreign judgment in Mauritius

Execution of foreign judgment in Mauritius - As a matter of law of evidence in Mauritius, foreign law is a matter of fact which can only be proved by expert evidence.

In an application for an order under Article 546 of the Code de Procédure Civile declaring a foreign judgment executory in Mauritius, failure to adduce expert evidence to show that the foreign judgment in question is still capable of execution in the country where it was delivered, is fatal to the application.

As a matter of law of evidence in Mauritius, foreign law is a matter of fact which can only be proved by expert evidence and local Counsel cannot refer to foreign law from the Bar.

Facts>

The applicant applied for an order under Article 546 of the Code de Procédure Civile to declare executory in Mauritius the Order granted on 31 January 2012 by the United States District Court Southern District of New York.

The respondent raised objected to the application on the ground that the applicant has failed to show that the judgment is still capable of execution in the United States.

Decision

The Supreme Court upheld the objection holding that the applicant has failed to establish that the judgement, which was obtained by default, was still capable of execution. Upon objection raised by counsel for the respondent, the Honourable Senior Puisne Judge stated that Counsel for the applicant can refer to American law and stated that as a matter of law of evidence in Mauritius, foreign law is a matter of fact which can only be proved by expert evidence. The applicant was accordingly non-suited.

Commentary

The applicant has failed to satisfy one of the four essential conditions for the foreign judgment to be declared executor in Mauritius. These four conditions which have been consistently applied by the Supreme Court in Mauritius have been laid down by a full bench of the Supreme Court in Court in D’Arifat v Lesueur [1949 MR 191]. These conditions are the following:

(1) the judgment must still be valid (ait ‘une existence légale’) and capable of execution in the country where it was delivered;

(2) it must not be contrary to any principle affecting public order;

(3) the defendant must have been regularly summoned to attend the proceedings; and

(4) the Court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.

In the light of the above decision, it is important that a party seeking to apply for an order to make a foreign judgment executory in Mauritius submits, in support of the application documentary evidence, including expert evidence which confirms that the above conditions are met. The documents must be duly certified, authenticated and apostilled.