Changes to Mauritius’ domestic framework and other investment climate improvements over the years have made it one of the world’s most business-friendly jurisdictions. This chapter provides an analysis of the investment framework, focusing on both domestic legislation and its international investment agreements. It looks at statutory restrictions to foreign investment and property rights protections in the domestic legal framework and provides an overview of other investment climate-related issues, including corporate governance, contract enforcement, land tenure and administration, intellectual property rights and competition policy. It also reviews the main features of Mauritius’ international investment agreements and some of their extensive investor protection standards in light of the government’s ongoing revision of its model bilateral investment treaty.
OECD Investment Policy Reviews: Mauritius 2024
Abstract
In many ways, Mauritius has a modern legal framework for private sector activity, in keeping with its aim of becoming one of the world’s most business-friendly jurisdictions. It provides a high degree of legal protection for investors, and its Companies Act along with the Financial Services Act 2007 have played a key role in making Mauritius a hub for global businesses. In the last Doing Business rankings from the World Bank, it ranked 13th out of 190 jurisdictions. It has also made significant strides to improve its corporate governance framework, including the update of its Corporate Governance Code in 2016, following extensive stakeholder consultations. Concerning contract enforcement, Mauritius has developed strong judicial processes that meet international standards in terms of quality, integrity and efficiency, as part of the government’s efforts to become a jurisdiction of choice for international arbitration. Assessments of its court system show it to be a leader in Africa and among upper middle-income countries. It has made great strides in protecting intellectual property rights and in strengthening competition policy, not least through the creation of the Competition Commission of Mauritius in the Competition Act of 2007.
These efforts have paid off, most notably by attracting over USD 300 billion in direct investment from global businesses as of the end of 2022, according to the Bank of Mauritius. These investors are enticed by favourable tax treatment, but the quality of the regulatory environment is a necessary complement. Much of this investment is then channelled to other destinations, traditionally India but increasingly now to Africa. It is estimated that 9% of all FDI in Africa – or USD 82 billion – comes through Mauritius (Capital Economics, 2021[1]). This estimate from 2018 covers all forms of investment, not just FDI.
For domestic businesses and those foreign investors interested in actual operations in Mauritius, however, the overall regulatory and governance framework does not appear to be fulfilling its role. The weak performance in attracting traditional FDI (Chapter 2) and in improving productivity and enhancing innovation (Chapter 3) suggest that more could be done beyond the search for further administrative simplification and regulatory rationalisation. Although Mauritius is relatively open to FDI, it maintains some restrictions in key sectors of the economy which might dampen competition in these vital sectors. Advancements in corporate governance could include more complete adherence of state-owned enterprises to the Corporate Governance Code and improved disclosure. Despite the overall strong protection of intellectual property (IP) rights, local firms have reportedly conducted research and development in other jurisdictions out of concerns for protecting their IP rights. As often seems to be the case in Mauritius, the landscape for IP rights is fragmented institutionally.
Competition policy could also be strengthened. Although small markets are naturally more likely to have fewer competitors, the presence of vertically-integrated conglomerates in Mauritius and high levels of cross-directorships contribute to highly concentrated markets (World Bank, 2021[2]). None of these shortcomings in the domestic business environment presents a critical roadblock, but taken together they can help to explain why structural transformation, upgrading within sectors and R&D-led innovation are not occurring sufficiently at this stage of development of the Mauritian economy.
Reassess the rationale for restrictions in key sectors, as well as their potential impact on FDI inflows in these and in other sectors. Mauritius is one of the SADC members with the lowest level of statutory barriers to investment but maintains a more restrictive environment for foreign investment on average than OECD members and Adherents to the Declaration on International Investment and MNEs. Many of the restrictions are in similar sectors to those found in other countries, such as broadcasting, air transport and property. While Mauritius does not appear to discriminate widely against foreign investors, restrictions in key sectors such as sugar and tourism, run counter to the aim of presenting Mauritius as an ideal place to do business and are not in line with the degree of openness in other small economies that position themselves in the same way as Mauritius, such as Singapore.
Consider distinguishing between compensable and non-compensable forms of indirect expropriation. This would align the domestic framework with commitments under international investment agreements, while preserving some regulatory leeway to implement meaningful public policy changes without being constrained by obligations to compensate affected investors. Investors’ property rights are protected through constitutional safeguards limiting the government’s powers to nationalise or expropriate property to exceptional circumstances and with adequate compensation. The relevant caselaw also appears to expand constitutional protections to indirect expropriation measures as well.
Assess corporate governance framework against G20/OECD Corporate Governance Principles. The Companies Act 2001, as amended, provides for a modern legal framework for company establishment and the corporate governance framework for public interest entities was reviewed in 2016 to reflect international best practices. A process to align the 2016 National Code of Corporate Governance for Mauritius with the revised G20/OECD Principles of Corporate Governance was launched by the National Committee on Corporate Governance in mid-April 2024.
Raise awareness of IP rights over intangible assets. Mauritius strives to become a research, technology, and innovation economy, where businesses are equally empowered to innovate. This vision may only be achieved through a strong IP rights regime. The framework for IP rights has evolved significantly since the OECD Investment Policy Review of 2014. The Industrial Property Act was adopted in 2019 and entered into force in 2022, consolidating the legal framework and strengthening IP rights protections. The legal regime covers patents, marks, copyrights, industrial designs, utility models, layout-designs of integrated circuits, plant varieties, trade names, and geographic indications. Despite significant improvements in the IP legislative framework, the reported lack of awareness of rights over intangible assets may hinder the development of an enabling IP and innovation ecosystem.
Consider further collaboration with the OECD on a review of competition law and policy or a competition assessment of a specific sector such as banking. Effective competition is essential for a dynamic business environment in which firms are willing to take risks, invest and innovate. Creating and maintaining a competitive market requires a well-structured competition law, together with an effective competition authority, and, more widely, economic policies that foster competition. While research suggests that the Competition Act improved the enforcement and penalty in matters of uncompetitive behaviour, finding a positive relationship between the law’s scope and competition intensity, the World Bank has recommended the Competition Commission to scale up its review of regulations and policies restricting entry or facilitating collusion, as well as greater efforts at advocacy.
Consider clarifying current treaties in force to reduce exposure to potential claims. Along with the conclusion of trade agreements, international investment agreements (IIAs) have been a key aspect of Mauritius’ development and growth strategy. A sizeable investment treaty network through bilateral or multilateral agreements grants relative and absolute standards of protection to qualifying investors. Most IIAs in force follow older designs that feature vague framings of obligations and a lack of specificity in the meaning of key provisions. While the revision of the Mauritian model BIT is a welcome step towards incorporating more specific language in its future investment agreements, Mauritius should consider clarifying its current treaties in force, given its exposure to potential claims. Joint interpretations can be a simpler and faster device than renegotiation to address some aspects of treaty policy, provided that the existing treaty text allows for such an approach. The entry into force of the African Continental Free Trade Area (AfCFTA) Protocol on Investment is also expected to replace ten in-force BITs concluded by Mauritius with other African Union members.
Mauritius is one of the members of the Southern Africa Development Community with the lowest level of statutory barriers to investment but maintains a more restrictive environment for foreign investment on average than OECD members and Adherents to the Declaration on International Investment and MNEs more broadly. All horizontal and sectoral restrictions are listed below and form the basis for the draft list of exceptions to national treatment in Annexes A and B at the end of this chapter. Many of the restrictions are in similar sectors to the types of restrictions found in other countries, such as broadcasting, air transport and property. Local incorporation is also required in some sectors.
While Mauritius does not appear to discriminate widely against foreign investors, restrictions in key sectors such as sugar and tourism, run counter to the aim of presenting Mauritius as an ideal place to do business. They are also not in line with the degree of openness in other small economies that position themselves in the same way as Mauritius, such as Singapore. A reassessment of the rationale for restrictions in key sectors, as well as of the potential impact of these restrictions is called for.
The OECD FDI Regulatory Restrictiveness Index is based largely on the list of exceptions to National Treatment under the OECD Declaration on International Investment and MNEs, although it also includes market access issues as well (Box 4.1). It shows all discrimination against foreign investors in virtually all sectors of the economy (excluding some such as defence and education). The performance of Mauritius is shown in Figure 4.1.
The OECD FDI Regulatory Restrictiveness Index seeks to gauge the restrictiveness of a country’s FDI rules. The FDI Index is currently available for over 100 countries. It is not a standalone measure of a country’s investment climate since it does not cover many other aspects of the investment regulatory framework or the actual implementation of formal restrictions. But FDI rules are a critical determinant of FDI attractiveness and help to explain the varied performance across countries in attracting FDI (Mistura and Roulet, 2019[3]).
The FDI Index covers 22 sectors, including agriculture, mining, electricity, manufacturing and main services (transport, construction, distribution, communications, real estate, financial and professional services). Restrictions are evaluated on a 0 (open) to 1 (closed) scale following a standardised policy scoring framework, and common sectors weights, reflecting their average share in total value added over the years 1995, 2000, 2005, 2010 and 2015 for 64 economies included in the OECD Input-Output Tables, are applied across countries to compute sector scores (Mistura, Forthcoming[4]). The overall country FDIRRI score is the sum of the 22 sector sectors.
For each sector, the scoring is based on the following policy elements:
the level of foreign equity ownership permitted,
the screening/approval procedures applied to inward foreign direct investment;
restrictions on key foreign personnel; and
other restrictions, e.g., on land ownership, reciprocity requirement, discriminatory minimum capital and local content requirements and public procurement practices.
Measures considered by the FDI Index (WTO, 2022[5]) are limited to statutory restrictions on FDI. Actual enforcement and implementation procedures are not assessed. The discriminatory nature of measures, i.e. when they apply to foreign investors only, is the central criterion for scoring a measure. State ownership and state monopolies, to the extent they do not discriminate against foreigners, are not scored. Preferential treatment for special economic zones and export-oriented investors is also not factored into the score, nor is the more favourable treatment of one group of investors because of preferential treatment under international agreements.
Source: OECD FDI Regulatory Restrictiveness Index, www.oecd.org/investment/index
A non-citizen who wishes to hold leasehold rights over a freehold immovable property for a period not less than 20 years in Mauritius needs an authorisation from the Economic Development Board after approval has been obtained from the Minister to whom responsibility for internal affairs is assigned (typically the Prime Minister’s Office).1 No authorisation is needed in respect of the following:
a lease agreement for commercial purposes, other than a lease agreement or a sublease agreement in respect of a residential property, for a term not exceeding 20 years;
shares in companies which do not own immoveable property;
shares in publicly-listed companies (even if they hold immoveable property).
Foreigners may only acquire land or real estate through the Property Development Scheme (formerly the Integrated Resort and Real Estate Schemes), subject to approval and the need to finance the acquisition from funds transferred from abroad through the banking system (WTO, 2022[5]).
No foreign investor shall, without the prior written consent of the Financial Services Commission, acquire shares in a listed Mauritian sugar company if, as a result, 15% or more of the voting capital is held by foreign investors.2
Foreign ownership is limited to 49.9% in radio and television broadcasting companies (up from 20%). No foreign or domestic investor may obtain a broadcasting licence if 20% or more of the shares of the investing company are held by another company that owns a newspaper, magazine or printing press.3
In accordance with the Mauritius Civil Aviation Regulations 2007 (as amended), an Air Operating Licence shall be granted, on application, only to “qualified” persons to undertake commercial air transport services, between two or more destinations, provided that there exists a Bilateral Air Services Agreement between Mauritius and the destination countries in question. As per the definition in the Mauritius Civil Aviation Regulations 2007 (as amended), a qualified person implies that the owner, lessor, lessee, any sub-lessee or operator of the aircraft should be a citizen of Mauritius or a body corporate registered in Mauritius.
0=open; 1=closed
Foreign ownership of national carriers is restricted to 49% of shares. Only a "qualified" company, duly incorporated in Mauritius, with at least 51% shares controlled by the Mauritian nationals, may be granted an Air Operator Certificate. Foreign companies are also generally not allowed to provide cabotage services in Mauritius. According to the government, cabotage regulations are designed to protect the domestic transport industry and ensure that domestic carriers have a competitive advantage in transporting goods and passengers within the country.
0=open; 1=closed
Foreign-owned construction consultancies or contractors are not allowed to provide consultancy services or carry out construction works without a local partner. Exceptions apply where there is an agreement with a foreign state, a foreign financial institution or an international financial organisation or where no local consultant has the necessary experience or expertise in a field of specialisation.4
Local incorporation is required for securities and commodities exchanges and brokerage, investment advisory services and related activities, as well as for trusts, funds and fund management activities.5 Local incorporation is also required for insurance companies.6 These requirements are not considered in the list of exceptions to national treatment in Annex 4.A. Furthermore, as per Section 11 of the Insurance Act, one of the criteria while determining an application for an insurance licence is whether ‘it would be in the economic interests of Mauritius for the applicant to be licensed as an insurer’. According to the government, the legislation does not provide for an economic needs test.
Many restrictions appeared in the tourism sector in the early 1990s in the face of potential over-capacity. Full foreign ownership at the time was limited to large hotels (more than 100 rooms), otherwise it was restricted to 49%. Much of the rest of the tourism sector was effectively off-limits. For restaurants, 49% foreign ownership was permitted only above an excessive minimum threshold. Foreign investment was not permitted in travel agencies, tour operators, tourist guides, car rental, yacht charter and duty-free shops. Foreigners were however allowed to manage tourism assets (UNCTAD, 2001[6]).
Foreign investment in tourism has been opened up to some extent since then, but only subject to certain conditions. Foreign investment in certain activities in the tourism sector (guesthouse accommodation, pleasure craft, diving and tour operators) faces minimum capital requirements and equity limitations. Foreign investors wishing to establish tour operators must be locally-incorporated, maintain a bank guarantee of MUR 20 million and demonstrate how the project will benefit the local community. Hotel projects by foreign investors must bring added value and meet quality tourism criteria, while restaurant projects must provide innovative offerings and quality standards.7 Hotels and accommodation also face discriminatory capital requirements. 8
Foreign investment in diving centres and existing and new/innovative pleasure craft projects is limited to 30% foreign equity. For existing pleasure craft projects, the foreign investment threshold should be MUR 20 million. New or innovative pleasure craft projects will be examined by the sea-based panel of the Ministry of Tourism on its own merit, irrespective of the quantum of investment.
The Ministry of Tourism is reportedly in the process of reviewing certain restrictions in this sector.
Under the 2007 Fisheries and Marine Resources Act, only a Mauritian company (with its Directors’ meetings held regularly in Mauritius) could register a ship under the Mauritian flag, but a locally-incorporated foreign company could register a ship under the Mauritian flag. The Fisheries and Marine Resources Act was repealed and replaced by the Fisheries Act 2023, under which a foreign fishing vessel can apply for a licence (section 97).
Preferential treatment in public procurement of works is accorded to locally-incorporated SMEs and companies. Public procurement of works with investment not exceeding MUR 300 million is reserved to local contractors.9 A public body may limit participation in openly advertised bidding proceedings to citizens of Mauritius or entities incorporated in Mauritius only where such a limitation is stated in the invitation to bid or, for prequalification, in the bidding documents and is otherwise in accordance with such criteria as may be prescribed.10 A locally incorporated foreign construction company can compete for public procurement tenders.
One director of a firm needs to be ordinarily resident in Mauritius.11
Protection against expropriation of property without fair compensation is one of the core rights that investors expect from a modern legal framework for investment. Expropriation regimes should be transparent, predictable and easily understandable for investors and strike a balance between protecting investments and preserving sufficient leeway for governments to implement public policy changes. The legal architecture in Mauritius provides a high degree of protection against the arbitrary dispossession of property. The Constitution and specific laws pertaining to compulsory acquisition provide established and clear criteria for when and how the state may expropriate property, including guidelines to determine financial compensation and judicial review of such measures.
The primary source of protection against expropriation for both domestic and foreign investors is found in Articles 3 and 8 of the Constitution: Article 3 enshrines a general principle of a non-discriminatory right to protection of property and against deprivation without compensation, while Article 8 declares that “no property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired,” with clearly defined and limited exceptions permitted under the law. Thus, expropriation can legally occur in pursuit of a legitimate public purpose, if “the taking of possession or acquisition is necessary or expedient in the interests of the defence, public safety, public morality, public health, town and country planning, the development or utilisation of any property in such a manner as to promote the public benefit or the social and economic well-being of the people of Mauritius”. Any such compulsory acquisitions by the state must be pursued under applicable law and provide for the payment of adequate compensation, subject to judicial recourse to the Supreme Court.
A specific set of rules governs the compulsory taking of land. The Land Acquisition Act 1982 (amended in 2013) prescribes several requirements prior to compulsory land acquisition, including a requirement for investigation, surveying, adequate notice, and fair compensation, while distinguishing between compensable and non-compensable losses. The compensation amount is assessed based on all losses sustained, and any party dissatisfied with the Ministry’s offer of compensation may appeal to an independent Board of Assessment for re-evaluation. In line with the Constitution, interested persons can challenge the legality of any compulsory land acquisition on appeal to the Supreme Court.
Compulsory acquisition by the government appears to have been pursued in a manner prescribed by law, and pursuant to reasonable public policy objectives. In the World Justice Project’s 2022 Rule of Law Index’s sub-category assessing the propensity to expropriate without lawful process and adequate compensation, Mauritius achieved a score of 0.59, placing it above both global and the regional averages. Likewise, Mauritius ranked 29th among 141 countries in the World Economic Forum’s Global Competitiveness Index (2019) in relation to the protection of property rights (index component 1.14).
The regime explicitly covers direct takings of property, which have become increasingly rare in recent decades, although the relevant caselaw appears to have extended protections to indirect expropriation measures as well. Mauritius’ could distinguish between compensable and non-compensable forms of indirect expropriation, a distinction that countries have increasingly included in their IIAs to preserve some leeway to implement public policy changes without being constrained by obligations to compensate affected investors (see Protection against indirect expropriation in Mauritius’ IIAs).
Business registration is governed by the Companies Act (2001) – a major change for the corporate governance framework which has evolved significantly since independence and has been instrumental in making Mauritius a hub for global businesses (OECD, 2014[7]). Previously, incorporation was based on the Companies Act of 1984, the first major revision of the Act since independence.12 The 2001 reform unified the regime, as previously domestic companies were subject to the 1984 Companies Act and foreign firms the International Companies Act 1994. The 2001 reform was successful in making Mauritius attractive for global businesses. In the last edition of the World Bank Doing Business Report (2020), Mauritius was one of the world’s most business-friendly jurisdictions, consistently ranking in the top tier in all of the investment climate factors assessed and ranking 13th out of 190 jurisdictions (World Bank, 2020[8]).
Under the Companies Act, domestic companies (i.e., commercial “onshore” companies that are incorporated and do business in Mauritius) may be incorporated as public or private enterprises (art. 21), with no minimum capital amount or minimum share capital requirement. Foreign enterprises may also register branches – with certain exceptions – following Article 276 of the 2001 Companies Act and appoint an authorised agent serving as contact point. Alternatively, they may set up a subsidiary as separate legal entity in Mauritius under Article 26 and must have at least one resident director (Art. 132) and an accounting record kept in Mauritius (Art. 194).
As a global financial centre with a vast network of double taxation avoidance treaties, Mauritius has also been a destination for “global businesses” (i.e., companies incorporated in Mauritius but operating abroad) that are required to obtain a global business licence from the Financial Services Commission (FSC) under the Financial Services Act 2007. The FSC requires that all applications for a Global Business Licence be channelled through a Management Company. The licence allows companies to conduct business abroad while still being Mauritian residents for tax purposes. The Mauritius Financial (Miscellaneous Provisions) Act 2018 recently amended the former regime to align the fiscal regime with its commitments under the OECD/G20 BEPS Inclusive Framework to avoid harmful tax practices and tax treaty abuse.
The regulatory framework for corporate governance of publicly traded companies is also an important aspect of the investment climate. Good corporate governance can contribute to sustainable economic development by enhancing the performance of companies and increasing their access to outside capital. A sound corporate governance framework helps foster long-term investment, financial stability, and business integrity, thereby supporting stronger growth and more inclusive societies (OECD, 2023[9]). Weak corporate governance frameworks can reduce investor confidence and discourage outside investment.
Mauritius has made significant strides to improve its corporate governance framework for publicly traded companies. The first National Code of Corporate Governance was adopted in October 2003, based on South Africa’s King Report on Corporate Governance (2002). A survey conducted in 2014 by the National Committee of Corporate Governance (NCCG) revealed that although many public interest entities had used the Code (as updated in 2004) in their accounting and auditing activities, most respondents believed that it needed to be revised to align it with new laws and guidelines (NCCG, 2016[10]).
Similarly, a 2010 World Bank study based on the OECD Principles of Corporate Governance concluded that while the Code had had a significant impact on the behaviour of publicly traded companies, especially relating to board composition, board committees, and disclosures, other provisions, such as those aimed at enhancing the role of shareholders and other stakeholders, may have received less attention (World Bank, 2010[11]). The study also identified several key areas of improvement, related to the clarity of some of its provisions, its impact on the governance of state-owned enterprises, and the uneven disclosure of ownership, control, and group structures which diminished its rules on conflicts of interest.
The Code of Corporate Governance was subsequently updated in November 2016 (applicable as of July 2017) following extensive stakeholder consultations. It currently follows an ‘apply-and-explain’ methodology, like the approach of the latest King Report on Corporate Governance in South Africa (King IV, 2016) and avoids taking a mandatory or prescriptive approach to governance practices. The Code comprises eight principles and offers some flexibility on their application. Boards of directors are required to provide explanations in annual reports on how they have applied the principles.
The Corporate Governance Scorecard for Mauritius (2021) was recently launched to reinforce the Code, provide clarity on how to operationalise its principles and encourage more consistent corporate governance practices. A preliminary assessment of the Scorecard’s effect on corporate governance practices seems to indicate a relative improvement of the quality and level of disclosures (NCCG, 2022[12]). While the new Code appears to somewhat reflect modern corporate governance practices, the extent to which it addressed earlier shortcomings and potential areas for improvement in light of the revised G20/OECD Principles of Corporate Governance would require a further in-depth assessment. Mauritius is thus encouraged to further its collaboration with the OECD in this key policy area. A process to align the 2016 National Code of Corporate Governance for Mauritius with the revised G20/OECD Principles of Corporate Governance was launched by the NCCG in mid-April 2024.
Access to justice and to a sound court system is paramount for a stable investment climate. Investors are more likely to invest where they are confident that their contractual rights are legally preserved and enforced through an effective, independent, and impartial judicial system underpinned by rule of law principles or through alternative dispute resolution mechanisms (ADR) such as arbitration. Mauritius has developed strong judicial processes that meet international standards in terms of the quality, integrity, and efficiency. Arbitration and mediation are fully recognised within the legal system, and the government has made strides towards becoming an arbitration hub for both domestic and foreign enterprises.
The two-tiered judicial architecture of Mauritius is organised by the Constitution (1968), Chapter VII, and consists of the Supreme Court and subordinate Courts. As a Court of first instance, the Supreme Court hears cases through its various divisions, including the Master’s Court, the Family Division, the Criminal Division, the Mediation Division, the Commercial Division, and the newly created Financial Crimes Division and Land Division. As an Appellate Court, the Supreme Court hears civil and criminal appeals from decisions of subordinate Courts. It also sits as the Court of Civil Appeal and the Court of Criminal Appeal to determine appeals from the Supreme Court in the exercise of its original jurisdiction in civil and in criminal matters (Republic of Mauritius, 2023[13]).
Upon independence, Mauritius chose to maintain the UK’s Judicial Committee of the Privy Council as the ultimate Court of Appeal of Mauritius. It may have the final decision in any criminal or civil proceedings and on questions related to the interpretation of the Mauritian Constitution; where the matter in dispute is MUR 10 000 or above (approximately USD 211); in proceedings under section 17 of the Constitution for the enforcement of protective provisions; or, with leave of the Supreme Court for questions of great general or public importance.
Mauritius’ scores and ranking on the World Justice Project Rule of Law Index reflect the integrity of its court system and its status as a leader in Africa and among upper-middle income countries. Factors assessed by the Index include inter alia absence of corruption, open government, regulatory enforcement, and civil justice. Out of 140 jurisdictions measured by the Index (2022), Mauritius ranked 45th or 2nd in Africa and 5th among upper-middle income peers, with a constant overall score of 0.61 since 2019 (Figure 4.3).
The Commercial Division of the Supreme Court, established in 2009, hears matters pertaining to company affairs, insolvency, banking, bills of exchange, offshore business, patents and trademarks or passing off, contractual and quasi-contractual matters, commercial matters, matters relating to loans, privileges, charges, seizures, and any matter relating to sociétés, trusts, and partnerships. The creation of this division has helped accelerate and expand Mauritius’ capacity to expeditiously resolve disputes between commercial entities.
By and large, litigants pursuing court proceedings in Mauritius can expect due process, impartiality, absence of corruption, and freedom from improper government influence or discrimination. Though litigants are generally satisfied by the way laws are applied and judgements delivered, domestic courts have struggled with long time delays in resolving cases. In 2020, it took an average of 490 days to resolve a dispute in the courts, with an average of 325 of those days being consumed in the trial and judgement phase (World Bank, 2020[8]). Delays in court cases worsened owing to the COVID-19 pandemic, with the judiciary still working through various pandemic-related backlogs.
Note: Scores range from 0 (worst) to 1 (best). Box plots were generated from data gathered on the 42 upper-middle income countries covered by the World Justice Project Rule of Law Index (2022), including Mauritius. Central lines of boxes mark median values. Vertical lines represent the distance between quartile values (first quartiles marked by lower box edges; third quartiles for higher box edges) and the highest or lowest data points recorded for each category. The WJP Rule of Law Index measures rule of law adherence across 140 jurisdictions worldwide. The country scores and rankings are built from more than 500 variables drawn from the assessments of more than 150 000 households and 3 600 legal experts. They capture the experiences and perceptions of ordinary citizens and in-country professionals concerning the performance of the state and its agents and the actual operation of the legal framework in their country.
Source: OECD elaboration from World Justice Project Rule of Law Index (2022).
The authorities have identified several ways to improve judicial efficacy, including measures to tackle delays and adopt modern technologies in the courtroom. In its 2021 Annual Report of the Judiciary, the Supreme Court recommended reducing the number of pending cases, accumulated during COVID-19 and to review procedures to expedite the disposal of cases. Furthermore, it was recognised that the modernisation of the administration of justice could be achieved with the “introduction of a new computerized system and upgrading available technologies tools and making full use of them to expedite the disposal of cases” (Republic of Mauritius, 2023[13]).
Though delays in administering civil justice remain a persistent challenge, different bodies within the judiciary appear to process cases at different rates. In 2021, 64% of cases were disposed of within three months at the Commercial Division of the Supreme Court, compared to 28% of cases at the Family Division and 11% at the Registry. While litigants in Mauritius may be wary of excessive time delays in legal proceedings, it appears that domestic courts are able to process commercial matters and business-related disputes more expeditiously. The Government Programme 2020-2024 announced some measures to ensure the timely enforcement of contracts and to expedite commercial dispute settlement in courts.
Mauritius has anticipated the growth of its arbitration industry and has taken steps to develop the legal expertise and institutional capacity needed to facilitate this sector as it seeks to become a “jurisdiction of choice” for international arbitration (Government of Mauritius, 2016[14]). The government has advanced arbitration as a means of resolving both domestic and international contractual disputes, while promoting innovative measures to align the legislative and judicial framework with this objective.
Mauritius is party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards since 1996 and has passed concomitant domestic legislation to that effect. Domestic arbitration is governed by the Third Book of the Mauritius Code of Civil Procedure, whereas international arbitration falls under the International Arbitration Act (IAA) 2008 (amended in 2013), completed by the Supreme Court (International Arbitration Claims) Rules 2013. For the purposes of the IAA, “international arbitration” is defined broadly, reflecting the Act’s liberal approach, guided by the principles set out in the UNCITRAL Model Law (Government of Mauritius, 2016[14]). The decision to maintain a dualistic legal regime between domestic and international arbitration was designed to further strengthen the predictability of the international arbitration regime, ensuring that it follows international standards and would remain unaffected by potential legal developments in the domestic arbitration regime.
The international arbitration regime is designed to reassure parties of the swift processing of applications, guided by principles of judicial non-intervention. Court applications under the IAA are made to a panel of three specially trained Supreme Court judges with a direct and automatic right of appeal to the Privy Council. The regime affords a high degree of autonomy and confidentiality to the conduct of arbitral proceedings. Mauritius explicitly recognises the principle of kompetenz-kompetenz: as such, parties in dispute shall be referred to arbitration unless an arbitration agreement is null or inoperative. The Act also sets out specific prerogatives for courts to support arbitration proceedings: sections 23 and 29 allow the Supreme Court to issue interim measures or summons for witnesses, evidence, or documents in support of an arbitration proceeding in cases of urgency, or where an arbitral tribunal is unable to act effectively to resolve the dispute.
An international arbitration award made by a tribunal seated in Mauritius is enforceable in the same way as an award issued by a foreign-seated tribunal. Reflecting tenets of the UNCITRAL Model Law, the Supreme Court may choose to set aside a foreign arbitral award where it finds the award in conflict with the public policy of Mauritius. The “public policy” exception was recently clarified by the Judicial Committee of the Privy Council in the high-stakes Betamax case which involved a contract of affreightment to build and operate a tanker for the international transport of petroleum products for the state’s trading arm (the State Trading Corporation).13
Mauritius has allocated important resources to develop its institutional capacity and to accommodate its ambitions for the arbitration industry. As such, the IAA enshrines the role of the Permanent Court of Arbitration (PCA), and, in April 2009, the PCA concluded a Host Country Agreement with Mauritius which provides for the posting of a PCA Legal Counsel in Mauritius. The collaboration was further strengthened in 2010 when the PCA established a physical presence, making Mauritius the first location – and currently the only one in Africa – in which the PCA has established such presence. The PCA Mauritius Office assists in discharging the Secretary-General’s functions under the Mauritian IAA 2008 as well as with the promotion of Mauritius as a venue for international arbitration and PCA services throughout the region (PCA, 2010[15]).
The government has further supported the establishment of the Mauritius International Arbitration Centre (MIAC). Founded in 2011, MIAC initially operated as a joint venture with the London Court of International Arbitration (LCIA-MIAC) until it achieved operational independence in 2018. While MIAC oversees international arbitration cases, the Mediation and Arbitration Center – Mauritius (MARC) has provided the domestic business community with a variety of alternative dispute resolution services since 1996, when it was formed as an initiative of the Mauritius Chamber of Commerce and Industry (MCCI). Both MIAC and MARC utilise arbitration rules modelled after UNCITRAL standards, as each centre routinely draws on international best practices from other arbitration-friendly jurisdictions such as Hong Kong (China) or Singapore, or from reputable international arbitration institutions such as the International Chamber of Commerce. In 2016, Mauritius became the first African nation to host the Congress of the International Council for Commercial Arbitration, affirming the legislative and infrastructural strides it has taken to become the continent’s jurisdiction of choice for arbitration.
Mauritius strives to become a research, technology and innovation economy, where businesses are empowered to innovate – a vision that may only be achieved through a strong IP rights regime, as recognised by the Mauritius Research and Innovation Council (MRIC)’s Roadmap for 2023-2027 (MRIC, 2022[16]). Mauritius has come a long way in protecting IP rights since the first Investment Policy Review carried out by the OECD in 2014. Mauritius was then in the process of consolidating its legal framework for IP rights (mainly relating to trademarks, patents, industrial designs, geographical indications, and integrated circuits), in line with one of the main recommendations formulated in its first Intellectual Property Development Plan adopted in 2009 in cooperation with the World Intellectual Property Organization (WIPO) (OECD, 2014[7])). The consolidation of the legal framework only happened a decade later, with the adoption of the Industrial Property Act in 2019 which entered into force in 2022. The MRIC was also established in 2019 to advise the government on fostering high-quality research and innovation.
Mauritius’ legal framework for IP rights is like that of an advanced economy. It offers strong protections for IP rights, covering patents, marks, copyrights, industrial designs, utility models, layout-designs of integrated circuits, plant varieties, trade names, and geographic indications. The IP framework is based on two main pieces of legislation:
The Copyrights Act (2014), amended by the Copyright Amendments Act of 2017, and
The Industrial Property Act (2019), which entered into force in 2022.The Act is complemented by the Protection Against Unfair Practices (Industrial Property Rights) Act (2002).
The Industrial Property Act (2019) was adopted following Mauritius’ Intellectual Property Development Plan developed in collaboration with WIPO in 2017. The Act consolidated the legal regime applicable to patents, marks, industrial designs, geographical indications, and layout design of integrated circuits. The Act also introduced new protections for plant varieties and utility models, reflecting Mauritian ambitions to foster innovation in high-added value activities. While protections of plant varieties may effectively encourage high-level innovation into agriculture (Government of Mauritius/WIPO, 2017[17]), the added protections for utility models hold the potential to promote innovations at their early stages. Although the Industrial Property Act does not cover trade secrets, these may be protected through other legal means (e.g., contractual arrangements or antitrust instruments).
Stakeholders expressed diverging opinions during public consultations in 2016/2017 over the draft Industrial Property Bill relating to its proposal to apply the international exhaustion regime for trademarks. As adopted in 2019, the Act maintained the national exhaustion regime for trademarks, while it adopted an international exhaustion system in relation to rights conferred on patents, industrial designs, geographical indications and layout-design of integrated circuits. An impact assessment on the feasibility of adopting the international exhaustion regime for trademarks is currently being conducted under the auspices of the Commonwealth Secretariat.
Mauritius is also a party to the several international conventions for protecting IP rights, including the WTO’s TRIPS Agreement, the Universal Copyright Convention, and other key WIPO-administered treaties, including the Berne Convention for the Protection of Literary and Artistic Works, the Paris Convention for the Protection of Industrial Property, the Beijing Treaty on Audio-Visual Performances, and the Marrakesh VIP Treaty. The last two agreements have been signed but not yet ratified. Mauritius is not a member of the Nice Agreement, yet its trademark classification system is based on the agreement. The 2019 Industrial Property Act implemented additional key WIPO-administered treaties that were not previously enforceable in Mauritius: the Patent Cooperation Treaty (PCT) for the international registration of patents; the Hague Agreement for the international registration of industrial designs; and the Madrid Protocol to facilitate the registration of trademarks. The accession to these treaties is effective as of February 2023, and March 2023 for the PCT.
In 2020, Mauritius became a member of the African Regional Intellectual Property Organisation (ARIPO). Created in 1973, the intergovernmental organisation aims to pool resources between English-speaking African Union countries for IP related matters, with the common aim to achieve technological advancement and economic development. The organisation currently has 22 members, out of which 8 have not adhered to the WTO TRIPS Agreement. This gives the ARIPO arrangements particular relevance for IP rights holders in Mauritius to protect their rights in these economies (Cape Verde, Ghana, Liberia, Mozambique, Sao Tome and Principe, Somalia, Sudan, Zimbabwe).
The framework for innovation has been assessed so far as being relatively strong. It ranks 1st among 27 Sub-Saharan African economies and 6th among 36 other upper middle-income economies in the WIPO’s Global Innovation Index (WIPO, 2022[18]). Firms operating in Mauritius have however often reported facing obstacles impeding their capacity to innovate (WEF, 2019[16]). Local firms have themselves often carried out their R&D activities abroad, such as in India or Hong Kong, China, due to concerns that their IP could be lost if developed locally (World Bank, 2021[19]). While recent amendments have increased the protection and enforcement of IP rights, the main challenge resides in offering investors an adequate IP ecosystem that further nurtures and drives innovation to achieve the goal of becoming a destination for high value-added activities (see Chapter 3).
Despite significant improvements in the IP legislative framework, the reported lack of awareness of rights over intangible assets implies that the IP framework is not sufficient to realise the country’s ambitions (World Bank, 2021[2]). The landscape for IP rights is fragmented institutionally, involving multiple entities with varying degrees of responsibility, including government agencies, the judiciary, customs authorities, and law enforcement agencies. This has led to challenges in terms of institutional coordination, communication, and efficiency and, as a result, IP right holders may struggle to effectively enforce their rights (Kluwer IP Reporter, 2022[20]). Moreover, stakeholders have pinpointed several shared weaknesses across the various entities, such as the inadequate capacities of enforcement agencies, including inadequate staff, lack of training in the field of IP and scarce facilities. Another obstacle is the inaccessibility of IP data (e.g., no searchable publicly available online databases for protected IP such as trademarks) (World Bank, 2021[19]). The government could continue working on disseminating information on the framework for IP rights. The organised capacity-building programmes by different stakeholders to raise awareness are crucial to improve the perception of the IP framework, hence ensuring that effective protection of IP rights creates a conducive environment for innovative activities. The creation of the Intellectual Property Council, as provided for by the Industrial Property Act 2019, could also further improve the IP environment in Mauritius.
Local Mauritian companies – often vertically-integrated conglomerates– appear reluctant to venture into new activities. The first OECD Investment Policy Review noted the prevailing reluctance among the domestic business community to venture beyond the “established” sectors of sugar, tourism, financial services and real estate (OECD, 2014[7]). One element behind this might be the oligopolistic nature of these industries which favours the status quo. According to the World Bank, over two-thirds of sectors, including ICT, financial services, transport and tourism, can be considered as highly concentrated (World Bank, 2021[21]). Other studies in the past have also highlighted monopolistic tendencies in several sectors, although these do not reflect possible improvements since then (Overseas Development Institute, 2011[22]; African Peer Review Mechanism, 2010[23]). This concentration of ownership, together with high levels of cross-directorships, has implications for competition policy.
Effective competition is essential for a dynamic business environment in which firms are willing to take risks and invest. Extensive empirical evidence supports the idea that industries facing greater competition experience faster productivity growth, because competition allows more efficient firms to enter and gain market share. Furthermore, a healthy competitive market is a pivotal element to incentivise innovation. An environment of productivity growth, innovation and business success – to which competition typically contributes – is one conducive to investor confidence and, therefore, investment (OECD, 2015[24])
Creating and maintaining a competitive market requires a well-structured competition law, an effective competition authority that enforces this law, and, more widely, economic policies that respect the principles of competition and avoid unnecessarily restricting it. Mauritius enacted its current Competition Law in 2007 which also established the Competition Commission of Mauritius (CCM). Research suggests that the Competition Act improved the enforcement and penalty in matters of uncompetitive behaviour and found a positive relationship between the competition law’s scope and competition intensity (Coothoopermal and Chittoo, 2019[25]). A recent World Bank Country Economic Memorandum recommended however that the Competition Commission scale up its review of regulations and policies restricting entry or facilitating collusion, as well as greater efforts at advocacy (World Bank, 2021[2]). Some private sector associations lament the limited impact of either the Act or the CCM. The Commission does not currently engage in merger review and its remit does not fully cover network industries often dominated by SOEs, and while the Competition Act empowers the CCM to control merger situations, merger notification is not mandatory. Other issues include the level of fines for abuse and the process of settlement in cartel investigations.
According to the government, the Competition Commission has nevertheless created a department overseeing market studies, policy and advocacy which will enhance focus on such efforts and increase such reviews and initiatives. Several market studies have thereby been triggered.
This review does not provide an independent assessment of competition policy in Mauritius, and the CCM was not interviewed by the research team. Competition policy is one of the policy areas covered in the OECD Policy Framework for Investment and plays an important role in a healthy investment climate. Given the concerns raised in existing studies and the challenges faced by Mauritius in terms of structural transformation and innovation, the government could consider further collaboration with the OECD on a review of competition law and policy or a competition assessment of a specific sector, such as banking which is highly concentrated, with two banks controlling 70% of the market. Cognisant of the shortcoming of the current Competition Act, the CCM has embarked on a law review exercise with the assistance of a consultant and will soon engage in stakeholder consultations.
While the real estate sector has contributed importantly to the economy, the government wishes to foster more investments in agricultural activities (Government of Mauritius, 2023[26]). Recent international shocks and the resulting disruptions in global supply chains and rising energy prices shed light on the economy’s reliance on imported goods and on the need to integrate agricultural production within its economic strategy. Secure rights for land tenure and an efficient, reliable system for land administration are indispensable for Mauritius to achieve this objective. Infrastructure developments also require a reliable land administration system to reap all development benefits. This involves a clear legal framework for acquiring, registering, and disposing of land rights, as well as proactive land use plans at all levels of government. The first OECD Investment Policy Review of Mauritius described the authorities’ struggle to allocate and effectively manage land (OECD, 2014[7]), although Mauritius has significantly improved its land tenure, titling and administration systems since.
Access to land for foreigners remains restricted, as described earlier. Land is mainly administered by the Ministry of Housing and Land. The Ministry holds three divisions respectively: the Housing Division, the Survey Division and the Planning Division. A second subsidiary authority responsible for land administration is the Registrar-General’s Department, a revenue-generating department operating under the aegis of the Ministry of Finance, Economic Planning and Development. Its main function includes land registry, registration of particulars of deeds, and valuation of immovable and mobile properties.
Mauritius significantly enhanced its land administration system in under a decade, formally registering all privately held land plots at the national level and fully digitising its land records by 2017. The project was launched in 2011, with the Registrar General Department’s “eRegistry Project”. A Land Administration, Valuation and Information Management System Project was also implemented after 2012 to computerise and streamline land administration and management procedures. Additional streamlining efforts in 2017 eased property registration processes (see Chapter 5). Lastly, in line with policy recommendations formulated in the 2014 OECD Investment Policy Review, Mauritius established a Land Division within its Supreme Court in 2020, with original jurisdiction over matters related to land ownership and property rights.
Efforts to enhance land titling and administration systems have been recognised by comparative surveys. Mauritius significantly increased its ranking in the World Bank Doing Business category of ease of registering property, going from 60th in 2013 to 23rd globally in 2020, making it a leading country in Sub-Saharan Africa. The average time for registration of property was reduced from 210 days to 17. The process was reportedly less costly as well, representing 0.6% of the total property value, well below the OECD high-income country average of 4.2%. This marks a significant improvement from 2013, when the average cost of registering property was at 10.6% of the property value.
Trade and investment agreements have been a key aspect of Mauritius’ development and growth strategy in the last decades. Mauritius is the only African country to have a free trade agreement (FTA) with China, in addition to the following other bilateral and multilateral trade agreements: an interim Economic Partnership Agreement (EPA) with the EU, a Comprehensive Economic Cooperation and Partnership (CECPA) with India, a Preferential Trade Agreement (PTA) with Pakistan, a FTA with Türkiye, a Trade and Investment Framework Agreement with the United States, and an EPA with the United Kingdom. At the regional level, as a member of the African Union, Mauritius is a party to the Agreement establishing the African Continental Free Trade Area (AfCFTA). It is also a member of several regional economic communities, such as the Common Market for Eastern and Southern Africa (COMESA) and the Southern African Development Community (SADC), including the SADC Protocol on Trade. More recently, it concluded a Comprehensive Economic Partnership Agreement (CEPA) with the United Arab Emirates in December 2023 and a final round of trade negotiations with Indonesia tentatively fixed for early 2024.
Along with trade agreements, Mauritius has taken on international obligations to grant foreign investors specific treatment in its international investment agreements (IIAs), whether through bilateral investment treaties (BITs), multilateral investment treaties or in PTAs containing investment-related chapters. These agreements grant protections to qualifying investors in addition to, and independently from, protections afforded by domestic law.
On substance, investment treaties typically guarantee covered investments relative treatment standards of non-discrimination – most prominently most-favoured nation (MFN) treatment and national treatment (NT) – as well as absolute standards such as protection against expropriation without compensation and fair and equitable treatment (FET). Furthermore, covered investors typically have access to investor-state dispute settlement mechanisms (ISDS) to directly seek damages in cases where they allege that the host state has infringed any of these rights.
The reasons why states have concluded such investment treaties since the late 1950s are debated as part of a broad reconsideration of these arrangements in some countries. It is generally held that one of the main reasons that motivated countries to conclude investment treaties was to attract foreign investment; capital exporting countries were thought to value these treaties as a way to provide additional protections to enterprises operating from their soil – assumptions that are increasingly questioned by a growing strand of empirical literature on the drivers of investment treaty proliferation. Despite many studies, it remains difficult to establish evidence of the effect of investment treaties on promoting FDI flows (Pohl, 2018[27]).
Over the years, Mauritius has developed a strong investment treaty network. It began concluding investment treaties immediately following its independence in 1968: it signed the ICSID Convention in 1969, before concluding its first BITs in in the early 1970s with Germany and France but over the next two decades, the only other BIT concluded over this period was with the United Kingdom in 1986. This changed in the mid-1990s, after which 38 investment treaty relationships were concluded, mostly through bilateral agreements. At the multilateral level, Mauritius acceded to the SADC Protocol on Finance and Investment in 2006, contributing 7 additional jurisdictions to its treaty network. As of late-2023, Mauritius had concluded a total of 51 treaty relationships, 33 of which are in force. About a third of its concluded treaty relationships since the 1970s have thus not entered into force. Figure 4.4 shows the evolution of its treaty engagements concluded and in force between 1970 and 2023.
Its prolific investment treaty activity has brought a sizeable share of its inward and outward FDI stock under treaty cover, especially with the entry into force of the Mauritius-India BIT of 1998 and the Singapore-Mauritius BIT of 2000. Between 2000 and 2016, the estimated share of its outward FDI stock covered by investment treaties in force was nearly three times higher than that of its inward FDI stock. However, the outward FDI stock cover plummeted significantly in 2019, with the denunciation of the India-Mauritius BIT by the Indian government.14 Since 2019, the shares of Mauritius’ inward FDI stock and of its outward FDI stock under treaty cover have been more symmetrical, at about 30% respectively (Figure 4.5).
Mauritius has been relatively active in recent years in reviewing some of its investment treaties and has replaced its second oldest BIT with France. The new BIT signed in 2010 has not yet entered into force however as the agreement is still going through domestic ratification in France (Assemblée nationale, 2017[28]). The replacement treaty sought to address the previous BIT’s weaknesses and to align the relationship with more recent investment treaty practices. The SADC Protocol, which entered into force in 2010, was also subsequently amended in 2016 to reflect more modern designs of investment treaty language. The amending agreement noted that some of the Protocol’s initial provisions “fail[ed] to adequately balance investor protection and development policy space for host States”. The latest investment treaty signed by Mauritius is the Mauritius-China Free Trade Agreement (FTA) in 2019, which contains a dedicated investment-chapter, replacing the previous BIT signed in 1996.
Source: OECD calculations based on OECD investment treaty database.
Note: Inward and outward FDI stock data calculated for the entire period based on positions reported at end 2021 rather than historical values. Percentages are based on matching aggregate immediate bilateral FDI stock data and treaty relationships as of April 2023. For several reasons, reported FDI stock data is not a valid measure for assets that benefit from treaty protections (Pohl, 2018[27]) and available data does not allow to determine ultimate ownership of assets. The proportions of FDI stock data may nonetheless serve as a rough approximation of stocks held by immediate investing countries to illustrate features and outcomes of Mauritius’ past investment treaty policies.
Source: OECD calculations based on OECD investment treaty database and FDI stock data from the OECD FDI statistics database and the IMF Coordinated Direct Investment Survey (CDIS).
Mauritius’ current investment treaty policy priorities remain unclear. Its recent treaty partners suggests that it has focused more on concluding investment treaties with Africa, reflecting its strategy to position itself as the “gateway to Africa” (EDB, 2023[29]). At the same time, the future entry into force of the AfCFTA Protocol on Investment adopted by the Assembly of Head of States and Government of the African Union in February 2023 will terminate all intra-African BITs as an attempt to harmonise investment protection across the African Union (AUC/OECD, 2023[30]). The AfCFTA Protocol reflects the African approach to IIAs, focused on enhancing the contribution of investment to sustainable development.
Beyond its treaties with AU countries, Mauritius is currently reviewing its Model BIT provisions to guide future treaty negotiations. The revised model BIT explicitly mentions drawing from best practices elsewhere, especially in the SADC Model BIT, the COMESA Model BIT, the new Indian Model BIT, and the AfCFTA Protocol on Investment. While its recently concluded CEPA with the United Arab Emirates only contains an investment facilitation chapter, ongoing negotiations on a full Economic Partnership Agreement (EPA) with the European Union expect to cover investment protection.
Countries’ experiences as respondents in investor-state dispute settlement (ISDS) cases may not only raise awareness of investment treaties’ legal implications, but also cause governments to re-evaluate certain treaty practices (Gordon and Pohl, 2015[31]). Nearly all of Mauritius’ IIAs provide for ISDS through arbitration, and 18 arbitration claims are known to have been subsequently lodged. Mauritius has been a respondent in four of these ISDS claims, one of which is still ongoing (Patel Engineering Limited v. Republic of Mauritius, PCA Case No. 2017-34 under the India-Mauritius BIT 1998). The four cases involved different sectors, including financial services, tourism, and land use. In the three concluded cases, the arbitral tribunals decided in favour of Mauritius, essentially on jurisdictional grounds.15 Two of the ISDS cases filed against Mauritius – Dawood Rawat v. Republic of Mauritius, PCA Case No. 2016-20 concluded in 2018, and Christian Doutremepuich and Antoine Doutremepuich v. Republic of Mauritius, PCA Case No. 2018-37, concluded in 2019 – raised questions relating to the scope of the MFN clause in the France-Mauritius BIT of 1973 (see below for a discussion on MFN clauses in Mauritian investment treaties). Its model BIT revision explicitly draws from its experience as a respondent in treaty-based arbitrations.
Fourteen ISDS cases are known to have been brought by Mauritian nationals under investment treaties to which the country is a party. India was the respondent state in eight of the fourteen cases filed by Mauritian investors. Many of the disputes involved the revocation of licences and permits for satellite and other telecommunications-related services.
Many of Mauritius’ investment treaties reflect features often associated with older-style investment treaties concluded in great numbers in the 1990s and early 2000s. Such treaties are generally characterised by a lack of specificity of the meaning of key provisions and extensive protections for covered investors. Most of Mauritius’ older BITs remain in force alongside newer agreements. This scenario may expose Mauritius to a range of unintended consequences, especially given the potential scope for ISDS claims under older investment treaties.
This section examines three key aspects of possible reform of frequently invoked substantive protections, namely the FET and MFN standards and protections against indirect expropriation.
Investment treaties concluded since the early 1960s almost universally contain a reference to fair and equitable treatment. Over the past two decades, FET provisions in investment treaties have become the principal ground of alleged liability in many – if not most – investment treaty claims. Most FET provisions in investment treaties do not provide specific guidance on the scope of obligations under this standard. Arbitral tribunals in ISDS cases under investment treaties have taken different approaches to interpreting such unspecified FET provisions, creating considerable uncertainty and high litigation costs for governments and investors.
Most of Mauritius’ investment treaties contain FET clauses which do not specify how they relate to protections afforded to investors under customary international law or delineate the scope of obligations under the standard. Such FET clauses reflect designs of early-generation investment treaties, which contrasts with more recent approaches that have emerged since the early 2000s and are now almost universally used by many jurisdictions to reframe the notion of FET or include language that provides interpretative guidance intended to specify and limit the obligations under the clause (Box 4.2).
Since the early 2000s, three primary approaches have been observed in treaty designs with regards to FET clauses intended to specify and limit the obligations under the clauses:
The limitation of FET to the ‘minimum standard of treatment’ under customary international law. This approach was first featured in the Joint interpretation related to NAFTA that the contracting parties adopted on 31 July 2001, but can be traced back to the 1962 version of the OECD Draft Convention on the Protection of Foreign Property. This approach is the earliest to have emerged and is by far still the most frequently used to clarify the scope of FET obligations in recent treaties.
The specification of the scope of FET through a closed list. The approach was first observed in 2009 in the ASEAN-China Investment Agreement (2009) and emerged in additional treaties beginning in 2016. The lists have different length and the items in the list are framed differently, although they usually include protections against denial of justice.
The non-inclusion of an obligation to accord FET among post-establishment protection standards. The approach saw increased popularity beginning in 2015 in treaties concluded by Brazil that did not contain FET clauses. Some of these recent treaties also explicitly state that the obligation to afford FET is not provided for under the investment treaty.
Source: Adapted from OECD (2023[32]), “‘Fair’ and ‘equitable’ treatment provisions in investment treaties: a large-sample survey of treaty provisions”, to be published on https://oe.cd/foit.
The Egypt-Mauritius BIT 2014 and the investment chapter of the China-Mauritius FTA (2019) appear to be the only treaties which provide some specification of the scope of obligations under their FET clauses, each specifying that the FET standard does not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens. The FTA further international law minimum standard of treatment of aliens. The article provides an explicit inclusion of the “obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with due process of law” within the FET clause, for greater certainty. Beyond these treaties, unspecified FET clauses remain prevalent in Mauritius’ treaty cohort. Such provisions have been subject to expansive interpretations by arbitrators in ISDS cases, which has led to inconsistent outcomes and uncertainty with regards to obligations under the standard.
More specific approaches to FET provisions could improve predictability for the government, investors and arbitrators alike. They could also potentially contribute to preserving the government’s right to regulate in the context of investment treaties (Gaukrodger, 2017[33]). Given the centrality of FET to many investor claims and the uncertainty of its meaning when not clearly defined, renegotiation or amendment of existing treaties with unspecified FET clauses could improve predictability for the government and investors alike. Such concerns were also reflected in the SADC Model BIT 2012, to which Mauritius contributed. The drafting Committee recommended against including FET provisions in future BITs and rather suggested a narrower “fair administrative treatment” standard as an alternative to FET clauses (SADC, 2012[34]). The new model BIT of Mauritius appears to follow a broadly similar approach to specifying FET clauses.
Investment treaties concluded since the late 1950s almost universally include language that affords investors of the nationality of one contracting state MFN treatment, that is, treatment that is no less favourable than that accorded by the treaty party to foreign investors from third states. Recent investment treaty policies and debates over MFN have centred on potential for treaty shopping, understood broadly as the power of an investor to choose between investment treaties or between provisions of different investment treaties.
Treaties have occasionally been interpreted in a way that allowed claimants to use MFN provisions to import substantive or procedural provisions – such as dispute settlement arrangements – from investment treaties concluded with other states when the claimants consider them more favourable than the provision in the treaty under which their case is filed (“base treaty”). Such discussions were central in two of the four known ISDS cases against Mauritius (Rawat and Doutremepuich). In both cases, the claimants sought to import the dispute settlement arrangements under the Finland-Mauritius BIT 2007 through the France-Mauritius (1973) BIT’s MFN clause.
Since 2004, the share of new treaties that provide for an explicit exclusion of dispute settlement arrangements from the scope of MFN has grown steadily. While this feature is now almost universally and consistently used in recent investment treaties, the recent practice surrounding the “import” of substantive content through MFN clauses appears to be less consistent (Box 4.3).
Although few treaties throughout the 1990s explicitly provided that dispute settlement arrangements could be imported through MFN clauses, the large majority of treaties concluded until the early 1990s remained silent on the issue. In the absence of clearly delineated MFN clauses, claimants in investment treaty disputes have argued for the import of dispute settlement arrangements of third-party treaties through MFN clauses when such clauses did not initially specify whether and to what extent such arrangements could be included within their scope.
In response to an arbitral decision (Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction, 25 January 2000), some governments began considering an explicit exclusion of dispute settlement arrangements from MFN clauses as early as 2003. Since 2004, the share of new treaties that provide for such an explicit exclusion of dispute settlement arrangements from the scope of MFN has grown steadily. Such a feature has become quasi-universal in treaties concluded since the early 2000s.
This lack of clarification creates uncertainty and unpredictability about the legal obligations of treaty parties. It potentially levels differentiated arrangements for dispute settlement arrangements (Pohl, Mashigo and Nohen, 2012[35])and may effectively be construed as providing access to such dispute settlement arrangements in instances where treaty parties had not intended to make them available.
While the exclusion of procedural matters – and dispute settlement arrangements – have been a quasi-universal feature in treaties concluded since the early 2000s, the practice on substantive content import through MFN clauses does not appear as consistent. Most investment treaties contain no specification of the obligations that arise from the MFN clause. This design is still observed in many recent treaties. Only a few jurisdictions have developed distinct policy preferences on how MFN clauses design the interaction with other treaties that they have or might conclude.
Since 2014, some treaties explicitly state that the MFN clause does not allow the “import” of substantive content from third-party treaties. This is either achieved through a specification of the notion of “treatment” or an explicit delimitation of the scope and function of the MFN clause in the basic treaty. These designs are observed more frequently in recent years and make up just over a quarter of new treaties concluded between 2019 and 2022.
Source: Adapted from OECD (2023[36]), The interaction between most-favoured-nation clauses and dispute settlement arrangements in investment treaties, OECD secretariat research note, https://oe.cd/foit-mfn and OECD (forthcoming), Interaction among investment treaties based on most-favoured-nation treatment provisions, OECD secretariat research note, to be made available at: https://oe.cd/foit.
The explicit exclusion of procedural arrangements within the scope of MFN clauses is only present in four of more recent IIAs signed after 2010, notably the BITs with Turkey (2013), Egypt (2014), and the UAE (2015) and the China-Mauritius FTA (2019). Mauritius’ most recent BIT with Cabo Verde, which was signed in 2017 and entered into force the following year, is silent on the specific scope of its MFN clause. At the same time, the SADC Model BIT Drafting Committee to which Mauritius participated explicitly recognised the “unexpected” interpretation of the MFN provision in arbitrations and warned against “unintended multilateralisation” from MFN clauses. A clarification of the scope of obligations under the MFN clauses in Mauritius’ IIAs would likely allow the treaties to better reflect government intent and create more predictability. While the exclusion of dispute settlement arrangements from the scope of MFN clauses appears to be adequately reflected in the ongoing review of the model BIT, the government could also consider specifying the scope of these clauses with regards to substantive content in third-party treaties.
As investment treaties typically require that losses caused by indirect expropriation must be compensated, many regulatory acts taken by the state can potentially entail pay-outs if found to constitute indirect expropriation, even if the measures are non-discriminatory and taken in the public interest. The construct of indirect expropriation may thus make a given regulatory action onerous or, in extreme cases, almost unaffordable when it adversely affects the value of treaty-protected investments. The notion of what constitutes an indirect expropriation and the extent to which a given treaty grants protection through compensation are key parameters for the conditions and ‘price’ on governments’ ability to regulate in the public interest. Recent treaty designs have specified under which conditions a regulatory measure constitutes an indirect expropriation and how their presence is to be determined by adjudicators (Box 4.4). Such language has become standard practice in newly concluded investment treaties since 2003 and is now consistently used by many jurisdictions.
Efforts to specify the notion of indirect expropriation or to guide arbitral tribunals in their findings on whether a specific measure constitutes an indirect expropriation can be traced back to the Exchange of Letters on Expropriation to the Singapore-United States FTA (2003), which served as a template for many later treaties. To specify the notion of indirect expropriation, countries have recently used four textual elements in their recent international investment agreements:
They identify the assets that can be subject to an indirect expropriation from among items covered by the definition of investment in the treaty. As such, indirect expropriation provisions are usually confined to tangible or intangible property rights or property interests in an investment, thereby excluding some elements that may be covered by the definitions of investment in treaties (such as goodwill, customer base, market share or licences, permits and other government authorisations).
They establish a positive description of what constitutes an indirect expropriation. Most treaties with specific language in this area have defined it as an “action or series of actions adopted by a Party that has an effect equivalent to direct expropriation without formal transfer of title or outright seizure” or as measures “tantamount to direct expropriation”. Some treaties have also specified the conditions to appreciate the “equivalent effect” of a measure.
They set out criteria to be considered when determining whether a measure constitutes an indirect expropriation. The most common cited criteria concern the economic impact of the measure, the character of the measure, the extent to which the government action interferes with distinct, reasonable investment-backed expectations, the objective or purpose of the measure, or even the context of the measure.
They specify under which conditions a measure does not or typically does not constitute an indirect expropriation. This fourth element is almost universally employed to specify the notion of indirect expropriation. Most treaties that employ this fourth combine two primary criteria to disqualify a measure: (1) the measure must be non-discriminatory; and (2) the measure must serve or intend to serve a specific purpose, most often the pursuit of a legitimate public welfare objective. A third explicit criterion has emerged more recently, related to the measure’s severity or its disproportionate effects.
Source: Adapted from OECD (2021[37]) The notion of ‘indirect expropriation’ in investment treaties concluded by 88 jurisdictions: a large sample survey of treaty provisions, https://www.oecd.org/investment/investment-policy/oecd-future-investment-treaties-indirect-expropriation-meeting-background.pdf
While the majority of Mauritius’ IIAs refer explicitly to indirect expropriation measures within their expropriation clauses, they do not usually contain specifications for how indirect expropriation may be assessed in the context of disputes. A few IIAs only contain illustrative lists of measures that could be considered as being tantamount to expropriation. The Mauritius-UAE BIT 2015 for instance states that “freezing or levying excessive tax” could be considered as having equivalent effect to expropriation. Simultaneously the 2015 BIT specifies elements disqualifying a measure as expropriation. The Kuwait - Mauritius BIT 2013 on the other hand provides some guidance as to the assessment of an indirect expropriation measure. The expropriation clause includes any measure that deprives the investor from “ownership, control or substantial benefits over his investment or which may result in loss or damage to the economic value of the investment”, such as levying excessive taxes and compulsory sale.
Mauritius’ current investment treaties in force cover a sizeable share of its inward FDI stock, a metric that could increase if the remainder of its treaties were to enter into force and if additional treaties are concluded. This scenario entails exposure to potential claims, especially given that the bulk of the treaty-protected stock is covered by early generation treaties that follow outdated design features with unspecified clauses. Many provisions in Mauritius’ IIAs – beyond those discussed in some greater detail above – lack specific language to delineate the scope of protection and reflect government intent.
Although the model BIT revision is a welcome step in clarifying treaty language in future agreements, Mauritius could also consider clarifying language in its existing agreements. States have several options to influence the use and interpretation of their investment treaties (Gordon and Pohl, 2015[31]). Given that Mauritian IIAs often reflect features of early-generation treaties with vague framings of obligations, the government might wish to consider reviewing or renegotiating its existing agreements to ensure that they reflect government intent and current practices emerging in recent treaty policy (‘voice’). Joint interpretations can be a simpler and faster device than renegotiation to address some aspects of treaty policy, provided that the existing treaty text allows sufficient scope to do so (Gaukrodger, 2016[38]).
As a last resort, treaty termination (‘exit’) may be considered, although this option is not available at all times. Investment treaties often place limits on exit, depending on the design of clauses on their temporal validity (Pohl, 2013[39]). The majority of Mauritian IIAs in force (65%) appear to be out of their initial validity periods and could be denounced in the two following years. In such a scenario, IIAs would continue producing their effects beyond denunciation for significant survival periods, of often 10-15 years (as set in “sunset clauses”). Based on the hypothetical scenario of a unilateral denunciation of all treaties at the earliest possible occasion, Mauritian IIAs would stop producing their effects only in 2050 (Figure 4.6).
Note: Black dots represent the share of treaties in force in a given year, based on treaties in force as of mid-2023. White dots represent the share of treaties that will continue producing their effects in a given year based on the hypothetical scenario of unilateral denunciation of all treaties at the earliest possible occasion.
Source: OECD calculations based on OECD investment treaty database.
More specific language in investment protection provisions would lead to increased predictability and thereby benefit both investors and governments. The specifications reflect policy choices and play a crucial role in the quest for balance between investor protection and governments’ right to regulate. In some cases, the specifications may affect the degree of protection for covered foreign investors. Policymakers need to carefully consider the costs and benefits of these choices, and their potential impact on foreign investors and domestic investors, as well as on legitimate regulatory interests and exposure to investment claims.
References
[23] African Peer Review Mechanism, A. (2010), Mauritius: Country Review Report.
[28] Assemblée nationale (2017), Projet de loi n°319 autorisant l’approbation de l’accord entre le Gouvernement de la République française et le Gouvernement de la République de Maurice sur l’encouragement et la protection réciproques des investissements, https://www.assemblee-nationale.fr/dyn/15/textes/l15b0319_projet-loi.
[30] AUC/OECD (2023), Africa’s Development Dynamics 2023: Investing in Sustainable Development, OECD Publishing, Paris, https://doi.org/10.1787/3269532b-en.
[1] Capital Economics (2021), Facilitating Growth, Employment and Prosperity in Africa.
[25] Coothoopermal, S. and H. Chittoo (2019), Assessing the Significance of Competition Law in Mauritius: A Quantitative Study, https://doi.org/10.2139/ssrn.3325685.
[29] EDB (2023), Mauritius: The ideal business and investment hub for Africa, https://edbmauritius.org/fr/africa-strategy (accessed on 17 January 2024).
[33] Gaukrodger, D. (2017), “The balance between investor protection and the right to regulate in investment treaties: A scoping paper”, OECD Working Papers on International Investment No. 2017/02, https://doi.org/10.1787/82786801-en.
[38] Gaukrodger, D. (2016), “The legal framework applicable to joint interpretive agreements of investment treaties”, OECD Working Papers on International Investment No. 2016/01, https://doi.org/10.1787/5jm3xgt6f29w-en.
[31] Gordon, K. and J. Pohl (2015), “Investment Treaties over Time - Treaty Practice and Interpretation in a Changing World”, OECD Working Papers on International Investment 2015/02, https://doi.org/10.1787/5js7rhd8sq7h-en.
[26] Government of Mauritius (2023), Budget Speech 2023-2024, https://mauritiusassembly.govmu.org/mauritiusassembly/wp-content/uploads/2023/06/Budget-Speech-2023-2024.pdf.
[14] Government of Mauritius (2016), The Mauritian International Arbitration Act 2008: Text and Materials (Updated 2016 Edition), https://miac.mu/wp-content/uploads/2021/04/mauritian-international-arbitration-legislation-handbook-updated-2016-1.pdf.
[17] Government of Mauritius/WIPO (2017), National Intellectual Property Development Plan for the Republic of Mauritius: Needs Evaluation Report and Implementation Matrix, https://www.mauritiustrade.mu/ressources/pdf/IPDP-FINAL-REPORT-2.pdf.
[41] IAReporter (2024), Indian construction company claims victory in arbitration against Mauritius, https://www.iareporter.com/articles/indian-construction-company-claims-victory-in-arbitration-against-mauritius/.
[20] Kluwer IP Reporter (2022), The vibrant IP practice in Mauritius, https://trademarkblog.kluweriplaw.com/2022/11/10/the-vibrant-ip-practice-in-mauritius/.
[4] Mistura, F. (Forthcoming), OECD FDI Regulatory Restrictiveness Index: Methodological update.
[3] Mistura, F. and C. Roulet (2019), “The determinants of Foreign Direct Investment: Do statutory restrictions matter?”, OECD Working Papers on International Investment, No. 2019/01, OECD Publishing, Paris, https://doi.org/10.1787/641507ce-en.
[16] MRIC (2022), National Roadmap for Research and Innovation 2023-2027, Mauritius Research and Innovation Council, Ministry of Information Technology, Communication and Innovation, https://www.mric.mu/_files/ugd/f94712_c1b1a364bd284fa8ac9273fe423211a3.pdf.
[12] NCCG (2022), Corporate Governance Scorecard - Assessment Report, https://nccg.mu/sites/default/files/2023-10/CG_Scorecard_Report_2022_FINAL.pdf.
[10] NCCG (2016), National Code of Corporate Governance for Mauritius, https://nccg.mu/full-code.
[32] OECD (2023), ‘Fair’ and ‘equitable’ treatment provisions in investment treaties: A large-sample survey of treaty provisions, OECD Secretariat research note, The ’Future of Investment Treaties’ Work Programme (Track 2).
[9] OECD (2023), G20/OECD Principles of Corporate Governance 2023, OECD Publishing, Paris, https://doi.org/10.1787/ed750b30-en.
[36] OECD (2023), The interaction between most-favoured-nation clauses and dispute settlement arrangements in investment treaties, OECD Secretariat research note, The ’Future of Investment Treaties’ (Track 2), https://oe.cd/foit.
[37] OECD (2021), The notion of ’indirect expropriation’ in investment treaties concluded by 88 jurisdictions: a large sample survey of treaty provisions, OECD Secratariat research note, The ’Future of Investment Treaties’ (Track 2), https://www.oecd.org/investment/investment-policy/oecd-future-investment-treaties-indirect-expropriation-meeting-background.pdf.
[24] OECD (2015), Policy Framework for Investment, 2015 Edition, OECD Publishing, Paris, https://doi.org/10.1787/9789264208667-en.
[7] OECD (2014), OECD Investment Policy Reviews: Mauritius 2014, OECD Investment Policy Reviews, OECD Publishing, Paris, https://doi.org/10.1787/9789264212619-en.
[22] Overseas Development Institute (2011), Progress in economic conditions: Sustained success against the odds in Mauritius, ODI publications.
[15] PCA (2010), 110th Annual Report, Permanent Court of Arbitration, https://docs.pca-cpa.org/2015/12/PCA-annual-report-2010.pdf.
[27] Pohl, J. (2018), “Societal benefits and costs of International Investment Agreements: A critical review of aspects and available empirical evidence”, OECD Working Papers on International Investment No. 2018/01, https://doi.org/10.1787/e5f85c3d-en.
[39] Pohl, J. (2013), “Temporal Validity of International Investment Agreements: A Large Sample Survey of Treaty Provisions”, OECD Working Papers on International Investment, No. 2013/04, https://doi.org/10.1787/5k3tsjsl5fvh-en.
[35] Pohl, J., K. Mashigo and A. Nohen (2012), “Dispute Settlement Provisions in International Investment Agreements: A Large Sample Survey”, OECD Working Papers on International Investment No. 2012/02, https://doi.org/10.1787/5k8xb71nf628-en.
[13] Republic of Mauritius (2023), Annual Report of the Judiciary 2022, https://supremecourt.govmu.org/sites/default/files/annual_reports/2023-07-17/annual-report-2022-of-the-judiciary.pdf.
[34] SADC (2012), SADC Model Bilateral Investment Treaty Template with Commentary, Southern African Development Community, https://www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf.
[6] UNCTAD (2001), Investment Policy Review: Mauritius.
[18] WIPO (2022), Global Innovation Index 2022: What is the future of innovation-driven growth?, Geneva: World Intellectual Property Organization, https://doi.org/10.34667/tind.46596.
[21] World Bank (2021), Mauritius - Through the Eye of a Perfect Storm, World Bank, https://doi.org/10.1596/35627.
[2] World Bank (2021), Mauritius: Country economic mirandum - Through the eye of a perfect storn.
[19] World Bank (2021), Mauritius: Through the eye of a perfect storm - coming back stronger from the Covid crisis.
[8] World Bank (2020), Doing Business: Mauritius 2020, https://www.doingbusiness.org/content/dam/doingBusiness/country/m/mauritius/MUS.pdf.
[11] World Bank (2010), Corporate Governance Country Assessment: Mauritius, https://documents1.worldbank.org/curated/en/475311468056654909/pdf/691600ESW0whit0CG0ROSC0Publication.pdf.
[40] WTO (2022), Trade Policy Review, Mauritius: Report by the Secretariat, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/TPR/S417R1.pdf&Open=True.
[5] WTO (2022), Trade Policy Review, Mauritius: Report by the Secretariat, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/TPR/S417R1.pdf&Open=True.
Immovable property: A non-citizen wishing to hold leasehold rights over a freehold immovable property for a period not less than 20 years in Mauritius needs an authorisation from the Economic Development Board after approval has been obtained from the Minister to whom responsibility for internal affairs is assigned (typically the Prime Minister’s Office).
Authority: Non-Citizens (Property Restriction Act No. 22, 1975)
Agriculture: No foreign investor shall, without the prior written consent of the Financial Services Commission, acquire shares in a listed Mauritian sugar company if, as a result, 15% or more of the voting capital is held by foreign investors.
Authority: Securities (Investment by Foreigners) Rules, 2013
Media: Foreign ownership is limited to 49.9% in radio and television broadcasting companies.
Authority: Independent Broadcasting Authority Act, 2000
Construction, engineering and architectural services: Foreign-owned construction consultancies or contractors are not allowed to provide consultancy services or carry out construction works without a local partner. Exceptions apply where there is an agreement with a foreign state, a foreign financial institution or an international financial organisation or where no local consultant has the necessary experience or expertise in a field of specialisation.
Authority: Construction Industry Development Board Act, No. 35, 2008
Tourism: Foreign investors wishing to establish tour operators must be locally-incorporated, maintain a bank guarantee of MUR 20 million and demonstrate how the project will benefit the local community. Hotel projects by foreign investors must bring added value and meet quality tourism criteria, while restaurant projects must provide innovative offerings and quality standards. Hotels and accommodation also face discriminatory capital requirements. Foreign investment in diving centres and existing and new/innovative pleasure craft projects is limited to 30% foreign equity. For existing pleasure craft projects, the foreign investment threshold should be MUR 20 million. New or innovative pleasure craft projects will be examined by the sea-based panel of the Ministry of Tourism on its own merit, irrespective of the quantum of investment.
Authority: Application Guide, Issue of Letter of Approval by the Ministry of Tourism for projects with respect to the Accommodation Sector, 2017; Policy on Investment and management by a non-citizen in a new or existing of a stand-alone (not within IRS/RES/PDS) guesthouse/tourist residence, 2019; Criteria for Investment by Non-Citizens in Tour Operator Activities.
Air transport: Foreign ownership of national carriers is restricted to 49% of shares. Only a "qualified" company, duly incorporated in Mauritius, with at least 51% shares controlled by the Mauritian nationals, may be granted an Air Operator Certificate. Foreign companies are generally not allowed to provide cabotage services in Mauritius.
Authority: Mauritius Civil Aviation Regulations, 2007
None.
None.
Preferential treatment in public procurement of works is accorded to locally-incorporated SMEs and companies. Public procurement of works with investment not exceeding Rs. 300 million is reserved to local contractors.
Authority: Construction Industry Development Board Act, No. 35, 2008
None.
None.
None.
None.
None.
None.
None.
a. Investment by established foreign-controlled enterprises
None.
b. Corporate organisation
None.
c. Government purchasing
None.
d. Official aids and subsidies
None.
a. Investment by established foreign-controlled enterprises
None.
b. Corporate organisation
One director of a firm incorporated in Mauritius needs to be ordinarily resident in Mauritius.
Authority: Section 132 of the Companies Act, 2001.
More than half of the directors of a radio and television broadcasting company must be Mauritian nationals.
Authority: Independent Broadcasting Authority Act, 2000
c. Government purchasing
None.
d. Official aids and subsidies
None.
None.
Distribution of electricity
Importation of mogas, diesel, petroleum gas, jet fuel, potatoes & onions
Supply of potable water (excluding supply of bottled water)
Operations of airport
Securities exchange
Light rail
Postal services
None
Construction and operation of airports
Port operations and container handling
None
None
None
← 1. Non-Citizens (Property Restriction) Act, 22, 1975.
← 2. Securities (Investment by Foreigners) Rules, 2013.
← 3. Independent Broadcasting Authority Act, 2000.
← 4. Construction Industry Development Board Act, 35, 2008.
← 5. Securities Act, 22, 2005.
← 6. Insurance Act, 21, 2005.
← 7. WTO (2022[40]).
← 8. Application Guide, Issue of Letter of Approval by the Ministry of Tourism for projects with respect to the Accommodation Sector, 2017; Policy on Investment and management by a non-citizen in a new or existing of a stand-alone (not within IRS/RES/PDS) guesthouse/tourist residence, 2019; Criteria for Investment by Non-Citizens in Tour Operator Activities.
← 9. Construction Industry Development Board Act, 35, 2008.
← 10. Section 17 of the Public Procurement Act 2006.
← 11. Section 132 of the Companies Act, 2001.
← 12. The legislation was based on the Singapore Companies Act 1967 (as revised in 1970 and 1975), itself modelled after the Australian Uniform Companies Act of 1961, which was substantially based on the UK Companies Act 1948.
← 13. Judgment of the Judicial Committee of the Privy Council, Betamax Ltd (Appellant) v State Trading Corporation (Respondent) (Mauritius), [2021] UKPC 14, 14 June 2021; available at: https://www.jcpc.uk/cases/docs/jcpc-2019-0109-judgment.pdf.
← 14. According to the Mauritian authorities, there is currently no consensus between the parties about the exact date of denunciation of the India-Mauritius BIT. The graph represents data considering the position of the Mauritian authorities for practical purposes without intending to take any position on the divergent views.
← 15. In a December 30, 2023 company disclosure to the Bombay Stock Exchange, Patel Engineering Limited revealed that the arbitration tribunal had issued its Partial Award, holding Mauritius liable for the “wrongful termination and expropriation of the lease of land to its subsidiary in Mauritius” (IAReporter, 2024[41]).