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Mauritius: Privy Council judgments

Recently there have been some notable rulings by Mauritian courts. The first is Crociani and others v Crociani and others and Princess Camilla de Bourboun des Deux Siciles. In the trust deed in question, the relevant part of clause 12 stated: 'thereafter, the rights of all persons and the construction and effect of each and every provision hereof shall be subject to the exclusive jurisdiction of and construed only according to the law of the said country which shall become the forum for administration of the trusts'.

The board (on appeal from the Jersey Court of Appeal) refused to construe 'which shall become the forum for administration of the trusts' and 'shall be subject to the exclusive jurisdiction' as conferring exclusive jurisdiction on the courts of any country, including (as was contended by the appellants) Mauritius.

The board also stated (obiter,in the light of the above conclusions) that unlike contracts, where a contracting party would ordinarily be held to its contractual agreement of an exclusive jurisdiction clause, such principle had less force when seeking to bind a beneficiary to an exclusive jurisdiction clause in a trust deed. On the facts, the board found sufficient factors for the continuation of the proceedings in Jersey.

Another interesting case is Alternative Power Solution v Central Electricity Board and another. The board (on appeal from the Court of Civil Appeal of Mauritius) considered the test applicable to the granting of injunctions to prevent payment on a letter of credit at interlocutory stage, on the ground of the fraud exception. After a review of the relevant authorities, the board concluded that it had to be clearly established that: (a) the beneficiary could not honestly have believed in the validity of its demands under the letter of credit; and, (b) the bank was aware of the fraud.

Mushtaq Namdarkhan

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