Section 4:

4. In this Schedule, a reference, in relation to a receiver, to property of a company is, unless the contrary intention appears, a reference to the property of the company in relation to which the receiver was appointed. [Eighth Sch. amended by s. 11 (n) of Act 4 of 2017 w.e.f. 20 May 2017.] NINTH SCHEDULE [Sections 366, 367 and 368] RULES APPLYING TO CROSS-BORDER INSOLVENCY PROCEEDINGS Preamble The purpose of this Schedule is to provide effective mechanisms for dealing with cases of cross-border insolvency so far as to promote the objectives of— (a) co-operation between courts and other competent authorities of Mauritius and foreign States involved in cases of cross-border insolvency; (b) providing greater legal certainty for trade and investment; (c) providing fair and efficient administration of cross-border insolvencies that protects the interests of all creditors and other interested persons, including the debtor; (d) providing protection and maximisation of the value of the debtor’s assets; and (e) facilitating the rescue of financially troubled businesses, thereby protecting investment and preserving employment. Chapter I – General provisions Article 1 – Scope of application (1) Except as provided in paragraph (2), this Schedule applies where— (a) assistance is sought in Mauritius by a foreign court or a foreign representative in connection with a foreign proceeding; (b) assistance is sought in a foreign State in connection with a Mauritius insolvency proceeding; or (c) a foreign proceeding and a Mauritius insolvency proceeding in respect of the same debtor are taking place concurrently; or [Issue 9] I14 – 244 Revised Laws of Mauritius (d) creditors or other interested persons in a foreign State have an interest in requesting the commencement of, or participation in, a Mauritius insolvency proceeding. (2) This Schedule does not apply to a financial institution or bank licensed under the Banking Act that is subject to appointment of a statutory conservator under that Act. Article 2 – Definitions For the purposes of this Schedule— (a) “foreign proceeding” means a collective judicial or administrative proceeding in a foreign State, including an interim proceeding, pursuant to a law relating to insolvency in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganisation or liquidation; (b) “foreign main proceeding” means a foreign proceeding taking place in the state where the debtor has the centre of its main interests; (c) “foreign non-main proceeding” means a foreign proceeding, other than a foreign main proceeding, taking place in a State where the debtor has an establishment within the meaning of subparagraph (f) of this Article; (d) “foreign representative” means a person or body, including one appointed to administer the reorganisation or the liquidation of the debtor’s assets or affairs or to act as a representative of the foreign proceeding; (e) “foreign court” means a judicial or other authority competent to control or supervise a foreign proceeding; (f) “establishment” means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services; (g) “Supreme Court” or “Court” means the Bankruptcy Division of the Supreme Court of Mauritius until such time as a Commercial Division of the Supreme Court is established and thereafter shall mean that Division; (h) “Insolvency administrator” m n court” means a judicial or other authority competent to control or supervise a foreign proceeding; (f) “establishment” means any place of operations where the debtor carries out a non-transitory economic activity with human means and goods or services; (g) “Supreme Court” or “Court” means the Bankruptcy Division of the Supreme Court of Mauritius until such time as a Commercial Division of the Supreme Court is established and thereafter shall mean that Division; (h) “Insolvency administrator” means— (i) a judicial manager appointed under the Insurance Act; or (ii) the Official Receiver or liquidator under this Act; or (iii) a receiver within the meaning of this Act; or (iv) a liquidator appointed under any other Act; or (v) an administrator appointed under a scheme for voluntary administration of companies under Sub-part IV of Part III; (i) “Mauritius insolvency proceedings” means a collective judicial or administrative proceeding pursuant to the law in Mauritius relating to the bankruptcy, liquidation, receivership, judicial management, statutory management, or voluntary administration of a debtor, or the reorganisation of the debtor’s affairs, under which the assets and affairs of the debtor are administered, or the assets of the debtor are or will be realised for the benefit of secured or unsecured creditors. I14 – 245 [Issue 3] Insolvency Act Article 3 – International obligations of Mauritius No action may be taken under this Schedule that conflicts with an obligation of Mauritius arising out of any treaty or other form of agreement to which Mauritius is a party with one or more other States. Article 4 – Supreme Court to have jurisdiction The functions referred to in this Schedule relating to recognition of foreign proceedings and co-operation with foreign courts shall be performed by the Supreme Court. Article 5 – Authorisation of insolvency administrator to act in a foreign State An insolvency administrator is authorised to act in a foreign State on behalf of a Mauritius insolvency proceeding, as permitted by the applicable foreign law. Article 6 – Public policy exception (1) Nothing in this Schedule prevents the Supreme Court from refusing to take an action governed by this Schedule if the action would be manifestly contrary to the public policy of Mauritius. (2) Before the Court refuses to take an action under paragraph (1) of this article, the Court shall consider whether it is necessary for the Solicitor-General to appear and be heard on the question of the public policy of Mauritius. Article 7 – Additional assistance under other laws Nothing in this Schedule limits the power of a court or an insolvency administrator to provide additional assistance to a foreign representative under other laws of Mauritius. Article 8 – Interpretation In the interpretation of this Schedule, regard is to be had to its international origin and to the need to promote uniformity in its application and the observance of good faith. Chapter II – Access of foreign representatives and creditors to courts in Mauritius Article 9 – Right of direct access A foreign representative is entitled to apply directly to the Supreme Court. Article 10 – Limited jurisdiction The sole fact that an application pursuant to this Schedule is made to the Supreme Court by a foreign representative does not subject the foreign representative or the foreign assets and affairs of the debtor to the jurisdiction of the Court for any purpose other than the application. Article 11 eign representatives and creditors to courts in Mauritius Article 9 – Right of direct access A foreign representative is entitled to apply directly to the Supreme Court. Article 10 – Limited jurisdiction The sole fact that an application pursuant to this Schedule is made to the Supreme Court by a foreign representative does not subject the foreign representative or the foreign assets and affairs of the debtor to the jurisdiction of the Court for any purpose other than the application. Article 11 – Application by a foreign representative to commence a Mauritius insolvency A foreign representative is entitled to apply to commence a Mauritius insolvency proceeding if the conditions for commencing such a proceeding are otherwise met. [Issue 3] I14 – 246 Revised Laws of Mauritius Article 12 – Participation of a foreign representative in a Mauritius insolvency proceeding Upon recognition by the Supreme Court of a foreign proceeding, the foreign representative is entitled to participate in a Mauritius insolvency proceeding regarding the debtor. Article 13 – Access of foreign creditors to a Mauritius insolvency proceeding (1) Subject to paragraph (2) of this Article, foreign creditors have the same rights regarding the commencement of, and participation in, a Mauritius insolvency proceeding as creditors in Mauritius. (2) Paragraph (1) of this Article does not affect the ranking of claims in a Mauritius insolvency proceeding or the exclusion of foreign tax and social security claims from such a proceeding. Article 14 – Notification to foreign creditors of a Mauritius insolvency proceeding (1) Whenever, under a Mauritius insolvency proceeding, notification is to be given to creditors in Mauritius, such notification shall also be given to the known creditors that do not have addresses in Mauritius. The Supreme Court may order that appropriate steps be taken with a view to notifying any creditor whose address is not yet known. (2) Such notification shall be made to the foreign creditors individually, unless the Court considers that, under the circumstances, some other form of notification would be more appropriate. No letters rogatory or other, similar formality is required. (3) When a notification of commencement of a proceeding is to be given to foreign creditors, the notification shall— (a) indicate a reasonable time period for filing claims and specify the place for their filing; (b) indicate whether secured creditors need to file their secured claims; and (c) contain any other information required to be included in such a notification to creditors pursuant to the laws of Mauritius and the orders of the Court. Chapter III – Recognition of a foreign proceeding and relief Article 15 – Application for recognition of a foreign proceeding (1) A foreign representative may apply to the Supreme Court for recognition of the foreign proceedings in which the foreign representative has been appointed. (2) An application for recognition shall be accompanied by— (a) a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative; or (b) a certificate from the foreign court affirming the existence of the foreign proceeding and of the appointment of the foreign representative; or I14 – 247 [Issue 3] Insolvency Act (c) in the absence of evidence referred to in subparagraphs (a) and (b), any other evidence acceptable to the Court of the existence of the foreign proceeding and of the appointment of the foreign represen certified copy of the decision commencing the foreign proceeding and appointing the foreign representative; or (b) a certificate from the foreign court affirming the existence of the foreign proceeding and of the appointment of the foreign representative; or I14 – 247 [Issue 3] Insolvency Act (c) in the absence of evidence referred to in subparagraphs (a) and (b), any other evidence acceptable to the Court of the existence of the foreign proceeding and of the appointment of the foreign representative. (3) An application for recognition shall also be accompanied by a statement identifying all foreign proceedings in respect of the debtor that are known to the foreign representative. (4) The Court may require a translation of documents supplied in support of the application for recognition into an official language of Mauritius. Article 16 – Presumptions concerning recognition (1) If the decision or certificate referred to in paragraph (2) of article 15 indicates that the foreign proceeding is a proceeding within the meaning of subparagraph (a) of article 2 and that the foreign representative is a person or body within the meaning of subparagraph (d) of article 2, the Supreme Court is entitled to so presume. (2) The Court is entitled to presume that documents submitted in support of the application for recognition are authentic, whether or not they have been legalised. (3) In the absence of proof to the contrary, the debtor’s registered office, or habitual residence in the case of an individual is presumed to be the centre of the debtor’s main interests. Article 17 – Decision to recognise a foreign proceeding (1) Subject to article 6, a foreign proceeding shall be recognised if— (a) the foreign proceeding is a proceeding within the meaning of subparagraph (1) of article 2; (b) the foreign representative applying for recognition is a person or body within the meaning of subparagraph (d) of article 2; (c) the application meets the requirements of paragraph (2) of article 15; and (d) the application has been submitted to the Supreme Court. (2) The foreign proceeding shall be recognised— (a) as a foreign main proceeding if it is taking place in the State where the debtor has the centre of its main interests; or (b) as a foreign non-main proceeding if the debtor has an establishment within the meaning of subparagraph (f) of article 2 in the foreign State. (3) An application for recognition of a foreign proceeding shall be decided upon at the earliest possible time. (4) As soon as practicable, after the Court recognises the foreign proceeding under paragraph (1) of this Article, the foreign representative shall notify the debtor, in the prescribed form, that the application has been recognised. (5) The provisions of articles 15, 16, 17 and 18 do not prevent modification or termination of recognition if it is shown that the grounds for granting it were fully or partially lacking or have ceased to exist. [Issue 3] I14 – 248 Revised Laws of Mauritius Article 18 – Subsequent information From the time of filing the application for recognition of the foreign proceeding, the foreign representative shall inform the Supreme Court promptly of— (a) any substantial change in the status of the recognised foreign proceeding or the status of the foreign representative’s appointment; and (b) any other foreign proceeding regarding the same debtor that becomes known to the foreign representative. Article 19 — Relief that may be granted upon application for recog e 18 – Subsequent information From the time of filing the application for recognition of the foreign proceeding, the foreign representative shall inform the Supreme Court promptly of— (a) any substantial change in the status of the recognised foreign proceeding or the status of the foreign representative’s appointment; and (b) any other foreign proceeding regarding the same debtor that becomes known to the foreign representative. Article 19 — Relief that may be granted upon application for recognition of a foreign proceeding (1) From the time of filing an application for recognition until the application is decided upon, the Supreme Court may, at the request of the foreign representative, where relief is urgently needed to protect the assets of the debtor or the interests of the creditors, grant relief of a provisional nature, including— (a) staying execution against the debtor’s assets; (b) entrusting the administration or realisation of all or part of the debtor’s assets located in Mauritius to the foreign representative or another person designated by the Court, in order to protect and preserve the value of assets that, by their nature or because of other circumstances, are perishable, susceptible to devaluation or otherwise in jeopardy; and (c) any relief mentioned in paragraph (1) (c) and (d) of article 21. (2) As soon as practicable, after the Court grants relief under paragraph (1) of this Article, the foreign representative shall notify the debtor, in the prescribed form, of the relief that has been granted. (3) Unless extended under paragraph (1) (f) of article 21, the relief granted under this Article terminates when the application for recognition is decided upon. (4) The Court may refuse to grant relief under this Article if such relief would interfere with the administration of a foreign main proceeding. Article 20 – Effects of recognition of a foreign main proceeding (1) Upon recognition by the Supreme Court of a foreign proceeding that is a foreign main proceeding— (a) commencement or continuation of individual actions or individual proceedings concerning the debtor’s assets, rights, obligations or liabilities is stayed; (b) execution against the debtor’s assets is stayed; and (c) the right to transfer, encumber, or otherwise dispose of any assets of the debtor is suspended. (2) Paragraph (1) of this Article does not prevent the Court, on the application of any creditor or interested person, from making an order, subject to such conditions as the Court thinks fit, that the stay or suspension does not apply in respect of any particular action or proceeding, execution, or disposal of assets. I14 – 249 [Issue 3] Insolvency Act (3) Paragraph (1) (a) of this Article does not affect the right to commence individual actions or proceedings to the extent necessary to preserve a claim against the debtor (4) Paragraph (1) of this Article does not affect the right to request the commencement of a Mauritius insolvency proceeding or the right to file claims in such a proceeding. Article 21 — Relief that may be granted upon recognition of a foreign proceeding (1) Upon recognition by the Supreme Court of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors, the Court may, at the request of the foreign representative, grant any appropriate relief, including— (a) staying the commencement or continuation of individual actions or individual proceedings concernin file claims in such a proceeding. Article 21 — Relief that may be granted upon recognition of a foreign proceeding (1) Upon recognition by the Supreme Court of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors, the Court may, at the request of the foreign representative, grant any appropriate relief, including— (a) staying the commencement or continuation of individual actions or individual proceedings concerning the debtor’s assets, rights, obligations, or liabilities, to the extent they have not been stayed under paragraph (1) (a) of article 20; (b) staying execution against the debtor’s assets to the extent it has not been stayed under paragraph (1) (b) of article 20; (c) suspending the right to transfer, encumber, or otherwise dispose of any assets of the debtor to the extent this right has not been suspended under paragraph (1) (c) of article 20; (d) providing for the examination of witnesses, the taking of evidence, or the delivery of information concerning the debtor’s affairs, rights, obligations or liabilities; (e) entrusting the administration or realisation of all or part of the debtor’s assets located in Mauritius to a foreign representative or another person designated by the Court; and (f) extending relief granted under paragraph (1) of article 19. (2) Upon recognition by the Supreme Court of a foreign proceeding, whether main or non-main, the Court may, at the request of the foreign representative, entrust the distribution of all or part of the debtor’s assets located in Mauritius to the foreign representative or another person designated by the Court, provided that the Court is satisfied that the interests of creditors in Mauritius are adequately protected. (3) In granting relief under this Article to a representative of a foreign nonmain proceeding, the Court must be satisfied that the relief relates to assets that, under the laws of Mauritius, should be administered in the foreign non-main proceeding or concerns information required in that proceeding. Article 22 – Protection of creditors and other interested persons (1) In granting or denying relief under article 19 or 21, or in modifying or terminating relief under paragraph (3) of this Article, the Supreme Court must be satisfied that the interests of the creditors and other interested persons, including the debtor, are adequately protected. (2) The Court may subject relief granted under article 19 or 21 to conditions it considers appropriate. (3) The Court may, at the request of the foreign representative or a person affected by relief granted under article 19 or 21, or at its own motion, modify or terminate such relief. [Issue 3] I14 – 250 Revised Laws of Mauritius (4) The Court must, on application of the statutory receiver, terminate the relief granted under article 19 or 21 if— (a) an application for recognition has been made in respect of a debtor that is a bank or financial institution licensed under the Banking Act; (b) the Court has granted that application or the Court has granted relief under article 19; and (c) the debtor is placed in statutory receivership under the Banking Act after that application or relief has been granted. Article 23 – Actions to avoid acts detrimental to creditors (1) Upon recognition by the Supreme Court of a foreign proceeding, the foreign representative has standing to initiate any action that an insolvency administrator may take in respect of licensed under the Banking Act; (b) the Court has granted that application or the Court has granted relief under article 19; and (c) the debtor is placed in statutory receivership under the Banking Act after that application or relief has been granted. Article 23 – Actions to avoid acts detrimental to creditors (1) Upon recognition by the Supreme Court of a foreign proceeding, the foreign representative has standing to initiate any action that an insolvency administrator may take in respect of a Mauritius insolvency proceeding that relates to a transaction (including any gifts or improvement of property or otherwise), security, or charge that is voidable or may be set aside or altered. (2) When the foreign proceeding is a foreign non-main proceeding, the Court must be satisfied that the action relates to assets that, under the laws of Mauritius, should be administered in the foreign non-main proceeding. (3) To avoid any doubt, nothing in paragraph (1) of this Article affects the doctrine of relation back as it is applied in Mauritius. Article 24 – Intervention by a foreign representative in Mauritius insolvency proceeding Upon recognition by the Supreme Court of a foreign proceeding, the foreign representative may, provided the requirements of the laws of Mauritius are met, intervene in any proceeding in which the debtor is a party. Chapter IV – Co-operation with foreign courts and foreign representative Article 25 – Co-operation and direct communication between the Supreme Court and foreign courts or foreign representatives (1) In matters referred to in paragraph (1) of article 1, the Supreme Court shall co-operate to the maximum extent possible with foreign courts or foreign representatives, either directly or through an insolvency administrator. (2) The Court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 26 – Co-operation and direct communication between the insolvency administrator and foreign courts or foreign representatives (1) In matters referred to in paragraph (1) of Article, an insolvency administrator shall, in the exercise of its functions and subject to the supervision of the Supreme Court, co-operate to the maximum extent possible with foreign courts or foreign representatives. (2) The insolvency administrator is entitled, in the exercise of its functions and subject to the supervision of the Court, to communicate directly with foreign courts or foreign representatives. I14 – 251 [Issue 3] Insolvency Act Article 27 – Forms of co-operation Co-operation referred to in articles 25 and 26 may be implemented by any appropriate means, including— (a) appointment of a person or body to act at the direction of the Supreme Court; (b) communication of information by any means considered appropriate by the Court; (c) co-ordination of the administration and supervision of the debtor’s assets and affairs; (d) approval or implementation by courts of agreements concerning the co-ordination of proceedings; and (e) co-ordination of concurrent proceedings regarding the same debtor. Chapter V – Concurrent proceedings Article 28 – Commencement of a Mauritius insolvency proceeding after recognition of a foreign main proceeding After recognition by the Supreme Court of a foreign main proceeding, a Mauritius insolvency proceeding may be commenced only if the debtor has assets in Mauritius; the effects of that proceeding shall be restricted to t s of agreements concerning the co-ordination of proceedings; and (e) co-ordination of concurrent proceedings regarding the same debtor. Chapter V – Concurrent proceedings Article 28 – Commencement of a Mauritius insolvency proceeding after recognition of a foreign main proceeding After recognition by the Supreme Court of a foreign main proceeding, a Mauritius insolvency proceeding may be commenced only if the debtor has assets in Mauritius; the effects of that proceeding shall be restricted to the assets of the debtor that are located in Mauritius and, to the extent necessary to implement co-operation and co-ordination under articles 25, 26 and 27 to other assets of the debtor that, under the laws of Mauritius, should be administered in that proceeding. Article 29 – Co-ordination of a Mauritius insolvency proceeding and a foreign proceeding Where a foreign proceeding and a Mauritius insolvency proceeding are taking place concurrently regarding the same debtor, the Supreme Court shall seek cooperation and co-ordination under articles 25, 26 and 27, and the following shall apply— (a) when the Mauritius insolvency proceeding is taking place at the time the application for recognition of the foreign proceeding is filed— (i) any relief granted under article 19 or 21 must be consistent with the Mauritius insolvency proceeding; and (ii) if the foreign proceeding is recognised in Mauritius as a foreign main proceeding, article 20 does not apply; (b) when the Mauritius insolvency proceeding commences after recognition, or after the filing of the application for recognition, of the foreign proceedings— (i) any relief in effect under article 19 or 21 shall be reviewed by the Court and shall be modified or terminated if inconsistent with the Mauritius insolvency proceeding; and (ii) if the foreign proceeding is a foreign main proceeding, the stay and suspension referred to in paragraph (1) of article 20 shall be modified or terminated pursuant to paragraph (2) of article 20 if inconsistent with the Mauritius insolvency proceeding; and [Issue 3] I14 – 252 Revised Laws of Mauritius (c) in granting, extending, or modifying relief granted to a representative of a foreign non-main proceeding, the Court must be satisfied that the relief relates to assets that, under the laws of Mauritius, should be administered in the foreign non-main proceeding or concerns information required in that proceed. Article 30 – Co-ordination of more than one foreign proceeding In matters referred to in paragraph (1) of article 1, in respect of more than one foreign proceeding regarding the same debtor, the Supreme Court shall seek co-operation and co-ordination under articles 25, 26 and 27, and the following shall apply— (a) any relief granted under article 19 or article 21 to a representative of a foreign non-main proceeding after recognition of a foreign main proceeding must be consistent with the foreign main proceeding; (b) if a foreign main proceeding is recognised after recognition, or after the filing of an application for recognition, of a foreign non-main proceeding, any relief in effect under article 19 or article 21 shall be reviewed by the Court and shall be modified or terminated if inconsistent with the foreign main proceeding; and (c) if, after recognition of a foreign non-main proceeding, another foreign non-main proceeding is recognised, the Court shall grant, modify or terminate relief for the purpose of facilitating co-ordination of the proceedings. Articl ion, or after the filing of an application for recognition, of a foreign non-main proceeding, any relief in effect under article 19 or article 21 shall be reviewed by the Court and shall be modified or terminated if inconsistent with the foreign main proceeding; and (c) if, after recognition of a foreign non-main proceeding, another foreign non-main proceeding is recognised, the Court shall grant, modify or terminate relief for the purpose of facilitating co-ordination of the proceedings. Article 31 – Presumption of insolvency based on recognition of a foreign main proceeding In the absence of evidence to the contrary, recognition of a foreign main proceeding is, for the purpose of commencing a Mauritius insolvency proceeding, proof that the debtor is insolvent. Article 32 – Rule of payment in concurrent proceedings Without prejudice to secured claims or rights in rem, a creditor who has received part payment in respect of its claim in a proceeding pursuant to a law relating to insolvency in a foreign State may not receive a payment for the same claim in a Mauritius insolvency proceeding regarding the same debtor, so long as the payment to the other creditors of the same class is proportionately less than the payment to the creditor has already received. TENTH SCHEDULE [Sections 374 and 378] PUBLIC REGISTER OF BANKRUPTS (This Schedule applies to the public register required to be maintained under section 378 by the Director)