Mauritius has defeated a challenge to its protection of the first UNESCO World heritage site commemorating resistance against slavery. The claim was brought by UK investors who sought to turn it into a luxury resort complex.
The site, known as Le Morne, is a peninsula of outstanding beauty and cultural significance where escaped slaves set up a free “Maroon Republic” in the 19th Century, and heroically defended themselves against recapture. In 2008, UNESCO designated it as an international symbol of humankind’s unquenchable desire for freedom and dignity.
In a case known as Gosling v. Mauritius, UK investors instituted an international arbitration under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) arguing that Mauritius’ decision not to grant them the right to build at Le Morne amounted to an expropriation of their investment, unfair and inequitable treatment, as well as discrimination, under the bilateral investment treaty between Mauritius and the United Kingdom.
In a majority opinion issued February 18, 2020, the tribunal rejected the investors’ arguments on the basis that they never acquired the right to develop their project at Le Morne, nor obtained any assurances from Mauritius that they could do so.
The tribunal also dismissed the investors’ claim that Mauritius violated their rights by cancelling a lease they acquired at Pointe Jérôme, a separate part of Mauritius. This claim failed because the arbitrators agreed with Mauritius that it had the right to cancel the lease in response to breaches of its terms by the investors.
Mauritius was represented in the proceedings by Foley Hoag LLP, which specializes in representing sovereign States in international disputes. The lead counsel were Foley Hoag partners Paul Reichler, Co-Chair of the firm’s International Litigation and Arbitration Department, Tafadzwa Pasipanodya, and Constantinos Salonidis. Ms. Pasipanodya spoke for the firm:
“The award issued today is a powerful vindication of Mauritius’ laudable effort to protect its invaluable cultural heritage and honor those who overcame seemingly insurmountable obstacles to attain and defend the freedom and dignity to which every human being on earth should be rightfully entitled, but that slavery denied them. Development is important, but not at the expense of dishonoring the memory of a heroic people whose bravery and sacrifice remind us not to take for granted the fundamental human rights that we enjoy today.”
Foley Hoag’s legal team also included attorneys Christina Beharry, Yuri Parkhomenko, Rebecca Gerome, Antoine Lerosier, and Sudhanshu Roy, as well as Alison Macdonald QC, from Essex Chambers, London.
Mauritius was represented in the proceedings by Attorney General Maneesh Gobin, Solicitor General Dheerendra Kumar Dabee GOSK, SC, Mary Jane Lau Yuk Poon, Sureka Angad, and Rajeshsharma Ramloll SC.
Mauritius’ victory comes almost exactly one year to the day after its success in the International Court of Justice, where, on February 25, 2019, the Court in The Hague (also known as the World Court) issued a historic opinion finding that the Chagos Archipelago, an island chain in the Indian Ocean, is an integral part of Mauritius, and that the occupation of that territory by the United Kingdom constitutes an international wrong, such that the United Kingdom is obligated by international law to terminate its unlawful colonial administration as rapidly as possible so that it can be reintegrated into Mauritius. The opinion was issued by a vote of 13-1, and later endorsed by the United Nations General Assembly.
Foley Hoag, led by partners Paul Reichler and Andrew Loewenstein, also represented Mauritius in that case, along with international advocates Philippe Sands QC of Matrix Chambers (London), Professor Pierre Klein of Université libre de Bruxelles, and Alison Macdonald QC.
Chambers Global 2020 reports that Foley Hoag has “a market-leading public international law practice” and “impressive expertise in representing sovereign states in investment treaty arbitrations held across the world.” Global Arbitration Review notes that Foley Hoag has “an enviably strong record of defence wins for states facing investment treaty claims.”