By reason of its history of colonization first by the French and then by the English, Mauritius has a hybrid legal regime which mixes civil law and common law. Substantive law, such as the property, contract, family, landlord and tenant, sale of goods and insurance law, is largely set out in the Civil Code which is based on the Code Napoleon. Company law is, however, based on the common law model.
The judicial system is adversarial, although the judiciary are recruited as in the French system. The legal profession is organised along English lines with its division between barristers and solicitors, known as attorneys. Cases are pleaded in English and court procedure is largely English-based. The law of evidence is, however, largely French-based.
The most widely used unincorporated form of doing business, the sole trader, is governed by the French-based Code de Commerce. The French form of partnership, the societe, governed by the Code Civil and by the Code de Commerce ,is also used.
Incorporated forms of business comprise Onshore Companies, Offshore Companies and International Companies.
Onshore and Offshore Companies are governed by the Companies Act 1984 which is modelled on the UK Companies Act of 1948. The Mauritius Offshore Business Activities Act 1992, which applies to Offshore Companies, disapplies a number of the sections of the Companies Act 1984 to Offshore Companies. It lists those offshore business activities which the Mauritius Offshore Business Activities Authority will approve:
(a) offshore banking
(b) offshore insurance;
(c) offshore funds management;
(d) international financial services;
(e) operational headquarters;
(f) international consultancy services;
(g) shipping and ship-management;
(h) aircraft financing and leasing;
(i) international licensing and franchising;
(j) international data processing and other information technology services;
(k) offshore pension funds;
(l) international trading;
(m) international assets management;
(n) international employment services;
(o) any other activity approved by the Authority.
There are restrictions on non-Mauritians owning Onshore Companies. Offshore Companies may be owned 100 per cent by non-Mauritians while there are restrictions on Mauritian residents owning shares in Offshore Companies.
Onshore Companies conduct their business in Mauritian rupees. Offshore companies conduct their business in foreign currency and may not do business in the Mauritian rupee with Mauritian residents except to take local professional advice, employ local staff and rent local property. They must maintain a registered office in Mauritius. Exchange control has been suspended in Mauritius and, in any event, does not apply to Offshore Companies.
Onshore Companies are liable to Mauritian corporate income tax at the rate of 35 per cent. Offshore companies are liable to Mauritian corporate income tax at the rate of zero per cent although they may elect to pay tax at any rate from zero to 35 per cent.
Onshore Companies are required to file full returns with the Companies Registry. Offshore Companies have fewer filing obligations to fulfil. Within the Offshore require the Offshore Company is the vehicle used to acquire double taxation treaty, benefits.
The International Company ("IC") is Mauritius' version of the international business company and is governed by the International Companies Act 1994.
It is a flexible and inexpensive vehicle for cross-border activities. The International Company can carry out any international business activity except:
- Banking, insurance and reinsurance
- Collective investment funds
- Nominee services
- Trusteeship services (if more than three trusts)
It is available to non-resident investors only. The International Company cannot own real estate in Mauritius or any interest in a Mauritian Onshore Company. The International Company must maintain a registered office and registered agent in Mauritius which will be an offshore management company or an offshore bank. It can have a minimum of one member, and one director which can itself be a company. An International Company can be formed as a Limited Life Company.
The International Company is non-resident for tax purposes and pays no Mauritian tax. It is, therefore, unable to access Mauritius' tax treaty network. The International Company is exempt from exchange control and from the payment of stamp, registration and other duties.
Both Onshore and Offshore Companies can be of limited or unlimited liability. A Company limited by shares is defined as a company in which the liability of the members is limited to the amount, if any, unpaid on the shares held by them.
The members of an unlimited liability company are liable to contribute to the last cent of their personal fortune to satisfy the Company's liabilities when it is wound up. The members are not, however, directly liable to the creditors.
LIMITED LIFE OFFSHORE COMPANY
The Mauritius Offshore Business Activities (Companies) Regulations 1995 introduced the concept of the Limited Life Offshore Company. The constitution of the Limited Life Offshore Company may contain provisions which provide for the automatic dissolution of the company upon the happening of certain events, and provide for characteristics of a partnership for US tax purposes. An Onshore Company cannot be of limited life.
LIMITED BY GUARANTEE
Onshore and Offshore Companies may be limited by guarantee. A company limited by guarantee is defined as a company in which the liability of the members is limited to the amount they may have undertaken to constitute to the assets of the Company, in the event of its being wound up. This amount, with a legal minimum of Rs5000, must be stated in the Memorandum. Where a company has for its object the making of profits, it shall not be registered as a company limited by guarantee. The hybrid form of company limited by shares and by guarantee has not been available since the coming into force of the Companies Act 1984.
Onshore and Offshore Companies are either privately owned or publicly held. Every company is a public company unless its memorandum states that it is a private company. A private company is a company which, by its articles, restricts the right to transfer its shares, limits the number of its members to 25 (minimum two), and prohibits any invitation to the public to subscribe for its shares. A private company is either an exempt or a non-exempt private company. An exempt private company is one which has an issued share capital and reserves of less than Rs 2 million and a turnover of less than Rs 4 million. Only Onshore Companies qualify as exempt private companies.
A public company is a company not being defined as a private company. The minimum number of members is two and there is no maximum. The shares can be freely transferred and the public may be invited to subscribe to the capital, subject to the requirements for a prospectus being complied with. Private companies are not legally required to publicly issue financial statements. An International Company cannot be a public company.
The distinctions between Onshore and Offshore Companies, and between private and public companies are expected to be radically reduced in a major overhaul of the Companies Act 1984 which is planned for later this year. It is expected that the 1984 Act will be replaced by an entirely new act modelled on New Zealand companies legislation.
The content of this article is intended to provide general information on the subject matter. It is not, therefore, a substitute for specialist advice.