Late Razi


The Legal Landscape

By Late Mr Razi Daureeawo, Former Managing Director of PwC Legal

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Amidst social measures, this Budget nonetheless displays the Government's drive to pursue business facilitation. The announcement of the Business Regulatory Reform Bill as an apex legislation on business facilitation is recognition that there is scope for legal reform for doing business in Mauritius. The tenor of the bill is yet to be unveiled but here lies an opportunity to simplify the business regulatory regime.

The amendments proposed to the tax appeals process aim to provide for a more expeditious resolution of tax disputes and should comfort taxpayers that finality in tax matters can be achieved sooner rather than later. 

From a banking and financial services industry perspective, what comes out is the Government's determination to recognise the virtual assets sector and develop a digital currency. The announcement that the Bank of Mauritius (BoM) may open accounts and accept deposits for the purposes of issuing a digital currency is in line with the recent remarks of the Governor of the BoM on the creation of a central bank digital currency whereas amendments are proposed to various legislations to recognise virtual assets.

We hope that the Government's determination will provide the needed impetus to push the virtual assets sector to the next level though continued engagement of all stakeholders remain key to establishing Mauritius as a leading international hub for virtual assets services.

The Budget also envisages a relaxation of the COVID-19 protective measures implemented for businesses: the duty of directors upon insolvency under the Companies Act is to be reinstated. This suggests a return to normalcy. 

  • The Financial Intelligence and Anti-Money Laundering Act (FIAMLA) will be harmonised with the Financial Action Task Force (FATF) recommendations by including combatting of proliferation financing under its scope.

  • Definition of property under the Mutual Assistance in Criminal and Related Matters Act will be aligned with the FIAMLA and will include virtual assets.

  • The BoM will be empowered to open accounts and accept deposits from persons for the purpose of issuing digital currency.

  • Functionalities of the Central KYC Systems and Central Accounts Registry will be increased to facilitate collection, verification, validation and extraction of KYC records.

  • The Companies Act will be amended to remove the temporary time extension provided because of COVID-19 to call annual meeting of shareholders and prepare and file financial statements.

  • Duty of directors to consider the appointment of a liquidator or administrator in case of insolvency will be reinstated. 

  • Companies will be prevented from being registered both in Mauritius and in another jurisdiction at the same time. 

  • A person delivering services freelance or as a service provider will be given the status of a worker or an atypical worker. 
  • The scope of the protective order will be broadened to include payment of a gratuity on retirement.
  • A cyclone allowance will be provided to a worker (drawing less than Rs600,000 in a year) required to work from home or at his assigned place of duty or to stay at his place of work, when a cyclone class III or IV is in force. 
  • Workers whose normal hours of work in a day exceeds 10 hours will be given a food allowance.
  • Workers to be refunded transport expenses incurred corresponding to their mode of transport (either bus or light rail). 
  • Petrol allowance of workers to be increased by 10% up to a maximum of Rs2,000 irrespective of their salary.
  • Workers may avail themselves of up to five days from their paid leave entitlement to take care of their sick child.
  • Ceiling of 90 days to be removed to give workers the possibility to accumulate all their untaken sick leave.
  • Dismissal of workers to be prohibited on ground of performance where they have not fully recovered from an injury sustained out of and in the course of their work.
  • Workers to answer a charge of misconduct or poor performance in oral hearing even if written explanation has been provided.
  • Convicted workers to be given an opportunity to answer a charge of alleged misconduct which is subject to criminal proceedings. 
  • Redundancy Board (RB) to have the discretion to make a determination for reinstatement or payment of severance allowance.
  • RB to prohibit reduction of workforce or closure of enterprise where the reasons are not justified. 
  • A definition of sexual harassment is to be introduced. 
  • Workers may retire before the age of 60 if they have completed 436 months’ service.
  • The Employment Relations Act will be amended to (i) improve the process of collective bargaining; (ii) facilitate dispute resolution by having unresolved disputes referred to the Commission for Conciliation and Mediation; (iii) clarify the circumstances where a worker can claim reinstatement; (iv) reinforce the definition of discrimination; and (v) restyle the post of conciliators to conciliators and mediators
  • The Private Pension Scheme Act will be amended to include the transfer from one pension scheme to another or to the Portable Retirement Gratuity Fund (PRGF). 
  • Removal of “Global Headquarters Administration”, “Global Shared services” and “Global treasury activities” from the scope of “financial services” under the Financial Services Act (FSA) and creation of a new section for regulation of global activities in line with FATF requirements.
  • Regulatory actions may be taken by the Financial Services Commission (FSC) against individuals performing the functions of an officer without its approval.
  • Setting up of a Settlement Committee for assessing the possibility for early resolution of disciplinary matters with a licensee.
  • Review of current requirement for high-net worth individuals and families to a minimum portfolio of USD5m per management family office.
  • Work and residence permits for 5 executives and dependents of Global Headquarters Administration licencees.
  • Ombudsperson for Financial Services to be empowered to disregard complaints relating to a subject matter dealt with by the Commissioner for the Protection of Borrowers, a Court, a tribunal or an arbitrator and to consider requirements issued by the Ombudsperson for Financial Services, BoM, FSC, Central Depository Settlement and the Stock Exchange of Mauritius when investigating into complaints.

The Courts will be empowered to order destruction of goods imported in breach of rights under the Industrial Property Act.

  • Insurance Act to define “custodian”, “custodian agreement”,”clearing”, “clearing system” and “settlement”.

  • Setting up of a framework for Structured Investment-Linked Insurance Business activities.

  • The “fit and proper” requirements in the Insurance Act is to be aligned to those provided under the FSA.

  • The Non-Citizens (Property Restriction) Act will be amended to mitigate the risk that a non-citizen owns residential premises to which he is not entitled through acquisition of shares in a company. 

Proposed extension of the regulatory functions to allow investigations of market abuse cases involving issuers on securities exchanges.

  • The MRA will be entitled to request information from foundations and trusts to make assessments, collect tax or comply with a request under the Double Taxation Avoidance Agreement.   

  • The MRA will be allowed to publish names of companies which have not filed their income tax returns on its website. 

  • Mauritius to enter into international arrangement for alternative dispute resolution of cross border tax disputes under the Income Tax Act. 

  • Implementation of internationally recognised standards to prevent base erosions and profit shifting. 

  • Minister of Finance will be empowered to make regulations to address tax challenges regarding the digital economy. 

  • The threshold for disputes before the Alternative Tax Dispute Resolution panel will be lowered from Rs10m to Rs5m. 

  • The MRA Act will be amended to improve the efficiency of the Assessment Review Committee. 

  • The MRA Act will be amended to allow the MRA to recover foreign taxes in order to provide assistance to foreign countries. 

  • A deed of registration containing a secure digital signature in conformity with the Electronic Transactions Act will be accepted under the Registration Duty Act

  • Virtual assets will be covered under the Declaration of Assets Act.

  • Virtual asset will be defined under the Good Governance and Integrity Reporting Act.

  • A person will be required to disclose all information necessary for the recovery of a virtual asset when an Unexplained Wealth Order is made by the Judge in Chambers.

  • The FSC and other investigatory authorities will be allowed to use software/digital tools in investigations. Information obtained through software/digital tools will be admissible in a criminal investigation, prosecution or other related criminal or criminal court proceedings.

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Ashwina Pittea

Ashwina Pittea

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