The Status of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards in Seychelles: A Comment on Complete Energy Solutions Limited v. Vetivert Tech (Pty) Ltd [2024] SCCA 13 (3 May 2024)

In 1976, Seychelles became a party to the New York (NY) Convention (the Convention) through succession and domesticated it (incorporated into domestic law) through Articles 146– 150 of the Commercial Code (1977). In 1985 Seychelles withdrew from (repudiated) the Convention. However, this was not accompanied by repealing Articles 146–150 of the Commercial Code. In 2017, the Court of Appeal held that since Seychelles had repudiated the Convention, it was not enforceable. In 2020, Seychelles acceded to the Convention. In May 2024, the Court of Appeal held in Complete Energy Solutions Limited v. Vetivert Tech (Pty) Ltd that the Convention was enforceable in Seychelles through Articles 146–150 of the Commercial Code. In this article, I argue that the Court’s decision in Complete Energy Solutions Limited v. Vetivert Tech (Pty) Ltd is debatable for at least two reasons. First, Articles 146–150 of the Commercial Code were enacted to domesticate the Convention and when Seychelles repudiated that Convention, those articles ceased to have legal effect. Second, the declaration that Seychelles made in 2020 when it acceded to the Convention contradicts Article 147(1) of the Commercial Code. These two arguments substantiate the view that the Convention is not part of Seychelles domestic law. Thus, until the Convention is domesticated through enacting the relevant legislation, it should not be the basis for the enforcement of foreign arbitral awards in Seychelles. This does not mean that foreign arbitral awards will not be enforceable. They can still be enforced if they are ‘converted’ into foreign judgments or orders. In one of its cases, the Court of Appeal held that if a foreign arbitral award is ‘converted’ into a judgment in a foreign country, it can be enforced in Seychelles as a foreign judgment.