Until
2001, companies in Mauritius were formed
under the Companies Act 1984, which was
modelled on the English Companies Act 1948.
The
new Companies Act 2001 replaced most of
the Companies Act of 1984, other than sections
dealing with insolvency and public companies,
which remained in force until new legislation
was brought forward in separate bills in
2004.
The
Government's starting point for the new
law was New Zealand company law, which is
widely regarded among English-speaking jurists
as representing the best available compromise
between the various modern trends in corporate
legislation, now that English law has been
so influenced by EU law as to be no longer
satisfactory as a model for common law jurisdictions.
The
incorporation and management of Offshore
Companies and International Companies, which
were previously constituted under the separate
International Business Companies Act 1994,
have been brought under the Companies Act
2001, and the two types of company are now
known as Global Business Company 1 (GBC1)
and Global Business Company 2 (GBC2).
Some
key features of the new legislation are
as follows:
- The
Act introduced a simple form of incorporation
enabling a company to be incorporated
on the filing of a single application
together with the necessary consents
from the proposed directors and secretary
and a notice of reservation of the proposed
company name. It is not necessary to
submit a constitution at the time of
incorporation. If a company wants to
depart from the standard requirements
set out in the Act, then, either on
incorporation or subsequently, it needs
to file a separate constitution setting
out the departures from the standard
form. The new legislation also recognises
the reality of 'nominee' shareholders
by allowing companies to operate with
just one shareholder.
- The
Act does away with the need for a separate
objects clause, and provides that a
company has the rights, powers and privileges
of a natural person; this incidentally
removes the remains of the one-time
ultra vires doctrine. This would not
preclude a company from stating specific
objects in its constitution if it wished
to limit the capacity of a company in
this way.
- The
Act replaces the Memorandum and Articles
of Association by a single constitution,
which is no longer required to be notarised.
-
Private companies continue to be prohibited
from offering shares or debentures to
the public, and are able to dispense
with the holding of company meetings
by passing resolutions by means of entry
in the company minute book. Exempt private
companies will not be required to appoint
a qualified auditor or a qualified secretary
and will be entitled to file only a
summary statement of accounts with the
Registrar.
-
The proposed legislation retains the
distinction between exempt and non-exempt
private companies in the same form as
in the existing legislation.
- The
Act introduces no par value shares and
permits a company to issue shares which
are not designated with any monetary
value.
- The
Act incorporates the new procedure of
self-purchase and holding of treasury
shares introduced by the Finance Act
1999.
-
The new legislation makes provision
for a company to provide in its constitution
for the company to have power to indemnify
or insure its directors, secretary or
employees in accordance with the limitations
provided by the Act.
-
The Act contains a requirement that
public companies and non-exempt private
companies are required to prepare and
present their accounts in accordance
with international accounting standards
and that exempt private companies are
required to present their accounts in
accordance with accounting practices
and principles that are reasonable in
the circumstances and having regard
to any requirements set out in regulations
made under the Act.
- The
old Companies Act required all companies
to appoint an auditor but relieved exempt
private companies from the requirement
to appoint a qualified auditor. The
new Act allows an exempt private company
not to appoint an auditor (whether qualified
or unqualified).
-
New provisions allow for the continuation
in Mauritius of companies which are
incorporated elsewhere and also provides
for the incorporation of limited life
companies.
Legislation
introduced by the Financial Services Act
2007 has redefined the concept of global
business in Mauritius. Under the new provisions,
all resident companies conducting business
outside Mauritius may opt for an alternative
legal regime. In addition, the former restrictions
on activities conducted by Category 1 Global
Business Companies are being removed.
The
Bill also provides for the designation of
industry associations in all financial services
sectors as Self Regulatory Organisations.
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Mauritius
Private Company Limited by Shares
A
private company is one which says it is
private in its constitution and which restricts
the transfer of its shares, which cannot
be offered to the public; there is a minimum
of 1 and a maximum of 25 members.
A
private company can be exempt or non-exempt:
exempt companies are those which have issued
share capital and reserves below MR 1m and
turnover below MR 2m. Exempt
private companies are required to present
their accounts in accordance with accounting
practices and principles that are reasonable
in the circumstances and having regard to
any requirements set out in regulations
made under the Companies Act.
(Exempt status is not available to offshore
companies other than through the GBC2 -
old International Company - form).
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Mauritius
Company Limited by Guarantee
The Company Limited by Guarantee may be
used only for a non-profit organisation.
The liability of the members is limited
to the amount they have undertaken to contribute
to the company; there must be a minimum
of MR 5,000 of guarantees.
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Mauritius
Public Company Limited by Shares
A
public company is defined as one which is
not a private company and which has at the
end of its name the words 'Public Limited
Company' or 'P.L.C.'. A public company must
have a minimum of two members.
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Mauritius Foreign Company
A
company incorporated outside Mauritius can
register itself in Mauritius and will then
be treated for most purposes as a Mauritius-incorporated
company. Under the old legislation its status
was properly that of a branch, but the new
Companies Act provides for continuation
under Mauritian law. The following documents
need to be provided to the Registrar:
- Notarised
Certificate of Incorporation and Constitution
(Memorandum and Articles of Incorporation);
- List
of directors and details of the powers
of local directors;
- Particulars
of registered office in Mauritius;
- Names
of two resident persons authorised to
act on the company's behalf in Mauritius,
and their declaration.
Financial
accounts have to be lodged with the Registrar
within three months of the company's annual
general meeting.
Direct
ownership by foreigners of an onshore
Mauritian company, or part of it, requires
permission from the Prime Minister's Office,
which is not automatic if the activity
to be carried on is one which is in competition
with Mauritian-owned companies.
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Mauritius GBC1 Company (Offshore Company)
The
Global Business Company Category 1 (GBC1)
replaced the old Offshore Company under
the Companies Act 2001.
In
terms of the Financial Services Development
Act 2001, a GBC1 is defined as a company
engaged in qualified global business and
which is carried on from within Mauritius
with persons all of whom are resident
outside Mauritius and where business is
conducted in a currency other than the
Mauritian Rupee. A GBC1 may be locally
incorporated or may be registered as a
branch of a foreign company. The business
of an GBC1 Company must be conducted in
foreign currency other than for day-to-day
transactions; and GBC1 companies must
not do business in Mauritius, other than
to take professional advice, employ local
labour, and to rent property.
A
GBC1 Company is treated as resident,
and has access to Mauritius' double
tax treaties, subject to possession
of a Tax Residency Certificate. See
Offshore Legal
and Tax Regimes for further
details of the taxation regime for offshore
companies. They pay a relatively high
annual registration fee. Annual accounts
must be filed, but the GBC1 company
is exempted from the need to file an
annual return.
GBC1
companies are suited to public financial
operations such as fund management; for
holding private assets, a GBC2 (International)
Company or an Offshore Trust (see below)
is more suitable.
By
the end of 2009, 75% of all GBC1 companies
were operating in the field of investment
holding. Other activities of GBC1 companies
included: Collectives Investment Schemes,
Financial Business Activities, Trading,
Consultancy, Closed-ended Funds, ICT and
Intellectual Property.
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Mauritius GBC2 (International Company)
The
Global Business Company Category 2 (GBC2)
replaced the old International Company under
the Companies Act 2001. The International
Company (IC) is the Mauritian equivalent
of the International Business Company found
in many offshore jurisdictions. It was established
by the International Companies Act 1994,
but is now constituted under the Companies
Act 2001.
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