Bilshan Nursimulu

DSC05700 - BN1 (1)

T: (+230) 211 9300

M: (+230) 5472 6897

E: [email protected]

Bilshan regularly appears in commercial, corporate, employment and tax matters before all jurisdictions in Mauritius, as well as in international arbitrations and mediations. Before co-founding 5 Fifteen Barristers, he practised as a member of Benoit Chambers and appeared in most of the set’s disputes relating to cross-border investments. 

ADMISSIONS

Barrister, England & Wales (2013)

Barrister, Mauritius (2015)

 

EDUCATION

University of Cambridge, Girton College – BA (Hons.) Law

Université Paris II (Assas-Panthéon) – Maîtrise in English Law and French Law

Columbia Law School, New York – Certificate in International Commercial Arbitration

CIArb Accelerated Route to Fellowship in International Arbitration

 

RECENT HIGHLIGHT CASES

 

International commercial arbitration

Oct 2020-present: Counsel for an oil drilling contractor in an application to enforce an international arbitral award of c.USD 8 million before the Supreme Court of Mauritius, as well as an application for interim remedies.

Sep 2020-Jan 2021: Retained by Betamax Ltd to assist panel of English lawyers (led by Mark Howard QC and Salim Moollan QC) in an appeal to the Privy Council against the judgment of the Supreme Court of Mauritius to set aside an arbitral award of c.USD 115 million for public policy considerations.

May 2019-Sep 2019: Instructed by a US-based litigation funder to advise on taking security interest in an arbitration claim and its proceeds.

Apr 2018–Sep 2019: Junior Counsel for a private equity fund (claimant) in an LCIA-MIAC arbitration seated in Mauritius. The claimant successfully claimed USD 4 million of damages against another fund for unlawful termination / repudiatory breach of a share purchase agreement through which the claimant would have exited an investment in India. Lead role in discussing case strategy, drafting pleadings and witness statements, liaising with Indian Counsel on issues of Indian law and acting as the client’s regular point of contact.

Mar 2018–Apr 2019: Advised King & Spalding, London on Mauritius law issues that arise in a series of arbitral proceedings commenced by US-based investors against an offshore fund which is incorporated in Mauritius to develop high-end real estate projects in India. Certain investors (the claimants) allege inter alia mismanagement of the fund by the directors and fraud committed by the fund’s management company. The arbitral proceedings follow 2 years of litigation before the Mauritius courts, in particular an appeal against the appointment of a liquidator by the Bankruptcy Court and the validity of the voluntary winding-up process commenced by the fund pending that appeal. Appeared as junior Counsel for the fund in those proceedings.

Feb 2015–Apr 2019: Junior Counsel for Betamax Ltd (led by Stuart Isaacs, QC from King & Spalding, London), a Mauritian company, in a dispute against the State Trading Corporation (“STC”), which is the trading arm of the Government of Mauritius. Betamax Ltd owns an oil tanker. The dispute arose from STC’s termination of a long-term contract of affreightment with Betamax Ltd. Successfully appeared for Betamax Ltd (claimant) in a SIAC arbitration seated in Mauritius and in which the sole arbitrator (Dr Michael Pryles) awarded damages of c.USD 115 million against STC. Appeared for Betamax Ltd in enforcement proceedings before the Supreme Court of Mauritius. Instructed and assisted Indian Counsel in enforcement proceedings before the High Court of Karnataka in India, where Betamax Ltd seeks to enforce the arbitral award against petroleum products purchased by STC in Mangalore.

Sep 2018: Counsel for Flashbird Limited (award debtor) in an application before the Supreme Court of Mauritius to set aside an award for c. EUR 100,000 on the ground that the arbitration agreement provided for a hybrid arbitration, which the arbitral tribunal disregarded in determining its jurisdiction and the arbitral procedure.

 

Commercial and corporate litigation / advisory

Nov 2020-present: Acting for a real estate promoter in a dispute against a local bank regarding the enforcement of a performance bond. The dispute raises important questions regarding the operation of a performance bond as a security instrument under Mauritius law, in particular whether the beneficiary has a direct and immediate action against the issuer of the bond without having to first seek remedies against the principal party under the construction agreement.

Oct 2020-present: Acting for a private equity investment vehicle in a dispute relating to an outstanding loan in the amount of USD 6.7 million given to a deceased shareholder and the company’s refusal to register the purported transfer of shares to the estate of that shareholder.

Oct 2020-present: Acting for an investment company in insolvency proceedings before the Bankruptcy Division of the Supreme Court against a corporate guarantor for recovery of an undisputed MUR 15 million debt. The dispute raises an important question as to whether the service of a statutory demand on an insolvent debtor is abusive in the circumstances where it may be possible for the creditor to enforce its debt against a security provided by the debtor.

Aug 2020-present: Acting for the Mauritius Duty Free Paradise in a dispute against a local bank in relation to an alleged debt in the amount of MUR 40 million and attachment proceedings initiated by the bank for that sum.

Jun 2020-present: Acting for a Jersey-incorporated Trust in insolvency proceedings before the Supreme Court of Mauritius against a Mauritius SPV that funds digital banking services and products in Africa. The dispute arises from the SPV’s default under a promissory note governed by the laws of the State of New York for the amount of USD 10 million plus interests.

Jul 2020-Dec 2020: Instructed to draft and advise on a long-term commercial lease worth c. MUR 700 million involving a future lease prior to construction of the premises, as well as security interest to be provided by the future lessee.

Jul 2020-Nov 2020: Counsel for a real estate investment company in an application before the Commercial Division of the Supreme Court to set aside a statutory demand served on it in relation to an alleged debt of c. MUR 20 million for breach of a portfolio management agreement.

Jan 2020-Aug 2020: Successfully appeared as Counsel for a private equity investment vehicle (set up to acquire refined petroleum storage tank farms across West Africa) to resist an application for an injunction before the Judge in Chambers that purported to prevent the conversion of convertible loans into ordinary shares.

May 2019-Sep 2019: Instructed by a US-based litigation funder to advise on taking security interest in an arbitration claim and its proceeds.

Feb 2018-Apr 2019: Instructed by Dentons Mauritius and Linklaters Singapore as junior Counsel to appear for officers and affiliates of PT Bank J Trust Indonesia Tbk (“BJI”) in a series of proceedings before the Supreme Court of Mauritius to resist claims amounting to c. USD 400 million, as well as enforce foreign judgments that have reversed the effect of previous judgments of the Supreme Court of Mauritius.

Nov 2018: Successfully appeared as Counsel for Bagaprop Ltd (part of ENL Group) in an appeal before the Court of Civil Appeal against a judgment of the Commercial Division of the Supreme Court. The matter concerned a breach of a promesse unilatérale de bail. Judgment: Aquatis Ltd v Bagaprop Ltd [2019 SCJ 20].

Nov 2018: Successfully appeared as junior Counsel for the Sugar Insurance Fund Board (respondent) in an appeal before the Judicial Committee of the Privy Council against the decision of the Supreme Court of Mauritius upholding an order of injunction issued by the Judge in Chambers to prevent the respondent’s assets from being seized. Judgment: Bissonauth v Sugar Insurance Fund Board [2018] UKPC 33.

May 2018: Successfully appeared as Counsel for Airport of Mauritius Co Ltd (“AML”) and its subsidiary to resist an appeal lodged by Airway Coffee Ltd (debtor) before the Court of Civil Appeal division of the Supreme Court of Mauritius. The appeal was made against a judgment of the Bankruptcy Court ordering that Airway Coffee Ltd be wound up for failure to comply with a statutory demand served by AML in respect of debts amounting to MUR 85 million (c.USD 2.5 million). The main issue on appeal was whether the Bankruptcy Court failed to exercise its discretion to allow Airway Coffee Ltd to pay its debts to AML in accordance with a proposed payment plan. Judgment: Airway Coffee Ltd v Airport of Mauritius Co Ltd & Anor [2018 SCJ 311].

Feb 2018: Instructed by Dentons Mauritius as junior Counsel to appear for the State Bank of Mauritius (“SBM”) in an action initiated before the Supreme Court by a debtor to challenge sale by levy proceedings. Successfully argued as junior Counsel that the proceedings constituted an abuse of process of the court. Judgment: Modaykhan & Ors v State Bank of Mauritius [2019 SCJ 31].

Jul 2017: Successfully appeared as junior Counsel for United Docks Limited (“UDL”), a company listed on the Mauritius Stock Exchange, in an appeal before the Judicial Committee of the Privy Council that concerned the interpretation of a shareholders’ agreement giving an option to certain shareholders to buy the shares of another shareholder following the “loss of the controlling interest” in that shareholder. The dispute concerned whether “loss of the controlling interest” could be interpreted to mean “change” in the controlling interest, particularly in the circumstances where no person had a controlling interest in the shareholder in question at the time of execution of the shareholders’ agreement. Judgment: Rivnu Investment Ltd & Anor v United Docks Limited & Anor [2017] UKPC 24.

 

Employment law

Bilshan regularly advises on employment law issues such as review of employment agreements, termination of contracts, constructive dismissal, redundancies, disciplinary proceedings, trade union disputes, etc. He also appears before disciplinary committees and the Mauritius courts in employment disputes.

Recent significant cases include:

Jul 2020-present: Counsel for a petroleum corporation in proceedings before the Redundancy Board in the context of a global restructuring of its operations and a claim for severance allowance in the amount of c. MUR 23 million for alleged unjustified termination.

Mar 2020-present: Counsel for the Head of Investment Strategy of a listed company in Mauritius in a claim before the Industrial Court for severance allowance for constructive dismissal.

Nov 2016-present: Counsel for the Chief Investment Officer of a listed company in Mauritius in a claim before the Industrial Court for severance allowance for unjustified termination, including victimisation for whistleblowing.

Apr 2019: Junior Counsel before the Judicial Committee of the Privy Council in an appeal concerning the proper construction of the legislative provisions relating to the payment of severance allowance for unjustified dismissal (United Docks Limited v Marc Doger de Speville [2019] UKPC 28).

 

Tax

2015-2019: Junior Counsel for Mauritius Telecom in a dispute against the Mauritius Revenue Authority concerning the correct interpretation of accounting terms used in sections 50J and 50I of the Income Tax Act for the computation of solidarity levy imposed on telephony service providers.

2016-2019: Junior Counsel for Oberoi Mauritius Ltd ("OML") in a dispute against the Mauritius Revenue Authority concerning OML was entitled to deduct interest expenditure on a shareholder's loan from its gross income for the purposes of computing income tax.

 

PUBLICATIONS

Does an arbitration agreement protect a debtor from the threat of liquidation? - Hogan Lovells ARBlog (Co-author), 27 July 2020

The Mauritius courts' approach to force majeure defences, Business Magazine (15 April 2020)

The Choice of a Mauritian Arbitral Institution, Kluwer Arbitration Blog (Co-author)

Should the Courts Intervene to Prevent an Invalid Arbitration?, MARC Insights 2019 (Co-author)

The Mauritius International Arbitration Act – A Decade On, Legal Business Disputes Yearbook 2019 (Co-author)

Getting the Deal Through – Litigation Funding, Co-author of chapter on Mauritius (2018 & 2019)

International Arbitration Law and Practice, Chambers & Partners, Co-author of chapter on Mauritius (2018 & 2019)

‘The Frustration of Bankers’ Employment Contracts by Effect of the EU Bonus Cap’ (2013) 24 King's Law Journal 413-423