Eden Island Village Management Association v Eden Island Development Company (Seychelles) Limited (MA 41 of 2025 (Arising in MC 59 of 2024)) [2025] SCSC 140 (23 October 2025)

SUPREME COURT OF SEYCHELLES Reportable MA 41/2025 Arising in MC 59/2024 Applicant Respondent In the matter between: EDEN ISLAND VILLAGE MANAGEMENT ASSOCIA TION represented by its Executive Member Daniel Colyn CIO Parmantier Law Chamber, Room 301, Michel Building (rep. by M Parmantier and B. Hoareau) and EDEN ISLAND DEVELOPMENT COMPANY (SEYCHELLES) LIMITED represented by its Director Craig Heeger of Eden Island, Mahe, Seychelles (rep. by B. Georges) Neutral Citation: Before: Summary: Heard: Delivered: Eden Island Village Management Association v Eden Island Development Company (Seychelles) Limited (MA 41/2025 (Arising in MC 59/2024) (23 October 2025). Burhan J Application to appoint an Arbitrator 15 January 2025, 12 March 2025 and 26 May 2025 Written Submissions 23 October 2025 RULING BURHANJ [1] The Applicant, Eden Island Village Management Association ("VMA") filed a Notice of Motion on the 24 February 2025, seeking an order nominating a person suitably qualified to be an arbitrator in terms of the arbitration provision of the Rules of Association of the Applicant in accordance with Article 117 (2) of the Commercial Code of Seychelles (Commercial Code). The Notice of Motion is accompanied by the supporting affidavit. [2] The Respondent, Eden Island Development Company (Seychelles) Limited ("EIDC") filed an answering affidavit on 3 July 2025. [3] The Applicant VMA initially, filed a Notice of Motion on 12 September 2024 seeking an inhibition order and interim injunction (MC 59 of 2024). The dispute concerns certain parcels of land, alleged failure of Respondent to fulfil its obligations under the VMA Constitution and other related matters. The Applicant in MC 59 of 2024, seeks an injunction and inhibition to prevent the Respondent from dealing with these parcels pending arbitration. [4] Thereafter, on the 24 February 2025 the Applicant filed MA 40 of2025 seeking an order in relation to contempt of court; and MA 41 of 2025, this application, seeking an order appointing an arbitrator. Submissions [5] The Applicant submits the present matter arises from the Respondent's failure to cooperate in the appointment of a sole arbitrator, notwithstanding the binding arbitration clause contained in rule 30 of the VMA Constitution. It is further submitted that all preconditions under Article 117(2) of the Commercial Code have been duly satisfied, namely: the existence of a valid arbitration agreement (Rule 30); the proper issuance of a notice in accordance with Article I J 6( I) identifying both the arbitration clause and the subject matter of the dispute; and the lapse of the one-month period without agreement on an arbitrator. The Applicant argues that the Respondent, rather than engaging in the arbitration process, has chosen to obstruct and frustrate the very mechanism to which it contractually bound itself. [6] The Respondent submits that the purported arbitration notice letter dated 26 August 2024 sent by the law Chambers ofMr Hoareau manifestly failed to comply with rule 30.1 of the Constitution andlor articles 116( I) of the Commercial Code. The Respondent refers to rule 30 of the Constitution and refers to the fact that no valid arbitration has been instituted by VMA as the purported arbitration notice failed to comply with rule 30.1 of the Constitution and/or article 116(1) of the Commercial Code. As a result, it follows that VMA cannot obtain relief in terms of article 117(2). The Respondent submits that as per Rule 30.10, the Applicant is bound by the provisions contained therein. The Respondent further submits that the alleged subject-matter of the arbitration is not provided for and does not arise out of the Constitution and refers to the transfer of certain parcels by EIDC to VMA, failure of EIDC to build additional parking spaces, inability of EIDC to allocate to VMA its own refuse site, joint control and possession of a reverse osmosis plant are all matters that cannot be arbitrated in terms of rule 30 of the Constitution. [7] Consequently, EIDC's representative, Mr Georges, wrote to the Law Chambers of Mr Hoareau on 9 September 2024 responding to the purported arbitration notice (the responding letter), seeking clarification regarding: 13.1. Whether the VMA sought to declare a dispute in terms a/rule 30 of the Constitution; 13.2. if so, what specific disputes were so declared; 13.3. What exactly is in dispute between which parties; 13.4. Whether the disputes were in relation to a mauer provided for in, or arising out of, the Constitution; and 13.5. Which provisions of the Constitution were relied upon in that regard. [8] The Applicant VMA never replied, despite receipt being acknowledged, and has not attempted either to answer the questions posed or to propose an arbitrator under rule 30.6 of the Constitution. [9] The Respondent further submits that paragraphs of the purported arbitration notice seemingly refer to parcels in addition to those expressly specified in paragraph (f) thereof. By contrast, the supporting affidavit quietly omits this broader reference. It also submitted that the VMA attempts to narrow the apparent scope of the arbitration by way of its supporting affidavit. Accordingly, there is no clarity as to which of the allegations in the purported arbitration notice contained in paragraphs (a) to (I) the Applicant VMA actually intends to have resolved by way of arbitration, notwithstanding EIDC' s request for clarity via the letter of9 September 2024. [10] The Respondent further argues that this demonstrates VMA's failure to lawfully define the scope of arbitration and an attempt to introduce additional new issues outside the notice. It is submitted that the VMA has attempted to augment the alleged subject-matter of the arbitration by way of its supporting affidavit. ElOC also alleges omissions in the notice of key matters referred to in the affidavit that 'part of the arbitration is based on the legality of a letter of 20 June 2017 signed by Mr Heeger and parcels Y22878 and V22879' which were not mentioned in the notice. [11] Learned Counsel on behalf of the Respondents submits that the VMA subject matter and disputes are all outside the scope of the arbitration agreement. Further by attempting to enforce same, the rights of parties who are not party to the agreement namely Nouvobanq, Seychelles International Mercantile Banking Corporation, Mr Craig Heeger, Mrs Linda Heeger, Bryse Company Limited, Alyse Company (Pty) Ltd, Eden 208 Limited, Mr Brett Maasdorp Saunders, Familie Ernst Pichler privatstiftung will be affected. EIDC further submits that the reliefs sought are in respect of parcels that do not exist, land parcels (V20127, Vl7755) and one owned by VMA itself (Y 19999). [12] The Respondent refers to rule 30.6 of the Constitution and submits that it requires that: 1. 'a dispute for purposes of this [ruleJ 30' should be validly declared; 2. the parties should 'fail to agree on an arbitrator within 30 days' of that declaration; and 3. the appointment of an arbitrator to be then made by the Chief Justice. [13] The Respondent submitted that none of the aforementioned requirements are satisfied, because: (i) no valid declaration of a dispute has taken place; (ii) the VMA has never proposed any particular arbitrator to EIDC and therefore EIDC had not failed to agree to such an arbitrator, within thirty days of such a declaration or otherwise; and (iii) the VMA has not made any request to the Chief Justice. [14] In conclusion, the Respondent submits that this Court has no power to nominate an arbitrator in terms of article 117(2) of the Commercial Code in circumstances where the YMA has not instituted a valid arbitration. Despite the EIDC's efforts to seek clarity via its 9 September 2024 letter, the Applicant VMA has not clarified the nature of the dispute, the relevant constitutional provrsions, procedures, proposed arbitrator, or timelines. Instead, YMA's supporting affidavit has inconsistently tried to both expand and narrow the scope of the disputes after the fact. The circumstances disclose that the YMA has ulterior motives and that the arbitration application, together with the contempt application, constitutes an abuse. For all of these reasons, the Respondent therefore persists in praying that this Court dismiss the YMA's motion with costs. Analysis and Findings [15] Common issues raised in all applications concerning locus standi and "defective affidavit" have been dealt with in the ruling in MC 59 of 2024 which concerns the application for inhibition and injunction orders. [16] The central issue for determination in this application is whether the Applicant, YMA, has validly instituted arbitration proceedings in terms of Rule 30 of its Constitution and articles 116 and 117 of the Commercial Code, and, if so, whether this Court is mandated to appoint a sole arbitrator. [17] The relevant provisions of the Commercial Code are set down below: Article 116 I. The party who intends to bring a dispute before an arbitral tribunal shall give notice to the other party. The notice shall refer to the arbitration agreement and specify the subject matter of the dispute, unless the arbitration agreement already does so. 2. If there is more than one arbitrator, and if the parties are entitled to appoint the same, the notice shall specify the arbitrator or arbitrators appointed by the party invoking the the arbitration agreement; arbitrator or arbitrators whom he is entitled to appoint. the other party shall be invited, in the notice, to appoint 3. If a third person has been entrusted with the appointment of a sole arbitrator or arbitrators and has not done so, he also shall be given notice in accordance with paragraph I and shall be invited to make such appointment. 4. The appointment of an arbitrator may not be withdrawn after notification of appointment. the Article 117 I. If the party or third person to whom notice has been given in accordance with article 116 has not, within a period of one month from the notice, appointed the arbitrator or arbitrators whom the party or third person is entitled to appoint, the Court shall make the nomination at the request of either party. 2. If the parties have agreed that there shall be a sole arbitrator and they have not appointed him by mutual consent within a period of one monthfrom the notice under article 116, the Court shall make the nomination at the request of either party. [18] The relevant provisions from the parties Constitution provide: "30. ARBITRA TION 30.1 Subject to any specific provisions to the contrary in this CONST1TUTION, in the event of any dispute of any nature whatsoever arising between the ASSOCI4TION and/or the MEMBERS and/or the DEVELOPER, or anyone of them, on any matter providedfor in, or arising out of this CONSTITUTION, that dispute shall be referred to and be determined in accordance with this 30. 30.2 The provisions of this 30 shall, however, not preclude any party from obtaining interim reliefon an urgent basisfrom a court of competent jurisdiction 30.3 The arbitration shall be held - 30.3.1 at Victoria, Mahe, Republic of Seychelles ; 30.3.2 on the basis that the proper law qf this CONSTITUTION shall be the law of the . Republic of Seychelles ; and 30.3.3 with only the parties and their legal and other representatives present thereat; 30.3.4 in terms of the Commercial Code Act (Chapter 38) of the Laws of Seychelles (Book I, Title IX, articles 110 to 189); 30.3.5 before a sale arbitrator, subject to 30.84. 30.4 The arbitrator shall be, Vthe matter in dispute is principally - 30.4.1 a legal matter, a practising advocate or attorney, from either the Republic of the Republic of South A/rica or the United Kingdom, of at least 15 years Seychelles, standing; 30.4.2 an accounting matter, a practising chartered accountant either from the Republic least 15 years of Seychelles, Republic of South Africa or the United Kingdom, of at standing: 30.4.3 any other matter, a suitably qualified independent person either from the Republic the Republic of South Africa or the United Kingdom, of at least 15years of Seychelles, standing. 30,5 Should the parties fail to agree whether the dispute is principally a legal, accounting or other matter within 30 days ofa party declaring a disputefor purposes of this 30, the matter shall be deemed to be a legal matter. 30,6 Should the parties fail to agree on an arbitrator within 30 days of a party declaring a dispute for purposes of this 30, the arbitrator shall be appointed at the request of either party to the dispute by the Chief Justice ofthe Supreme Court of the Seychelles according to the provisions of 3D,4 and the parties hereby indemnify the Chief Justice against any claims resulting from the appointment of such arbitrator, [19] The 'Notice of Arbitration' Letter dated 26 August 2024 is enclosed as Annexure 5. The notice expressly invokes Rule 30 of the YMA Constitution and article 116(1) of the Commercial Code and identifies specific disputes, including: I. the failure by the Respondent to transfer designated parcels alleged to constitute common areas under Rule 15.1; II. alleged promises relating to additional parking spaces; Ill. the continued non-constitution of the Eden Island Commercial Management Association contrary to the rules, including control and possession of the Reserve Osmosis Plant situated at one of the parcels; the construction of Block P232 after expiry of the Development Period and its exclusion from the Residential Development Component; and IV. v. the absence of an allocated refuse site. The notice further designates the disputes as principally legal in nature and proposes the appointment of a sole arbitrator of not less than 15 years' standing from Seychelles, South Africa, or the United Kingdom. [20] The Applicant's position is that Rule 30.1 of the Constitution provides a broad and binding arbitration agreement covering "any dispute of any nature whatsoever" between the VMA, its members, and the Developer. It submits that it has validly invoked this clause by way of its notice of 26 August 2024, which identified the nature of the dispute. The Applicant further relies on article 117(2), contending that more than one month has elapsed without agreement on an arbitrator, thereby triggering the Court's duty to appoint one'. Learned Counsel for the Applicant submits that objections raised by the Respondent go to the merits and jurisdiction of the arbitral tribunal, not to the validity of the notice. [21] When one considers the Applicant's and Respondent's submissions, it is clear that it is undisputed by the parties that the Constitution both parties rely on, contains a valid arbitration agreement clause binding both parties. The language of Rule 30.1 set out above is notably broad, extending to "any dispute of any nature whatsoever" arising under or out of the Constitution. [22] The Applicant submits that following the arbitration notice of 26 August 2024, informal discussions between counsel regarding potential arbitrators took place. These discussions were preliminary and inconclusive. Despite the Applicant's willingness to cooperate, no consensus was reached within the one-month period under article 117(2) of the Commercial Code, the Respondent did not commit to any candidate, make a formal counterproposal, or take any meaningful step toward mutual appointment. [23] The Applicant further submits that if the Respondent had genuine concerns about the notice, it should have raised them at the jurisdictional stage before the arbitrator, rather than blocking the appointment process under article 117(2). Seychelles law supports minimal court intervention at this preliminary stage, leaving jurisdictional challenges to the arbitrator under the kompetenz-kompetenz principle. [24] This Court is of the view that the Respondent's contention that the identified disputes fall outside Rule 30.1 must be considered in light of the kompetenz-kompetenz principle, which favours leaving jurisdictional objections to the arbitral tribunal itself. At this preliminary stage, the Court is not required to determine the merits or validity of each dispute, but only whether they are prima facie capable of falling within the arbitration agreement. It is the considered view of this Court that disputes as framed, including obligations under Rules 6 and 15 concerning common areas, are sufficiently linked to the Constitution to fall within Rule 30.1. The question of whether certain claims are sustainable in law or fact is for the arbitrator to decide. [25] Article 116( 1) requires that a notice "refer to the arbitration agreement and specify the subject-matter of the dispute, unless the arbitration agreement already does so. " The Applicant's notice expressly invoked Rule 30 and identified disputes. While the Respondent criticises the notice as vague, the record demonstrates that it was sufficiently clear to enable the Respondent to file a detailed affidavit responding to each head of claim, weakening the argument of incomprehensibility. Most importantly, any dispute that may fall outside the scope of arbitration is for the arbitrator to determine, as the parties have consensually vested that jurisdiction in the arbitrator. It is not for this Court to examine the merits of the dispute to assess whether it squarely falls within the scope of arbitration; to do so would be to usurp the arbitrator's jurisdiction. [26] As to inaccuracies in parcel references, or the omission or later inclusion of additional issues such as the 2017 letter, these do not render the notice invalid. Such matters are to be addressed within the arbitration itself. This Court is satisfied that the standard of fair identification of the disputes has been met. [27] This Court is in agreement with the Applicant's submission that as the Respondent has admitted at paragraph 115 of its affidavit that more than one month has passed si nee the arbitration notice of 26 August 2024 without agreement on an arbitrator, this triggers the mandatory operation of article 117(2), which provides that: "If the parties have agreed that there shall be a sole arbitrator and they have not appointed him by mutual consent within a period of one month from the notice under article 116, the Court shall make the nomination at the request of either party. " [28] The Respondent further objects that third-party interests, such as mortgages or easements, render the disputes non-arbitral, and that any order of transfer may contravene the Immovable Property (Transfer Restriction) Act. These concerns are premature. The arbitration is strictly between VMA and EJDC, and any determination will have to bind those parties. Issues concerning third-party rights or statutory restrictions, at this stage, do not preclude the appointment of an arbitrator. If such interests affect parcel transfers, they can be addressed at the time the arbitrator determines liability. As submitted by the Applicant, the application seeks only to appoint an arbitrator under Rule 30 and article 117(2), not to enforce any orders at this stage; it does not demand any concrete enforcement orders at this stage. [29] While the Respondent contends that the request for an arbitrator should be made to the Chief Justice under the Constitution of the VMA, Article 117 of the Commercial Code provides that such requests are properly made to the Court. [30] The Court further finds that the majority of the objections of the Respondent relate to the merits of the dispute, which are for the arbitrator to decide, not this Court. [31] The Applicant submits that the Respondent's reliance on its discretionary powers under Rule 15.1 cannot operate in a legal vacuum. Discretion must be exercised rationally, transparently, and in accordance with prior conduct and representations. Equity intervenes where discretion is abused or invoked inconsistently with the legitimate expectations of those who relied upon prior assurances and institutional practice. [32] In conclusion, the Applicant emphasizes that this application is not an attempt to litigate substantive or complex factual disputes before this Court. Rather, it seeks enforcement of the parties' mutual agreement to resolve disputes through arbitration, an agreement the Respondent itself created, previously accepted, but now seeks to frustrate through obstruction and hyper-technical objections. [33] The Applicant submits that all procedural and substantive prerequisites under article 117(2) of the Commercial Code have been satisfied: a valid arbitration clause exists; a compliant notice was issued; a reasonable period has elapsed without consensus on an appointment; and no credible jurisdictional bar has been raised to defeat arbitration. [34] For the purposes of present application, this Court is satisfied that (i) a valid arbitration agreement exists; (ii) the notice of 26 August 2024 meets the requirements of article 116(1); (iii) more than one month has elapsed without agreement on an arbitrator, thereby engaging Article 117(2). [35] Accordingly, the Applicant's motion succeeds. The Court shall nominate a sole arbitrator pursuant to Article 117(2) of the Commercial Code and Rule 30.4 of the Constitution of the VMA. [36] Each party shall bear their own costs. Signed, dated and delivered at Ile du Port on 23 October 2025 ~~_,<>_'-o<,: M Burhan J 11