The Mauritius Companies Act 2001 (the “Act”) contains the following provisions relating to the possibility that a party, who is not appointed as a director of a company, may be considered to be a shadow director:
- For the purposes of the Act, “directors” include (i) a person occupying the position of director of the company by whatever name called; and (ii) an alternate director, but does not include a receiver.
- For the purposes of sections 143 to 157, which deal with the duties of the directors and transactions in which the directors have an interest, and 160 to 162, which deal with the standard of care and civil liability of directors as well as indemnification and professional insurance, “directors” include (i) a person in accordance with whose directions or instructions a person referred to in the above definition of director may be required or is accustomed to act; (ii) a person in accordance with whose directions or instructions the Board of the company may be required or is accustomed to act; (iii) a person who exercises or who is entitled to exercise, or who controls or who is entitled to control the exercise of powers, which, apart from the constitution of the company, would fall to be exercised by the Board; and (iv) a person to whom a power or duty of the Board has been directly delegated by the Board with that person’s consent or acquiescence, or who exercises the power or duty with the consent or acquiescence of the Board.
It should be noted that a person acting only in a professional capacity would not be considered as a shadow director.
Based on the foregoing provisions of the Act, there is clearly some form of risk that a party who becomes overly involved in the activities of a Mauritius company may be considered to be a shadow director. However, this would only arise in a situation where the Board becomes accustomed to acting in accordance with the directions or instructions of that person.
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