What are the formal requirements for an enforceable arbitration agreement?
Even insofar as the formal requirements of an arbitration agreement are concerned, Maltese arbitration law follows the UNCITRAL Model Law, which is reproduced in the First Schedule forming part of the Act. An arbitration agreement may be drawn up in the form of an arbitration clause in a contract or in the form of a separate agreement. Domestic law requires that an arbitration agreement be made in writing as provided under article 7(2) of the UNCITRAL Model Law. However, for the purposes of Maltese law, an agreement is considered to have been made in writing solely in the following circumstances:
- if it is contained in a document that is transferred from one party to the other party or by a third party to both parties, provided no objection was raised within 30 days from receipt thereof;
- if reference is made in a written contract to a document containing an arbitration clause, insofar as that reference operates to make such clause part of the contract; or
- through the issuance of a bill of lading, provided the latter contains an express reference to an arbitration clause in a charter party, in which case the bill of lading is - in and of itself - deemed to constitute a written arbitration agreement.
Does the domestic law contain substantive requirements for the procedure to be followed?
Both the Act, as well as the domestic Arbitration Rules, set out standard procedural rules in relation to various forms of arbitral proceedings. However, the manner in which arbitral proceedings are to be conducted by the Arbitral Tribunal is left entirely at the parties’ discretion, provided there is consensus among them. In the absence of such agreement between the parties, the procedure to be followed shall be determined by the Arbitral Tribunal, and in such cases the latter is free to establish the procedural parameters with respect to the admissibility, relevance, materiality and weight of any evidence.Award
When and in what form must the award be delivered?
Awards made by the Arbitral Tribunal may take various forms, namely:
- financial awards, such as an order for a party to pay damages or compensation;
- declaratory awards;
- awards that order the execution or prohibition of acts by a party; or
- awards ordering that provisional measures are undertaken by a party.
Depending on the circumstances of the dispute brought before it, the Arbitral Tribunal may deliver certain awards at any stage of proceedings. By way of example, while financial awards are generally delivered at the end of arbitration proceedings, awards ordering the execution of provisional measures may, in cases of urgency (such as when these are ordered for the purpose of preserving an asset), be granted prior to the Arbitral Tribunal’s final decision.Appeal
On what grounds can an award be appealed to the court?
In the case of domestic arbitration proceedings, an appeal from an arbitral award may only be entered on a point of law arising out of a final award and unless:
- the parties have expressly excluded such a right to appeal in the arbitration agreement or otherwise in writing; or
- notwithstanding anything stated in the arbitration agreement, the parties have expressly agreed that no reasons are to be given in the award in accordance with article 44(3) of the Act.
Nevertheless, there are exceptions in respect of appeals made pursuant to constitutional matters or appeals regarding potential lack of jurisdiction of the Arbitral Tribunal.
An appeal must be filed within 15 days from the date of service of the award upon the applicant. Once the appeal is filed, the appellant must notify the Malta Arbitration Centre, as well as the arbitrators, with a copy of the application as soon as practicable but not later than 15 days after the application is filed.
The Act provides that the court shall only consider an appeal if it is satisfied that:
- the determination of the point of law will substantially affect the rights of one or more of the parties;
- the point of law is one that the tribunal was asked to determine or was otherwise relied on in the award;
- on the basis of the findings of fact in the award, the decision of the Arbitral Tribunal on the point of law is prima facie open to serious doubt; or
- based on a review of the application, any response and the award, the appeal does not appear dilatory and vexatious.
With respect to arbitral awards resulting from international commercial arbitration proceedings, domestic arbitration rules grant the parties thereto the right to enter an appeal to the Court of Appeal on point of law, insofar as the parties to the arbitration agreement have expressly agreed that such right of appeal shall be available to them, over and above any rights of recourse contemplated in article 34 of the UNCITRAL Model Law.Enforcement
What procedures exist for enforcement of foreign and domestic awards?
Malta is a signatory to the 1958 New York Convention.
Awards given in connection with domestic arbitrations are deemed to constitute an executive title under Maltese Law, but the successful party must first proceed to register the award with the Malta Arbitration Centre.
An award that has been recognised by the Malta Arbitration Centre, and has been rendered an executive title as a result, may subsequently be enforced by the successful party through executive warrants.
Foreign awards are enforceable in the same manner as domestic awards and should also be registered with the Malta Arbitration Centre prior to being enforceable as an executive title. This, however, operates to the exclusion of awards delivered in terms of the 1965 Washington Convention, which are treated as final judgments under Maltese law and are enforced by the courts accordingly. In the latter case, registration with the Malta Arbitration Centre is therefore not necessary.
Current enforcement procedures do not appear to have been influenced by changes to the local political landscape.