MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
3. The Arbitration Agreement 3.1 Enforceability
traditional written instruments and electronic com - munications. 3.2 Arbitrability Over the past few years, there has been an increase in the scope of the types of disputes that are consid - ered by arbitration tribunals and the courts of law as “arbitrable”, both in terms of subjective and objective arbitrability. The general provision contained in Article 15 of the Act (under the part dedicated to domes - tic arbitration, but equally applicable to international commercial arbitration having Malta as its seat) states that disputes concerning questions of personal civil status (eg, marriage, legal capacity, or parentage) are not capable of settlement by arbitration. Equally, most public law matters are generally regarded as not arbi - trable. However, even in traditionally non-arbitrable areas of law like disputes concerning personal status, purely patrimonial or monetary claims arising from such dis - putes can still be referred to arbitration. For example, disputes involving the division of property between spouses or claims for damages arising from intellec - tual property rights or public law disputes are consid - ered suitable for arbitration. 3.3 National Courts’ Approach As a signatory of the New York Convention and having modelled the Act on the UNCITRAL Model Law, Malta is a jurisdiction that supports the arbitration process. National courts are less likely to interfere with inter - national arbitrations that have Malta as their seat of arbitration than they are with domestic arbitrations, where they still exercise residual powers. In general, Maltese courts look with disfavour on parties attempt - ing to circumvent or frustrate arbitration proceed - ings through court actions. When this happens, the Maltese courts have generally (with some notable exceptions in a limited number of judgments, which are largely recognised by the legal profession to be outliers) shown themselves to be supportive of arbitra - tion and unsympathetic to such claims, and tend to recognise the arbitrator’s jurisdiction to rule on their competence.
Insofar as the formal requirements of an arbitration agreement are concerned, Maltese arbitration law fol - lows the UNCITRAL Model Law and the New York Convention, which are reproduced in the First Sched - ule and Part III of the Second Schedule respectively, both forming part of the Act. An arbitration agreement must be in writing and 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. 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 docu - ment 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. The UNCITRAL Model Law further elaborates in this respect, and confirms that the “in writing” requirement is also satisfied if it is contained in: • a document signed by the parties; • an exchange of telecommunication that provides for a record of the agreement; or • an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. Naturally, the references in the 1985 UNCITRAL Model Law and the 1958 New York Convention to an instru - ment “in writing” have to be interpreted in the light of more recent laws establishing equivalence between
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