MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
4. The Arbitral Tribunal 4.1 Limits on Selection
There is no significant case law to report in the last year on the approach taken by the Maltese courts on matters relating to the applicable law to the arbitration agreement. Typically, the arbitration agreement will be deemed to be governed by the law of contract. Recently, Maltese courts have refused to lift local pre - cautionary measures in support of pending recogni - tion and execution proceedings of an international arbitration award in Malta, despite the existence of security in another member state of the European Union in support of foreign exequatur proceedings of that same award. Maltese courts have also stayed proceedings in favour of a valid arbitration clause invoked in litigation that involved, apart from the sig - natories to the arbitration clause, a non-signatory party in litigation. On a more general note, arbitration agreements are, for the most part, immediately recognised and enforced by the courts, and the courts regularly stay proceedings in favour of arbitration proceedings when they are faced with what appears to be a valid arbitra - tion agreement. When the court that is seised stays proceedings in favour of the arbitral jurisdiction, it does not automati - cally decline all residual jurisdiction, but merely stays until the arbitration tribunal ascertains jurisdiction on the matter and proceeds with the decision on the case. 3.4 Validity In terms of Article 16 of the UNCITRAL Model Law and Article 32 of the Act (modelled on Article 16 of the UNCITRAL Model Law), an arbitral clause shall be considered valid even if the rest of the contract in which it is included is determined to be invalid. This applies to both domestic and international arbitra - tions. There can be little doubt that Maltese courts may consider an arbitral clause to be valid even if the rest of the contract in which it is contained is invalid in full application of the doctrine of separability that is contained in statutory provisions.
In accordance with the UNCITRAL Model Law, the Act allows the parties to an arbitration agreement the fac - ulty of determining any matters relating to the choice, as well as the number, of arbitrators. Failing a determi - nation, the default number of arbitrators is three. This is except for those cases where the disputed amount is under 11,646.87 (currency not specified), in which cases there will be only one arbitrator. In addition, the MAC (the chairperson of the Centre being established as the default appointing authority) has set up various specialised panels for domestic, as well as interna - tional, arbitration which may be resorted to in order to appoint accredited arbitrators. To name a few, these panels include: • the Maritime Panel; • the General/Civil Commercial Panel; • the Banking, Finance, Accounting and Taxation Panel; • the Building Construction Panel; and • the Medical Panel. There is no law imposing a restriction on either the parties or the default appointing authority as to their choice of arbitrators from the said panels. 4.2 Default Procedures In default of any agreement on the procedure for the appointment of arbitrators, the Act provides that, in the case of an arbitration with three arbitrators, each party will appoint one arbitrator, with the two party- nominated arbitrators then appointing the third arbi - trator, who shall act as the chairperson of the arbitra - tion tribunal. However, if a party fails to appoint an arbitrator within 30 days of receipt of notification of the appointment of an arbitrator by the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment shall be made, upon the request of a party, by the chairperson of the MAC. In an arbitration with a sole arbitrator, where the parties fail to agree on the choice of arbitrator within 30 days after receipt by a party of a proposal, that arbitrator shall be appointed, upon request of a party, by the chairperson of the MAC.
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