MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
tribunal, such proceedings shall be stayed and the parties shall in principle be referred to the arbitral tri - bunal for its decision on such issue, unless the court considers that a party will suffer irreparable harm if it does not determine such issue immediately. The prin - ciple that an arbitration tribunal is competent to rule on its own competence is widely acknowledged and the provisions of the Act are designed to safeguard its application. 5.2 Circumstances for Court Intervention Article 32 (5) of the Act expressly provides that pro - ceedings filed before a court for a declaration relating to the jurisdiction of an arbitral tribunal must be dis - missed as this is a matter for the tribunal to decide. This is unless the court considers that a party will suf - fer irreparable harm if it does not determine the issue. Accordingly, in terms of Article 16 (3) of the UNCITRAL Model Law, the tribunal is to decide claims pertain - ing to its jurisdiction, with parties having a right of appeal from the tribunal’s interim award finding juris - diction before the Court of Appeal. On the other hand, if the arbitral tribunal decides that it does not have jurisdiction, there is no right to appeal to domestic courts. With a few exceptions, national courts have generally taken a positive approach in preserving the jurisdiction of the tribunal, thereby showing a general reluctance to intervene in issues of jurisdiction of an arbitral tribunal. 5.3 Timing of Challenge A plea that the arbitral tribunal does not have jurisdic - tion shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that they have appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceed - ing the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified. The arbitration tribunal may rule on a plea of non-jurisdiction either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within
30 days after having received notice of that ruling, the Court of Appeal to decide the matter, which decision shall not be subject to a further appeal. While such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility The standard of review under a challenge to the juris - diction of the tribunal is de novo. The court will review the tribunal’s jurisdiction by way of complete reas - sessment of facts, without being bound by the tribu - nal’s reasoning. 5.5 Breach of Arbitration Agreement As explained in 3.3 National Courts’ Approach and 5.2 Circumstances for Court Intervention , the court will stay proceedings if there is a valid arbitra - tion clause. With a few exceptions, the approach of national courts has been positive in the preservation of jurisdiction of the arbitrator. In fact, courts typically view proceedings brought in breach of an arbitration agreement with disfavour. It has to be said, however, that the courts usually stay rather than outright dismiss proceedings so brought until the jurisdiction of the arbitration tribunal is ascer - tained by the tribunal itself. 5.6 Jurisdiction Over Third Parties The general rule under Maltese law is that an arbi - tration agreement binds the parties to it. Doctrines addressing the binding of non-signatories, such as alter ego, agency, or group of companies theories, are not well developed under Maltese jurisprudence specific to arbitration, although the Maltese courts have applied these concepts in contract or corporate law generally. However, a third party may be joined to arbitral pro - ceedings if all parties involved in the arbitration, including the third party itself, consent to such joinder.
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