MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
6. Preliminary and Interim Relief 6.1 Types of Relief
from the filing of the request by a party for precau - tionary measures. If arbitral proceedings have already been instituted, the request to court must be accom - panied by a confirmation issued by the registrar of the MAC confirming that arbitral proceedings have been lodged. Choice of Venue The courts recognise the freedom of the parties to choose the venue from which to seek interim relief. Further, there is no limitation in principle on the pow - ers of the arbitral tribunal to grant interim measures in terms of the applicable rules. Where interim meas - ures have been granted by the tribunal, the courts will recognise and enforce such measures upon the application of the party in whose favour the measure has been granted. In addition, national courts also regularly grant, upon application, interim relief in support of arbitration pro - ceedings seated outside of Malta. Emergency Arbitrators Maltese law is silent on the use of emergency arbitra - tors and orders issued by emergency arbitrators under specific institutional rules have not yet been tested by the Maltese courts. There should, in principle, be no objection or difficulty with the enforceability of orders issued by emergency arbitrators. It is expected that these will be dealt with in the same way in which inter - im relief issued by the tribunal is dealt with. In principle, it is also believed that the choice of an emergency arbitrator does not in itself preclude courts from issuing interim relief in support of the arbitra - tion, unless parties themselves close such avenue in the arbitration agreement. As a matter of fact, interim relief by Maltese courts is relatively easy to obtain and, in circumstances arising in Malta or involving assets located in Malta, is likely more cost-effective and effi - cient than seeking interim relief from emergency arbi - trators under most institutional rules. 6.3 Security for Costs Maltese law allows the arbitral tribunals to order secu - rity for costs. This power extends to both ad hoc tribu - nals and those administered by the Malta Arbitration
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take such interim measure of protection as the arbitral tribunal considers necessary in respect of the subject matter of the dispute. The arbitral tribunal may require a party to provide appropriate security in connection with such measure. In principle, there is no classification or limit on the interim relief that may be granted by the tribunal. How - ever, the effectiveness of such orders is limited in that the tribunal cannot issue binding orders against third parties. As a result, recourse is often made to the Mal - tese courts, as the courts of the seat of arbitration, for assistance in matters such as the subpoena of witnesses, garnishee orders, or security in the hands of third parties, as further explained in 6.2 Role of Courts . Courts may play a very important role in the granting of interim relief in support of arbitration in Malta in the immediate run-up to arbitration, during the arbitration, as well as after the award in support of recognition proceedings. Interim relief is typically granted upon ex parte application by a party. If the requisites in terms of law are satisfied, the court may accede to an appli - cation for the issuance of the following precautionary measures in support of an arbitration. The interim measures of protection which can be sought are listed in Article 830 (1) of the Code of Organisation and Civil Procedure, and include: • a garnishee order; • a warrant of seizure of movables; • a warrant of description; • warrants of arrest on vessels and aircraft; and • a warrant of prohibitory injunction preventing a party from carrying out certain actions. 6.2 Role of Courts Granting Interim Relief Recourse to such interim measures may be made even prior to instituting arbitral proceedings, provided that arbitral proceedings are brought within 20 days
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