MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
7.4 Legal Representatives Those appearing on behalf of parties to arbitration proceedings are not required to have any particular qualifications. However, representatives should be familiar with both the legal and procedural rules relat - ing to the matter in dispute as well as arbitration law and procedure. Therefore, it is possible to engage legal representatives who are not qualified under Mal - tese law. In fact, in terms of Article 18 (2) of the Act, “a legal practitioner or a person not qualified under the Laws of Malta may act on behalf of a party to an arbitral pro - ceeding to which this Act applies, including appearing before the arbitral tribunal, and he shall not thereby be taken to have breached any law of Malta regulating the practice of the legal profession”. 8. Evidence 8.1 Collection and Submission of Evidence In arbitrations seated in Malta, parties are free to determine the procedure for collecting and present - ing evidence, often by incorporating institutional rules or opting to apply the Rules. Although the concepts of discovery and disclosure are not traditionally part of Maltese legal practice, parties may agree to adopt rules on document production – such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration – which are well recognised and frequently applied, either as binding rules or as guidance. In the absence of a specific agreement between the parties, the arbitral tribunal will determine the eviden - tiary procedure, ensuring it complies with the appli - cable law, which is typically the law of the seat. In domestic arbitrations, the production of evidence is governed by the Code of Organisation and Civil Pro - cedure. Under this Code, tribunals may admit both oral (viva voce) testimony and written sworn state - ments. Maltese law also allows for “documents-only” arbitrations, where no oral hearings take place. Each party bears the burden of proving the facts on which it relies. Tribunals may set deadlines for par - ties to submit a summary of the documents and other evidence they intend to present in support of their
claims or defences. Unless otherwise agreed, the tri - bunal may appoint its own experts or request expert
evidence from the parties. 8.2 Rules of Evidence
The Rules provide that the arbitral tribunal shall regu - late the production of evidence before it in order to ensure compliance with the provisions of the Act. As stated in 8.1 Collection and Submission of Evi- dence , the Act provides that in domestic arbitrations the rules of the Code of Organisation and Civil Pro - cedure shall apply as they apply to the production of evidence before a court of civil jurisdiction. Any application for the subpoena of a witness before an arbitral tribunal shall indicate that the witness is to appear before an arbitral tribunal for the purpose of arbitral proceedings and shall indicate clearly the address of the place that the witness is to attend and the date and time of attendance. The arbitral tribunal may administer oaths to persons called as witnesses or experts giving evidence before an arbitral tribunal. 8.3 Powers of Compulsion In domestic arbitrations, where the evidence of any person is required, the registrar of the MAC may issue an application for writs of subpoena in the Superior Courts to ask the courts to compel the attendance of a witness to give evidence or produce documents before an arbitral tribunal. Where any person who has been properly subpoenaed to appear before an arbitral tribunal in accordance with the aforementioned procedure fails to appear before the said tribunal without reasonable excuse, the tribunal may make a report thereon to the registrar of the MAC, who shall by application bring the report to the attention of the Superior Courts, requesting it to deal with the matter in the same manner as if the person concerned had failed to appear before that court when properly subpoenaed and thereupon the court shall deal with the matter in the said manner.
499 CHAMBERS.COM
Powered by FlippingBook