MALTA Trends and Developments Contributed by: Antoine Cremona, Clement Mifsud-Bonnici, Luisa Cassar Pullicino and Yasmine Ellul, Ganado Advocates
will require both legislative updates and institutional strengthening. If Malta is to position itself more prominently as a seat for international commercial arbitration, particularly in disputes involving parties from Europe, the Med - iterranean, and Africa, it will need to modernise its framework. Encouragingly, reform efforts appear to be underway. The recent introduction of Bill No 133, which proposes the re-establishment of a Commer - cial Court and includes consequential amendments to the Arbitration Act, reflects a positive step towards institutional modernisation. If implemented coherently, particularly with respect to enforcement procedures, this reform could enhance the overall functionality and appeal of Malta’s arbitration landscape. A specialised commercial court should provide added certainty and a constant confirmation of pro-arbitration bias of the Maltese courts in arbitrations seated in Malta and elsewhere, thus avoiding outlier judgments. In addi - tion, the government has recently launched a public discussion initiative amongst arbitration practitioners, intended to lead to a holistic reform of the Arbitration Act. Specific legislative gaps, challenges and proposed reforms Several targeted updates are needed to address emerging practical, procedural, and interpretive chal - lenges. The following sub-sections outline key issues currently under discussion in Malta’s arbitration com - munity. They also highlight opportunities for moderni - sation and present some specific proposed reforms. These reforms aim not to overhaul Malta’s existing framework, but rather to modernise it in line with inter- national developments, comparative best practices, and the evolving needs of commercial users. UNCITRAL frameworks The Arbitration Act is based on the 1985 UNCITRAL Model Law, and the Arbitration Rules reflect the UNCI - TRAL Arbitration Rules of 1976. While these instru - ments were groundbreaking at the time, both have undergone important updates, particularly in 2006 and 2021, respectively. Malta has not yet incorporated the 2006 amendments to the Model Law, which intro - duced significant clarifications on issues such as the form of arbitration agreements and interim measures.
Likewise, the 2021 revision of the UNCITRAL Arbitra - tion Rules includes provisions on expedited arbitra - tion. These procedures are increasingly favoured in commercial contexts where efficiency and cost con - trol are critical. Their introduction within the Maltese framework could therefore prove highly relevant to Malta’s ambition to attract a wider range of commer - cial disputes. Form requirements and electronic agreements Article 7 (2) of the Model Law, as incorporated into Maltese law, defines an arbitration agreement as one made “in writing”, which includes communications by letter, telex, telegram, or similar means. However, there is uncertainty as to whether modern forms of contracting such as emails, online terms and condi - tions, or clickwrap agreements fall within this scope. While Maltese courts are likely to adopt a liberal interpretation in line with international developments (including the 2006 Model Law amendments, the 1996 UNCITRAL Model Law on Electronic Commerce, and the 2005 UN Convention on Electronic Communica - tions), these instruments do not automatically apply under Maltese law. A clearer statutory framework recognising electron - ic and potentially cryptographic agreements would resolve this ambiguity and ensure legal certainty in the context of smart contracts and digital platforms. Adopting Option II of Article 7 of the amended UNCI - TRAL Model Law, which permits arbitration agree - ments made in any form capable of being evidenced by text, could also be a practical solution. This approach would encompass emails, digital platforms, smart contracts, and other electronic communica - tions, aligning Maltese law with international trends and increasing its appeal in technology-driven indus - tries. Other jurisdictions, such as Switzerland, have adopted similarly flexible approaches. Stay of judicial proceedings and Article 15 (3) of the Arbitration Act Article 15 (3) of the Arbitration Act allows a party to request a stay of court proceedings in favour of arbitration where a party to an arbitration agreement commences judicial proceedings in circumvention of such arbitration agreement, provided that the request is made “before delivering any pleadings or taking
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