MALTA Trends and Developments Contributed by: Antoine Cremona, Clement Mifsud-Bonnici, Luisa Cassar Pullicino and Yasmine Ellul, Ganado Advocates
other steps in the proceedings”. However, confu - sion has arisen over whether this application must be accompanied by a formal statement of defence, and courts have interpreted this differently in prac - tice. In some cases (eg, Cobra Installations Limited v Stephan Caruana , Court of Appeal (Inferior Jurisdic - tion), 8 November 2013 and Avv. John Refalo ne. v Avv. Abigail Bugeja ne. et. , First Hall of the Civil Court, 24 October 2016), courts have interpreted the two options mentioned above as complementary rather than alternative, requiring respondents to file both an Article 15 (3) application and a reply with full defence. They have further held that failure to do so may con - stitute a waiver of the arbitration clause. As a result, the operation of Article 15 (3) of the Act should be clarified. Recognition and enforcement of awards Rule 54 of the Arbitration Rules requires a party seek - ing recognition of an award to submit a sworn decla - ration that no recourse has been taken or is pending against the award, and that the award is final. There is a valid argument that this requirement may go beyond what is required under the New York Con - vention, which does not obligate applicants to certify that no recourse is pending, but instead allows for the refusal of recognition if the award has been set aside by a competent court. Since the New York Convention sets maximum standards that cannot be exceeded by domestic rules, this requirement may inadvertently undermine Malta’s reputation as a pro-enforcement jurisdiction. Removing or revising this requirement would reinforce Malta’s commitment to the New York Convention, prevent the application of requirements that are more burdensome than those it imposes, and confirm Malta’s pro-enforcement attitude. Further, Rule 55 requires service of enforcement appli - cations on respondents that are not resident or pre - sent in Malta through mechanisms that are often cum - bersome and unclear. In particular, the rule provides that the MAC’s Registrar is to notify, in such cases, “such other person as [they] may establish as having representation of the respondent”, which has proven impractical in many cross-border contexts. A more streamlined and simplified procedure would improve enforceability and legal certainty. First, provisions reg - ulating service abroad should be introduced for this
purpose. Second, and drawing on familiar mecha - nisms under Maltese civil procedure, recourse to the use of a curator ad litem in cases of failed service attempts would greatly reduce delays and procedural uncertainty in cross-border enforcement. Jurisdictional challenges and the principle of competence-competence Maltese law recognises the principle of competence- competence, allowing arbitral tribunals to rule on their own jurisdiction. However, current rules provide for an appeal to the Court of Appeal from interim decisions affirming jurisdiction, but not from those declining jurisdiction. While this is not unusual (eg, Germany has a similar approach), it creates an imbalance in access to judicial review. Malta may wish to consider harmo - nising review mechanisms in both directions, espe - cially in light of similar discussions in other reforming jurisdictions. Such an amendment would promote greater procedural efficiency in cases involving paral - Several additional enhancements, though more lim - ited in scope, could also make Malta’s arbitration framework more robust and responsive to interna - tional expectations: • Emergency Arbitrators and Interim Measures: Maltese law is currently silent on emergency arbitrators, and the enforceability of orders issued in emergency (expedited) arbitration proceedings under institutional rules remains untested in local courts. As things stand, recourse to an emergency arbitrator does not in itself preclude national courts from issuing interim relief in support of the arbitra - tion, however, it is unclear how these interact with emergency arbitrator orders. Introducing provi - sions that recognise emergency arbitrator orders and clarify their relationship with interim measures granted by national courts would provide greater flexibility to parties seeking urgent relief. lel court and arbitral proceedings. Other suggested improvements • Remote Hearings and Videoconferencing: In an increasingly digital legal environment, the possibil - ity of remote hearings should be explicitly provided for in Maltese arbitration law. This would allow arbi - tral proceedings to be conducted more efficiently and with greater flexibility. Drawing inspiration from
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