MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
arbitral awards, as may be provided from time to time in the Arbitration Act, in regulations made thereunder, or in any other law. It remains to be seen how this allocation of compe - tence will operate in practice. The Arbitration Act cur - rently provides for the recognition and enforcement of arbitral awards through the MAC, with appeals lying to the Court of Appeal, and no corresponding amend - ments to the Arbitration Act have yet been proposed. The re-establishment of a specialised Commercial Court is, in principle, a welcome development for arbi - tration users, as it holds the promise of enforcement and arbitration-related court functions being handled by a bench with dedicated commercial expertise. Insofar as the formal requirements of an arbitration agreement are concerned, Maltese arbitration law fol - lows the UNCITRAL Model Law and the New York Convention, which are reproduced in the First Sched - ule and Part III of the Second Schedule to the Arbi - tration Act respectively. Accordingly, an arbitration agreement must be in writing and may be drawn up in the form of an arbitration clause in a contract or in the form of a separate agreement. For the purposes of Maltese law, an agreement is considered to have been made in writing solely in the following circumstances: 3. The Arbitration Agreement 3.1 Enforceability • if it is contained in a document that is transferred from one party to the other party or by a third party to both parties, provided that no objection was raised within 30 days from receipt thereof; • if reference is made in a written contract to a docu - ment containing an arbitration clause, insofar as that reference operates to make such clause part of the contract; or • through the issuance of a bill of lading, provided that the bill of lading contains an express reference to an arbitration clause in a charter party, in which case the bill of lading is, in and of itself, deemed to constitute a written arbitration agreement.
The UNCITRAL Model Law further elaborates in this respect, and confirms that the “in writing” requirement is also satisfied if it is contained in: • a document signed by the parties; • an exchange of telecommunication that provides for a record of the agreement; or • an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. Naturally, the references in the 1985 UNCITRAL Model Law and the 1958 New York Convention to an instru - ment “in writing” have to be interpreted in the light of more recent laws establishing equivalence between traditional written instruments and electronic com - munications. 3.2 Arbitrability Over the past few years, there has been an increase in the scope of the types of disputes that are consid - ered by arbitral tribunals and the courts of law to be “arbitrable”, in terms of both subjective and objective arbitrability. The general provision contained in Article 15 of the Arbitration Act (under the part dedicated to domestic arbitration, but equally applicable to interna - tional commercial arbitration having Malta as its seat) states that disputes concerning questions of personal civil status (eg, marriage, legal capacity or parentage) are not capable of settlement by arbitration. Equally, most public law matters are generally regarded as not arbitrable. However, even in traditionally non-arbitrable areas of law such as disputes concerning personal status, purely patrimonial or monetary claims arising from such disputes can still be referred to arbitration. For example, disputes involving the division of property between spouses or claims for damages arising from intellectual property rights or public law disputes are
considered suitable for arbitration. 3.3 National Courts’ Approach
As a signatory of the New York Convention and having modelled the Arbitration Act on the UNCITRAL Model Law, Malta is a jurisdiction that is supportive of the arbitration process.
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