MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment shall be made, upon the request of a party, by the chairperson of the MAC. In an arbitration with a sole arbitrator, where the parties fail to agree on the choice of arbitrator within 30 days after receipt by a party of a proposal, that arbitrator shall be appointed, upon the request of a party, by the chairperson of the MAC. In the context of international arbitration, the chair - person of the MAC fills the role of default appoint - ing authority and the functions mentioned in Articles 11 (3), 11 (4), 13 (3) and 14 of the UNCITRAL Model Law. Therefore, the chairperson shall appoint the arbitrator(s) at the request of one of the parties in any of the following circumstances: • there is no agreement as to the method for the appointment of arbitrators; • the parties do not agree on the arbitrator(s); • any of the parties fail to act as required under the agreed appointment procedure; • an arbitrator becomes unable to perform their func - tions or fails to act or their office terminates; or • an arbitrator is successfully challenged. Default procedures for selecting arbitrators in multi - party arbitrations are contemplated in Article 21A of the Act. These procedures mimic the default proce - dures explained above, with the difference that the multiple claimants or multiple respondents are to make a joint nomination and to jointly reach an agreement with the other party on the choice of the arbitrator(s). 4.3 Court Intervention Outside the parameters of the procedures for chal - lenge or removal of arbitrators described in 4.4 Chal- lenge and Removal of Arbitrators , there is no room for court intervention in the selection of arbitrators. This excludes the possibility of extraordinary remedies including constitutional challenges on matters such as due process, which are exceptional and outside the scope of the current review. 4.4 Challenge and Removal of Arbitrators The Arbitration Act expressly provides that arbitrators are to be independent and impartial. Accordingly, pro - spective arbitrators are obliged to disclose any con -
flict of interest as soon as possible. An arbitrator may only be challenged if circumstances exist that give rise to justifiable doubts in relation to their impartiality or independence. However, a party may only chal - lenge an arbitrator appointed by it for reasons that it becomes aware of after the appointment has been made. While the UNCITRAL Model Law adopts a simi - lar approach, in the context of international arbitra - tion, a party may also challenge the appointment of an arbitrator when that arbitrator does not possess the qualities previously agreed to between the parties. The parties are free to agree on a procedure for chal - lenging an arbitrator. Failing such agreement, a party that intends to challenge an arbitrator shall, within 15 days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any cir - cumstances giving rise to the challenge, send a writ - ten statement containing the reasons for the challenge to the tribunal. Unless the challenged arbitrator withdraws from their office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. If a chal - lenge is not successful, the challenging party may request, within 30 days after having received notice of the decision rejecting the challenge, the chairper - son of the MAC to decide on the challenge, and this decision shall not be subject to an appeal. While a request is pending, the tribunal, including the chal - lenged arbitrator, may continue the arbitral proceed - ings and make an award. If the chairperson of the MAC sustains the challenge, they are to appoint a substitute arbitrator. 4.5 Arbitrator Requirements See 4.4 Challenge and Removal of Arbitrators . Maltese law adopts both tests of independence and impartiality, which are qualities that have to be assessed at the appointment stage and throughout the procedure leading to the expiry of the jurisdiction of the arbitrators. In matters relating to the assessment of such qualities, regular use is made of the International Bar Associa - tion (IBA) Guidelines on Conflicts of Interest in Inter - national Arbitration and publications issued by the leading arbitration institutions in Europe and beyond.
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