MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
5. Jurisdiction 5.1 Challenges to Jurisdiction
The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified. The tribunal may rule on a plea of non-jurisdiction either as a prelimi - nary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may request, within 30 days after having received notice of that ruling, the Court of Appeal to decide the matter, which decision shall not be subject to a further appeal. While such a request is pending, the tribunal may continue the The standard of review under a challenge to the juris - diction of the arbitral tribunal is de novo. The court will review the tribunal’s jurisdiction by way of complete reassessment of facts, without being bound by the tribunal’s reasoning. 5.5 Breach of Arbitration Agreement As explained in 3.3 National Courts’ Approach and 5.2 Circumstances for Court Intervention , the court will stay proceedings if there is a valid arbitration clause. The approach of national courts has been largely positive in the preservation of jurisdiction of the arbitral tribunal. In fact, courts typically view proceedings brought in breach of an arbitration agreement with disfavour. It should be noted, however, that the courts will gener - ally stay proceedings rather than dismiss them out - right, pending determination of the arbitral tribunal’s jurisdiction by the tribunal itself. 5.6 Jurisdiction Over Third Parties The general rule under Maltese law is that an arbi - tration agreement binds the parties to it. Doctrines addressing the binding of non-signatories, such as alter ego, agency or “group of companies” theories, are not well developed under Maltese jurisprudence specific to arbitration, although the Maltese courts have applied these concepts in contract or corporate law generally. arbitral proceedings and make an award. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility
An arbitral tribunal in an arbitration having Malta as its seat of arbitration determines its own jurisdiction. In the event that proceedings are filed before a court for a declaration relating to the jurisdiction of an arbi - tral tribunal, such proceedings shall be stayed and the parties shall in principle be referred to the tribunal for its decision on such issue, unless the court con - siders that a party will suffer irreparable harm if the court does not determine such issue immediately. The principle that an arbitral tribunal is competent to rule on its own competence is widely acknowledged, and the provisions of the Arbitration Act are designed to safeguard its application. 5.2 Circumstances for Court Intervention Article 32 (5) of the Arbitration Act expressly provides that proceedings filed before a court for a declaration relating to the jurisdiction of an arbitral tribunal must be dismissed as this is a matter for the tribunal to decide. This is unless the court considers that a party will suffer irreparable harm if the court does not deter - mine the issue. Accordingly, in terms of Article 16 (3) of the UNCITRAL Model Law, the tribunal is to decide claims pertaining to its jurisdiction, with parties hav - ing a right of appeal from the tribunal’s interim award finding jurisdiction before the Court of Appeal. On the other hand, if the tribunal decides that it does not have jurisdiction, there is no right to appeal to domestic courts. With a few exceptions, national courts have generally taken a positive approach in preserving the jurisdiction of the tribunal, thereby showing a general reluctance to intervene in issues of jurisdiction of an arbitral tribunal. 5.3 Timing of Challenge A plea that the arbitral tribunal does not have jurisdic - tion shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that it appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the mat- ter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.
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