MALTA Law and Practice Contributed by: Antoine Cremona, Louis Cassar Pullicino, Clement Mifsud-Bonnici and Yasmine Ellul, Ganado Advocates
As stated in 8.1 Collection and Submission of Evi- dence , the Act provides that in domestic arbitrations the rules of the Code of Organisation and Civil Pro - cedure shall apply as they apply to the production of evidence before a court of civil jurisdiction. This also applies to international arbitrations seated in Malta where no other rules of procedure have been chosen by the parties. 8.3 Powers of Compulsion In domestic arbitrations, where the evidence of any person is required, the registrar of the MAC may issue an application for writs of subpoena in the Superior Courts to ask the courts to compel the attendance of a witness to give evidence or produce documents before an arbitral tribunal. Where any person who has been properly subpoe - naed to appear before an arbitral tribunal in accord - ance with the aforementioned procedure fails to appear before the tribunal without reasonable excuse, the tribunal may make a report thereon to the registrar of the MAC, who shall by application bring the report to the attention of the Court of Appeal, requesting it to deal with the matter in the same manner as if the person concerned had failed to appear before that court when properly subpoenaed. 9. Confidentiality 9.1 Extent of Confidentiality There are no provisions relating to confidentiality in the Arbitration Act. However, when the Rules apply – whether in domes - tic arbitrations, in international arbitrations where the parties have expressly agreed to their application, or where Part IV of the Act (governing domestic arbitra - tion) applies to international arbitrations by operation of Article 60 of the Arbitration Act – the proceedings are subject to a duty of confidentiality. Article 47 of the Rules imposes an obligation on arbi - tration participants to maintain the confidentiality of the proceedings. Neither the existence of proceedings nor the eventual award are publicised. The MAC treats all documents filed with it as confidential, except to
In fact, in terms of Article 18 (2) of the Arbitration Act, “a legal practitioner or a person not qualified under the Laws of Malta may act on behalf of a party to an arbitral proceeding to which this Act applies, including appearing before the arbitral tribunal, and he shall not thereby be taken to have breached any law of Malta regulating the practice of the legal profession”. 8. Evidence 8.1 Collection and Submission of Evidence In arbitrations seated in Malta, parties are free to determine the procedure for collecting and present - ing evidence, often by incorporating institutional rules or opting to apply the Rules. Although the concepts of discovery and disclosure are not traditionally part of Maltese legal practice, parties may agree to adopt rules on document production – such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration – which are well recognised and frequently applied, either as binding rules or as guidance. In the absence of a specific agreement between the parties, the arbitral tribunal will determine the eviden - tiary procedure in line with the applicable law, typically that of the law of the seat. In domestic arbitrations, or international arbitrations seated in Malta where no other rules of procedure have been chosen, the production of evidence is governed by the Code of Organisation and Civil Procedure. Under this Code, tribunals may admit both oral (viva voce) testimony and written sworn statements. Maltese law also allows for “documents-only” arbitrations, where no oral hear - ings take place. As a general rule under Maltese pro - cedural law, each party bears the burden of proving the facts on which it relies. Tribunals may set dead - lines for parties to submit a summary of the docu - ments and other evidence they intend to present in support of their claims or defences. Unless otherwise agreed, the tribunal may appoint its own experts or request expert evidence from the parties. 8.2 Rules of Evidence The Rules provide that the arbitral tribunal shall regu - late the production of evidence before it in order to ensure compliance with the provisions of the Arbitra - tion Act.
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