MALTA Law and Practice Contributed by: Antoine Cremona, Clement Mifsud-Bonnici and Chiara Frendo, Ganado Advocates
Warrant of Arrest of Sea Vessels A warrant of arrest to order the seizure of vessels (exceeding ten metres in length) is only to secure a debt or claims, whether in personam or in rem, which could be frustrated by the departure of the vessel. Warrant of Arrest of Aircraft A warrant of arrest to order the seizure of an aircraft is only to secure a debt or claims, whether in personam or in rem, which could be frustrated by the departure of the aircraft. The term “aircraft” includes: • all data, manuals, and technical records; • the airframe, all equipment, machinery and other appurtenances as accessories belonging to the aircraft, which are on board, or which have been temporarily removed therefrom; and • if in Malta, any engines owned by the owner of the aircraft, whether attached to the aircraft or not, as well as any replacement engines which are des- ignated for use on the aircraft and owned by the owner of the aircraft but temporarily not attached to the aircraft. Warrant of Prohibitory Injunction An application for a warrant of prohibitory injunction must demand that a person is restrained from doing or omitting to do anything which might be prejudicial to the person suing for the warrant. This is the only war- rant that is not decided on a purely ex parte basis but requires a hearing before the injunction can be issued. That being said, the court may, upon the plaintiff’s request, issue the injunction on a provisional basis until the matter is heard and decided. Warrant of Description This warrant orders a court bailiff to take an itemised inventory of movables. Warrant of Seizure of a Commercial Going Concern This warrant has the effect of preserving the totality of the assets of the going concern, including licences and goodwill, to order that they are not sold and are to be concurrently kept in the business. If this warrant is
upheld, a court-appointed administrator would over- see the business at the cost of the plaintiff. Provisional Measures Sought in Support of Foreign Proceedings Pursuant to, and by virtue of, Regulation (EU) No 1215/2012, provisional measures can be sought in Malta in support of proceedings being heard in anoth- er EU member state. In this instance, such measures will only have territorial effect. If, on the other hand, Maltese courts have jurisdiction over the main lawsuit, any provisional and protective measure sought in Malta is automatically recognised and can be enforced in any other member state. The Code of Organization and Civil Procedure sepa- rately allows provisional measures to be sought in Malta in support of international arbitration proceed- ings. Bringing an Action The plaintiff is bound to bring an action on the merits of the claim within 20 calendar days from the date the precautionary warrant is issued by the court. Some of these interim court measures may be sub- sequently converted into an executive court measure once the title becomes final and definitive by virtue of the court’s final ruling in the relevant merits-based pro- ceedings (res judicata). The interim order will remain in force until the judgment in the relevant merits pro- ceedings is either confirmed or set aside. There are also injunctive measures provided for under specific laws. In the realm of intellectual property law, for instance, the court has wide powers to order the conservation of evidence in the hands of the defend- ant or third parties, and even to issue a “cease and desist” order, restraining the performance of an act likely to infringe a party’s intellectual property. 4.2 Early Judgment Applications When a claim is solely for the recovery of a debt that does not exceed EUR25,000 and is certain, liquid, and due, the creditor may file a judicial letter instead of a lawsuit, accompanied by a confirmation on oath stating clearly the cause of the claim, the reasons it
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