MALTA Law and Practice Contributed by: Ann Fenech, Adrian Attard, Lara Saguna Axiaq and Martina Farrugia, Fenech & Fenech Advocates
in Article 742B of the COCP if the vessel con - cerned is physically present within the territorial jurisdiction of the Maltese courts or as security of an in personam claim where the ship-owner is subject to the ordinary jurisdiction of the Maltese courts under Article 742 of the COCP. However, the matter is not straightforward, and much will depend on whether one is dealing with an arbi - tration clause or a jurisdiction clause. Regarding arbitration clauses, Article 742(4) of the COCP provides that any person who is party to an arbitration agreement may demand a pre - cautionary act (including a precautionary arrest warrant) to be issued; and, where the party has not brought forward their claim before an arbi - trator, they shall have 20 days from the date of issuance of the precautionary act to commence the arbitration proceedings. With respect to a jurisdiction clause, however, the decision of the court will in turn depend on whether the clause points towards a jurisdiction established within the European Union (EU), or otherwise. If the jurisdiction clause refers a dispute to a court within an EU member state, then, pursuant to the provisions of Article 35 of Regulation 1215/2012 (the “Brussels I Recast Regulation”), a party may apply for a provisional arrest warrant, including protective measures in Malta, in order to secure their claim on the merits being pursued before the courts in another EU member state. If the jurisdiction clause directs disputes to a court outside the EU, jurisprudence is varied. Some case law suggests that the issuance of precautionary warrants to secure a claim, such as an arrest of a vessel, will only be valid if the Maltese courts would have notional jurisdiction in terms of Article 742 of the COCP. There is, however, other case law which suggests that
an arrest in support of an action heard before a foreign court would not be permitted, even if the Maltese court has notional jurisdiction. Nonetheless, and in all cases, it is commonly held (even when the merits are not to be heard in Malta) that an arrest of a vessel in rem must satisfy the grounds of jurisdiction provided for under Article 742B of the COCP, together with the “relevant person test” requirement under Article 742D of the COCP. 6.5 Domestic Arbitration Institutes Malta does not have a domestic arbitration insti - tute that specialises in maritime claims. None - theless, where parties opt for arbitration pro - ceedings in Malta, which would be conducted in accordance with the rules found under the Arbitration Act, they can nominate a panel of arbitrators who are specialised in maritime dis - putes. This helps to ensure that the matter is handled with the necessary expertise. 6.6 Remedies Where Proceedings Are Commenced in Breach of Foreign Jurisdiction or Arbitration Clauses Where proceedings are commenced in breach of a foreign jurisdiction or arbitration clause, a defendant may challenge those proceed - ings and request that a preliminary decision be given, limited to the point of jurisdiction. Where the court finds that the proceedings have been commenced wrongly, it will declare it does not have jurisdiction to hear the matter and may order court costs to be paid by the plaintiff. The defendant would also retain a right to institute an action to recover any damages suffered.
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