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Maltese Laws |
AN ACT to amend the Laws relating to arbitration and mediation matters.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:
Short title. 1. The short title of this Act is the Laws (Arbitration and
Mediation Matters) (Amendment) Act, 2010.
Amendment of the Arbitration Act.
Cap. 387.
A 525
(2) The provisions of this Part shall come into force on such date as the Minister responsible for justice may by notice in the
Gazette appoint, and different dates may be so appointed for different provisions and different purposes thereof.
''(2) The Board shall consist of not less than three and not more than five members, appointed by the President of Malta
acting on the advice of the Prime Minister, one of whom shall be designated by the Prime Minister as chairman. The Prime Minister
shall also designate another member as deputy chairman and such member shall have all the powers and perform all the functions of
the chairman during his absence, or until a new chairman has been appointed following the resignation, termination of appointment,
or death of the chairman.
(3) The Prime Minister shall select the members of the Board from among persons who appear to him to be qualified to be so selected.''.
(6) (a) A person who, in the opinion of the Centre, does not fulfil his duties or functions in arbitration proceedings shall be admonished by the Registrar in order to fulfil those duties or functions, and if that person in the opinion of the Centre persists in not fulfilling his said duties or functions the Centre shall refer the case to a board to be composed of three arbitrators which shall, after considering the case, decide whether there is failure to fulfil duties or functions in arbitration proceedings and, where it finds that there is such failure, the board shall issue such directives as it may deem appropriate so that the said person will fulfil his said duties or functions. It the said person further persists in not fulfilling his duties or functions in arbitration proceedings the board so appointed shall, after considering the case, recommend to the Centre that
Amendment of article 4 of the principal Act.
Amendment of article 6 of the principal Act.
Amendment of article 8 of the principal Act.
Amendment of article 10 of the principal Act.
A 526
the said person be either removed from the arbitration proceedings in which he persisted in failing to fulfil his duties or functions
or be removed from the group of arbitrators.
(b) A person may at any time resign by letter addressed to the Registrar.
Amendment of the article 15 of the principal Act.
(c) A removal or resignation as referred to in paragraphs (a) and (b) shall not be deemed to include the removal or resignation of the person concerned from any arbitration proceedings in which he may have already been appointed before his removal or resignation except as may be expressly provided in a decision of the Centre taken upon the recommendation of the board referred to in paragraph (a) or in the letter of resignation itself.".
(a) immediately after subarticle (11) there shall be added the following new subarticle:
Cap. 12.
''(11A) Notwithstanding any other provision of this Act, all parties to a mandatory arbitration shall, unless they have
expressly agreed otherwise in writing, have a right of appeal from the arbiter award both on points of law and on points of fact
to the Court of Appeal as constituted in terms of article 41(6) of the Code of Organization and Civil Procedure.''; and
(b) immediately after subarticle (15) there shall be added the following new subarticle:
''(16) The Minister may from time to time prescribe that certain classes of disputes included in the Fifth
Schedule shall be determined by arbitration in accordance with the provisions of Part IV and of the Fourth Schedule subject
to the following conditions:
(a) that prior to the dispute being referred to arbitration one of the parties to the dispute shall have notified the Centre by
means of a notice in writing of its intention to refer the dispute to arbitration; and
A 527
(b) that in the notice referred to in paragraph (a) the said party shall describe the elements of the dispute and
give the name and address of the other party or parties to the dispute; and
(c) that following receipt of the request and of the information referred to in paragraphs (a) and (b) above the Centre shall
inform the other party or parties to the dispute by registered mail of the said request and information; and
(d) that the other party or parties to the dispute either notify the Centre of their acceptance to refer the dispute to arbitration
within twenty days from when they are notified in accordance with paragraph (c) or that within the said period they fail to file
a note with the Centre objecting to the dispute being referred to arbitration:
Provided that when more than two parties are involved in a dispute, the dispute shall not be referred to arbitration in accordance
with this subarticle if at least one of the said parties objects to the referral of the dispute to arbitration.
"(3) The chairman shall, at the request of one of the parties, appoint the sole arbitrator as promptly as possible and for this purpose he shall call a meeting between the parties for the purpose of attempting to select the arbitrator together with the parties and after he has called the said meeting the chairman shall proceed to appoint the sole arbitrator and his decision shall be final and binding.".
"(2) Recourse against an arbitral award delivered under Part IV may be made to the Court of Appeal by application either
-
(a) praying that the award be set aside in accordance with the provisions of article 70, or
(b) appealing on a point of law in accordance
Amendment of article 20 of the principal Act.
Amendment of article 69A of the principal Act.
A 528
with article 70A except in the case of mandatory arbitrations, or
Amendment of article 70 of the principal Act.
Addition of new article 70C to the principal Act.
(c) appealing both on points of fact and on points of law in accordance with article 70C.".
"(7) The Board established under article 29 of the Code of Organization and Civil Procedure may make rules concerning applications to the Court of Appeal under this article, under article 70A, article 70C and article 73, and prescribe the fees to be paid on such applications.".
''Appeal in mandatory arbitration proceedings.
70C. (1) A party to mandatory arbitration proceedings shall have a right of appeal to the Court of Appeal both on points of fact
and on points of law arising out of a final award made in the proceedings.
(2) The provisions of article 70(3), (4), (5) and (6), of article 70A(2), article
70B(2) and article 71A shall apply to appeals
made under this article.''.
Amendment of article 71 of the principal Act.
Amendment of article 71A of the principal Act.
''(2) The Court of Appeal may, on an appeal under articles 70A and 70C -
(a) confirm the award , (b) vary the award,
(c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the Court’s determination, or
(d) set aside the award in whole or in part and itself determine the matter.''.
A 529
(a) for subarticle (1) thereof there shall be substituted the following:
''(1) The following provisions shall apply to an application to set aside or an appeal under article 70, 70A or 70C.'';
and
(b) for subarticle (4) thereof there shall be substituted the following:
''(4) The rights of recourse as provided in article
70 or 70A or 70C are mutually exclusive and cannot both be exercised simultaneously and an appeal on a point of law or on a point
of fact shall exclude the right to apply to set aside the award: provided that when a party has applied to the Court to set aside
an award, he may, in subsidium, appeal on points of law or on point of fact provided he does so in the same application.''.
(a) for subarticle (3) thereof there shall be substituted the following:
''(3) In the case of a domestic arbitration, conducted under Part IV of this Act, the provisions of article
38(2), (3), (4) and (5), article 70, article 70A, article
70B, article 70C, article 71 and article 71A shall only
apply and the proceedings shall only be valid where at any time prior to the communication of the award in accordance
with article 44(4), a notice of arbitration is registered with the Centre in accordance with article 17.'';
(b) for paragraph (b) of subarticle (4) thereof there shall be substituted the following:
''(b) Where, following any application in accordance with article 70 or 70A or 70C, the Court does not uphold the
application, the judgement of the Court of Appeal shall be registered with the Centre together with the award being registered on
the request of the party seeking registration.''; and
(c) for subarticle (6) thereof there shall be substituted the following:
''(6) Any application under articles 70 or 70A or
Amendment of article 72 of the principal Act.
A 530
Amendment of Fourth Schedule to the principal Act.
Amendment of rule 72 of the Arbitration Rules.
S.L. 387.01
Amendment of the Mediation Act.
Cap. 474.
Amendment of article 2 of the principal Act.
70C which the Court of Appeal determines to be frivolous or vexatious shall render the party making such challenge or appeal liable to pay the party requesting it a penalty of not less than two hundred and thirty-two euro and ninety- four cents (232.94) and not more than eleven thousand and six hundred and forty-six euro and eighty-seven cents (11,646.87) to be determined by the Court of Appeal.''.
Rules shall be repealed.
(2) The provisions of this Part shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint, and different dates may be so appointed for different provisions and different purposes thereof.
there shall be inserted the following definition:
" "international mediation" shall include cross- border disputes of a civil and commercial nature except as regards
rights and obligations which are not at the parties’ disposal under the relevant applicable law, and other disputes which national
legislation may provide from time to time. It shall not extend, in particular, to revenue, customs or administrative matters or to
the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii);";
(b) for the definition "mediation", there shall be substituted the following definition:
" "mediation" means a structured process, however named or referred to, whereby two or more parties to a dispute attempt
by themselves to reach a voluntary agreement regarding their dispute with the assistance of a
A 531
mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by national legislation;";
(c) for the definition "mediator", there shall be substituted the following definition:
" "mediator" means any third person who is asked to conduct a mediation in an effective, impartial and competent way,
regardless of the denomination or profession of that third person in the Member State concerned and of the way in which the third
person has been appointed or requested to conduct the mediation;"; and
(d) immediately after the definition "mediator", there shall be inserted the following definition:
" "Member State" means any one of the Member States of the European Union with the exception of Denmark;".
"(j) to encourage, by any means which it considers appropriate, the development of, and adherence to, voluntary codes of conduct by mediators and organizations providing mediation services, as well as other effective quality control mechanisms concerning the provision of mediation services; moreover it shall encourage the initial and further training of mediators in order to ensure that the mediation is conducted in an effective, impartial and competent way in relation to the parties;".
(1) thereof; and
(b) immediately after subarticle (1) thereof, as re- numbered, there shall be added the following new subarticle:
"(2) The Board shall not act unless a quorum consisting of not less than three members is present.".
Amendment of article 5 of the principal Act.
Amendment of article 6 of the principal Act.
Amendment of article 15 of the principal Act.
A 532
Addition of new articles 17A and
17B to the principal Act.
"(3) The Centre shall be exempted from any liability for the payment of income tax and duty on documents under any law for the time being in force.".
"Cross-border dispute.
17A. (1) A cross-border dispute shall be one in which at least one of the parties is domiciled or habitually resident in Malta
and the other party is domiciled or habitually resident in another Member State on the date on which:
(a) the parties agree to use mediation after the dispute has arisen;
(b) mediation is ordered by the court;
(c) an obligation to use mediation arises under national law; or
(d) for the purposes of article
17(b) a decree or order by a court or other adjudicating authority is made to the parties.
(2) Notwithstanding the provisions of subarticle (1), for the purposes of confidentiality and limitation and prescription
periods, a cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation between
the parties are initiated in Malta or another Member State other than the Member State in which the parties were domiciled or habitually
resident on the date referred in subarticle (1)(a), (b) or (c).
(3) For the purposes of subarticles (1) and (2), domicile shall be determined in accordance with Articles 59 and 60 of
Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
A 533
Enforceability of agreements resulting from mediation.
Cap. 12.
17B.(1) (a) The parties, or one of them with the explicit consent of the other, may request that the content of a written
agreement resulting from mediation be made enforceable subject to the provisions of the Code of Organization and Civil Procedure.
(b) The content of such an agreement shall be enforceable unless, in the case in question, the content of that agreement
is contrary to national law.
(2) The content of the agreement may be made enforceable by a court or other competent authority in a judgment or decision
or in an authentic instrument in accordance with the law of the Member State where the request is made.
(3) Nothing in this article shall affect the rules applicable to the recognition and enforcement in another Member State of
an agreement made enforceable in accordance with subarticle (1).".
(a) in subarticle (1) thereof, for the words "may apply to the registrar" there shall be substituted the words "shall
apply to the registrar"; and
(b) immediately after subarticle (2) thereof, there shall be8added the following new subarticle:
"(3) If a mediator declines a request he shall notify the registrar accordingly within fifteen days from the date of the request.".
(a) subarticle (2) thereof shall be substituted by the following new subarticle:
"(2) If a mediator becomes aware of any fact described under subarticle (1)(a) after accepting a mediation, the mediator shall
disclose it to the parties as quickly as practicable."; and
Amendment of article 20 of the principal Act.
Amendment of article 21 of the principal Act.
A 534
(b) immediately after subarticle (2) thereof, there shall be added the following new subarticles:
"(3) After the disclosure of any fact under subarticles (1) or (2), a mediator shall decline to mediate unless all the parties
give him their express consent to proceed with the mediation.
(4) Where a mediator deems that there is a conflict of interest giving rise to the slightest reasonable doubt as to the
integrity of the process, the mediator shall decline to proceed regardless of the consent of the parties to the contrary.
Amendment of article 22 of the principal Act.
(5) If a mediator declines to mediate, a new or substitute mediator shall be appointed or chosen pursuant to the procedure provided for in article 20.".
(a) in subarticle (1) thereof, for the words "Any mediator may be challenged" there shall be substituted the words "A mediator may be challenged by any mediation party"; and
Amendment of article 23 of the principal Act.
(b) subarticle (4) thereof shall be deleted.
(a) in subarticle (1) thereof for the words “article 21”
there shall be substituted the words “articles 21 or 22(2)”; and
Amendment of article 24 of the principal Act.
Amendment of article 27 of the principal Act.
(b) in subarticle (4) thereof, for the words "the challenged mediator" there shall be substituted the words "a mediator in substitution of the challenged mediator".
"Provided that disclosure of the content of the agreement
A 535
resulting from mediation shall be permitted -
(a) where this is necessary for overriding considerations of public policy of the Member State concerned, in particular when required
to ensure the protection of the best interests of children or to prevent harm to the physical or psychological integrity of a person;
or
(b) where such disclosure is necessary in order to implement or enforce that agreement.".
Addition of new article 27A to the principal Act.
"Effect of mediation on limitation and prescription periods.
27A. (1) The parties who choose mediation in an attempt to settle a dispute shall not subsequently be prevented from initiating
judicial proceedings or arbitration in relation to that dispute by the expiry of limitation or prescription periods during the mediation
process and the periods of limitation and prescription shall be suspended during the mediation process.
(2) The provisions of subarticle (1) shall be without prejudice to provisions on limitation or prescription periods in international
agreements to which Malta and the other Member State concerned may be party.".
(2) The provisions of this Part shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint, and different dates may be so appointed for different provisions and different purposes thereof.
Amendment of the Code of Organization and Civil Procedure.
Cap. 12.
Amendment of article 253 of the Code.
A 536
"(f) mediation agreements made enforceable by the parties thereto in accordance with the provisions of the Mediation Act.".
Passed by the House of Representatives at Sitting No. 246 of the
25th June, 2010.
MICHAEL FRENDO
Speaker
PAULINE ABELA
Clerk to the House of Representatives
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URL: http://www.worldlii.org/mt/legis/laws/aatatlrtaammnio2010691