Commercial Arbitration: Malta

Infrastructure

1. Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?

Malta

Malta is a party to the New York Convention, having signed and ratified the Convention on 22 June 2000, and has incorporated its provisions into Maltese domestic law, specifically under the Arbitration Act (Chapter 387 of the Laws of Malta). Malta has adopted the reciprocity reservation and a reservation relating to the retroactive application of the Convention by declaring that the Convention will only apply: (1) to the recognition and enforcement of awards made in the territory of another Contracting State; and (2) with respect to arbitration agreements concluded after the date of Malta’s accession to the Convention.

2. Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?

Malta

Malta is a party to other international instruments relating to the recognition and enforcement of arbitral awards, in addition to the New York Convention. The Arbitration Act (Chapter 387 of the Laws of Malta) incorporates the provisions of the Geneva Protocol on Arbitration Clauses of 1923, the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927, and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (ICSID Convention).

3. Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?

Malta

The principal legislative instruments governing arbitration in Malta are the Arbitration Act (Chapter 387 of the Laws of Malta) and the Arbitration Rules (Subsidiary Legislation 387.01). The Arbitration Act is based on the UNCITRAL Model Law on International Commercial Arbitration of 1985, and the Rules are similarly modelled on the UNCITRAL Arbitration Rules of 1976. The Act has not yet been amended to reflect the later revisions to the UNCITRAL Model Law, although reform initiatives in this respect are anticipated.

In addition to incorporating the 1985 UNCITRAL Model Law, which is annexed as the First Schedule to the Arbitration Act and forms an integral part of it, the Act also implements key international conventions, including the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention), the Geneva Protocol on Arbitration Clauses of 1923, the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927, and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (ICSID Convention).

The Arbitration Act applies to all arbitral proceedings, whether domestic or international, where the seat of arbitration is located in Malta. Different rules apply to domestic arbitration (Part IV of the Arbitration Act) and international arbitration (Part V of the Arbitration Act).

4. What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?

Malta

The Malta Arbitration Centre (MAC) is the arbitration body in Malta created by statute and is responsible for overseeing both domestic arbitrations and a growing number of international arbitrations seated in Malta. The MAC provides facilities for the conduct of arbitral proceedings and the Chairman of the MAC acts as the default appointing authority where necessary. The MAC maintains panels of qualified professionals, including specialists in various areas of law, from which arbitrators may be appointed.

5. Can foreign arbitral providers operate in your jurisdiction?

Malta

International arbitrations seated in Malta are frequently conducted under the rules of various foreign arbitral institutions. Among the most commonly used are the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA).

6. Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with, and supportive of, the law and practice of international arbitration?

Malta

There is no specialist arbitration court in Malta. However, the Superior Courts – specifically, the First Hall of the Civil Courts and the Court of Appeal – are vested with powers in relation to arbitration proceedings. These include the authority to stay court proceedings in favour of arbitration, grant interim relief, hear procedural challenges and issue recognition and enforcement orders. The division of jurisdiction between the courts depends on the specific relief sought. The courts operate under the Arbitration Act (Chapter 387 of the Laws of Malta) and the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta).

Malta, as a signatory to the New York Convention and with an Arbitration Act based on the UNCITRAL Model Law, is, by definition, a pro-arbitration jurisdiction. National courts generally show limited intervention in international arbitrations seated in Malta but retain residual powers in domestic matters. The judiciary generally supports arbitration and takes a restrictive approach toward court actions aimed at delaying or undermining proceedings. While Maltese courts are generally supportive of arbitration, a few isolated decisions have shown an unusual approach that departs from mainstream arbitration practice. These judgments are considered outliers. Maltese courts uphold competence-competence and regularly stay proceedings in favour of valid arbitration agreements, while retaining jurisdiction until the tribunal rules on its own competence.

Recent cases show this pro-arbitration stance, such as courts refusing to lift precautionary measures related to enforcement of foreign awards despite the existence of equivalent security in another EU member state where exequatur proceedings are pending and staying proceedings in favour of arbitration clauses even where non-signatory third parties are involved.

Agreement to arbitrate

7. What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?

Malta

Maltese arbitration law, consistent with the UNCITRAL Model Law and the New York Convention (both incorporated into the Arbitration Act and set out in the First and Second Schedules thereto), requires that an arbitration agreement be in writing to be valid and enforceable. An arbitration agreement may be in the form of an arbitration clause within a contract or as a standalone agreement.

For the purposes of Maltese law, an agreement is considered to have been made "in writing" solely in the following circumstances:

• if it is contained in a document exchanged between the parties or sent by a third party to both parties, provided that no objection is raised within 30 days of receipt;
• if a written contract makes reference to a document containing an arbitration clause, to the extent that such reference incorporates the clause into the contract; or
• by the issuance of a bill of lading that expressly refers to an arbitration clause in a charter party, in which case the bill of lading is itself deemed to constitute a written arbitration agreement.

In addition, under the applicable UNCITRAL Model Law, the "in writing" requirement is also satisfied where the agreement:

• is contained in a document signed by the parties;
• results from an exchange of telecommunications that provide a record of such agreement; or
• arises from an exchange of statements of claim and defence, where one party alleges the existence of an arbitration agreement and the other party does not deny it.

The concept of "in writing" is interpreted broadly to include contemporary forms of communication, such as electronic exchanges, in line with contemporary legal standards recognising the equivalence of electronic and traditional written instruments.

Finally, under Maltese law, arbitration agreements may cover both existing disputes and future disputes.

8. Are any types of dispute non-arbitrable? If so, which?

Malta

Under article 15 of the Arbitration Act (Chapter 387 of the Laws of Malta) – which, while located in the section on domestic arbitration, is equally applicable to international commercial arbitration seated in Malta – disputes concerning matters of personal civil status (eg, marriage, legal capacity or parentage) are expressly deemed non-arbitrable. Additionally, disputes relating to public law matters are generally regarded as non-arbitrable under Maltese law. That said, patrimonial or monetary claims arising from these relationships may nonetheless be submitted to arbitration. For instance, disputes regarding the division of property between spouses or claims for damages related to intellectual property rights are accepted as arbitrable.

In recent years, there has been a noticeable broadening of what is considered arbitrable, both from the perspective of objective and subjective arbitrability.

9. Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?

Malta

The general rule under Maltese law is that an arbitration 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, and there is no formal bar for such principles to apply to arbitration agreements, if and where applicable.

However, a third party may be joined to arbitral proceedings if all parties involved in the arbitration, including the third party itself, consent to such joinder.

10. Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?

Malta

An arbitral tribunal seated in Malta may consolidate separate arbitral proceedings under one or more contracts, but this can only occur in the following circumstances:

• if the parties agree to consolidate arbitral proceedings or to hold concurrent hearings. In such a case, the parties are free to determine the terms and conditions for consolidation, in accordance with Rule 52(2) of the Arbitration Rules (Subsidiary Legislation 387.01); or
• in the absence of party agreement, the arbitral tribunal may only order consolidation or concurrent hearings if all parties agree to confer such power on the tribunal.

11. Is the "group of companies doctrine" recognised in your jurisdiction?

Malta

The "group of companies doctrine" is not recognised under Maltese law. The general rule is that an arbitration agreement binds only the parties who have consented to it.

Maltese company law upholds the principle of separate juridical personality, meaning that a company enjoys distinct legal status from its shareholders or controlling persons. However, this principle has exceptions, in the form of both statutory and judicial inroads. Maltese courts have not hesitated to lift the corporate veil in cases where the corporate form has been used for fraudulent or improper purposes, such as evading legal obligations. While the piercing of the corporate veil has been well developed in civil and corporate law, with a clear legal basis for holding shareholders or controlling persons liable, this jurisprudence is less developed in the context of arbitration and, specifically, arbitration agreements.

12. Are arbitration clauses considered separable from the main contract?

Malta

Arbitration clauses are considered separable from the main contract under Maltese law. In accordance with article 32 of the Arbitration Act (Chapter 387 of the Laws of Malta) and article 16 of the UNCITRAL Model Law, an arbitration clause remains valid even if the rest of the contract in which it is contained is deemed invalid. This principle applies to both domestic and international arbitrations. Maltese courts have consistently applied the doctrine of separability.

13. Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal's jurisdiction and competence?

Malta

The principle of competence-competence is recognised and widely accepted under Maltese law. In accordance with this principle, in arbitrations seated in Malta, an arbitral tribunal has the authority to determine its own jurisdiction. The provisions of the Arbitration Act (Chapter 387 of the Laws of Malta) are designed to uphold and safeguard the application of this principle.

If a party to an arbitration agreement seeks a court declaration regarding the tribunal’s jurisdiction, the court will typically stay the proceedings and refer the issue to the arbitral tribunal for its decision on jurisdiction. The court will only intervene if it determines that a party would suffer irreparable harm if the issue is not addressed immediately.

14. Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?

Malta

Malta is a jurisdiction that is supportive of the arbitration process, and arbitration agreements are generally recognised and enforced by the courts without difficulty. The courts will typically stay court proceedings in favour of arbitration when presented with an arbitration agreement that is at least prima facie valid, even if the clause is somewhat imprecise or poorly drafted. Nevertheless, it is always advisable to draft a clear and precise arbitration clause to avoid interpretative disputes. Parties should also carefully consider whether they wish to modify or exclude any of the non-mandatory provisions of the Arbitration Act (Chapter 387 of the Laws of Malta) to better suit the specific needs of their transaction or dispute resolution process.

15. Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?

Malta

Institutional arbitration is generally more common in international arbitration seated in Malta, particularly for complex or high-value commercial disputes where parties favour the procedural certainty and administrative support provided by arbitral institutions. When ad hoc arbitration is selected, parties often adopt standard rules of procedure, with the UNCITRAL Arbitration Rules being a common choice to guide the proceedings.

16. What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.

Malta

When drafting a multi-party arbitration agreement with Malta as the seat, it is particularly important to clearly outline the procedure for the constitution of the arbitral tribunal, especially where the parties intend to depart from the default mechanism set out in the Arbitration Act (Chapter 387 of the Laws of Malta).

Under article 21A of the Arbitration Act, default rules apply in multi-party arbitrations. For instance, where there are three arbitrators, the multiple claimants or multiple respondents and the counterparty are required to jointly nominate one arbitrator each, with the two party-nominated arbitrators subsequently agreeing on the presiding arbitrator. In arbitrations where a sole arbitrator is to be appointed, all parties must jointly agree on that appointment. If the parties fail to agree on a method for constituting the tribunal or are unable to make the necessary joint nominations, the Chairman of the Malta Arbitration Centre is empowered, upon the request of any party, to appoint each member of the tribunal and designate one of them to act as presiding arbitrator.

Additionally, when drafting multi-party arbitration clauses, care should be taken to ensure that all parties are afforded equivalent rights with respect to the appointment of arbitrators. A procedure that grants unequal appointment rights could risk the enforceability of the arbitration agreement under Maltese law.

Commencing the arbitration

17. How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?

Malta

In Malta, international arbitral proceedings are commenced in accordance with article 21 of the UNCITRAL Model Law, which is reflected in the Arbitration Act (Chapter 387 of the Laws of Malta). Unless the parties have agreed otherwise – either expressly or by adopting institutional rules that provide for a different procedure – arbitration is commenced through a request for the relevant dispute to be referred to arbitration by one of the parties, sent to the other party.

There is no specific limitation period under the Arbitration Act itself, but limitation periods applicable to substantive claims are governed by Maltese civil law and will apply equally to claims brought in arbitration as they do in court proceedings. Accordingly, it is important for parties to be mindful of the general limitation periods for contractual and non-contractual claims under Maltese law.

In domestic arbitration, a notice of arbitration must be filed in accordance with article 17 of the Arbitration Act. For the purposes of the statute of limitations, arbitral proceedings shall be deemed to commence on the date on which such notice is filed with the Registrar of the MAC.

Choice of law

18. How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

Malta

In both domestic and international arbitrations seated in Malta, the starting point for determining the substantive law is party autonomy – the arbitral tribunal will apply the law designated by the parties as applicable to the substance of the dispute.

In domestic arbitration, if the parties have not designated an applicable law, the tribunal will apply Maltese law, including its conflict of laws rules, as stipulated in article 45 of the Arbitration Act (Chapter 387 of the Laws of Malta). On the other hand, in international arbitration seated in Malta (subject to Part V of the Arbitration Act, which incorporates the UNCITRAL Model Law), where the parties have not specified the applicable law, the tribunal will apply the law determined by the conflict of laws rules it deems appropriate, rather than automatically applying Maltese law. Furthermore, any designation of the law of a particular state is interpreted as referring to that state’s substantive law, excluding its conflict of laws rules, unless otherwise stated by the parties.

In both domestic and international arbitration, the tribunal may decide the case as amiable compositeur or ex aequo et bono only if expressly authorised by the parties. The tribunal is also required to decide in accordance with the terms of the contract and, where relevant, consider trade usages.

Appointing the tribunal

19. Does the law of your jurisdiction place any limitations in respect of a party's choice of arbitrator?

Malta

In line with the UNCITRAL Model Law, the Arbitration Act (Chapter 387 of the Laws of Malta) grants parties to an arbitration agreement broad autonomy in determining both the number and selection criteria of arbitrators. In the absence of such a determination, the default number of arbitrators is three, except in cases where the disputed amount is under 11,646.87 (currency not specified), in which case a sole arbitrator is appointed.

The MAC, with its Chairman acting as the default appointing authority, has established several specialised panels of accredited arbitrators for both domestic and international arbitrations. However, neither the parties nor the default appointing authority are legally required to limit their choice of arbitrators to these panels.

20. Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?

Malta

Non-nationals may act as arbitrators in arbitrations seated in Malta or where hearings are held in Malta.

Foreign arbitrators will be subject to standard immigration requirements, which may include obtaining a visa and work permit. 

21. How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?

Malta

Where there is no agreement on the procedure for appointing arbitrators, the Arbitration Act (Chapter 387 of the Laws of Malta) provides default mechanisms. In arbitrations with three arbitrators, each party is to appoint one arbitrator, and the two party-appointed arbitrators are to appoint the third arbitrator, who will act as chair of the tribunal. If a party fails to appoint its arbitrator within 30 days of receiving notification of the other party’s appointment, or if the two arbitrators fail to agree on the chair within 30 days of their appointment, the Chairman of the MAC will make the necessary appointment upon the request of a party. In arbitrations with a sole arbitrator, if the parties fail to agree on the appointment within 30 days of a proposal being made by one party, the arbitrator will likewise be appointed by the Chairman of the MAC at the request of either party.

In international arbitration, the Chairman of the MAC acts as the default appointing authority, performing the functions outlined in articles 11(3), 11(4), 13(3) and 14 of the UNCITRAL Model Law. The Chairman may intervene to appoint arbitrators where the parties fail to agree on a method of appointment, where a party fails to act under the agreed appointment procedure, or where an arbitrator becomes unable to act, fails to act, resigns or their mandate terminates or is successfully challenged.

For multi-party arbitrations, article 21A of the Arbitration Act sets out specific default procedures. These generally mirror the procedures above but require multiple claimants or respondents to jointly nominate an arbitrator and jointly agree with the opposing side on the appointment of the presiding arbitrator(s).

22. Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?

Malta

Arbitrators are afforded immunity from suit under Maltese law, subject to some exceptions. Article 20(5) of the Arbitration Act (Chapter 387 of the Laws of Malta) provides that arbitrators are not liable in damages for negligence in the performance of their duties. However, this immunity does not extend to acts or omissions that are wilfully done or omitted with malice or fraud. Similarly, rule 50 of the Arbitration Rules (Subsidiary Legislation 387.01) grants immunity to arbitrators, as well as to the MAC, its officers and employees, for acts or omissions carried out in connection with their duties. This immunity is subject to two exceptions: it does not apply where there has been an intentional or grossly negligent breach of duty, or where the act or omission is attributable to malice or fraud.

23. Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?

Malta

Arbitral tribunals seated in Malta are empowered to order a party to provide security for costs, which costs include the fees of the arbitral tribunal. Both ad hoc and MAC-administered tribunals in domestic and international arbitrations can issue such orders. Additionally, the MAC requires the parties to provide deposits as advances on costs when it manages domestic and international arbitrations. The arbitral tribunal may also request supplementary deposits during the course of the proceedings to cover additional costs.

Challenges to arbitrators

24. On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?

Malta

Under the Arbitration Act (Chapter 387 of the Laws of Malta), an arbitrator may be challenged where circumstances exist that give rise to justifiable doubts as to their impartiality or independence. A party may not, however, challenge an arbitrator they appointed, unless they become aware of the grounds for challenge after the appointment. While the UNCITRAL Model Law adopts a similar approach, under international arbitration, an additional ground for challenge may exist if the arbitrator fails to meet the qualifications previously agreed upon by the parties.

The parties are free to agree on a procedure for challenging arbitrators. In the absence of such an agreement, a challenge must be submitted within 15 days of either the tribunal’s constitution or the date when the challenging party becomes aware of the relevant circumstances. The challenge is to be submitted to the arbitral tribunal, accompanied by a written statement of reasons. If the challenged arbitrator does not voluntarily withdraw and the other party does not agree to the challenge, the tribunal itself will decide on the challenge. Should the challenge be unsuccessful, the challenging party may, within 30 days of receiving notice of the rejection, refer the matter to the Chairman of the MAC. The Chairman’s decision is final and not subject to appeal. While a challenge is pending, the tribunal, including the challenged arbitrator, may continue with the proceedings and render an award. If the Chairman of the MAC then upholds the challenge, it will appoint a substitute arbitrator.

Although Maltese law does not expressly refer to them, the IBA Guidelines on Conflicts of Interest in International Arbitration may be and are regularly taken into consideration by tribunals or the Chairman of the MAC when assessing the merits of a challenge.

Interim relief

25. What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

Malta

Unless otherwise agreed by the parties, an arbitral tribunal seated in Malta may, at the request of a party, order such interim measures of protection as it deems necessary concerning the subject matter of the dispute. The tribunal may also require security in connection with such measures. While there is no specific limit on the types of interim relief available from arbitral tribunals, tribunals cannot issue binding orders against third parties, limiting their enforcement powers in practice.

The Maltese courts may also grant interim relief in support of arbitration proceedings, both prior to and during arbitration, and even post-award in enforcement-related matters. Upon application by a party, the courts may issue interim relief, generally on an ex parte basis, provided the relevant legal requirements are met. The main types of interim relief available from the courts under article 830(1) of the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) include:

• garnishee orders;
• warrants of seizure of movables;
• warrants of description;
• warrants of arrest on vessels and aircraft; and
• prohibitory injunctions preventing certain actions by a party.

As mentioned, interim relief may be sought even before arbitral proceedings are formally instituted, provided that arbitration is commenced within 20 days of the filing of the request for such measures. Where the arbitration has already commenced, the request must be accompanied by confirmation from the MAC that arbitration is ongoing.

While Maltese law does not refer to anti-suit injunctions in these terms, a party would potentially be able to obtain a prohibitory injunction from the Maltese courts to prevent a party from pursuing foreign court proceedings in breach of an arbitration agreement.

26. Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?

Malta

Arbitral tribunals seated in Malta are empowered to order a party to provide security for costs. Both ad hoc and MAC-administered tribunals in domestic and international arbitrations can issue such orders. Additionally, the MAC requires the parties to provide deposits as advances on costs when it manages domestic and international arbitrations. The arbitral tribunal may also request supplementary deposits during the course of the proceedings to cover additional costs.

Moreover, at the recognition and enforcement stage, the courts may, upon the application of the party seeking recognition or enforcement of an award, order the opposing party to provide appropriate security.

Procedure

27. Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

Malta

There are mandatory rules governing the conduct of arbitration in Malta, particularly where the parties have not selected institutional rules or failed to agree on procedural matters.

For domestic arbitrations, the procedural framework is governed by Part IV of the Arbitration Act (Chapter 387 of the Laws of Malta) and the Arbitration Rules (Subsidiary Legislation 387.01), which are mandatory unless otherwise stated. For instance, a key domestic requirement is the  notice of arbitration ad validitatem, which is specific to domestic arbitration. For international arbitrations seated in Malta, the parties enjoy greater procedural autonomy. The Act and the Rules serve as default rules and apply only where the parties expressly adopt them or have not otherwise agreed on procedural rules (eg, UNCITRAL or institutional rules). Nonetheless, general duties related to due process and fair trial apply mandatorily in both domestic and international arbitrations, as they stem from Maltese public policy.

28. What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?

Malta

Where a respondent fails to participate in arbitration, the arbitral tribunal proceeds in accordance with article 40 of the Arbitration Act (in domestic arbitrations) and article 25 of the UNCITRAL Model Law (in international arbitrations), both of which provide for a similar procedure.

If the the respondent fails to file a statement of defence within the prescribed period and does not provide sufficient cause, the tribunal is empowered to continue with the arbitration. This does not, however, automatically result in an admission of the claimant’s claims. The tribunal may also proceed with the hearing if a duly notified party fails to appear without justification and may issue an award based on the evidence available if a party fails to produce the requested documents.

In practice, tribunals seated in Malta typically continue with the proceedings despite a respondent’s non-participation, while ensuring that basic due process standards are met. Awards by default are recognised as valid and enforceable awards.

29. What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Arbitration generally be taken into account?

Malta

In Malta-seated arbitrations, the parties are free to agree on the procedure for gathering and submitting evidence, typically by incorporating institutional rules or choosing the Arbitration Rules (Subsidiary Legislation 387.01). In practice, even though discovery and disclosure are not entirely familiar to Maltese law, parties may agree to rules on document production, including the IBA Rules on the Taking of Evidence in International Commercial Arbitration, which are in fact widely known and often applied, either as binding rules or as guidance.

Where no specific agreement is made, the arbitral tribunal will regulate the taking of evidence to ensure compliance with the applicable law, which is generally the law of the seat of arbitration. For domestic arbitrations, the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta) applies to the production of evidence. In line with the Code of Organisation and Civil Procedure, the tribunal may admit both oral (viva voce) testimony and written sworn statements. Maltese law also permits "documents-only" arbitrations, where no oral hearings are held.

Each party bears the burden of proving the facts it asserts. Tribunals may establish time frames for parties to file a summary of the documents and other evidence that that party intends to produce in support of their claim or defence. The tribunal may appoint its own experts or require the parties to submit expert evidence, unless otherwise agreed. Finally, tribunals may issue subpoenas for witnesses and have the authority to administer oaths to witnesses or experts giving evidence.

30. Will the courts in your jurisdiction play any role in the obtaining of evidence?

Malta

Maltese courts may assist in the obtaining of evidence in domestic arbitrations. If a party requires the testimony of a witness or the production of documents, the Registrar of the MAC may apply to the Superior Courts for the issuance of a subpoena compelling the attendance of the witness before the arbitral tribunal. If a subpoenaed person fails to appear without valid cause, the tribunal may notify the Registrar of the MAC, who can seek court intervention as though the non-compliance occurred before the court.

31. What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?

Malta

While Maltese law, under the Arbitration Act (Chapter 387 of the Laws of Malta) and the Arbitration Rules (Subsidiary Legislation 387.01), does not formally recognise discovery and disclosure procedures, parties may agree to rules on document production. Where no specific agreement is made, the arbitral tribunal will regulate the taking of evidence to ensure compliance with the applicable law, which is generally the law of the seat of arbitration. Under Maltese law, the production of evidence is regulated by the Code of Organisation and Civil Procedure (Chapter 12 of the Laws of Malta).

Maltese law does not impose general obligations to disclose all relevant documents. Instead, document production is typically limited to evidence brought by the parties to support their respective claims or defences. Specific rules on disclosure may apply in particular areas of law, such as private enforcement of competition law or intellectual property disputes. Additionally, Maltese law recognises a procedural right (actio ad exhibendum) whereby a party may demand the production of particular documents if certain conditions are met, such as when the documents are the property of the requesting party or when they have a legitimate interest in their production. In practice, document production requests are made through subpoenas, which must be targeted, relevant to the dispute, and proportionate.

32. Is it mandatory to have a final hearing on the merits?

Malta

It is not mandatory to have a final hearing on the merits under Maltese law. In fact, Maltese law permits "documents-only" arbitrations, where no oral hearings are held.

33. If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?

Malta

If Malta is selected as the seat of arbitration, hearings and procedural meetings may still be conducted elsewhere. Accordingly, the parties are free to agree on the physical location for the hearings and meetings. In the absence of such agreement, the arbitral tribunal will determine the location, taking into account the circumstances of the case and the convenience of the parties.

For domestic arbitrations, unless otherwise agreed by the parties, hearings will be held at the premises of the MAC.

Award

34. Can the tribunal decide by majority?

Malta

When there are three arbitrators, any award or other decision of the arbitral tribunal may be made by a majority of the arbitrators, as provided in article 43 of the Arbitration Act (Chapter 387 of the Laws of Malta). For procedural matters, however, in the absence of a majority or where authorised by the tribunal, the presiding arbitrator may decide alone, subject to potential revision by the full tribunal.

35. Are there any particular types of remedies or relief that an arbitral tribunal may not grant?

Malta

The Arbitration Act (Chapter 387 of the Laws of Malta) does not specifically limit the types of remedies that an arbitral tribunal may grant. In principle, tribunals may award any remedy permitted under the applicable law, provided it does not contravene Maltese public policy. Available remedies, therefore, include declaratory relief, monetary compensation, specific performance, and other types of relief as requested by the parties within the parameters outlined.

36. Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?

Malta

The Arbitration Act (Chapter 387 of the Laws of Malta) and the Arbitration Rules (Subsidiary Legislation 387.01) are silent on the matter of dissenting opinions, except in the context of investment arbitration under the ICSID Convention, which is incorporated into Maltese law through the Arbitration Act. In practice, it is uncommon for dissenting opinions to be issued in arbitrations seated in Malta.

37. What, if any, are the legal and formal requirements for a valid and enforceable award?

Malta

Under article 44 of the Arbitration Act (Chapter 387 of the Laws of Malta) and article 31 of the UNCITRAL Model Law, an arbitral award must:

• be in writing;
• be signed by the tribunal (in the case of three arbitrators, a majority signature suffices, provided the reason for any missing signature is explained);
• include reasons for the award, unless the parties agree otherwise; and
• state the date and place of arbitration.

38. What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?

Malta

Maltese law does not set statutory deadlines for issuing an award; however, any time limits agreed by the parties or contained in applicable institutional rules are binding.

That said, the Arbitration Act (Chapter 387 of the Laws of Malta) establishes time limits for post-award actions. Under article 47 of the Arbitration Act, parties may request an interpretation of the award within 15 days from receipt of the award, and the tribunal must respond within 45 days. Article 48 of the Arbitration Act allows for requests to correct any errors in computation, clerical mistakes, typographical errors or any other similar errors within 15 days from receipt of the award, while the tribunal may also correct errors on its own initiative within 30 days. Article 49 of the Arbitration Act permits requests for an additional award on omitted claims within 15 days of receipt of the award, with the tribunal issuing the additional award within 45 days if justified.

Costs and interest

39. Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

Malta

In both domestic and international arbitration seated in Malta, the general rule is that the costs of the arbitration are to be borne by the unsuccessful party, reflecting the "loser pays" principle. However, this rule is not absolute, as the arbitral tribunal has the discretion to apportion costs as it deems appropriate, based on the specific circumstances of the case.

Article 50 of the Arbitration Act (Chapter 387 of the Laws of Malta) defines "costs" broadly. It includes the fees of the arbitral tribunal, the travel and other expenses incurred by each arbitrator, the costs of expert advice and other assistance requested by the tribunal, as well as the travel and other expenses of witnesses whose appearance has been approved by the tribunal. Additionally, the definition covers the costs of legal representation and assistance of the successful party, but only if such costs were claimed during the arbitral proceedings and the tribunal considers them reasonable. Finally, the term also encompasses any fees and expenses payable to the Malta Arbitration Centre.

40. Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?

Malta

Unless the parties agree otherwise, an arbitral tribunal seated in Malta may award interest at a reasonable rate on any monetary sums granted, whether liquidated or unliquidated. The tribunal has discretion to determine that interest is payable on the entire or part of the awarded amount, and it may apply interest for the period between the date when the cause of action arose and the date of the award. The tribunal may also order that interest accrues from the date of the award or from another later date as specified. In practice, interest is often awarded at a rate of 8% simple interest per annum, which is the standard statutory rate under Maltese law.

Challenging awards

41. Are there any grounds on which an award may be appealed before the courts of your jurisdiction?

Malta

Recourse to the courts against an international arbitral award seated in Malta is limited to an application to set aside the award under specific provisions of the Arbitration Act (Chapter 387 of the Laws of Malta). An award may be set aside only on certain grounds, namely where:

• one of the parties to the arbitration agreement was under an incapacity;
• the agreement is invalid under the applicable law or, failing any indication thereon, under the law of Malta;
• the party seeking to set aside the award was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present their case;
• the award deals with a dispute or contains decisions not contemplated by or outside the scope of the submission to arbitration, unless such decisions can be separated from those within the tribunal’s jurisdiction;
• the composition of the arbitral tribunal or the arbitral procedure were not in accordance with the agreement of the parties, unless such agreement contravenes mandatory provisions of the Act, or where the procedure was not in accordance with the Arbitration Act;
• the subject matter of the dispute is not capable of settlement by arbitration under Maltese law; or
• the award is contrary to the public policy of Malta.

In international arbitrations, a further appeal to the Court of Appeal on a point of law is possible only if the parties have expressly agreed to this option in the arbitration agreement, in addition to the setting aside grounds contemplated in article 34 of the UNCITRAL Model Law.

For domestic arbitrations, the Arbitration Act provides broader recourse. A party may apply to the Court of Appeal for setting aside an award, for an appeal on a point of law, or in the case of mandatory arbitrations, for an appeal on both points of law and fact – all in accordance with the provisions of the Arbitration Act.

42. Are there any other bases on which an award may be challenged, and if so what?

Malta

Not applicable.

43. Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?

Malta

In general, it is open to the parties to exclude recourse rights under Maltese law. There is, however, a notable distinction between international and domestic arbitrations regarding the right of appeal. In international arbitrations, an appeal to the Court of Appeal on a point of law is only available if the parties have expressly agreed to include such a right in their arbitration agreement, in addition to the limited setting aside grounds under article 34 of the UNCITRAL Model Law. Conversely, in domestic arbitrations, the right of appeal on a point of law is granted by default under the Arbitration Act (Chapter 387 of the Laws of Malta), but the parties are free to exclude this right by agreement, either within the arbitration agreement itself or in a separate written document.

Enforcement in your jurisdiction

44. Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?

Malta

Maltese courts have yet to issue a ruling on whether an arbitral award that has been set aside at the seat of arbitration can still be enforced in Malta. However, it is unlikely that Maltese courts would enforce such an award, given the general principles of international arbitration and public policy considerations.

Where an award has not been set aside but is subject to pending annulment proceedings at the seat, Maltese courts typically stay the recognition and enforcement proceedings. This practice is in line with rule 54 of the Arbitration Rules (Subsidiary Legislation 387.01), which requires the applicant seeking recognition to submit a sworn declaration confirming that no recourse has been taken or is pending against the award and that the award is final. There is some uncertainty as to whether this requirement goes beyond the minimum standards under the New York Convention, but in practice, it has led Maltese courts to suspend enforcement proceedings where annulment actions at the seat are ongoing.

45. What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?

Malta

Recent trends suggest that while the Malta Arbitration Centre and the Maltese courts adopt a strict approach when assessing whether an award meets the formal requirements for enforcement, they generally display a pro-enforcement and pro-arbitration stance. The courts tend to interpret the exceptions to enforcement under article V of the New York Convention narrowly, limiting refusals of recognition and enforcement to clear-cut cases.

In particular, awards are found to breach Maltese public policy only when they are in manifest and flagrant conflict with the fundamental principles underpinning the Maltese legal system. That said, Maltese jurisprudence does not yet exhibit a fully developed body of case law on international public policy comparable to that seen in jurisdictions such as France. Nonetheless, the prevailing approach shows the courts’ general willingness to uphold awards unless serious procedural or substantive defects are present.

46. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

Malta

Malta has not enacted national sovereign immunity legislation nor ratified any international conventions on the subject. While courts have sometimes referenced foreign statutes such as the UK State Immunity Act and the US Foreign Sovereign Immunities Act, generally, sovereign immunity remains applicable as a principle of customary international law.

While Maltese case law on the enforcement of judgments or awards on state-owned assets is not widely developed, the available case law dealing with sovereign immunity from jurisdiction suggests that the defence of state or sovereign immunity may be successfully invoked at the enforcement stage only where a state or state entity demonstrates that the assets targeted for enforcement are intended for or are used in the exercise of sovereign (public) functions.

Maltese courts generally distinguish between acts of state that are purely administrative (acta jure imperii) and those that are of a commercial nature (acta jure gestionis) when determining jurisdiction over a foreign state. In AWT Handels Gesellschaft mbH v Il-Bastiment M/V Dmitriy Polujan et, the Court determined that the vessel that was the subject of the proceedings, though owned by the State of Ukraine, was engaged in commercial activities as part of the Ukrainian maritime fleet and therefore was not protected by sovereign immunity. Subsequent decisions, including Clark v Salem I.S. Alhenshiri pro et noe et, have assessed sovereign immunity by focusing on the subject matter of the dispute, rather than strictly adhering to the jure imperii/jure gestionis distinction. Nevertheless, in this case, the Court rejected Libya’s immunity plea, finding no evidence that the obstruction of property rights in Malta that were the subject of the proceedings constituted a sovereign act.

From the above, it is therefore clear that Maltese jurisprudence demonstrates a willingness to apply international principles to limit immunity in cases involving commercial activity of a foreign sovereign or commercial assets belonging to a foreign sovereign. As such, to execute, the enforcing creditor will need to prove that the property it seeks to enforce on meets the requirement of “commercial activity” or “commercial purpose” under the applicable law. Moreover, an award creditor may pursue enforcement against assets held by a state entity, even where the award was rendered against the state itself, provided the entity is an organ of the state.

Further considerations

47. To what extent are arbitral proceedings in your jurisdiction confidential?

Malta

There are no provisions relating to confidentiality in the Arbitration Act (Chapter 387 of the Laws of Malta). 

However, where the Arbitration Rules (Subsidiary Legislation 387.01) apply – namely, in domestic arbitrations or international arbitrations where the parties have expressly selected the application of the Arbitration Rules in their arbitration agreement, or when Part IV (regulating domestic arbitration) of the Arbitration Act applies by virtue of article 60 of the same Act – the proceedings are subject to a duty of confidentiality.

Specifically, Rule 47 of the Arbitration Rules imposes a strict obligation on all participants to maintain the confidentiality of the proceedings. The existence of the arbitration and any resulting award are not publicised. The MAC treats all documents submitted to it as confidential, except where disclosure is authorised by the parties or is necessary for the implementation of the provisions of the Arbitration Act. Access to documents filed in the proceedings is restricted to the tribunal and the parties, unless the parties agree to waive confidentiality. Hearings are held in private, with attendance limited to the parties, their assistants or representatives, the Registrar of the MAC, and any individuals whose presence is deemed necessary by the arbitral tribunal for the support of the proceedings.

However, there are exceptions to confidentiality, such as where a party expressly consents to disclosure, where disclosure is necessary for a party to protect its rights in legal proceedings under the arbitration agreement or the Arbitration Act, or in the context of mandatory arbitrations.

48. What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?

Malta

The Malta Arbitration Centre treats all documents submitted to it as confidential, except where disclosure is authorised by the parties or is necessary for the implementation of the provisions of the Arbitration Act (Chapter 387 of the Laws of Malta). Access to documents filed in the proceedings is restricted to the tribunal and the parties, unless the parties agree to waive confidentiality. Moreover, as a general rule, disclosure in subsequent court proceedings is not permitted unless otherwise provided for in the arbitration agreement. However, there are exceptions to confidentiality, such as where a party expressly consents to disclosure, where disclosure is necessary for a party to protect its rights in legal proceedings under the arbitration agreement or the Arbitration Act, or in the context of mandatory arbitrations.

49. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

Malta

In Malta, arbitrators are subject to a code of ethics issued by the Malta Arbitration Centre, although this code has not been updated for some time. In practice, international soft law instruments such as the IBA Guidelines on Conflicts of Interest in International Arbitration and professional standards issued by organisations like the Chartered Institute of Arbitrators (CIArb) are frequently consulted and relied upon in international arbitrations seated in Malta.

As for counsel, there are no arbitration-specific codes under Maltese law; instead, they remain bound by the ethical and professional standards governing legal practice in Malta, such as those established by the Commission for the Administration of Justice.

50. Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?

Malta

Subject to the mandatory procedural rules set out in the Arbitration Act (Chapter 387 of the Laws of Malta), arbitral tribunals seated in Malta generally have broad discretion to adapt the procedure to the nature of the dispute and the preferences of the parties. There is no single "standard" procedural framework for international arbitrations, and tribunals will typically tailor the process on a case-by-case basis, provided that fundamental due process guarantees are observed.

51. Is third-party funding permitted in your jurisdiction? If so, are there any rules governing its use?

Malta

Third-party funding of an arbitral claim is not contemplated by Maltese law and there is currently no market for the industry.

Originally published by Global Arbitration Review’s Commercial Arbitration Know-How Guide, 27 April 2026

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.