untitled ARBITRATION [CAP. 387. 1
CHAPTER 387
ARBITRATION ACT To encourage and facilitate the settlement of disputes through
arbitration in Malta, to establish the Malta Arbitration Centre as a centre for domestic arbitration and international commercial arbitration, to make provisions regulating the conduct of arbitration proceedings and the recognition and enforcement of certain arbitral awards.
23 February, 1998; 23 March, 2000; 1st August, 2000
ACT II of 1996, as amended by Acts XVIII of 1999 and XXXI of 2002; Legal Notice 304 of 2004; Acts IX and XIII of 2004; Legal Notices 420 of 2004, and 7 and 279 of 2005; Act XXII of 2005; Legal Notices 165 and 166 of 2006, and 425 of 2007; Act IX of 2010; Legal Notices 218 and 244 of 2012, and 149 of 2015; and Act XXX of 2015.
PART I
Preliminary Short title.1. The short title of this Act is the Arbitration Act. Interpretation. Amended by: XVIII.1999.2.
2. In this Act, unless the context otherwise requires - "arbitration agreement" means an agreement as defined in Article
7 of the Model Law: Provided that:
(a) the provisions of article 7 of the Model Law shall be deemed to have been complied with if the arbitration agreement is contained in a document transmitted from one party to the other party or by a third party to both parties, and if no objection was raised thereto within thirty days of the receipt of the document;
(b) the reference in a written contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the reference is such as to make that clause part of the contract;
(c) an arbitration agreement is also concluded by the issuance of a bill of lading, if the latter contains an express reference to an arbitration clause in a charter party;
"arbitral tr ibunal" means a sole arbitrator or a number of arbitrators;
"Board" means the Board of Governors of the Centre; "Centre" means the Malta Arbitration Centre established by
article 3; "chairman" means the chairman of the Board; "financial period" means a period of five years commencing on
the first January of one year and ending on the thirty first day of
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December of the fifth year thereafter; provided that the first financial period of the Centre shall be the period commencing with the coming into force of Part III of this Act and ending on the 31st day of December of the year next following that on which the said Part III shall have come into force;
"Minister" means the Minister responsible for justice; " M o d e l L a w " m e a n s t h e M o d e l L a w o n I n t e r n a t i o n a l
Commercial Arbitration adopted on June 21, 1985 by the United Nations Commission on International Trade Law reproduced in the First Schedule to this Act;
"registrar" means the registrar of the Centre.
PART II
Establishment and Functions of the Centre Establishment of the Arbitration Centre.
3. (1) A centre, to be known as the Malta Arbitration Centre, is hereby established for the purposes and with the functions set out by this Act.
(2) The Centre shall be a body corporate having a distinct legal personality and, subject to the provisions of this Act, shall be capable of entering into contracts, of acquiring, holding and disposing of any kind of property for the purposes of its functions, of suing and of being sued, and of doing all such things and entering into all such transactions as are incidental or conducive to the exercise or performance of its functions under this Act.
(3) Any document purporting to be an instrument made or issued by the Centre and signed by the chairman or such other member of the Board, officer or employee of the Centre as may be set out in a notice issued by the chairman and published in the Gazette, shall be received in evidence and shall, until the contrary is proved, be deemed to be an instrument made or issued by the Centre.
Establishment and composition of Board. Amended by: XVIII.1999.3; XXXI. 2002.234; XXII. 2005.91; IX. 2010.3.
4. (1) There shall be a Board which shall be responsible for the policy and general administration of the affairs and business of the Centre.
(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.
(4) In the exercise of their functions under this Act all the
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members of the Board shall exercise their functions in their individual judgment and shall not be subject to the direction or control of any other person or authority.
Qualifications of chairman and deputy.
5. A person shall not be qualified to be appointed chairman or deputy chairman of the Board unless he has practised as an advocate in Malta for a period or periods amounting in the aggregate to not less than twelve years.
Duration of appointment of the Board. Amended by: XVIII.1999.4; IX. 2010.4.
6. (1) Subject to the provisions of articles 4, 7 and 9, the members of the Board shall hold office for a six year period; and a member shall, on ceasing to be a member, be eligible for re- appointment:
Provided that the Prime Minister may at any time, on the recommendation of the Commission for the Administration of Justice established under article 101A of the Constitution of Malta, terminate the appointment of a member of the Board if in his opinion, confirmed by the recommendation of the said Commission as aforesaid, such member is unfit to continue in office or has become incapable of properly performing his duties as member of the Board, and the said Commission is hereby vested with the function and power to make a recommendation to the Minister as aforesaid.
(2) The members of the Board shall be entitled to such remuneration and allowances as the Prime Minister may from time to time determine.
Disqualification from or being a member of the Board.
7. A person shall be disqualified for appointment to, or from remaining, a member of the Board if he -
(a) is legally incapacitated; or (b) has been adjudged bankrupt under the law of any
country or has made a composition or arrangement with his creditors; or
(c) has been convicted of a crime affecting public trust, or theft or fraud; or
(d) save as provided in article 4(3), is a public officer; or (e) has any financial or other interest in any enterprise or
activity which is likely to affect prejudicially the discharge of his functions as a member of the Board.
Resignations. Amended by: IX. 2010.5.
8. (1) Any member of the Board may resign his office by letter addressed to the Prime Minister.
(2) The appointment of any person as member of the Board, and the termination of office or resignation of any such person, shall be notified in the Gazette.
Registrar and other employees of the Centre. Amended by: XVIII.1999.5; XXII. 2005.92.
9. (1) The Centre shall have a registrar, who shall also be the secretary of the Board. In connection with his functions under this Act, the registrar shall have power to administer oaths, including, without prejudice to the generality of the aforesaid, the power to administer oaths of office that may be required to be taken by
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arbitrators or any other person involved in arbitration proceedings under any rule made under this Act:
Provided that the registrar may exercise any one or more of his functions under this Act or under rules made thereunder both directly and through a person who is authorised for such purpose by the Board.
(2) Subject to the provisions of the Constitution and of any other enactment applicable thereto, the registrar and the other employees of the Centre shall be appointed by the Board under such terms and conditions as the said Board shall deem appropriate.
(3) The legal representation of the Centre shall be vested in the registrar, or any other person so authorised by the Board.
(4) The registrar shall also perform any function that may be delegated to him in writing by the Board from time to time.
Functions of the Centre. Amended by: XVIII. 1999.6; IX. 2010.6.
10. (1) The functions of the Centre shall be: (i) (a) to promote Malta as a centre for international
commercial arbitration; (b) to provide for the conduct of international
arbitration in Malta; (c) to encourage domestic arbitration as a means of
settling disputes; (d) to provide the necessary facilities for the
conduct of arbitration; (e) to advise the Government on any of the matters
mentioned in the foregoing sub-paragraphs of this paragraph;
(f) to perform such other functions assigned to it by this or any other law; and
(g) to perform any other function supplementary or ancillary to the above.
(ii) Subject to the other provisions of this Act, the Centre shall have power, exercisable through its Board, to make rules to be published in the Gazette providing for:
(a) procedure for arbitrations; (b) the manner and requirements (including any fees
payable therefor) for registration of any document under this Act;
(c) guidelines and optional models or specimens for the drawing up of arbitration clauses and agreements; and
(d) any other matter in connection with which rules may be made under any provision of this Act.
(2) The Centre may, from time to time, draw up panels of arbitrators for domestic arbitration and panels of arbitrators for international commercial arbitration:
Provided however that a person may be included in more
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than one panel. (3) Domestic arbitration panels may be appointed on matters
related to commerce, insurance, traffic coll isions, building construction, the maritime sector and such other fields as the Centre may deem expedient from time to time. The panels shall be composed of persons who in the opinion of the Centre are qualified to carry out the duties and functions of arbitrators in a particular field of expertise.
(4) The Centre shall establish an International Arbitral Advisory Committee, to be presided by the chairman of the Centre, which shall have the functions to advise the Centre on any matter relating to international commercial arbitration and to recommend to the Centre persons, who in its opinion, are qualified to carry out the duties and functions of arbitrators in international commercial arbitrations.
(5) The Centre shall, acting on the recommendation of the International Arbitral Advisory Committee, appoint panels of arbitrators for international commercial arbitration on matters such as international trade, commerce, insurance, investment and the maritime sector.
(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 the said person be ei ther 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.
(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.
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(7) For the purpose of encouraging settlement of a dispute, the Centre may, with the agreement of the parties and in accordance with rules made by the Centre under this Act, employ mediation, conciliation or other procedures at any time before or during the arbitration proceedings.
PART III
Finances Estimates of the Centre.
11. (1) The Centre shall cause to be prepared in every financial period, and shall not later than six months before the end of each financial period adopt, estimates of the income and expenditure of the Centre for the next following financial period.
(2) The estimates shall be made out in such form and shall contain such information and such comparisons with previous financial periods as the Minister may direct. The estimates shall take into account such government contribution, if any, to the revenues of the Centre as the Minister may indicate to the Centre that he will recommend to the House of Representatives for the financial period in consideration, in accordance with article 13.
(3) A copy of the estimates of the Centre shall upon their adoption by the Centre, be sent forthwith by the Board to the Minister.
Revenue of the Centre.
12. (1) The revenues of the Centre shall consist of the fees charged for the services provided by it under this Act and of any government contribution made in accordance with article 13.
(2) The Minister, after consultation with the Centre, may establish by regulations the fees to be charged by the Centre for any services, facilities or any other matter provided by it in accordance with this Act or in pursuance of the exercise of its functions under this Act.
Government contribution. Amended by: XVIII. 1999.7; L.N. 425 of 2007.
13. (1) The Minister may, after consultation with the Centre and with any other person or authority and with the concurrence of the Minister responsible for finance, indicate in writing to the Centre the amount of government contribution to be made to the Centre and to be included in its estimates for the next financial period. The indication made by the Minister as aforesaid shall be attached to the estimates of the Centre to be forwarded to the Minister.
(2) Upon the approval of the estimates with or without amendments as provided in this Act, the sum approved in the estimates as the government contribution shall be paid to the Centre out of the Consolidated Fund without any further authority other than this Act.
(3) Notwithstanding the provisions of subarticles (1) and (2) the government contribution for the first financial period of the Centre shall be of a sum of four hundred and sixty-five thousand and eight hundred and seventy-four euro and sixty-eight cents (465,874.68)and such sum shall be paid to the Centre out of the
ARBITRATION [CAP. 387. 7
Consolidated Fund without any further authority other than this subarticle.
(4) Any excess of revenue over the expenditure of the Centre shall, subject to such directives as the Minister, after consultation with the Minister responsible for finance, may from time to time give, be applied by the Centre to the formation of reserve funds to be used for the purposes of the Centre; and, without prejudice to the generality of the powers given to the Minister by this subarticle, any direction given by the Minister as aforesaid may order the transfer to the Government, or the application in such manner as may be specified in the direction, of any part of such revenues.
PART IV
Domestic Arbitration Domestic arbitration. Amended by: XVIII.1999.8.
14. A domestic arbitration agreement is an arbitration agreement which does not fall under Part V of this Act, and in particular under Article 1(3) of the Model Law.
Procedure in domestic arbitration. Amended by: XVIII.1999.9; XXXI. 2002.235; IX. 2004.22; IX. 2010.7; L.N. 218 of 2012.
15. (1) In the case of a domestic arbitration agreement, falling under article 14, disputes shall be settled in accordance with the provisions of this Part, subject to such modification as (a) the parties may agree upon in writing, and (b) may be permitted by law.
(2) For the purpose of this Act, a dispute shall include any controversy or claim arising out of or relating to the agreement, or the breach, termination or invalidity thereof or failure to comply therewith.
Cap. 12.(3) Notwithstanding any provision of the Code of Organization and Civil Procedure if any party to an arbitration agreement, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the arbitration agreement or any person claiming through or under him, in respect of any matter agreed to be referred to arbitration, any party to such legal proceedings may at any time before delivering any pleadings or taking other steps in the proceedings, apply to that court to stay the proceedings, and that court or a judge thereof, unless satisfied that the arbitration agreement has become inoperative or cannot proceed, shal l make an order s taying the proceedings . An application may be made notwithstanding that the matter is to be referred to arbitration only after the exhaustion of other dispute resolution procedures.
(4) Where proceedings as are referred to in subarticle (3) have been brought before a court, arbitral proceedings may be commenced or continued: provided that the arbitral tribunal shall not take any steps in the arbitration until the Court decides on the application except in cases where failure to provide a remedy will result in irreparable harm to any party to the arbitral proceedings. Upon the decision of the Court, which shall be notified to the arbitral tribunal by the applicant, the arbitral tribunal shall be bound by the decision of the Court on the issues dealt with in the application and shall act accordingly.
(5) Any matter being the subject of a dispute even after an
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action thereanent has been brought before a court, shall, unless such matter is one referred to in subarticle (6), be capable of settlement by arbitration if all parties to the dispute agree.
(6) Disputes, concerning questions of personal civil status including those relat ing to personal separat ion, divorce or annulment of marriage, are not capable of settlement by arbitration:
Provided that questions relating to the division of property between spouses may be referred to arbitration subject to the approval by the competent court of the arbitration agreement and of the arbitrator to be appointed.
(7) Any submission to arbitration of a dispute by an administrator, agent or attorney shall not be valid unless -
(a) such person is authorised to submit disputes to arbitration; and
(b) the submission refers to an issue which falls within the powers of such person.
(8) Upon the filing of an application to stay proceedings in terms of subart icle (3), any t ime l imit for the f i l ing of any statement of defence or other response, whether arising at law or by order of any court or tribunal or otherwise, shall be interrupted and shall commence to run again from the date on which the applicant is served with the decision of the Court to dismiss the application, and this irrespective of whether an appeal on such decision is filed by any party.
Cap. 12. (9) The Board established under article 29 of the Code of Organization and Civil Procedure may make rules concerning applications to the Court under subarticle (3) and prescribe the fees to be paid on such applications.
(10) Any submission to arbitration of a dispute the subject matter of which falls within the jurisdiction or competence of a board, tribunal or other authority set up for the purpose by any law shall be valid and effective and the provisions of subarticle (3) shall apply thereto mutatis mutandis; provided that the provisions of this subarticle shall not apply where the board, tribunal or other authority is one as is specified in article 75(1).
(11) In addition to those designated by other laws, the classes of disputes referred to in the Fourth Schedule are subject to mandatory arbitration and in such cases the parties shall be deemed to be bound by an arbitration agreement in relation to such disputes.
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.
(12) The Centre shall have the power to issue rules in accordance with article 10 relating to the procedures to be adopted in mandatory arbitrations.
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(13) The Minister shall have the power by regulations to add, remove or substitute and amend the classes of disputes referred to in the Fourth Schedule and the conditions applicable thereto. Such regulation may determine the conditions applicable in such cases, including:
(i) the specific nature of the disputes; (ii) the maximum monetary value of such disputes;
(iii) the remedies sought and awardable in relation to such disputes; and
(iv) the manner in which an arbitrator or arbitrators are to be appointed.
(14) Any rules or regulations referred to in the preceding sub- articles shall come into force with effect from the date designated by the Minister and shall not affect any disputes at the time already pending before any court or tribunal.
(15) Saving the grounds allowing for the press and the public to be excluded from all or part of the proceedings provided for in paragraph 1 of Article 6 of the European Convention on Human Rights, the proceedings in a compulsory arbitration shall be conducted and the decision shall be delivered in public.
Arbitration clause in wills and trusts. Added by: XIII. 2004.109.
15A. (1) It shall be lawful for a testator to insert an arbitration clause in a will. In such event such clause shall be binding on all persons claiming under such will in relation to all disputes relating to the interpretation of such will, including any claim that such will is not valid.
(2) It shall be lawful for a settlor of a trust to insert an arbitration clause in a deed of trust and such clause shall be binding on all trustees, protectors and any beneficiaries under the trust in relation to matters arising under or in relation to the trust.
Cap. 331.
(3) In the cases referred to in the preceding subarticles, the right of a party to seek directions of the Court of voluntary jurisdiction in terms of the Trusts and Trustees Act shall not be limited by any such clause and notwithstanding the provisions of this Act, the said Court shall not be bound to stay proceedings in terms of article 15(3) or otherwise, but shall enjoy a discretion to do so until such time as it determines that the matter is of a contentious nature, in which case it shall stay the proceedings and shall refer the parties to arbitration.
Notice and calculation of periods of time. Amended by: XVIII.1999.10.
16. (1) For the purposes of this Part, any notice, including a notification, communication or proposal, is deemed to have been received and duly notified if it is physically delivered to the addressee or if it is delivered at his habitual residence, place of business or mailing address, or, if none of these can be found after making reasonable enquiry, at the addressee’s last-known residence or place of business. Notice shall be deemed to have been received on the day it is so delivered:
Provided that the Centre may by rules under this Act provide for other modes of service and make provision relating to when services is deemed to have been made.
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(2) For the purposes of calculating a period of time under this Part, such period shall begin to run on the day following the day when a notice, notification, communication or proposal is received. If the last day of such period is a public holiday or a non-working day, the period is extended until the first working day which follows. Public holidays or non-working days occurring during the running of the period of time are included in calculating the period.
Notice of arbitration. Amended by: XVIII.1999.11; XXXI. 2002.236.
17. (1) The party initiating recourse to arbitration (hereinafter called "the claimant") shall file with the registrar, a notice of a rb i t ra t ion for reg is t ra t ion by the Cent re and for onward t r a n s m i s s i o n t o t h e o t h e r p a r t y ( h e r e i n a f t e r c a l l e d " t h e respondent"), and any procedures and any award pursuant thereto in any arbitration to which this Part refers, shall be null and void and unenforceable if the relative notice of arbitration shall not have been filed with the Centre:
Provided that the nullity of the procedures shall not arise if, having failed to file the notice of arbitration as contemplated by this article at the commencement of proceedings, any party files the notice at any time prior to the communication of the award in accordance with article 44(6). In such event the Centre shall register the notice of arbitration but shall have no further duties in that regard.
(2) Arbitral proceedings shall be deemed to commence on the date on which the not ice of arb i t ra t ion i s rece ived by the respondent:
Cap. 12. Cap. 16.
Provided that for the purposes of articles 843, 846, 849, 867 and 875 of the Code of Organization and Civil Procedure and article 1357(2) of the Civil Code arbitral proceedings under this Part shall be deemed to commence upon the filing of the notice of arbitration with the registrar.
(3) The notice of arbitration shall include the following: (a) a demand that the dispute be referred to arbitration; (b) the names and addresses of the parties; (c) a reference to the arbitration clause or the separate
arbitration agreement that is invoked; (d) a reference to the contract out of which, or the defined
legal relationship in respect to which, the dispute arises;
(e) the general nature of the claim and an indication of the amount involved, if any;
(f) the relief or remedy sought; and (g) a proposal as to the number of arbitrators if the parties
have not previously agreed thereon. (4) The notice of arbitration may also include:
(a) the proposals for the appointment of a sole arbitrator; (b) the notification of the appointment of an arbitrator
referred to in article 21; and
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(c) the statement of claim referred to in article 29.
Representation and assistance.
18. (1) Subject to the provisions of subarticle (2), the parties may be represented or assisted by persons of their choice. The names and addresses of such persons must be communicated in writing to the other party; such communication must specify w h e t h e r t h e a p p o i n t m e n t i s b e i n g m a d e f o r p u r p o s e s o f representation or assistance.
(2) A legal practitioner or a person not qualified under the Laws of Mal ta may act on behal f of a par ty to an arbi t ra l 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.
Number of arbitrators. Amended by: L.N. 425 of 2007.
19. If the parties have not previously agreed on the number of arbitrators, and if within fifteen days after the receipt by the respondent of the notice of arbitration, the parties have not agreed that there shall be only one arbitrator, three arbitrators shall be appointed:
Provided however that if the disputed amount is under eleven thousand and six hundred and forty-six euro and eighty- seven cents (11,646.87), there shall be a sole arbitrator.
Appointment of arbitrators. Amended by: IX. 2010.8.
20. (1) If a sole arbitrator is to be appointed, either party may propose to the other the names of one or more persons, one of whom may serve as the sole arbitrator.
(2) If within thirty days after receipt by a party of a proposal made in accordance with subarticle (1), the parties have not reached agreement on the choice of a sole arbitrator, the sole arbitrator shall be appointed by the chairman.
(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.
(4) In making the appointment, the chairman shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and to the members of the Domestic Arbitration Panels established under article 10(2).
(5) An arbitrator shall not be liable in damages for negligence in anything done or omitted to be done by him as arbitrator:
Provided that an arbitrator shall be liable in respect of anything wilfully done or omitted to be done by him as arbitrator where his action or omission is attributable to malice or fraud on his part.
Presiding arbitrator.
21. (1) If three arbitrators are to be appointed, each party shall appoint one arbitrator. The two arbitrators thus appointed shall choose the third arbitrator who will act as the presiding arbitrator
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of the arbitral tribunal. (2) If within thirty days after the receipt of a party’s
notification of the appointment of an arbitrator, the other party has not notified the first party of the arbitrator he has appointed, the first party may request the chairman to appoint the second arbitrator.
(3) If within thirty days after the appointment of the second arbitrator, the two arbitrators have not agreed on the choice of the presiding arbitrator, the presiding arbitrator shall be appointed by the chairman.
(4) The chairman shall apply the provisions of article 20, mutatis mutandis, in any appointment made under the provisions of subarticles (2) or (3).
Multiple parties. Added by: XVIII.1999.12.
21A (1) Where there are multiple parties, whether as claimant or as respondent, the multiple claimants, jointly, and the multiple respondents, jointly, shall make a proposal to the other party for an arbitrator to be appointed pursuant to article 20 or shall appoint an arbitrator pursuant to article 21, as the case may be.
(2) Where the dispute is to be referred to a sole arbitrator and where there are multiple part ies, whether as claimant or as respondent, the multiple claimants, jointly, and the multiple respondents, jointly, may reach an agreement with the other party on the choice of a single arbitrator to be appointed pursuant to article 20.
(3) In the absence of such joint nomination, where the dispute is to be referred to three arbitrators and where all parties are unable to agree to a method for the constitution of the arbitral tribunal, the chairman may on the request of either of the parties appoint each member of the arbitral tribunal and shall designate one of them to act as presiding arbitrator.
Request to the chairman to appoint an arbitrator. Amended by: XVIII.1999.13.
22. (1) When the chairman is requested to appoint an arbitrator pursuant to articles 20, 21 or 21A, the party which makes the request shall file with the registrar a notice for an appointment and refer therein to the notice of arbitration filed under article 17.
(2) The Centre may require from either party such information as may be deemed necessary to fulfil its function.
(3) Where persons are proposed for appointment as arbitrators, their full names, addresses and nationalities together with a description of their profession, qualifications and experience shall be indicated.
Impartiality or independence.
23. (1) A person who is approached as a prospective arbitrator shall disclose to those who approach him in connection with his possible appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence.
(2) An arbitrator, once appointed or chosen, shall disclose to the parties the circumstances mentioned in the previous subarticle unless the parties have already been informed by him of these
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circumstances.
Challenge of arbitrator.
24. (1) Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubt as to the arbitrator ’s impartiality or independence.
(2) A party may challenge the arbitrator appointed by him only for reasons of which he becomes aware after the appointment has been made.
Notification of challenge.
25. (1) A party who intends to challenge an arbitrator, shall send not ice of h is cha l lenge wi th in f i f teen days a f te r the appointment of the challenged arbitrator has been notified to that party or within fifteen days after the circumstances mentioned in article 23 and 24 became known to that party.
(2) The challenge shall be notified to the registrar, to the other party, to the arbitrator who is challenged and to the other members of the arbitral tribunal. The notification shall be in writing and shall state the reasons for the challenge.
(3) When an arbitrator has been challenged by one party the other party may agree to the challenge. The arbitrator may also, after the challenge, withdraw from his office. In neither case does this imply acceptance of the validity of the grounds for the challenge. In both cases the procedure provided in articles 20 and 21 shall be used in full for the appointment of the substitute arbitrator even if during the process of appointing the challenged arbitrator a party had failed to exercise his right to appoint or to participate in the appointment.
Non-withdrawal of challenged arbitrator.
26. (1) If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge will be made by the chairman, and his decision shall be final and binding.
(2) When the chairman sustains the challenge, he shall appoint a substitute arbitrator.
Replacement of an arbitrator.
27. (1) In the event of the death or resignation of an arbitrator during the course of the arbitral proceedings a substitute arbitrator shall be appointed or chosen pursuant to the procedure provided for in articles 20 to 23 which was applicable to the appointment or choice of the arbitrator being replaced.
(2) In the event that an arbitrator fails to act or in the event of the de jure or de facto impossibility of his performing his functions, the procedure in respect of the challenge and replacement of an arbitrator as provided in the preceding articles shall apply.
Language. Amended by: XVIII.1999.14.
28. (1) The language to be used in the proceedings shall, unless the parties agree otherwise, be Maltese.
(2) The arbitral tribunal may order that any documents annexed to the statement of claim or s tatement of defence, and any supplementary documents or exhibits submitted in the course of the proceedings, shall be delivered in their original language or languages agreed on by the parties or determined by the arbitral
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tribunal.
Statement of claim. 29. (1) Unless the statement of claim was contained in the notice of arbitration, within a period of time to be determined by the arbitral tribunal, the claimant shall communicate his statement of claim in writing to the respondent and to each of the arbitrators. A copy of the contract, and of the arbitration agreement if not contained in the contract, shall be annexed thereto.
(2) The statement of claim shall include the following particulars:
(a) the names and addresses of the parties; (b) a statement of the facts supporting the claim; (c) the points at issue; and (d) the relief or remedy sought.
(3) The claimant may annex to this statement of claim all documents he deems relevant or may add a reference to the documents or other evidence he will submit.
Statement of defence.
30. (1) The respondent shall communicate his statement of defence in writing to the claimant and to each of the arbitrators within a period of time to be determined by the arbitral tribunal.
(2) The statement of defence shall contain a reply to the particulars (b), (c) and (d) of the statement of claim referred to in article 29(2). The respondent may annex to his statement the documents on which he relies for his defence or may add a reference to the documents or other evidence he will submit.
(3) In his statement of defence, or at a later stage in the arbitral proceedings, if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim arising out of the same contract or rely on a claim arising out of the same contract for the purpose of a set-off.
(4) The provisions of article 29(2) shall apply to a counter- claim and a claim relied on for the purpose of a set-off.
Amendments to the claim or defence.
31. During the course of the arbitral proceedings either party may amend or supplement his claim or defence unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it or prejudice to the other party or any other justifiable circumstances. However, a claim may not be amended in such a manner that the amended claim falls outside the scope of the clause or of the separate arbitration agreement.
Pleas as to the jurisdiction of the arbitral tribunal. Amended by: XXXI. 2002.237.
32. (1) The arbitral tribunal shall have the power to rule on objections that it has no jurisdiction, including any objections with respect to the existence or validity of the arbitration clause or of the separate arbitration agreement.
(2) The arbitral tribunal shall have the power to determine the existence or the validity of the contract of which an arbitration clause forms part. For the purposes of article 32, an arbitration clause which forms part of a contract and which provides for
ARBITRATION [CAP. 387. 15
arbitration under this Part shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
(3) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than in the statement of defence or, with respect to a counter-claim, in the reply to the counter-claim.
(4) In general, the arbitral tribunal should rule on a plea concerning its jurisdiction as a preliminary question:
Provided that the arbitral tribunal may proceed with the arbitration and rule on such a plea in its final award.
(5) In the event that proceedings are filed before any court for a declaration relating to the jurisdiction of an arbitral tribunal, such proceedings shall be dismissed and the parties shall be referred to the arbitral tribunal for its decision on such issue, unless the court considers that any party will suffer irreparable harm unless it determines the issue.
Further written statements.
33. The arbitral tribunal shall decide what further written statements, in addition to the statement of claim and the statement of defence, shall be required from the parties or may be presented by them and shall fix the periods of time for communicating such statements.
Periods of time.34. The periods of time fixed by the arbitral tribunal for the communication of written statements (including the statement of claim and statement of defence) should not exceed forty-five days:
Provided that the arbitral tribunal may extend the time- limits if it considers that an extension is justified.
Burden of proof.35. (1) Each party shall have the burden of proving facts relied on to support his claim or defence.
(2) The arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party, within such a period of time as the arbitral tribunal may decide, a summary of the documents and other evidence which that party intends to present in support of the facts in issue set out in his statement of claim or statement of defence.
(3) At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period or time as the arbitral tribunal shall determine.
Evidence. Amended by: XXXI. 2002.238.
Cap. 12.
36. (1) Subject to the provisions of article 37, the evidence of witnesses in an arbitration shall be produced either viva voce or by affidavit, and subject to the relevant articles of this Part, the rules of the Code of Organization and Civil Procedure and of any law from time to time in force in Malta shall apply to the production of evidence viva voce or by affidavit before the arbitral tribunal as they apply to the production of evidence before a court of civil jurisdiction.
16 CAP. 387.] ARBITRATION
(2) The Centre may make rules setting down the terms within which the evidence is to be produced and the manner of i ts production, and the parties may, notwithstanding the foregoing and the provisions of subart icle (1) , agree that the evidence of witnesses is to be produced within such times and in such manner as may be determined by the parties:
Provided that such agreement may not be incompatible with any rule made by the Centre and declared by it to be inderogable.
(3) Subject to the provisions of article 37(2), where the evidence of any person is required, the registrar may issue writs of subpoena to compel the attendance of a witness to give evidence or produce documents before an arbitral tribunal. The application for the issue of the writ shall be countersigned by the sole arbitrator, or the presiding arbitrator, and shall be filed in the registry of the Civil Court, First Hall, by the registrar.
(4) The provisions of subarticle (3) shall apply mutatis mutandis where for the purposes of proceedings before an arbitral tribunal, a rogatory commission or letters of request are required to be issued in respect of, or an affidavit is required by, a person who is not resident within the jurisdiction of the courts of Malta.
(5) Upon the filing of an application to which subarticles (3) and (4) apply, the court which, had there not been an arbitration agreement, would otherwise have had jurisdiction shall notify the writ or otherwise act on the application in the same manner as if such application or such writ had been issued or approved by the Civil Court, First Hall.
(6) Where any person who has been regularly subpoenaed to appear before an arbitral tribunal in accordance with this article fails to appear before the said tribunal without reasonable excuse, the tribunal may make a report thereon to the registrar who shall by application bring the report to the attention of the Civil Court, First Hall, requesting it to deal with the matter in the same manner as if the person concerned had failed to appear before that court when regularly subpoenaed and thereupon the court shall deal with the matter in the said manner.
Oral hearing. 37. (1) In the event of an oral hearing of the parties or of witnesses, the arbitral tribunal shall give the parties adequate advance notice of the date, time and place thereof.
(2) If the witnesses are to be heard, each party shall communicate to the arbitral tribunal and to the other party, at least fifteen days before the hearing, the names and addresses of the witnesses he intends to present, the subject upon which and the languages in which such witnesses will give their testimony.
(3) The arbitral tribunal shall make arrangements for the translation of oral statements made at a hearing and for a record of the hearing if either is deemed necessary by the arbitral tribunal in the circumstances of the case, or if the parties have agreed thereto and have communicated such agreement to the arbitral tribunal at least fifteen days before the hearing.
ARBITRATION [CAP. 387. 17
(4) Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses during the testimony of other witnesses. The arbitral tribunal is free to determine the manner in which witnesses are examined.
(5) The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered.
Interim measures and precautional acts. Amended by: XVIII.1999.15; XXXI. 2002.239. Cap. 12.
Cap. 12.
38. (1) Unless otherwise agreed by the parties, any party may request the court to issue any of the precautionary acts listed in article 830(1) of the Code of Organization and Civil Procedure subject to the provisions of the following subarticles.
(2) Where in accordance with subarticle (1) a precautionary act has been issued, such act shall remain in force until such time as it shall expire or be revoked in accordance with the provisions of the Code of Organization and Civil Procedure or until such time as the arbitral tribunal by an award given for that purpose shall order the party issuing the precautionary act to withdraw the same and issue the relative counter-warrant.
Cap. 12.(3) Notwithstanding anything contained in the Code of Organization and Civil Procedure the time established therein within which the action is to be instituted in respect of the right stated in the precautionary act issued shall be of twenty days from the filing of the judicial act whereby the court is requested to issue the precautionary act. The provisions of the said Code for the extension of the said time shall also apply.
(4) Action as is referred to in subarticle (3) shall be deemed to have been taken when the arbitration proceedings are commenced. For the purpose of this subarticle arbitration proceedings shall be deemed to have commenced on the date referred to in article 17(2).
(5) The party at whose request a precautionary act has been issued in accordance with this article shall , within the time specified in subart icle (3), f i le a note in the records of the proceedings for the issue of the said precautionary act together with a certificate by the registrar showing that he has commenced arbitration proceedings in accordance with subarticle (4).
(6) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measures of protection as the tribunal may consider necessary in respect of the subject matter in dispute. The arbitral tribunal may require any party to provide adequate security in connection with such measures.
(7) The court may on the application of any party order the enforcement of any measure referred to in subarticle (6) and shall have all ancillary powers to amend or revoke such orders after hearing the parties and the arbitral tribunal as it deems necessary.
Cap. 12.(8) The Board established under article 29 of the Code of Organization and Civil Procedure may make rules concerning all matters relating to the issue of precautionary acts and other such orders when they relate to arbitral proceedings.
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Experts. 39. (1) The arbitral tribunal may appoint one or more experts to report to it, in writing, on specific issues to be determined by the tribunal. A copy of the expert’s terms of reference, established by the arbitral tribunal, shall be communicated to the parties.
(2) The parties shall give the expert any relevant information or produce for his inspection any relevant documents or goods that he may require of them. Any dispute between a party and such expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for decision.
(3) Upon receipt of the expert’s report, the arbitral tribunal shall communicate a copy of the report to the parties who shall be given the opportunity to express, in writing, their opinion on the report. A party shall be entitled to examine any document on which the expert has relied in his report.
(4) At the request of either party the expert, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and to interrogate the expert. At this hearing either party may present expert witnesses in order to testify on the points at issue. The provisions of article 36 shall be applicable to such proceedings.
Default. 40. (1) If within the period of time fixed by the arbitral tribunal the claimant has failed to communicate his claim without showing sufficient cause for such failure, the arbitral tribunal shall issue an order for the termination of the arbitral proceedings. If, within the period of t ime fixed by the arbitral tr ibunal, the respondent has failed to communicate his statement of defence without showing sufficient cause for such failure, the arbitral tribunal shall order that the proceedings continue.
(2) If one of the parties, duly notified under this Part, has to appear at a hearing, fails to do so without showing sufficient cause for such failure, the arbitral tr ibunal may proceed with the arbitration.
(3) If one of the parties duly invited to produce documentary evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.
Closure of hearings.
41. (1) The arbitral tribunal may enquire of the parties if they have any fur ther proof to offer or witnesses to produce or submissions to make and, if there are none, it shall declare the hearings closed.
(2) The arbitral tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own motion or upon application of a party, to reopen the hearings at any time before the award is made.
Waiver of rules. 42. A party who knows that any provision of, or requirement under, this Part has not been complied with and yet proceeds with the arbitration without promptly stating his objection to such non- compliance, shall be deemed to have waived its right to object.
ARBITRATION [CAP. 387. 19
Decisions.43. (1) When there are three arbitrators, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitrators.
(2) In the case of questions of procedure, when there is no majority or when the arbitral tribunal so authorises, the presiding arbitrator may decide on his own, subject to revision, if any, by the arbitral tribunal.
Form of the award, interim, interlocutory or partial award. Amended by: XVIII.1999.16; XXXI. 2002.240; IX. 2004.23.
44. (1) Unless otherwise agreed between the parties, the arbitral tribunal may make more than one award at different times on different aspects of the matters to be determined. The arbitral tribunal may make an award relating -
(a) to an issue affecting the whole claim, or (b) to a part only of the claims or counterclaims submitted
to it for decision, and shall also be entitled to make interim and/or interlocutory awards.
(2) The award shall be in writing and shall be deemed to be delivered at the place agreed by the part ies as the place of arbitration, or, in the absence of agreement, determined by the arbitral tribunal.
(3) The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given:
Provided that in the case of interlocutory awards relating to the procedures of the arbitration, no reasons are to be given.
(4) An award shall be signed by the arbitrators and it shall contain the date on which and the place where the award was deemed to have been made. Where there are three arbitrators and one of them fails to sign, the award shall state the reason for the absence of the signature.
(5) The award may be made public only with the consent of both parties.
(6) Copies of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal.
(7) An award is final when it settles all or part of the merits of an issue, is susceptible of immediate implementation and is not preparatory to another stage in the proceedings or otherwise has the effect of bringing the proceedings to an end.
(8) The arbitral tribunal shall immediately and in any case not later than twenty days from the date referred to in subarticle (4), present any final awards together with all partial and interim awards not already registered to the registrar for registration by the Centre and shall comply with the relevant provisions of this Act and the requirements of registration issued by the Centre.
(9) Subject to recourse being made against an award in terms of article 69A, final awards shall be binding on the parties, and the parties shall carry out such awards without delay.
(10) Interlocutory awards are not subject to registration, no
20 CAP. 387.] ARBITRATION
recourse may be taken against them and they are binding on the parties to the proceedings immediately on their notification to the parties who shall carry them on without delay.
Applicable law, amiable compositeur.
45. (1) The arbitral tribunal shall apply, subject to the provisions of this Act, the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tr ibunal shall apply Maltese law including the rules of Maltese law relative to the conflict of laws.
(2) The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorised the arbitral tribunal to do so.
(3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall, if relevant, take into account the usages of the trade applicable to the transaction.
(4) Unless otherwise agreed to by the parties or otherwise provided for in or under this Act, the arbitral tribunal may conduct the arbitration in such manner it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibi l i ty, relevance, material i ty and weight of any evidence.
Settlement or other grounds for termination. Amended by: XXXI. 2002.241.
46. (1) If before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by both parties and accepted by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award.
(2) If before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reason not mentioned in subarticle (1), the arbitral tribunal shall inform the parties of its intention to issue an order for the termination of the proceedings. The arbitral tribunal shall have the power to issue such an order unless a party raises justifiable grounds for objection.
(3) Copies of the order for termination of the arbitral proceedings or of the award on agreed terms, signed by the arbitrators, shall be communicated by the arbitral tribunal to the parties and to the registrar. Where an arbitral award on agreed terms is made, the provisions of article 44(2) and (4) to (8) shall apply.
(4) The provisions of this article shall also apply in case the parties resolve a dispute which may have arisen between them by mediation, conciliation or any other means. In such a case the person assisting in the resolution of the dispute may, with the consent of both parties, act as the arbitrator for the purpose of registering the agreement reached between them in terms of this Act and, when registered, such agreement shall be treated for all intents and purposes as a registered award.
(5) Where the parties resolve a dispute as is mentioned in subarticle (4) and the person whose services may have been used in resolving the dispute is unable or unwilling to act in terms of this
ARBITRATION [CAP. 387. 21
article, the Centre may on the joint application of the parties to the agreement appoint an arbitrator for such purpose:
Provided that, with the consent of the parties, the Registrar may provide support to the parties in such cases by carrying out the registration functions of an arbitrator in accordance with rules which may be made by the Centre from time to time.
Interpretation of the award. Amended by: XXXI. 2002.242.
47. (1) Within fifteen days from the receipt of the award, either party, with notice to the other party, may request that the arbitral tribunal give an interpretation of the award.
(2) The interpretation shall be given in writing within forty- five days after the receipt of the request. The interpretation shall form part of the award, and the provisions of article 44(2) to (8) shall apply.
Correction of the award. Amended by: XXXI. 2002.243.
48. (1) Within fifteen days from the receipt of the award, either party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors, or any errors of similar nature. The arbitral tribunal may within thirty days after the communication of the award, make such corrections on its own initiative.
(2) Such corrections shall be in writing, and the provisions of article 44(2) to (8) shall apply.
Additional award. Amended by: XXXI. 2002.244.
49. (1) Within fifteen days after the receipt of the award, either party, with notice to the other party, may request the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.
(2) If the arbitral tribunal considers the request for an additional award to be justified and considers that the omission can be rectified without any further hearings or evidence, it shall complete its award within forty-five days from the receipt of the request.
(3) When an additional award is made the provisions of article 44(2) to (8) shall apply.
Costs.50. The arbitral tribunal shall fix the costs of arbitration in its award. The term "costs" includes only:
(a) the fees of the arbitral tribunal to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with article 51;
(b) the travel and other expenses incurred by the arbitrators;
(c) the costs of expert advice and of other assistance required by the arbitral tribunal;
(d) the travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal;
(e) the costs for legal representation and assistance of the successful party if such costs were claimed during the arbitral proceedings, and only to the extent that the
22 CAP. 387.] ARBITRATION
arbitral tribunal determines that the amount of such costs is reasonable; and
(f) any fees and expenses payable to the Centre.
Arbitral tribunal to determine fees and costs. Substituted by: XVIII.1999.17; IX. 2004.24.
51. (1) The arbitral tribunal shall determine fees and costs in accordance with such rules and guidelines which may be made by the Minister responsible for justice with the concurrence of the Centre from time to time and such determinations on fees and costs shall be subject to review as may be prescribed in such rules or guidelines.
(2) The Centre may be delegated the function of determining fees and costs, by applicable law or by the parties, in specific cases or classes of cases under such conditions as may be stated in such law, in any rules or guidelines issued by the Minister responsible for justice with the concurrence of the Centre or in the arbitration agreement.
Costs in principle to be borne by unsuccessful party.
52. (1) Except as provided in subarticle (2), the costs of arbitration shall in principle be borne by the unsuccessful party. However, the arbitral tribunal may apportion such costs between the parties if it determines that apportionment is reasonable, taking into account the particular circumstances of the case.
(2) With respect of the costs of legal representation and assistance referred to in paragraph (e) of article 50, the arbitral tribunal, taking into account the particular circumstances of the case, shall be free to determine which party shall bear such costs or may apportion such costs between the parties if it determines that apportionment is reasonable.
(3) When the arbitral tribunal issues an order for the termination of the arbitral proceedings or makes an award on agreed terms, it shall in the text of that order or award, fix the costs of arbitration referred to in article 50 and article 51.
(4) No additional fees may be charged by an arbitral tribunal for interpretation or correction or completion of its award under articles 47 to 49.
Deposit of costs. Amended by: XVIII.1999.18.
53. (1) The arbitral tribunal, on its establishment, may request each party to deposit with the Centre an equal sum between them as an advance payment for the costs referred to in paragraphs (a), (b) and (c) of article 50.
(2) During the course of the arbitral proceedings the arbitral tribunal may request from the parties supplementary deposits to cover further costs.
(3) The arbitral tribunal shall fix the amounts of any deposits or supplementary deposits only after consultation with the Centre which may make to the arbitral tribunal any comments which it deems appropriate concerning the amount of such deposits and supplementary deposits.
(4) If the required deposits are not paid in full within thirty days from the receipt of the request, the arbitral tribunal shall so inform the parties in order that any one of them may make the
ARBITRATION [CAP. 387. 23
required payment. If such payment is not made, the arbitral tribunal m a y o r d e r t h e s u s p e n s i o n o r t e r m i n a t i o n o f t h e a r b i t r a l proceedings.
(5) After the award has been made, the arbitral tribunal shall render an account to the parties of the deposits received and return to the parties any unexpended balance.
Place of arbitral proceedings.
54. (1) Unless the parties agree otherwise, arbitral proceedings conducted under this Part of this Act shall be held at the premises provided by the Centre.
(2) The arbitral tribunal may meet at any place it deems appropr ia te for the inspect ion of goods, o ther proper ty or documents. The parties shall be given sufficient notice to enable them to be present at such inspection.
PART V
International Commercial Arbitration Model Law. 55. (1) Subject to this Part, the Model Law shall form part of
the Laws of Malta and shall be enforceable as such. (2) In the Model Law: "State" means Malta and any foreign country; "this state" means Malta.
Interpretation.56. (1) For the purposes of interpreting the Model Law, reference may be made:
(a) to the works of the United Nations Commission on International Trade Law; and
(b) to the preparatory documents of the Model Law.
Cap. 249. (2) subarticle (1) does not affect the application of the
Interpretation Act for the purposes of interpreting this Act.
Article 6 of the Model Law.
57. The functions referred to in Article 6 of the Model Law shall be performed by:
(a) the chairman in respect to Articles 11(3), 11(4), 13(3) and 14; and
(b) the Court of Appeal in respect to Articles 16(3), 34(2) and 35(1).
Articles 34 and 36 of the Model Law.
58. With reference to Articles 34(2)(b) (ii) and 36(1)(b) (ii) of the Model Law, for the purposes of the said Articles it is hereby declared that an award is in conflict with the public policy of Malta if -
(a) the award was induced or affected by fraud or corruption; or
(b) a breach of the rules of natural justice occurred in connection with the making of the award.
24 CAP. 387.] ARBITRATION
Chapter VIII of the Model Law not to apply. Substituted by: XVIII.1999.19.
59. Part VII of this Act on the Recognition and Enforcement of Foreign Awards shall apply to foreign arbitration awards and Chapter VIII of the Model Law shall not apply.
Settlement of dispute otherwise than in accordance with Model Law. Amended by: XVIII.1999.20.
60. If the parties to an arbitration agreement falling under this Part of this Act have (whether in the agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled otherwise than in accordance with the Model Law, and the parties have not chosen the rules that are to govern the arbitration, then the provisions of Part IV of this Act shall apply.
Optional registration of international awards. Substituted by: XVIII.1999.21; XXXI. 2002.245.
61. (1) Registration with the Centre of an international award shall not be required for the validity of the award.
(2) Where in accordance with article 60, the provisions of Part IV of the Act apply, the requirement in article 17(1) with regard to filing of a notice of arbitration for registration by the Centre shall not apply and the relevant provisions of the Model Law shall apply.
(3) Notwithstanding subarticle (1), an international award may be registered with the Centre as provided in article 72 on the application of any interested party and against payment of the applicable fee; provided that in such a case article 72(4)(a) and article 72(6) shall not apply and the following subarticles (4) and (5) shall apply in their stead.
(4) The Registrar shall not register an international award prior to the lapse of at least three months from the date of the award unless the parties confirm in writing that they do not intend to take any recourse against the award in terms of applicable law.
(5) On the lapse of the period stated in subarticle (4), the Registrar shall not register an international award if he is notified that recourse against an award has been taken by any party to the arbitration proceedings, until such time as he is notified of the outcome of such recourse. Any party to the proceedings who may take recourse against an award shall notify the Centre in writing of any recourse taken, in Malta or overseas, within fifteen days of such event.
(6) When the parties to an international arbitration agreement have expressly reserved recourse in terms of article 69A(3), any appeal shall be made within the period stated in article 34(3) of the Model Law.
Cap. 12.
(7) An international award given pursuant to Part V shall, upon its registration with the Centre as provided in this article, constitute an executive title for the purposes of Title VII of Part I of Book Second of the Code of Organization and Civil Procedure.
(8) Where no party has registered the award with the Centre in terms of this article, any party relying on an international award may at any time apply to the Court of Appeal for recognition and enforcement of the said award in accordance with Part VIII of the Model Law and the provisions in that part shall apply mutatis mutandis to any appeal which may have been reserved in terms of article 69A(3).
Cap. 12. (9) On application by any party, the Court of Appeal may,
notwithstanding the provisions of the Code of Organization and Civil
ARBITRATION [CAP. 387. 25
Procedure or the Model Law, order the provisional enforcement of an international award in whole or in part, and may issue all such related and ancillary orders as it may deem fit.
Article 17 of the Model Law. Amended by: XVIII.1999.22.
62. Notwithstanding the provisions of article 59, Chapter VIII of the Model Law applies to orders by an arbitral tribunal made under Article 17 of the Model Law requiring a party -
(a) to take an interim measure of protection; or (b) to provide security in connection with such a measure;
as if any reference in that Chapter to an arbitral award or an award were a reference to such an order.
Interest up to making of award.
63. (1) Unless the parties to an arbitration agreement falling under this Part of this Act have otherwise agreed, when an arbitral tribunal determines to make an award for the payment of money (whether on a claim for a liquidated or an unliquidated amount), the tribunal may, subject to subarticle (2), include in the sum for which the award is made interest at such a reasonable rate as the tribunal may determine on the whole or any part of the money, and for the whole or any part of the period between the date on which the cause of action arose, and the date on which the award is made.
(2) Subarticle (1) does not - (a) authorise the awarding of interest upon interest; (b) apply in relation to any amount upon which interest is
payable as of right whether by virtue of an agreement or otherwise; and
(c) affect the damages that may be recoverable as a result of a bill of exchange being dishonoured.
Interest on debt under award.
64. Unless the parties to an arbitration agreement falling under this Part of this Act have otherwise agreed, where an arbitral tribunal makes an award for the payment of money, the tribunal may direct that interest at such reasonable rate as the tribunal may determine, is payable, from the date referred to in Article 31(3) of the Model Law or such later day as the tribunal specifies.
Costs and fees. Amended by: XVIII.1999.23.
65. (1) Saving the provisions of article 79, unless the parties to an arbitration agreement falling under this Part of this Act have otherwise agreed, the arbitral tribunal shall fix the costs and fees of arbitration in the award in accordance with article 50, 51, 52 and 53 mutatis mutandis.
(2) If no provision is made by an award with respect to the costs and fees of the arbitration, a party to the arbitration agreement may, within thirty days after receiving the award, apply to the arbitral tribunal for directions as to the payment of the said costs and fees, and thereupon the tribunal shall, after hearing any party who wishes to be heard, amend the award in accordance with article 65(1).
Liability of arbitrator.
66. Article 20(5) applies to any arbitrator involved in arbitrations held under this Part of this Act.
26 CAP. 387.] ARBITRATION
Representation in proceedings.
67. With the agreement of the parties or at the request of a party, as the case may be, where the arbitral tribunal, in accordance with the Model Law, holds oral hearings or proceedings on the basis of documents or other materials, article 18 shall, without prejudice to the Model Law, apply.
Application of this Part.
68. This Part does not apply in relation to an international commercial arbitration between parties to an arbitration agreement that was concluded before the commencement of this Part of this Act unless the parties have otherwise agreed.
PART VI
Powers of the Court with respect to Arbitrations Extent of court intervention. Cap. 319.
69. Saving the provisions of the Constitution and of the European Convention Act, in matters governed by this Act, no court shall intervene or have jurisdiction in any matter except where so provided for in this Act.
Executive title. Added by: XXXI. 2002.246. Amended by: IX. 2010.9. Cap. 12.
69A. (1) An award given pursuant to an arbitration agreement in accordance with Part IV of this Act, shall upon its registration by the Centre, as provided in article 72, constitute an executive title for the purposes of Title VII of Part I of Book Second of the Code of Organization and Civil Procedure.
(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 with article 70A except in the case of mandatory arbitrations, or
(c) appealing both on points of fact and on points of law in accordance with article 70C.
(3) Recourse against an arbitral award delivered under Part V may be made to the Court of Appeal by an appeal on a point of law only if the parties to the arbitration agreement have expressly agreed that such right of appeal is available to the parties in addition to the rights of recourse as contemplated in article 34 of the Model Law. In such cases the provisions of articles 61(5), 70A, 70B and related articles shall apply.
(4) Recourse against an award may also be made in accordance with any procedure of appeal or review which may be expressly agreed to by the parties in the arbitration agreement.
(5) The rights of recourse specified in the subarticles (2) and (3) shall arise, to the extent available in terms of the Act and the arbitration agreement, upon the exhaustion of any contractual process. All time limits specified in this Act for applications under articles 70 and 70A shall commence from such time as the result of the contractual process is notified, is otherwise completed or lapses.
(6) Where any law provides for an arbitration board, tribunal or other authority and contemplates a specific right of appeal, review or other recourse against its awards, the provisions of this Act with
ARBITRATION [CAP. 387. 27
regard to recourse against awards shall not apply and the provisions of such other law shall alone regulate the right of recourse against awards of such board, tribunal or other authority.
Cap. 12.
(7) Notwithstanding that registration of an award may not yet have been effected in terms of article 61(4) or 72(4)(a), the Court of Appeal may, on the application of any party and notwithstanding any provisions of the Code of Organization and Civil Procedure, order the provisional enforcement of the award in whole or in part, and may issue all related and ancillary orders as it may deem fit.
Awards. Amended by: XVIII.1999.24. Substituted by: XXXI. 2002.247. Amended by: IX. 2010.10.
70. (1) Subject to the provisions of article 71, the Court of Appeal shall only determine that an award shall be set aside if -
(a) the applicant proves to the satisfaction of the Court of Appeal that -
(i) a party to the arbitration agreement was under some incapacity to enter the arbitration agreement; or that the said agreement was not valid under the law to which the parties have subjected it; or
(ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise impeded from presenting his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that if decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Act;
(b) the Court of Appeal finds that - (i) the subject-matter of the dispute is not capable
of settlement by arbitration under the Laws of Malta; or
(ii) the award is in conflict with the public policy of Malta.
(2) The application referred to in article 69A(2) shall be made within fifteen days from the notification to the applicant of the award in accordance with this Act, and the applicant shall notify the arbitrators and the Centre with a copy of the application as soon
28 CAP. 387.] ARBITRATION
as practicable but not later than fifteen days after the application is filed.
Cap. 12.
(3) For the purposes of this article and articles 57 and 73, the Court of Appeal shall be composed in the manner provided in article 41(6) of the Code of Organization and Civil Procedure.
(4) All applications under this article shall be held in camera and only the parties thereto and their advocates and legal procurators shall be allowed in the court during the hearing.
(5) The judgment of the court shall preserve the confidentiality of the arbitration and shall only reveal such facts as may be necessary to make the same intelligible and enforceable by the parties.
(6) The cost of the appeal shall be in the discretion of the Court of Appeal and shall be a sum fixed by the Registrar, Civil Courts and Tribunals (Civil Section) or the Registrar, Gozo Courts and Tribunals (Civil Section), as the case may be.
Cap. 12. (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 on point of law. Added by: XXXI. 2002.248.
70A. (1) A party to arbitral proceedings may appeal to the Court of Appeal on a point of law arising out of a final award made in the proceedings unless -
(a) the parties have expressly excluded such a right to appeal in the arbitration agreement or otherwise in writing; or
(b) notwithstanding anything stated in the arbitration agreement, the parties have expressly agreed that no reasons are to be given in the award in accordance with article 44(3).
(2) When an appeal is filed, the applicant shall notify the arbitrators and the Centre with a copy of the application as soon as practicable but not later than fifteen days after the appeal is filed.
(3) The Court of Appeal shall only consider the appeal if the Court is satisfied -
(a) that the determination of the point of law will substantially affect the rights of one or more of the parties;
(b) that the point of law is one which the tribunal was asked to determine or otherwise relied upon it in the award;
(c) that on the basis of the findings of fact in the award the decision of the tribunal on the point of law is prima facie open to serious doubt; and
(d) that based on a review of the application, any response and the award, the appeal does not appear dilatory and vexatious,
ARBITRATION [CAP. 387. 29
and in all other cases the Court shall dismiss the appeal. Identification of point of law. Added by: XXXI. 2002.248. Amended by: XXII. 2005.93.
70B. (1) An appeal under article 70A shall identify the point of law to be determined and shall outline the interpretation which the applicant alleges is the correct interpretation on the point of law identified.
(2) Subject to the specific provisions of article 6 of Part B of the Fourth Schedule, an appeal must be brought within fifteen days of the receipt of the final award or, if there has been an arbitral process of appeal or review, of the date when the party was notified of the result of that process or the process was otherwise completed or the time for it has elapsed.
(3) The provisions of article 70(3), (4), (5) and (6) shall apply to appeals made under article 70A.
Appeal in mandatory arbitration proceedings. Added by: IX. 2010.11.
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.
Resumption of arbitral proceedings. Amended by: XXXI. 2002.249; IX. 2010.12.
71. (1) The Court of Appeal, when asked to set aside an award, may, where appropriate, and when so required by a party, suspend the set t ing aside proceedings for a period of t ime determined by i t , in order to g ive the arb i t ra l t r ibunal an opportunity to resume the arbitral proceedings or to take such other action as in the tribunal’s opinion will eliminate the grounds for setting aside.
(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.
(3) The Court of Appeal shall not itself determine the matter on which it has sustained an application unless it is satisfied that it would be inappropriate to remit matters in question to the tribunal for reconsideration.
Condition for application. Added by: XXXI. 2002.250. Amended by: IX. 2010.13.
71A. (1) The following provisions shall apply to an application to set aside or an appeal under article 70, 70A or 70C.
(2) An application may not be brought if the applicant or appellant has not first exhausted -
(a) any available contractual process of appeal or review; and
30 CAP. 387.] ARBITRATION
(b) any available recourse under articles 47 (interpretation of the award), 48 (correction of the award) or 49 (additional award).
(3) Any request made in terms of articles 47, 48 or 49 shall have the effect of interrupting the time-limits for recourse against an award specified in article 70(4) or article 70B(2). The period for recourse established in the said articles shall run from the date on which any order made in terms of the said articles 47, 48 and 49 is communicated to the party.
(4) The rights of recourse as provided in article 70 or 70A or 70C are mutual ly exclus ive and cannot both be exerc ised 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.
(5) If on an application to set aside or on an appeal it appears to the Court that the award does not contain the tribunal’s reasons or does not set out the tribunal’s reasons in sufficient detail to enable the court properly to consider the application or appeal, the court may request the tribunal to give an interpretation of the award in accordance with the terms of article 47(2).
(6) In making an order under the preceding subarticle the court may make an order on costs arising from its order.
Condition for application: supplemental provisions. Added by: XXXI. 2002.250. Amended by: IX. 2004.25.
71B. (1) An application for setting aside or an appeal may only be made in relation to final awards as defined in article 44(6).
(2) Where several issues in an arbitration have been determined by separate awards, recourse against such awards may only be taken after the final award and within the time limits stated in this Act, to be reckoned from the date of such final award and in such recourse express mention shall be made of the awards against which recourse is taken:
Provided that recourse may be taken against such separate awards before the final award by leave of the arbitral tribunal; such request for leave to take recourse shall be made in writing to the arbitral tribunal and copied to the Centre within six days from the date on which the award is communicated to the party.
(3) Recourse may not be taken against interlocutory awards.
Registration with and by the Centre. Substituted by: XVIII.1999.25; XXXI. 2002.251. Amended by: L.N. 425 of 2007; IX. 2010.14.
72. (1) Where the registration of any final award or document under this Act is required to be made with the Centre, the award or document, or an authentic copy thereof, shall be deposited with the registrar together with such fee as may from time to time be prescribed for such registration.
(2) The registrar shall refuse to register an award or a document if the same does not comply with any of the provisions of this Act or of the rules made by the Centre relative to such Act.
(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),
ARBITRATION [CAP. 387. 31
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.
(4) (a) The Registrar shall not register an award prior to the lapse of thirty days from the date on which the award has been notified to the parties to an arbitration or if the Centre is notified of any recourse against an award taken by any party to the arbitration proceedings in terms of this part of this Act.
(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.
(5) Upon its registration with the Centre the award shall be final and binding and, furthermore, may not be challenged.
(6) Any application under articles 70 or 70A or 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.
Refusal to register document. Substituted by: XVIII.1999.26.
73. (1) Where the registrar refuses the registration of any document, whether upon an objection or otherwise, the party requesting registration may, within thirty days from such refusal, request the Court of Appeal, by application, to order the registrar to accept such registration, and the decision of the said court shall be final and binding. Such application shall be served on the other parties to the arbitration and on the registrar.
(2) The fact that a document has been accepted for registration by the Centre shall not preclude the challenge of the validity of such document under any provision of this Act.
PART VII
Recognition and Enforcement of Foreign Awards Enforcement of foreign arbitration awards. Amended by: XVIII. 1999.27.
74. (1) Saving the relevant articles of this Act, foreign arbitration awards, to which the treaties set out in the Second Schedu le a re app l i cab le ( sub jec t to such re se rva t ions o r declarations as may have been made by Malta on its becoming a party to such treaties and as are contained in the Second Schedule), shall upon their registration by the Centre be enforced by the courts of Malta in the same manner as if such awards were delivered under Part IV of this Act.
(2) The Minister may by notice in the Gazette add to, delete
32 CAP. 387.] ARBITRATION
from or substitute the list of treaties to which Malta is a party and contained in the Second Schedule to this Act.
(3) A certificate signed by the Minister responsible for foreign affairs, or by any public officer designated by the said Minister for such purpose by notice in the Gazette, purporting that, at the time specified in the certificate, any state has signed and ratified or has denounced, or has taken any other action under the treaties listed in the schedules to this Act in respect of the state specified in the certificate, shall be conclusive evidence before any court or other authority of the facts therein stated.
Arbitration under other laws. Amended by: XVIII.1999.28.
75. (1) For the purposes of this Act, any dispute required to be determined by arbitration under any other law, foreign or domestic, the provisions of such law shall, unless they provide for arbitration by a board, tribunal or other authority set up for the purpose, be read as if that other law were an arbitration agreement.
(2) Any award delivered in terms of subarticle (1) shall be recognised and enforced by the courts of Malta upon its registration by the Centre, in the same manner as if such award were delivered under Part IV of this Act.
Settlement of international investment disputes.
76. (1) Awards delivered pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States, which convention was opened for signature in Washington on the 18th March, 1965, (which convention is hereafter in this article referred to as "the Convention" and is reproduced in the Third Schedule to this Act) shall be recognised and enforced by the courts of Malta as if such awards were final judgments under the laws of Malta.
(2) The provisions of subarticle (1) shall apply only to such awards on disputes submitted to arbitration by the parties thereto in accordance with the Convention and not otherwise excluded in accordance with the same Convention.
(3) For the purposes of Article 54 of the Convention, the competent authority shall be the Centre.
(4) The Prime Minister may by order in the Gazette and notwithstanding any other law, make provision to give effect to any part of the Convention, and without prejudice to the generality of the foregoing may by such order grant such immunities and exemptions from any law as may be required by the Convention.
PART VIII
Miscellaneous Language of schedules.
77. In case of any conflict between the Maltese and English text of any of the First, Second and Third Schedules to this Act, the English text shall prevail.
Transitory provision.
78. Subject to article 68, this Act applies to every arbitration
ARBITRATION [CAP. 387. 33
agreement, whether made before or after the commencement of this Act, and to every arbitration under such an agreement:
Provided that where arbitration proceedings had been commenced before the date of commencement of this Act and are still pending on that date then, notwithstanding any thing contained in this Act, those proceedings shall continue to be governed by the law applicable thereto before the commencement of this Act unless all the parties to those proceedings agree that this Act shall apply thereto with effect from the date of the agreement whereupon this Act shall apply accordingly.
Arbitration chambers. Added by: XVIII.1999.29. Amended by: XXXI. 2002.252.
Cap. 386.
79. (1) Notwithstanding any provision of this or any other law, the provisions of this article shall have effect with regard to the matters regulated thereby.
(2) Any individual, or individuals, whether considered to be resident in Malta or not for the purposes of any law, may constitute an Arbitration Chamber in the form of a limited liability company under the Companies Act: so however that the provisions of the said Act shall have effect in relation to an Arbitration Chamber as amended, modified or substituted by the provisions of this article. All such companies shall comprise as part of their name the words "Arbitration Chamber".
(3) The objects of an Arbitration Chamber shall be limited to providing services of representation referred to in article 18 to parties in international commercial arbitration under Part V of this Act, and services as arbitrators in such arbitration: Provided that such arbitrations are administered by the Centre in accordance with any applicable rules made by the Centre in accordance with article 10. An Arbitration Chamber shall not receive any gains, profits or income whatsoever except fees for services rendered as aforesaid, but the receipt of incidental income connected with the said services shall not be deemed to infringe this rule.
Cap. 386.
(4) Each member of an Arbitration Chamber shall also be a director thereof, and each director shall be responsible at law for the services rendered by the Arbitration Chamber pursuant to subarticle (3). On the death of a member or when such member is disqualified from acting as a director of a company under the provisions of article 142 of the Companies Act, the share belonging to such member shal l be redeemed, and i f fo l lowing such redemption the Arbitration Chamber fails to meet the requirements of the Companies Act regarding the constitution of a company, then the Arbitration Chamber shall be liquidated.
(5) The Secretary of the Chamber shall be a person who, for an uninterrupted period of three years, has been any of the following:
Cap. 12.
(i) a person holding the warrant of advocate under the Code of Organization and Civil Procedure; or
Cap. 281.(ii) a person holding the warrant of a certified public accountant or a certified public accountant and auditor under the Accountancy Profession Act; or
34 CAP. 387.] ARBITRATION
(iii) an associate, member, or fellow of a professional institute or similar body recognised by the Centre for the purposes of this article; or
(iv) is otherwise recognised by the Centre as a person comparable to any of the persons aforesaid.
(6) The liquidation of an Arbitration Chamber shall be carried out by its secretary under the supervision of the Centre, and the Centre shall be entitled to:
(a) nominate a secretary solely for the purpose of this subarticle, where the Arbitration Chamber does not have a secretary or where the secretary of the Arbitration Chamber is not properly conducting the liquidation;
(b) declare that an Arbitration Chamber has been liquidated and fully wound up, whereupon the Arbitration Chamber shall be struck off the register by the Registrar of Companies without the need of any further formalities.
(7) An Arbitration Chamber shall be registered with the Centre in accordance with such rules as may be made by the Centre for the purposes of this subarticle and may not commence its activities until it has been so registered. Registration shall be subject to such annual or other fees as may be established by the Centre.
Cap. 364. (8) No duty shall be payable under the Duty on Documents and Transfers Act on any document relating to any transaction in relation to any share in an Arbitration Chamber.
Cap. 233. (9) The Exchange Control Act shall not apply to any matter relating to the constitution of an Arbitration Chamber, or to any transaction or operation whatsoever relating to an Arbitration Chamber or to its shares.
Cap. 123. Cap. 372.
(10) For the purposes of the Income Tax Act and the Income Tax Management Act, the rate of income tax chargeable upon any distributions made by an Arbitration Chamber shall be that contemplated in article 56(8) of the Income Tax Act, and a member thereof if not resident in Malta receiving such a distribution shall be entitled to the benefit contemplated in article 48(4)(a) of the Income Tax Management Act.
(11) The Centre may make rules for the better carrying out of any of the provisions of this article and may, in particular, but without prejudice to the generality of the foregoing, by any such rules-
(a) provide for the registration of an Arbitration Chamber in accordance with subarticle (7); and
(b) regulate the conduct, duties and obligations of an Arbitration Chamber.
ARBITRATION [CAP. 387. 35
Government authorised to accede to Treaties. Added by: XVIII.1999.29. Cap. 304.
80. For the purposes of the Ratification of Treaties Act, the Government is hereby authorised to accede to the treaties contained in the Second and Third Schedules to this Act.
Notification of awards to Director of Public Registry and Land Registrar. Added by: XXXI. 2002.253. Cap. 12.
82. In the event of a final award which determines rights to immovable property, the Registrar shall, upon registration, transmit a certified copy of the award to the Director of the Public Registry and to the Land Registrar and the provisions of articles 239 and 270 of the Code of Organization and Civil Procedure shall, mutatis mutandis, apply to such awards.
Interest awards. Added by: XXXI. 2002.83.
83. Unless the parties to an arbitration agreement have otherwise agreed in writing, articles 63 and 64 shall apply to any domestic arbitration carried out under Part IV and to any international arbitration where, in accordance with article 60, the said Part IV shall apply.
36 CAP. 387.] ARBITRATION
UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW: MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION*
(ADOPTED, JUNE 21, 1985)
UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on
21 June 1985)
CHAPTER I. GENERAL PROVISIONS
Article 1. Scope of application†
(1) This law applies to international commercial‡ arbitration, subject to any agreement in force between this State and any other State or States.
(2) The provisions of this law, except articles 8, 9, 35 and 36, apply only if the place of arbitration is in the territory of this State.
(3) An arbitration is international if: (a) the parties to an arbitration agreement have, at the time of the
conclusion of that agreement, their places of business in different States; or
(b) one of the following places is situated outside the State in which the parties have their places of business:
(i) the place of arbitration if determined in, or pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country.
(4) For the purposes of paragraph (3); (a) if a party has more than one place of business, the place of business is
that which has the closest relationship to the arbitration agreement; (b) if a party does not have a place of business, reference is to be made to
his habitual residence.
Amended by: XVIII. 1999.30.
FIRST SCHEDULE
*Reproduced from the Report from the United Nations Commission on International Trade Law on the work of the eighteenth session (June 3-21, 1985), U.N. General Assembly Official Records Fortieth Session, Supplement No. 17 (A/4O/17), Annex I, pp. 81-93. †Article Headings are for the reference purposes only and are not to be used for purposes of interpretation. ‡ The term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investments; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road.
ARBITRATION [CAP. 387. 37
(5) This Law shall not effect any other law of this State by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Law. Article 2. Definition and Rules of Interpretation
For the purposes of this Law: (a) "arbitration" means any arbitration whether or not administered by a
permanent arbitral institution; (b) "arbitral tribunal" means a sole arbitrator or a panel of arbitrators; (c) "court" means a body or organ of the judicial system of a State; (d) where a provision of this Law, except article 28, leaves the parties free
to determine a certain issue, such freedom includes the right of the parties to authorise a third party, including an institution, to make that determination;
(e) where a provision of this Law refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement;
(f) where a provision of this Law, other than in articles 25 (a) and 32 (2) (a), refers to a claim, it also applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such counter-claim.
Article 3. Receipt of written communications (1) Unless otherwise agreed by the parties:
(a) any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it;
(b) the communication is deemed to have been received on the day it is so delivered.
(2) The provisions of this article do not apply to communications in court proceedings. Article 4. Waiver of right to object
A party who knows that any provisions of this Law from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non- compliance without undue delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to have waived his right to object. Article 5. Extent of court intervention
In matters governed by this Law, no court shall intervene except where so provided in this Law. Article 6. Court or other authority for certain functions of arbitration
assistance and supervision The functions referred to in articles 11(3), 11(4), 13 (3), 14, 16 (3) and 34 (2) shall
38 CAP. 387.] ARBITRATION
be performed by.............[Each State enacting this model law specifies the court, courts or, where referred to therein, other authority competent to perform these functions.]
CHAPTER II. ARBITRATION AGREEMENT
Article 7. Definition and form of arbitration agreement (1) "Arbitration agreement" is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract. Article 8. Arbitration agreement and substantive claim before court
(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) has been brought, arbitral proceedings may nevertheless be commenced or continued and an award may be made, while the issue is pending before the court. Article 9. Arbitration agreement and interim measures by court
It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.
CHAPTER III. COMPOSITION OF ARBITRAL TRIBUNAL
Article 10. Number of arbitrators (1) The parties are free to determine the number of arbitrators. (2) Failing such determination, the number of arbitrators shall be three.
Article 11. Appointment of arbitrators (1) No person shall be precluded by reason of his nationality from acting as an
arbitrator, unless otherwise agreed by the parties. (2) The parties are free to agree on a procedure of appointing the arbitrator or
arbitrators, subject to the provisions of paragraphs (4) and (5). (3) Failing such agreement,
(a) in an arbitration with three arbitrators, each party shall appoint one
ARBITRATION [CAP. 387. 39
arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in article 6;
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in article 6.
(4) Where, under an appointment procedure agreed upon by the parties, (a) a party fails to act as required under such procedure, or (b) the parties, or two arbitrators, are unable to reach an agreement
expected of them under such procedure, or (c) a third party, including an institution, fails to perform any function
entrusted to it under such procedure, any party may request the court or other authority specified in article 6 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) to the court or other authority specified in article 6 shall be subject to no appeal. The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties. Article 12. Grounds for challenge
(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties unless they have already been informed of them by him.
(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made. Article 13. Challenge procedure
(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of paragraph (3).
(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in article 12 (2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under the
40 CAP. 387.] ARBITRATION
procedure of paragraph (2) is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the court or other authority specified in article 6 to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award. Article 14. Failure or impossibility to act
(1) If an arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay, his mandate terminates if he withdraws from his office or if the parties agree on the termination. Otherwise, if a controversy remains concerning any of these grounds, any party may request the court or other authority specified in article 6 to decide on the termination of the mandate, which decision shall be subject to no appeal.
(2) If, under this article or article 13 (2), an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any ground referred to in this article or article 12 (2). Article 15. Appointment of substitute arbitrator
Where the mandate of an arbitrator terminates under article 13 or 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.
CHAPTER IV. JURISDICTION OF ARBITRAL TRIBUNAL
Article 16. Competence of arbitral tribunal to rule on its jurisdiction (1) The arbitral tribunal may rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) either as a preliminary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question that it has jurisdiction, any part may request, within thirty days after having received notice of that ruling, the court specified in article 6 to decide the matter, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award. Article 17. Power of arbitral tribunal to order interim measures
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of
ARBITRATION [CAP. 387. 41
a party, order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the dispute. The arbitral tribunal may require any party to provide appropriate security in connection with such measure.
CHAPTER V. CONDUCT OF ARBITRAL PROCEEDINGS
Article 18. Equal treatment of parties The parties shall be treated with equality and each party shall be given a full
opportunity of presenting his case. Article 19. Determination of rules of procedure
(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence. Article 20. Place of arbitration
(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
(2) Notwithstanding the provisions of paragraph (1), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents. Article 21. Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Article 22. Language
(1) The parties are free to agree on the language or languages to be used in the arbitral proceedings. Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in the proceedings . This agreement or determination, unless otherwise specified therein, shall apply to any written statement by a party, any hearing and any award, decision or other communication by the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal. Article 23. Statement of claim and defence
(1) Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting the claim, the points at issue and the relief of remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of such statements. The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.
42 CAP. 387.] ARBITRATION
(2) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow such amendment having regard to the delay in making it. Article 24. Hearing and written proceedings
(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.
(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.
(3) All statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party. Also any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties. Article 25. Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient cause, (a) the claimant fails to communicate his statement of claim in accordance
with article 23 (1), the arbitral tribunal shall terminate the proceedings; (b) the respondent fails to communicate his statement of defence in
accordance with article 23 (1), the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations;
(c) any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it.
Article 26. Expert appointed by arbitral tribunal (1) Unless otherwise agreed by the parties, the arbitral tribunal,
(a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal;
(b) may require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in a hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue. Article 27. Court assistance in taking evidence
The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence. The court may execute the request within its competence and according to its rules on taking evidence.
ARBITRATION [CAP. 387. 43
CHAPTER VI. MAKING OF AWARD AND TERMINATION OF PROCEEDINGS
Article 28. Rules applicable to substance of dispute (1) The arbitral tribunal shall decide the dispute in accordance with such rules
of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so.
(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. Article 29. Decision-making by panel of arbitrators
In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure may be decided by a presiding arbitrator, if so authorised by the parties or all members of the arbitral tribunal. Article 30. Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the provisions of article 31 and shall state that it is an award. Such an award has the same status and effect as any other award on the merits of the case. Article 31. Form and contents of award
(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated.
(2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under article 30.
(3) The award shall state its date and the place of arbitration as determined in accordance with article 20 (1). The award shall be deemed to have been made at that place.
(4) After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) shall be delivered to each party. Article 32. Termination of proceedings
(1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in accordance with paragraph (2).
(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when:
44 CAP. 387.] ARBITRATION
(a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute;
(b) the parties agree on the termination of the proceedings; (c) the arbitral tribunal finds that the continuation of the proceedings has
for any other reason become unnecessary or impossible. (3) The mandate of the arbitral tribunal terminates with the termination of the
arbitral proceedings, subject to the provisions of articles 33 and 34 (4). Article 33. Correction and interpretation of award, additional award
(1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the parties:
(a) a party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature;
(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.
If the arbitral tribunal considers the request to be justified, it shall make the correction or give the interpretation within thirty days of receipt of the request. The interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1) (a) on its own initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within thirty days of receipt of the award, the arbitral tribunal to make an additional award as to claims presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers the request to be justified, it shall make the additional award within sixty days.
(4) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, interpretation or an additional award under paragraph (1) or (3).
(5) The provisions of article 31 shall apply to a correction or interpretation of the award or to an additional award.
CHAPTER VII. RECOURSE AGAINST AWARD
Article 34. Application for setting aside as exclusive recourse against arbitral award
(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3).
(2) An arbitral award may be set aside by the court specified in article 6 only if: (a) the party making the application furnishes proof that:
(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or
(ii) the party making the application was not given proper notice of
ARBITRATION [CAP. 387. 45
the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law; or
(b) the court finds that: (i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law of this State; or (ii) the award is in conflict with the public policy of this State.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if a request had been made under article 33, from the date on which that request had been disposed of by the Arbitration Tribunal.
(4) The court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such action as in the arbitral tribunal’s opinion will eliminate the grounds for setting aside.
CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF AWARDS
Article 35. Recognition and Enforcement (1) An arbitral award, irrespective of the country in which it was made, shall be
recognised as binding and, upon application in writing to the competent court, shall be enforced subject to the provisions of this article and of article 36.
(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement referred to in article 7 or a duly certified copy thereof. If the award or agreement is not made in an official language of this State, the party shall supply a duly certified translation thereof into such language.*
Article 36. Grounds for refusing recognition or enforcement (1) Recognition or enforcement of an arbitral award, irrespective of the country
in which it was made, may be refused only: (a) at the request of the party against whom it is invoked, if that party
furnishes to the competent court where recognition or enforcement is sought proof that:
*The conditions set forth in this paragraph are intended to set maximum standards. It would, thus, not be contrary to the harmonization to be achieved by the Model Law if a State retained even less onerous conditions.
46 CAP. 387.] ARBITRATION
(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in which, or under the law of which, that award was made; or
(b) if the court finds that: (i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law of this State; or (ii) the recognition or enforcement of the award would be contrary to
the public policy of this State. (2) If an application for setting aside or suspension of an award has been made
to a court referred to in paragraph (1) (a) (v), the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.
ARBITRATION [CAP. 387. 47
The undersigned, being duly authorised, declare that they accept, on behalf of the countries which they represent, the following provisions:
(1) Each of the Contracting States recognises the validity of an agreement whether relat ing to exist ing or future differences between parties, subject respectively to the jurisdiction of different Contracting States by which the parties to a contract agree to submit to arbitration all or any differences that may arise in connection with such contract relating to commercial matters or to any other matter capable of settlement by arbitration, whether or not the arbitration is to take place in a country to whose jurisdiction none of the parties is subject.
Each Contracting State reserves the right to limit the obligation mentioned above to contracts which are considered as commercial under its national law. Any Contracting State which avails itself of this right will notify the Secretary-General of the League of Nations, in order that the other Contracting States may be so informed.
(2) The arbitral procedure, including the constitution of the arbitral tribunal, shall be governed by the will of the parties and by the law of the country in whose territory the arbitration takes place.
The Contracting States agree to facilitate all steps in the procedure which require to be taken in their own territories, in accordance with the provisions of their law governing arbitral procedure applicable to existing differences.
(3) Each Contracting State undertakes to ensure the execution by its authorities and in accordance with the provisions of its national laws of arbitral awards made in its own territory under the preceding articles.
(4) The tribunals of the Contracting Parties, on being seized of a dispute regarding a contract made between persons to whom Article I applies and including an Arbitration Agreement whether referring to present or future differences which is valid in virtue of the said article and capable of being carried into effect, shall refer the parties on the application of either of them to the decision of the arbitrators.
Such reference shall not prejudice the competence of the judicial tribunals in case the agreement or the arbitration cannot proceed or becomes inoperative.
(5) The present Protocol, which shall remain open for signature by all States, shall be ratified. The ratifications shall be deposited as soon as possible with the Secretary-General of the League of Nations, who shall notify such deposit to all the Signatory States.
(6) The present Protocol will come into force as soon as two ratifications have been deposited. Thereafter it will take effect, in the case of each Contracting State, one month after the notification by the Secretary-General of the deposit of ratification.
(7) The present Protocol may be denounced by any Contracting State on giving one year’s notice. Denunciation shall be effected by a notification addressed to the Secretary-General of the League, who will immediately transmit copies of such notification to all the other Signatory States and inform them of the date on which it was received. The denunciation shall take effect one year after the date on which it
SECOND SCHEDULE Amended by: XVIII. 1999.31. Substituted by: L.N. 304 of 2004.
Part I PROTOCOL ON ARBITRATION CLAUSES
(GENEVA 1923)
48 CAP. 387.] ARBITRATION
was notified to the Secretary-General, and shall operate only in respect of the notifying State.
(8) The Contracting States may declare that their acceptance of the present Protocol does not include any or all of the under-mentioned territories: that is to say, their colonies, overseas possessions or territories, protectorates or the territories over which they exercise a mandate.
The said States may subsequently adhere separately on behalf of any territory thus excluded. The Secretary-General of the League of Nations shall be informed as soon as possible of such adhesions. He shall notify such adhesions to all Signatory States. They will take effect one month after the notification by the Secretary-General to all Signatory States.
The Contracting States may also denounce the Protocol separately on behalf of any of the territories referred to above. Article 7 applies to such denunciation.
Part II CONVENTION ON THE EXECUTION OF FOREIGN ARBITRAL AWARDS
(GENEVA 1927) Article 1
In the territories of any High Contracting Party to which the present Convention applies, all arbitral awards made in pursuance of an agreement whether relating to existing or future differences (hereinafter called "a submission to arbitration") covered by the Protocol on Arbitration Clauses, opened at Geneva on September 24, 1923, shall be recognised as binding and shall be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the said award has been made in a territory of one of the High Contracting Parties to which the present Convention applies and between persons who are subject to the jurisdiction of one of the High Contracting Parties.
To obtain such recognition or enforcement, it shall, further, be necessary: (a) That the award has been made in pursuance of a submission to
arbitration which is valid under the law applicable thereto; (b) That the subject-matter of the award is capable of settlement by
arbitration under the law of the country in which the award is sought to be relied upon;
(c) That the award has been made by the Arbitral Tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;
(d) That the award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to opposition, appeal or pourvoi en cassation (in the countries where such forms of procedure exist) or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;
(e) That the recognition or enforcement of the award is not contrary to the public policy or to the principles of the law of the country in which it is sought to be relied upon.
Article 2 Even if the conditions laid down in Article 1 hereof are fulfilled, recognition
and enforcement of the award shall be refused if the Court is satisfied:
ARBITRATION [CAP. 387. 49
(a) That the award has been annulled in the country in which it was made; (b) That the party against whom it is sought to use the award was not given
notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented;
(c) That the award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to arbitration.
If the award has not covered all the questions submitted to the arbitral tribunal, the competent authority of the country where recognition or enforcement of the award is sought can, if it thinks fit, postpone such recognition or enforcement or grant it subject to such guarantee as that authority may decide.
Article 3 If the party against whom the award has been made proves that under the
law governing the arbitration procedure, there is a ground, other than the grounds referred to in Article 1 (a) and (c), and Article 2 (b) and (c), entitling him to contest the validity of the award in a Court of Law, the Court may, if it thinks fit, either refuse recognition or enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.
Article 4 The party relying upon an award or claiming its enforcement must supply, in
particular: (1) The original award or a copy thereof duly authenticated, according to
the requirements of the law of the country in which it was made; (2) Documentary or other evidence to prove that the award has become
final, in the sense defined in Article 1 (d), in the country in which it was made;
(3) When necessary, documentary or other evidence to prove that the condition laid down in Article 1, paragraph 1 and paragraph 2 (a) and (c), have been fulfilled.
A translation of the award and of the other documents mentioned in the Article into the official language of the country where the award is sought to be relied upon may be demanded. Such translation must be certified correct by a diplomatic or consular agent of the country to which the party who seeks to rely upon the award belongs or by a sworn translator of the country where the award is sought to be relied upon.
Article 5 The provisions of the above Articles shall not deprive any interested party of
the right of availing himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.
Article 6 The present Convention applies only to arbitral awards made after the
coming into force of the Protocol on Arbitration Clauses, opened at Geneva on September 24, 1923.
50 CAP. 387.] ARBITRATION
Article 7 The present Convention, which will remain open to the signature of all the
signatories of the Protocol of 1923 on Arbitration Clauses, shall be ratified. It may be ratified only on behalf of those Members of the League of Nations
and non-Member States on whose behalf the Protocol of 1923 shall have been ratified.
Ratifications shall be deposited as soon as possible with the Secretary- General of the League of Nations, who will notify such deposit to all the signatories.
Article 8 The present Convention shall come into force three months after it shall
have been ratified on behalf of two High Contracting Parties. Thereafter, it shall take effect, in the case of each High Contracting Party, three months after the deposit of the ratification on its behalf with the Secretary-General of the League of Nations.
Article 9 The present Convention may be denounced on behalf of any Member of the
League or non-Member State. Denunciation shall be notified in writing to the Secretary-General of the League of Nations, who will immediately send a copy thereof, certified to be in conformity with the notification, to all the other Contracting Parties, at the same time informing them of the date on which he received it.
The denunciation shall come into force only in respect of the High Contracting Party which shall have notified it and one year after such notification shall have reached the Secretary-General of the League of Nations. The denunciation of the Protocol on Arbitration Clauses shall entail, ipso facto, the denunciation of the present Convention.
Article 10 The present Convention does not apply to the Colonies, Protectorates or
territories under suzerainty or mandate of any High Contracting Party unless they are specially mentioned.
The application of this Convention to one or more of such Colonies, Protectorates or territories to which the Protocol on Arbitration Clauses, opened at Geneva on September 24, 1923, applies, can be affected at any time by means of a declaration addressed to the Secretary-General of the League of Nations by one of the High Contracting Parties.
Such declaration shall take effect three months after the deposit thereof. The High Contracting Parties can at any time denounce the Convention for
all or any of the Colonies, Protectorates or territories referred to above. Article 9 hereof applies to such denunciation.
Article 11 A certified copy of the present Convention shall be transmitted by the
Secretary-General of the League of Nations to every Member of the League of Nations and to every non-Member State which signs the same.
In faith whereof the above-named Plenipotentiaries have signed the present Convention.
DONE AT Geneva, on the twenty-sixth day of September one thousand nine hundred and twenty- seven, in a single copy, of which the English and French texts
ARBITRATION [CAP. 387. 51
are both authentic, and which will be kept in the archives of the League of Nations. Part III
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS (NEW YORK 1958)
ARTICLE I 1. This Convention shall apply to the recognition and enforcement of arbitral
awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.
2. The term "arbitral awards" shall include not only awards made by arbitrators appointed for each case but also those made by permanent arbitral bodies to which the parties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying extension under article X hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State. It may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.
ARTICLE II 1. Each Contracting State shall recognize an agreement in writing under which
the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.
2. The term "agreement in writing" shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.
3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.
ARTICLE III Each Contracting State shall recognize arbitral awards as binding and
enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.
ARTICLE IV 1. To obtain the recognition and enforcement mentioned in the preceding
article, the party applying for recognition and enforcement shall, at the time of the application, supply:
(a) The duly authenticated original award or a duly certified copy thereof;
52 CAP. 387.] ARBITRATION
(b) The original agreement referred to in Article II or a duly certified copy thereof.
2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.
ARTICLE V 1. Recognition and enforcement of the award may be refused, at the request of
the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:
(a) The parties to the agreement referred to in Article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or
(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
2. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that:
(a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or
(b) The recognition or enforcement of the award would be contrary to the public policy of that country.
ARTICLE VI If an application for the setting aside or suspension of the award has been
made to a competent authority referred to in Article V (1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.
ARTICLE VII
ARBITRATION [CAP. 387. 53
1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral agreements concerning the recognition and enforcement of arbitral awards entered into by the Contracting States nor deprive an interested party of any right he may have to avail himself of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon.
2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their becoming bound and to the extent that they become bound, by this Convention.
ARTICLE VIII 1. This Convention shall be open until 31 December 1958 for signature on
behalf of any Member of the United Nations and also on behalf of any other State which is or hereafter becomes a member of any specialized agency of the United Nations, or which is or hereafter becomes a party to the Statute of the International Court of Justice, or any other State to which an invitation has been addressed by the General Assembly of the United Nations.
2. This Convention shall be ratified and the instrument of ratification shall be deposited with the Secretary-General of the United Nations.
ARTICLE IX 1. This Convention shall be open for accession to all States referred to in
Article VIII. 2. Accession shall be effected by the deposit of an instrument of accession with
the Secretary-General of the United Nations. ARTICLE X 1. Any State may, at the time of signature, ratification or accession, declare
that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the State concerned.
2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary-General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject, where necessary for constitutional reasons, to the consent of the Governments of such territories.
ARTICLE XI In the case of a federal or non-unitary State, the following provisions shall
apply: (a) With respect to those articles of this Convention that come within the
legislative jurisdiction of the federal authority, the obligations of the federal Government shall to this extent be the same as those of Contracting States which are not federal States;
(b) With respect to those articles of this Convention that come within the
54 CAP. 387.] ARBITRATION
legislative jurisdiction of constituent states or provinces which are not, under the constitutional system of the federation, bound to take legislative action, the federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of constituent states or provinces at the earliest possible moment;
(c) A federal State Party to this Convention shall, at the request of any other Contracting State transmitted through the Secretary-General of the United Nations, supply a statement of the law and practice of the federation and its constituent units in regard to any particular provision of this Convention, showing the extent to which effect has been given to that provision by legislative or other action.
ARTICLE XII 1. This Convention shall come into force on the ninetieth day following the
date of deposit of the third instrument of ratification or accession. 2. For each State ratifying or acceding to this Convention after the deposit of
the third instrument of ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by such State of its instrument of ratification or accession.
ARTICLE XIII 1. Any Contracting State may denounce this Convention by a written
notification to the Secretary-General of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.
2. Any State which has made a declaration or notification under article X may, at any time thereafter, by notification to the Secretary-General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary-General.
3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect.
ARTICLE XIV A Contracting State shall not be entitled to avail itself of the present
Convention against other Contracting States except to the extent that it is itself bound to apply the Convention.
ARTICLE XV The Secretary-General of the United Nations shall notify the States
contemplated in article VIII of the following: (a) Signatures and ratifications in accordance with Article VIII; (b) Accessions in accordance with Article IX; (c) Declarations and notifications under Articles I, X and XI; (d) The date upon which this Convention enters into force in accordance
with Article XII; and (e) Denunciations and notifications in accordance with Article XIII.
ARTICLE XVI 1. This Convention, of which the Chinese, English, French, Russian and
Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations.
ARBITRATION [CAP. 387. 55
2. The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in Article VIII.
Declaration made by Malta on its becoming a member to the United Nations Convention on the recognition and enforcement of Foreign Arbitral Awards
(New York 1958) 1. In accordance with the relevant provisions of the Convention, Malta will
apply the Convention only to the recognition and enforcement of awards made in the territory of another Contracting State.
2. The Convention only applies in regard to Malta with respect to arbitration agreements concluded after the date of Malta’s accession to the Convention and awards pursuant thereto made after the date of Malta’s accession to the Convention.
56 CAP. 387.] ARBITRATION
CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES
(WASHINGTON 1965)
Preamble The Contracting States Considering the need for international co-operation for economic development,
and the role of private international investment therein; Bearing in mind the possibility that from time to time disputes may arise in
connection with such investment between Contracting States and nationals of other Contracting States;
Recognising that while such disputes would usually be subject to national legal processes, international methods of settlement may be appropriate in certain cases;
Attaching particular importance to the availability of facilities for international conciliation or arbitration to which Contracting States may submit such disputes if they so desire;
Desiring to establish such facilities under the auspices of the International Bank for Reconstruction and Development;
Recognising that mutual consent by the parties to submit such disputes to conciliation or to arbitration through such facilities constitutes a binding agreement which requires in particular that due consideration be given to any recommendation of conciliators, and that any arbitral award be complied with; and
Declaring that no Contracting State shall by the mere fact of its ratification, acceptance or approval of this Convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration;
Have agreed as follows:
CHAPTER I
INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
SECTION 1
Establishment and Organisation
ARTICLE I
(1) There is hereby established the International Centre for Settlement of Investment Disputes (hereinafter called the Centre).
(2) The purpose of the Centre shall be to provide facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other
Amended by: XVIII. 1999.32.
THIRD SCHEDULE
ARBITRATION [CAP. 387. 57
Contracting States in accordance with the provisions of this Convention.
ARTICLE 2
The seat of the Centre shall be at the principal office of the International Bank for Reconstruction and Development (hereinafter called the Bank). The seat may be moved to another place by decision of the Administrative Council adopted by a majority of two-thirds of its members.
ARTICLE 3
The Centre shall have an Administrative Council and a Secretariat and shall maintain a Panel of Conciliators and a Panel of Arbitrators.
SECTION 2
The Administrative Council
ARTICLE 4
(1) The Administrative Council shall be composed of one representative of each Contracting State. An alternate may act as representative in case of his principal’s absence from a meeting or inability to act.
(2) In the absence of a contrary designation, each governor and alternate governor of the Bank appointed by a Contracting State shall be ex officio its representative and its alternate respectively.
ARTICLE 5
The President of the Bank shall be ex officio Chairman of the Administrative Council (hereinafter called the Chairman) but shall have no vote. During his absence or inability to act and during any vacancy in the office of President of the Bank, the person for the t ime being acting as President shall act as Chairman of the Administrative Council.
ARTICLE 6
(1) Without prejudice to the powers and functions vested in it by other provisions of this Convention, the Administrative Council shall
(a) adopt the administrative and financial regulations of the Centre; (b) adopt the rules of procedure for the institution of conciliation and
arbitration proceedings; (c) adopt the rules of procedure for conciliation and arbitration proceedings
(hereinafter called the Conciliation Rules and the Arbitration Rules); (d) approve arrangements with the Bank for the use of the Bank’s
administrative facilities and services; (e) determine the conditions of service of the Secretary-General and of any
Deputy Secretary-General; (f) adopt the annual budget of revenue and expenditures of the Centre;
58 CAP. 387.] ARBITRATION
(g) approve the annual report on the operation of the Centre. The decisions referred to in subparagraphs (a), (b), (c) and (f) above shall be
adopted by a majority of two-thirds of the members of the Administrative Council. (2) The Administrative Council may appoint such committees as it considers
necessary. (3) The Administrative Council shall also exercise such other powers and
perform such other functions as i t shall determine to be necessary for the implementation of the provisions of this Convention.
ARTICLE 7
(1) The Administrative Council shall hold an annual meeting and such other meetings as may be determined by the Council, or convened by the Chairman, or convened by the Secretary-General at the request of not less than five members of the Council.
(2) Each member of the Administrative Council shall have one vote and, except as otherwise herein provided, all matters before the Council shall be decided by a majority of the votes cast.
(3) A quorum for any meeting of the Administrative Council shall be a majority of its members.
(4) The Administrative Council may establish, by a majority of two-thirds of its members, a procedure whereby the Chairman may seek a vote of the Council without convening a meeting of the Council. The vote shall be considered valid only if the majority of the members of the Council cast their votes within the time limit set by the said procedure.
ARTICLE 8
Members of the Administrative Council and the Chairman shall serve without remuneration from the Centre.
SECTION 3
The Secretariat
ARTICLE 9
The Secretariat shall consist of a Secretary-General, one or more Deputy Secretaries-General and staff.
ARTICLE 10
(1) The Secretary-General and any Deputy Secretary-General shall be elected by the Administrative Council by a majority of two-thirds of its members upon the nomination of the Chairman for a term of service not exceeding six years and shall be eligible for re-election. After consulting the members of the Administrative Council, the Chairman shall propose one or more candidates for each such office.
(2) The offices of Secretary-General and Deputy Secretary-General shall be
ARBITRATION [CAP. 387. 59
incompatible with the exercise of any political function. Neither the Secretary- General nor any Deputy Secretary-General may hold any other employment or engage in any other occupation except with the approval of the Administrative Council.
(3) During the Secretary-General’s absence or inability to act, and during any vacancy of the office of Secretary-General, the Deputy Secretary-General shall act as Secretary-General. If there shall be more than one Deputy Secretary-General, the Administrative Council shall determine in advance the order in which they shall act as Secretary-General.
ARTICLE 11
The Secretary-General shall be the legal representative and the principal officer of the Centre and shall be responsible for i ts administration, including the appointment of staff, in accordance with the provisions of this Convention and the rules adopted by the Administrative Council. He shall perform the function of registrar and shall have the power to authenticate arbitral awards rendered pursuant to this Convention, and to certify copies thereof.
SECTION 4
The Panels
ARTICLE 12
The Panel of Conciliators and the Panel of Arbitrators shall each consist of qualified persons, designated as hereinafter provided, who are willing to serve thereon.
ARTICLE 13
(1) Each Contracting State may designate to each Panel four persons who may but need not be its nationals.
(2) The Chairman may designate ten persons to each Panel. The persons so designated to a Panel shall each have a different nationality.
ARTICLE 14
(1) Persons designated to serve on the Panels shall be persons of high moral character and recognised competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgement. Competence in the field of the law shall be of particular importance in the case of persons on the Panel of Arbitrators.
(2) The Chairman, in designating persons to serve on the Panels, shall in addition pay due regard to the importance of assuring representation on the Panels of the principal legal systems of the world and of the main forms of economic activity.
ARTICLE 15
(1) Panel members shall serve for renewable periods of six years.
60 CAP. 387.] ARBITRATION
(2) In case of death or resignation of a member of a Panel, the authority which designated the member shall have the right to designate another person to serve for the remainder of that member’s term.
(3) Panel members shall continue in office until their successors have been designated.
ARTICLE 16
(1) A person may serve on both Panels. (2) If a person shall have been designated to serve on the same Panel by more
than one Contracting State, or by one or more Contracting States and the Chairman, he shall be deemed to have been designated by the authority which first designated him or, if one such authority is the State of which he is a national by that State.
(3) All designations shall be notified to the Secretary-General and shall take effect from the date on which the notification is received.
SECTION 5
Financing the Centre
ARTICLE 17
If the expenditure of the Centre cannot be met out of charges for the use of its facilities, or out of other receipts, the excess shall be borne by Contracting States which are members of the Bank in proportion to their respective subscriptions to the capital stock of the Bank, and by Contracting States which are not members of the Bank in accordance with rules adopted by the Administrative Council.
SECTION 6
Status, Immunities and Privileges
ARTICLE 18
The Centre shall have full international legal personality. The legal capacity of the Centre shall include the capacity
(a) to contract; (b) to acquire and dispose of movable and immovable property; (c) to institute legal proceedings.
ARTICLE 19
To enable the Centre to fulfil its functions, it shall enjoy in the territories of each Contracting Centre the immunities and privileges set forth in this Section.
ARTICLE 20
The Centre, its property and assets shall enjoy immunity from all legal process,
ARBITRATION [CAP. 387. 61
except when the Centre waives this immunity.
ARTICLE 21
The Chairman, the members of the Administrative Council, persons acting as conciliators or arbitrators or members of a Committee appointed pursuant to paragraph (3) of Article 52, and the officers and employees of the Secretariat
(a) shall enjoy immunity from legal process with respect to acts performed by them in the exercise of their functions, except when the Centre waives this immunity;
(b) not being local nationals, shall enjoy the same immunities from immigration restrictions, alien registration requirements and national service obligations, the same facilities as regards exchange restrictions and the same treatment in respect of travelling facilities as are accorded by Contracting States to the representatives, officials and employees of comparable rank of other Contracting States.
ARTICLE 22
The provisions of Article 21 shall apply to persons appearing in proceedings under this Convention as parties, agents, counsel, advocates, witnesses or experts; provided, however, that subparagraph (b) thereof shall apply only in connection with their travel to and from, and their stay at, the place where the proceedings are held.
ARTICLE 23
(1) The archives of the Centre shall be inviolable wherever they may be. (2) With regard to its official communications, the Centre shall be accorded by
each Contracting State treatment not less favourable than that accorded to other international organisations.
ARTICLE 24
(1) The Centre, its assets, property and income, and its operations and transactions authorised by this Convention shall be exempt from all taxation and customs duties. The Centre shall also be exempt from liability for the collection or payment of any taxes or customs duties.
(2) Except in the case of local nationals, no tax shall be levied on or in respect of expense allowances paid by the Centre to the Chairman or members of the Administrative Council, or on or in respect of salaries, expense allowances or other emoluments paid by the Centre to officials or employees of the Secretariat.
(3) No tax shall be levied on or in respect of fees or expense allowances received by persons acting as conciliators, or arbitrators, or members of a Committee appointed pursuant to paragraph (3) of Article 52, in proceedings under this Convention, if the sole jurisdictional basis for such tax is the location of the Centre or the place where such proceedings are conducted or the place where such fees or allowances are paid.
62 CAP. 387.] ARBITRATION
CHAPTER II
JURISDICTION OF THE CENTRE
ARTICLE 25
(1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.
(2) "National of another Contracting State" means: (a) any natural person who had the nationality of a Contracting State other
than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration as well as on the date on which the request was registered pursuant to paragraph (3) of Article 28 or paragraph (3) of Article 36, but does not include any person who on either date also had the nationality of the Contracting State party to the dispute; and
(b) any juridical person which had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration and any juridical person which had the nationality of the Contracting State party to the dispute on that date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention.
(3) Consent by a constituent subdivision or agency of a Contracting State shall require the approval of that State unless that State notifies the Centre that no such approval is required.
(4) Any Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre. The Secretary-General shall forthwith transmit such notification to all Contracting States. Such notification shall not constitute the consent required by paragraph (1).
ARTICLE 26
Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.
ARTICLE 27
(1) No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have
ARBITRATION [CAP. 387. 63
failed to abide by and comply with the award rendered in such dispute. (2) Diplomatic protection, for the purposes of paragraph (1), shall not include
informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
CHAPTER III
CONCILIATION
SECTION 1
Request for Conciliation
ARTICLE 28
(1) Any Contracting State or any national of a Contracting State wishing to institute conciliation proceedings shall address a request to that effect in writing to the Secretary-General who shall send a copy of the request to the other party.
(2) The request shall contain information concerning the issues in dispute, the identity of the parties and their consent to conciliation in accordance with the rules of procedure for the institution of conciliation and arbitration proceedings.
(3) The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register.
SECTION 2
Constitution of the Conciliation Commission
ARTICLE 29
(1) The Conciliation Commission (hereinafter called the Commission) shall be constituted as soon as possible after registration of a request pursuant to Article 28.
(2) (a) The Commission shall consist of a sole conciliator or any uneven number of conciliators appointed as the parties shall agree.
(b) Where the parties do not agree upon the number of conciliators and the method of their appointment, the Commission shall consist of three conciliators, one conciliator appointed by each party and the third, who shall be the president of the Commission, appointed by agreement of the parties.
ARTICLE 30
If the Commission shall not have been constituted within 90 days after notice of registration of the request has been dispatched by the Secretary-General in accordance with paragraph (3) of Article 28, or such other period as the parties may agree, the Chairman shall, at the request of either party and after consulting both parties as far as possible, appoint the conciliator or conciliators not yet appointed.
64 CAP. 387.] ARBITRATION
ARTICLE 31
(1) Conciliators may be appointed from outside the Panel of Conciliators, except in the case of appointments by the Chairman pursuant to Article 30.
(2) Conciliators appointed from outside the Panel of Conciliators shall possess the qualities stated in paragraph (1) of Article 14.
SECTION 3
Conciliation Proceedings
ARTICLE 32
(1) The Commission shall be the judge of its own competence. (2) Any objection by a party to the dispute that a dispute is not within the
jurisdiction of the Centre, or for other reasons is not within the competence of the Commission, shall be considered by the Commission which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute.
ARTICLE 33
Any conciliation proceeding shall be conducted in accordance with the provisions of this Section and except as the parties otherwise agree, in accordance with the Concil iat ion Rules in effect on the date on which the part ies consented to conciliation. If any question of procedure arises which is not covered by this Section or the Conciliation Rules or any rules agreed by the parties, the Commission shall decide the question.
ARTICLE 34
(1) It shall be the duty of the Commission to clarify the issues in dispute between the parties and to endeavour to bring about agreement between them upon mutually acceptable terms. To that end, the Commission may at any stage of the proceedings and from time to time recommend terms of settlement to the parties. The parties shall cooperate in good faith with the Commission in order to enable the Commiss ion to carry out i t s funct ions , and shal l g ive thei r most ser ious consideration to its recommendations.
(2) If the parties reach agreement, the Commission shall draw up a report noting the issues in dispute and recording that the parties have reached agreement. If, at any stage of the proceedings, it appears to the Commission that there is no likelihood of agreement between the parties, it shall close the proceedings and shall draw up a report noting the submission of the dispute and recording the failure of the parties to reach agreement. If one party fails to appear or participate in the proceedings the Commission shall close the proceedings and shall draw up a report noting that party’s failure to appear or participate.
ARTICLE 35
Except as the parties to the dispute shall otherwise agree, neither party to a conciliation proceedings shall be entitled in any other proceeding, whether before
ARBITRATION [CAP. 387. 65
arbitrators or in a court of law or otherwise, to invoke or rely on any views expressed or statements or admissions or offers of settlement made by the other party in the conciliation proceedings, or the report or any recommendations made by the Commission.
CHAPTER IV
ARBITRATION
SECTION 1
Request for Arbitration
ARTICLE 36
(1) Any Contracting State or any national of a Contracting State wishing to institute arbitration proceedings shall address a request to that effect in writing to the Secretary-General who shall send a copy of the request to the other party.
(2) The request shall contain information concerning the issues in dispute, the identity of the parties and their consent to arbitration in accordance with the rules of procedure for the institution of conciliation and arbitration proceedings.
(3) The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register.
SECTION 2
Constitution of the Tribunal
ARTICLE 37
(1) The Arbitral Tribunal (hereinafter called the Tribunal) shall be constituted as soon as possible after registration of a request pursuant to Article 36.
(2) (a) The Tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree.
(b) Where the parties do not agree upon the number of arbitrators and the method of their appointment, the Tribunal shall consist of three arbitrators, one arbitrator appointed by each party and the third, who shall be the president of the Tribunal, appointed by agreement of the parties.
ARTICLE 38
If the Tribunal shall not have been constituted within 90 days after notice of registration of the request has been dispatched by the Secretary-General in accordance with paragraph (3) of Article 36, or such other period as the parties may agree, the Chairman shall, at the request of either party and after consulting both parties as far as possible, appoint the arbitrator or arbitrators not yet appointed.
66 CAP. 387.] ARBITRATION
Arbitrators appointed by the Chairman pursuant to this Article shall not be nationals of the Contracting State party to the dispute or of the Contracting State whose national is a party to the dispute.
ARTICLE 39
The majority of the arbitrators shall be nationals of States other than the Contracting State party to the dispute and the Contracting State whose national is a party to the dispute; provided, however, that the foregoing provisions of this Article shall not apply if the sole arbitrator or each individual member of the Tribunal has been appointed by agreement of the parties.
ARTICLE 40
(1) Arbitrators may be appointed from outside the Panel of Arbitrators, except in the case of appointments by the Chairman pursuant to Article 38.
(2) Arbitrators appointed from outside the Panel of Arbitrators shall possess the qualities stated in paragraph (1) of Article 14.
SECTION 3
Powers and Functions of the Tribunal
ARTICLE 41
(1) The Tribunal shall be the judge of its own competence. (2) Any objection by a party to the dispute that is not within the jurisdiction of
the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute.
ARTICLE 42
(1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable.
(2) The Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law.
(3) The provisions of paragraphs (1) and (2) shall not prejudice the power of the Tribunal to decide a dispute ex aequo et bono if the parties so agree.
ARTICLE 43
Except as the parties otherwise agree, the Tribunal may, if it deems it necessary at any state of the proceedings:
(a) call upon the parties to produce documents or other evidence, and (b) visit the scene connected with the dispute, and conduct such enquiries
ARBITRATION [CAP. 387. 67
there as it may deem appropriate.
ARTICLE 44
Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.
ARTICLE 45
(1) Failure of a party to appear or to present his case shall not be deemed an admission of the other party’s assertions.
(2) If a party fails to appear or to present his case at any stage of the proceedings the other party may request the Tribunal to deal with the questions submitted to it and to render an award. Before rendering an award, the Tribunal shall notify, and grant a period of grace to, the party failing to appear or to present its case, unless it is satisfied that party does not intend to do so.
ARTICLE 46
Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counter-claims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.
ARTICLE 47
Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.
SECTION 4
The Award
ARTICLE 48
(1) The Tribunal shall decide questions by a majority of the votes of all its members.
(2) The award of the Tribunal shall be in writing and shall be signed by the members of the Tribunal who voted for it.
(3) The award shall deal with every question submitted to the Tribunal, and shall state the reasons upon which it is based.
(4) Any member of the Tribunal may attach his individual opinion to the award, whether he dissents from the majority or not, or a statement of his dissent.
(5) The Centre shall not publish the award without the consent of the parties.
68 CAP. 387.] ARBITRATION
ARTICLE 49
(1) The Secretary-General shall promptly dispatch certified copies of the award to the parties. The award shall be deemed to have been rendered on the date on which the certified copies were dispatched.
(2) The Tribunal upon the request of a party made within 45 days after the date on which the award was rendered may after notice to the other party decide any question which it had omitted to decide in the award and shall rectify any clerical, arithmetical or similar error in the award. Its decision shall become part of the award and shall be notified to the parties in the same manner as the award. The periods of time provided for under paragraph (2) of Article 51 and paragraph (2) of Article 52 shall run from the date on which the decision was rendered.
SECTION 5
Interpretation, Revision and Annulment of the Award
ARTICLE 50
(1) If any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award by an application in writing addressed to the Secretary-General.
(2) The request shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible, a new Tribunal shall be constituted in accordance with Section 2 of this Chapter. The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision.
ARTICLE 51
(1) Either party may request revision of the award by an application in writing addressed to the Secretary-General on the ground of discovery of some fact of such a nature as decisively to effect the award, provided that when the award was rendered that fact was unknown to the Tribunal and to the applicant and that the applicant’s ignorance of that fact was not due to negligence.
(2) The application shall be made within 90 days after the discovery of such fact and in any event within three years after the date on which the award was rendered.
(3) The request shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible, a new Tribunal shall be constituted in accordance with Section 2 of this Chapter.
(4) The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests stay of enforcement of the award in his appl icat ion, enforcement shal l be s tayed provisionally until the Tribunal rules on such request.
ARTICLE 52
(1) Either party may request annulment of the award by an application in writing to the Secretary-General on one or more of the following grounds:
(a) that the Tribunal was not properly constituted;
ARBITRATION [CAP. 387. 69
(b) that the Tribunal had manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of
procedure; or (e) that the award has failed to state the reasons on which it is based.
(2) The application shall be made within 120 days after the date on which the award was rendered except that when annulment is requested on the ground of corruption such application shall be made within 120 days after discovery of the corruption and in any event within three years after the date on which the award was rendered.
(3) On receipt of the request the Chairman shall forthwith appoint from the Panel of Arbitrators an ad hoc Committee of three persons. None of the members of the Committee shall have been a member of the Tribunal which rendered the award, shall be of the same nationality as any such member, shall be a national of the State party to the dispute or of the State whose national is a party to the dispute, shall have been designated to the Panel of Arbitrators by either of those States, or shall have acted as a conciliator in the same dispute. The Committee shall have the authority to annul the award or any part thereof on any of the grounds set forth in paragraph (1).
(4) The provisions of Articles 41 - 45, 48, 49, 53 and 54, and of Chapters VI and VII shall apply mutatis mutandis to proceedings before the Committee.
(5) The Committee may, if it considers that circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his appl icat ion, enforcement shal l be s tayed provisionally until the Committee rules on such request.
(6) If the award is annulled the dispute shall, at the request of either party, be submitted to a new Tribunal constituted in accordance with Section 2 of this Chapter.
SECTION 6
Recognition and Enforcement of the Award
ARTICLE 53
(1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention.
(2) For the purposes of this Section, "award" shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52.
ARTICLE 54
(1) Each Contracting State shall recognise an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgement of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgement of the courts of a constituent state.
70 CAP. 387.] ARBITRATION
(2) A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.
(3) Execution of the award shall be governed by the laws concerning the execution of judgements in force in the State in whose territories such execution is sought.
ARTICLE 55
Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.
CHAPTER V
REPLACEMENT AND DISQUALIFICATION OF CONCILIATORS AND ARBITRATORS
ARTICLE 56
(1) After a Commission or a Tribunal has been constituted and proceedings have begun, its composition shall remain unchanged; provided, however, that if a conciliator or an arbitrator should die, become incapacitated, or resign, the resulting vacancy shall be filled in accordance with the provisions of Section 2 of Chapter III or Section 2 of Chapter IV.
(2) A member of the Commission or Tribunal shall continue to serve in that capacity notwithstanding that he shall have ceased to be a member of the Panel.
(3) If a conciliator or an arbitrator appointed by a party shall have resigned without the consent of the Commission or Tribunal of which he was a member, the Chairman shall appoint a person from the appropriate Panel to fill the resulting vacancy.
ARTICLE 57
A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14. A party to arbitration proceedings may, in addition, propose the disqualification of an arbitrator on the ground that he was ineligible for appointment to the Tribunal under Section 2 of Chapter IV.
ARTICLE 58
The decision on any proposal to disqualify a conciliator or arbitrator shall be taken by the other members of the Commission or Tribunal as the case may be, provided that where those members are equally divided, or in the case of a proposal to disqualify a sole conciliator or arbitrator, or a majority of the conciliators or
ARBITRATION [CAP. 387. 71
arbitrators, the Chairman shall take that decision. If it is decided that the proposal is well-founded the conciliator or arbitrator to whom the decision relates shall be replaced in accordance with the provisions of Section 2 of Chapter III or Section 2 of Chapter IV.
CHAPTER VI
COST OF PROCEEDINGS
ARTICLE 59
The charges payable by the parties for the use of the facilities of the Centre shall be determined by the Secretary-General in accordance with the regulations adopted by the Administrative Council.
ARTICLE 60
(1) Each Commission and each Tribunal shall determine the fees and expenses of its members within limits established from time to time by the Administrative Council and after consultation with the Secretary-General.
(2) Nothing in paragraph (1) shall preclude the parties from agreeing in advance with the Commission or Tribunal concerned upon the fees and expenses of its members.
ARTICLE 61
(1) In the case of conciliation proceedings the fees and expenses of members of the Commission as well as the charges for the use of the facilities of the Centre, shall be borne equally by the parties. Each party shall bear any other expenses it incurs in connection with the proceedings.
(2) In the case of arbitration proceedings the Tribunal shall, except as the parties otherwise agree, assess the expenses incurred by the parties in connection with the proceedings, and shall decide how and by whom those expenses, the fees and expenses of the members of the Tribunal and the charges for the use of the facilities of the Centre shall be paid. Such decision shall form part of the award.
CHAPTER VII
PLACE OF PROCEEDINGS
ARTICLE 62
Conciliation and arbitration proceedings shall be held at the seat of the Centre except as hereinafter provided.
ARTICLE 63
Conciliation and arbitration proceedings may be held, if the parties so agree,
72 CAP. 387.] ARBITRATION
(a) at the seat of the Permanent Court of Arbitration or of any other appropriate institution, whether private or public, with which the Centre may make arrangements for that purpose; or
(b) at any other place approved by the Commission or Tribunal after consultation with the Secretary-General.
CHAPTER VIII
DISPUTES BETWEEN CONTRACTING STATES
ARTICLE 64
Any dispute arising between Contracting States concerning the interpretation or application of this Convention which is not settled by negotiation shall be referred to the International Court of Justice by the application of any party to such dispute, unless the States concerned agree to another method of settlement.
CHAPTER IX
AMENDMENT
ARTICLE 65
Any Contracting State may propose amendment of this Convention. The text of a proposed amendment shall be communicated to the Secretary-General not less than 90 days prior to the meeting of the Administrative Council at which such amendment is to be considered and shall forthwith be transmitted by him to all the members of the Administrative Council.
ARTICLE 66
(1) If the Administrative Council shall so decide by a majority of two-thirds of its members, the proposed amendment shall be circulated to all Contracting States for ratification, acceptance or approval. Each amendment shall enter into force 30 days after dispatch by the depository of this Convention of a notification to Contracting States that all Contracting States have ratified, accepted or approved the amendment.
(2) No amendment shall affect the rights and obligations under this Convention of any Contracting State or of any of its constituent subdivisions or agencies, or of any national of such State arising out of consent to the jurisdiction of the Centre given before the date of entry into force of the amendment.
ARBITRATION [CAP. 387. 73
CHAPTER X
FINAL PROVISIONS
ARTICLE 67
This Convention shall be open for signature on behalf of States members of the Bank. It shall also be open for signature on behalf of any other State which is a party to the Statute of the International Court of Justice and which the Administrative Council, by a vote of two-thirds of its members, shall have invited to sign the Convention.
ARTICLE 68
(1) This Convention shall be subject to ratification, acceptance or approval by the signatory States in accordance with their respective constitutional procedures.
(2) This Convention shall enter into force 30 days after the date of deposit of the twentieth instrument of ratification, acceptance or approval. It shall enter into force for each State which subsequently deposits its instrument of ratification, acceptance or approval 30 days after the date of such deposit.
ARTICLE 69
Each Contracting State shall take legislative or other measures as may be necessary for making the provisions of this Convention effective in its territories.
ARTICLE 70
This Convention shall apply to all territories for whose international relations a Contracting State is responsible, except those which are excluded by such State by written notice to the depository of this Convention either at the time of ratification, acceptance or approval or subsequently.
ARTICLE 71
Any Contracting State may denounce this Convention by written notice to the depository of this Convention. The denunciation shall take effect six months after receipt of such notice.
ARTICLE 72
Notice by a Contracting State pursuant to Article 70 or 71 shall not affect the rights or obligations under this Convention of that State or of any of its constituent subdivisions or agencies or of any national of that State arising out of consent to the jurisdiction of the Centre given by one of them before such notice was received by the depository.
ARTICLE 73
Instruments of ratification, acceptance or approval of this Convention and of
74 CAP. 387.] ARBITRATION
amendments thereto shall be deposited with the Bank which shall act as the depository of this Convention. The depository shall transmit certified copies of this Convention to States members of the Bank and to any other State invited to sign the Convention.
ARTICLE 74
The depository shall register this Convention with the Secretariat of the United Nations in accordance with Article 102 of the Charter of the United Nations and the Regulations thereunder adopted by the General Assembly.
ARTICLE 75
The depository shall notify all signatory States of the following: (a) signatures in accordance with Article 67; (b) deposits of instruments of ratification, acceptance and approval in
accordance with Article 73; (c) the date on which this Convention enters into force in accordance with
Article 68; (d) exclusions from territorial application pursuant to Article 70; (e) the date on which any amendment of this Convention enters into force
in accordance with Article 66; and (f) denunciation in accordance with Article 71.
DONE at Washington in the English, French and Spanish languages, all three texts being equally authentic, in a single copy which shall remain deposited in the archives of the International Bank for Reconstruction and Development, which has indicated by its signature below its agreement to fulfil the functions with which it is charged under this Convention.
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Mandatory Arbitration The disputes hereunder stated in Part A shall be settled by arbitration and
shall be referred to arbitration under the rules stated in Part B in addition to such rules as may be issued by the Centre from time to time.
Part A 1.1 Condominium Disputes.
All disputes regarding a condominium which according to the Condominium Act (Cap. 398) are to be submitted to for arbitration.
1.2 Motor Traffic Disputes Any civil or commercial disputes, not being one in connection with a claim
for damages for personal injuries, being a dispute arising from: (a) any collision between vehicles, or (b) any involuntary damage to property involving vehicles, or (c) any such claim against an authorized insurer, an assurance company, an
underwriter approved by the Minister responsible for transport or other person who in accordance with the Motor Vehicles Insurance (Third- Party Risks) Ordinance (Cap. 104) or any policy of insurance may be liable therefor, and
(d) the value whereof does not exceed eleven thousand and six hundred and forty-six euro and eighty-seven cents (11,646.87).
1.3 Disputes connected with electricity and water services All disputes arising from the supply of electricity, electrical meter rent or any
other service provided by the distribution system operator, and any dispute related to water services, without prejudice, where applicable, to the provisions of article 466 of the Code of Organization and Civil Procedure, to the provisions of to the provisions of the Enemalta (Transfer of Assets, Rights, Liabilities and Obligations) Act and the Water Services Corporation Act, and to the provisions of the Electricity Supply Regulations and the Water Supply Regulations:
Provided that consumers will be entitled to file their claims against the distribution system operator or the Water Services Corporation, as the case may be, in terms of the procedure established by this Act:
Provided further that notwithstanding the provisions of any other law other than the Consumer Affairs Act or any regulations made thereunder in so far as such laws deal with the resolution, however so described, of any consumer disputes, and without prejudice to pending cases, the Arbitration Tribunal shall have exclusive jurisdiction
FOURTH SCHEDULE Added by: IX. 2004.26. Amended by: L.N. 420 of 2004; L.N. 7 of 2005; L.N. 279 of 2005; XXII. 2005.94; L.N. 165 of 2006; L.N. 166 of 2006; L.N. 425 of 2007; IX. 2010.15; L.N. 244 of 2012; L.N. 149 of 2015; XXX. 2015.7.
(Article 15)
76 CAP. 387.] ARBITRATION
over these cases. 1.4 Paying Agency Disputes
All disputes arising from claims made to the Paying Agency which, according to regulation 13 of the Paying Agency Regulations, are to be submitted to arbitration.
Part B 1. The arbitration, being domestic arbitration, shall be governed by Part IV of
the Act. 2. The arbitral tribunal shall be composed of one arbitrator unless the parties
agree that it shall be composed of three arbitrators and notify the Centre within thirty days of the receipt by the respondent of the notice of arbitration;
3. The sole arbitrator, or any of the members of the arbitral tribunal when it is composed of three arbitrators, shall be appointed by the Chairman of the Centre in accordance with the provisions of the Act unless the Centre is notified of the appointment of an arbitral tribunal within thirty days of the receipt by the respondent of the notice of arbitration:
Provided that the Chairman of the Centre shall not appoint as sole arbitrator or as a member of the arbitral tribunal, when it is composed of three arbitrators, any person who is appointed as an arbitrator in ten or more pending arbitrations.
4. Unless the parties expressly agree otherwise, there shall be a right of appeal from a final award as provided in article 15(11A);
5. The rules on confidentiality, including those stated in articles 37 and 70 of the Act shall not apply to mandatory arbitrations unless the parties expressly agree to such rules and notify the arbitrator and the Centre accordingly;
6. The award shall be deemed to have been received by the parties on the date when it is delivered in open tribunal;
7. The provisions of Title IX of Book First and of Title XI of Book Third of the Code of Organization and Civil Procedure and any other provision of that Code relating to curators, shall mutatis mutandis apply to the disputes referred to in this Schedule;
8. The provisions of Title XIV of Book Third of the Code of Organization and Civil Procedure and any other provision of that Code relating to the intervention and joinder of parties to a suit, shall apply mutatis mutandis to the disputes referred to in this Schedule.
9. The arbitral tribunal shall establish the days and times when sittings shall be held:
Provided that the arbitral tribunal shall appoint the first sitting for hearing within one month from receipt by the arbitral tribunal of the documentation relating to the dispute.
10. (1) The arbitral tribunal shall deliver the award within two months from the date that proceedings are declared closed.
(2) In the event that the arbitral tribunal fails to deliver its award as aforesaid, any party to the proceedings may request the Chairman of the Centre to withdraw the appointment of the arbitral tribunal by means of an application in writing.
(3) The decision on the withdrawal will be made by the Chairman of the Centre,
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and his decision shall be final and binding. (4) The decision of the Chairman to withdraw the appointment of the arbitral
tribunal shall be served on the arbitral tribunal, on the parties and on the Registrar. (5) Where the Chairman upholds a request for the withdrawal of the
appointment of the arbitral tribunal as aforesaid, the Chairman shall appoint another arbitral tribunal in its stead without delay.
(6) Upon notification of such withdrawal, the arbitral tribunal shall immediately, and in any case not later than ten days from the date of notification, deliver to the Registrar all documentation and all evidence relative to the dispute, failing which disciplinary action shall be taken in accordance with rule 72(6) of the Arbitration Rules.
11. (1) Where either party informs the arbitral tribunal that an action in respect of the same subject-matter and between the same parties has been brought before the court, the arbitral tribunal shall suspend the arbitration proceedings until such time as a judgment is given by the court in the said action.
(2) The arbitral tribunal shall be bound by, and act according to, the judgment delivered by the court on the same subject-matter and between the same parties, that may be notified to it by either party.
12. If two or more disputes on the same subject-matter are referred to arbitration, the Chairman may, upon the application of either party, order that the disputes are heard by the same arbitral tribunal.
13. The Arbitration Rules shall apply to disputes under this Schedule except to the extent modified by the rules contained in this Part.