14th April 2020
UPDATE: Legal Notice 97 of 2020, entitled ‘Closure of the Courts of Justice (Amendment) Order, 2020’ has been published in recent days in an attempt to clarify the uncertainty surrounding the original Order. The definition “court” has now been substituted with the term “designated court” and has been specifically defined to include any court, board, commission, committee, tribunal or other entity which operates from the building of the Courts of Justice, specifically (a) the Industrial Tribunal; (b) the Employment Commission; (c) the Committee of Inquiry (Deprivation of Citizenship); (d) the Partition of Inheritances Tribunal; and (e) the Information and Data Protection Appeals Tribunal. The Malta Arbitration Centre is, thus, clearly excluded, notwithstanding the fact that a significant number of arbitral proceedings are in fact heard within the main building of the Maltese Courts of Justice in Valletta, while others are heard at the Malta Arbitration Centre building.
Interestingly, the Amendment Order also includes a new article which states that any time-limit for the filing of any acts before the court (as opposed to a “designated court”), but following the conclusion of any proceedings before any tribunal, board, commission, committee or other entity which does not operate from the building of the Courts of Justice, shall be suspended for a period of twenty (20) days from the lifting of this Order by the Superintendent.
While the use of the term ‘court’ here could arguably also comprise tribunals, boards, commissions, committees or other entities which do not operate from the building of the Courts of Justice, this new article seems to refer merely to appeals which are to be filed following the conclusion of any proceedings heard before an adjudicating entity, whether or not it operates from the building of the Courts of Justice, including, presumably, the Malta Arbitration Centre.
Therefore, this Amendment Order has not directly addressed the uncertainty surrounding the applicability or otherwise of the original Order insofar as the suspension of time limits in Arbitration Proceedings is concerned, but it is now even more evident that the Legal Notices in question were not intended to apply to Arbitration Proceedings and thus all time limits still stand and are to be adhered to.
Legal Notice 65 of 2020, entitled ‘Closure of the Courts of Justice Order, 2020’ and Legal Notice 61 of 2020, entitled ‘Epidemics and Infectious Disease (Suspension of Legal and Judicial Times) Order, 2020’, were published in recent days to suspend all court activity, including the filing of judicial acts in the court registry, barring urgent cases or cases where the court, upon a request by one of the parties, decides otherwise, purportedly applies to all “courts”.
The said Legal Notices refer to the closure of and the running of legal and judicial times applicable to proceedings before the ‘courts’. The term “courts” is defined to include “any court […] and also includes any tribunal established by law, and any boards, commissions, committees or other entities before which any proceedings are heard or procedures undertaken which are subject to legal or administrative time limits for filing any claims, defences or other acts”.
Questions have been raised as to whether the above applies to arbitration proceedings held under the auspices of the Malta Arbitration Centre. The said Centre is vested with the functions as set out by the Malta Arbitration Act (the Act), with its main function being that of encouraging and facilitating the settlement of disputes through arbitration in Malta. To conclude that the Legal Notices apply to arbitration proceedings, one would necessarily need to assume that the Centre or any panel of arbitrators established in terms of the Act qualifies as “a tribunal established by law” or an “entity before which any proceedings are heard or procedures undertaken which are subject to legal or administrative time limits for filing any claims, defences or other acts”.
With regard to the Centre, according to Article 3 of the Arbitration Act, the Centre is considered to be an autonomous body corporate having a distinct legal personality and having the capacity to do all such things and to enter into all such transactions as are incidental or conducive to the exercise or performance of its functions under the Act. It is doubtful, therefore, whether the Centre can be legally deemed to be an entity before which proceedings are heard or procedures undertaken, for the purposes of the Legal Notices.
On the other hand, the Act defines an arbitrator or a number of arbitrators appointed to determine a dispute as an arbitral “tribunal” although, arguably, an arbitral tribunal is set up by agreement between the parties to an arbitration agreement and not “established by law” as required in terms of the Legal Notices. Some doubt, therefore, does remain as to the applicability of the Legal Notices to arbitration proceedings.
Notably, the Centre has recently published a notice on its official website stating the following:
Due to precautionary measures undertaken by the MAC regarding COVID-19, please note that until further notice:
Submissions (incl. Summons of Witnesses Forms) are to be posted or sent by e-mail.
Payments will be accepted by cheque or by bank transfer. All payments/submissions will be acknowledged and receipts will be sent by mail.
No sittings will be held at the Centre’s premises.
Article 10(2) of the Act, empowers the Centre, through its Board, to make rules to be published in the Government Gazette providing for, inter alia, the procedure for arbitrations, therefore including the suspension of proceedings and corresponding time limits. As of today, no official notice has been published in the Government Gazette and therefore, the legal effect of this notice published on the Centre’s website is unclear, not to mention the fact that the said notice does not mention any suspension of time limits. Indeed, it states that all submissions are to be filed electronically or sent through the post, with payments to be made by cheque or bank transfer, therefore implying that time limits continue to run as usual, and in turn clashing with the position adopted by the Legal Notices.
In the circumstances, and until further clarifications are made, it would be advisable to err on the side of caution and to consider that all time-limits insofar as arbitration proceedings are concerned, to be active and in force as per usual. Needless to say, clarification of this issue by means of appropriate legislative intervention would be welcomed.
© Fenech & Fenech Advocates 2020
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