Regulations, 2004

L.N. 304 of 2004

ARBITRATION ACT

(CAP. 387)

Arbitration Act (Substitution of Second Schedule)

Regulations, 2004

IN EXERCISE of the powers conferred by sub-article (2) of

article 74 of the Arbitration Act, the Deputy Prime Minister and

Minister for Justice and Home Affairs has made the following

regulations>

The title of these regulations is the Arbitration Act Title.

(Substitution of Second Schedule) Regulations, 2004, and they shall

be read and construed as one with the Second Schedule to the

Arbitration Act, hereinafter referred to as “the Second Schedule”.

For the Second Schedule there shall be substituted the Substitutes the

Second Schedule.

following>

“SECOND SCHEDULE

Part I

PROTOCOL ON ARBITRATION CLAUSES

(GENEVA 1923)

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 relating to existing 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 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 I hereof are fulfilled,

recognition and enforcement of the award shall be refused if the Court

is satisfied>

(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.

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 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.

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<

(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

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 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

l. 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

l. 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

l. 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.

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.”

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press