| CODE | PBL5009 | ||||||
| TITLE | Arbitration | ||||||
| UM LEVEL | 05 - Postgraduate Modular Diploma or Degree Course | ||||||
| MQF LEVEL | Not Applicable | ||||||
| ECTS CREDITS | 2 | ||||||
| DEPARTMENT | Public Law | ||||||
| DESCRIPTION | The study-unit arbitration consists of a detailed review of the Arbitration Act, 1996 and regulations issued thereunder in relation to domestic and international arbitration, including filing an arbitration, choice of arbitrators, the procedures, the award, appeals and recourse and registration of awards. The Model law on international arbitration and the Geneva and New York Conventions will also be reviewed. The role of the Malta Arbitration Centre and the practical issues which arise in the process of arbitration will be analyzed in the light of the historical developments in the area of law which have taken place. Learning Outcomes: - By the end of this study-unit students will have become familiar with the basic concepts of domestic and international commercial arbitration. This study-unit will enable students to get a firm understanding of the legal nature of arbitration, the mechanics of domestic and international arbitration proceedings, the application of international instruments for the recognition and enforcement of arbitration awards, the complex interplay between state courts and arbitration tribunal and the relationship between international arbitral practice and the EU acquis on judicial cooperation in civil and commercial matters -This study-unit will help students who intend to practice in dispute resolution to acquire a sound understanding of how domestic and international arbitration proceedings work and will enable them to select the most effective dispute resolution mechanisms in commercial disputes at hand. - For students intending to pursue a career as corporate lawyers or consultants in specialised areas of law as banking and financial services, labour or shipping to name just a few areas, this study-unit provides very useful insights into how to draft effective and enforceable arbitration clauses and how to choose between various seats of arbitration and international arbitration institutions, how to tailor arbitration clauses to individual contracts and what is arbitrable in terms of mandatory rules of law and principles of public policy. Study-Unit Outline 1. Arbitration and other forms of dispute resolution a. Arbitration Compared with Litigation in National Courts; b. Delimitation, Infrastructure, Forms of Arbitration; c. Juridical Nature of Arbitration; - The Jurisdictional Theory - The Contractual Theory - The Mixed or Hybrid Theory - The Autonomous (sui juris) Theory d. Domestic v. International Arbitration; e. The Arbitration Act (1996) – Historical Background and origins. 2. Arbitration agreement and arbitrability a. Agreement: - Purpose and form - Drafting, autonomy/doctrine of separability - Content - Effectiveness. 3. Commencement of arbitration and arbitral procedure, appointment and arbitrators a. Notice of Arbitration; b. Appointment of Arbitrators – by parties/default mechanism; c. Collecting and Presenting Evidence; d. Interim/Conservatory Measures; e. Law applicable to substance and to Procedure; f. Supervisory function/assistance of Courts of Law. 4. Determination of jurisdication and court proceedings a. Kompetenz-Kompetenz; b. Review of Jurisdiction; c. Stay of Court procedures; d. Special Actions to Determine Jurisdiction. 5. Independence and impartiality of arbitrators a. Qualifications, independence and neutrality; b. Immunity of Arbitrators; c. European Case-Law. 6. Multiparty arbitration a. Multi-Contract and Multi-party; b. Consolidation/Joinder of cases. 7. Arbitral awards: Challenge and appeals from domestic awards a. Form of Award; b. Challenge; c. Drafting; d. Award by Consent; e. Appeals. 8. International commercial arbitration a. MAC (Malta); b. LCIA (London); c. ICC (Paris); d. SCC (Stockholm); e. CIETAC (Beijing); f. CAIRO (Cairo). 9. Laws governing international commercial arbitration 10. Recognition and enforcement of arbitral awards a. Rules of Enforcement; b. Grounds for refusal; c. Issues of Public Policy. 11. Specialist arbitration/Arbitration and EU Law a. Construction Arbitration; b. Intellectual Property Disputes; c. Investment Disputes; d. Preliminary References by tribunals to ECJ; e. Arbitrability of Certain areas; f. Relationship with Regulation 44/2001/EC. Reading List: Laws/Rules: - Arbitration Act (1996), Chapter 387 of the Laws of Malta. - UNCITRAL Model Law on International Commercial Arbitration (1985). - 1958 UN Convention on Recognition and Enforcement of Foreign Arbitral Award (New York Convention). - Arbitration Rules (LN 421 of 2004 as subsequently amended). - English Arbitration Act (1996). - UNCITRAL Arbitration Rules (1976). - LCIA Rules of International Arbitration (1998). - ICC Rules of International Arbitration (1998). - International Bar Association (IBA) Rules of Ethics for International Arbitrators. -European Convention on International Commercial Arbitration (1961). - Washington Convention on the Settlement of Investment Disputes Between States and Nationals of Others States (1965/66). Books/Treatises/Journals: Domestic Arbitration: - Max Ganado, Introduction to Maltese Domestic Arbitration Law (June 2002). - Max Ganado, The Malta Arbitration Act (Handbook) – Publication by the Malta Arbitration Centre. - Patricia Mallia, A Review of the Malta Arbitration Act 1996 (LL.D. Thesis 1999). - Fiona Farrugia, The Arbitration Amendment Act of 1999: A commentary [LL.D. Thesis (2002)]. - Ian Castaldi Paris, The Development of Maltese Arbitration Law, 1850 to 2003 [LL.D. Thesis (2003)]. - Angele Debono, Part V of Act II of 1996 – International Commercial Arbitration in Malta [LL.D. Thesis (2003)]. - Guidelines for Arbitrators – Publication by the Malta Arbitration Centre. - Newsletter of the Malta Arbitration Centre. International Arbitration: - Fouchard, Gaillard, Goldman on International Commercial Arbitration (ed. By Emmaule Gaillard and John Savage), Kluwer Law International 1999. - Julian D M Lew, Loukas Mistelis Stefan Kröll, Comparative International Commercial Arbitration, (Kluwer Law International), June 2003. - W. Lawrence Craig, William W Park and Jan Paulsson, Annotated Guide to the 1998 ICC Arbitration Rules with Commentary, (Oceana) 1998. - W. Lawrence Craig, William W Park and Jan Paulsson, International Chamber of Commerce Arbitration, (Oceana) 2001. - Alan Redfern and Martin Hunter The Law and Practice of International Commercial Arbitration (Sweet&Maxwell 4th Revised Student Edition) 2004. - Journal of International Arbitration (J Int’l Arb) (Werner & Sieber, Switzerland), in English. - RevA: Revue de l’Arbitrage, Comité Française de l’arbitrage, in French. - Arbitration, Chartered Insitute of Arbitrators, London, in English. |
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| STUDY-UNIT TYPE | Lecture | ||||||
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| LECTURER/S | Antoine Cremona |
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The University makes every effort to ensure that the published Courses Plans, Programmes of Study and Study-Unit information are complete and up-to-date at the time of publication. The University reserves the right to make changes in case errors are detected after publication.
The availability of optional units may be subject to timetabling constraints. Units not attracting a sufficient number of registrations may be withdrawn without notice. It should be noted that all the information in the description above applies to study-units available during the academic year 2023/4. It may be subject to change in subsequent years. |
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