Dispute resolution under the condominium act with particular emphasis on the constitutionality of mandatory arbitration

Abstract

Whereas arbitration has been traditionally understood to be a form of dispute resolution chosen voluntarily, as an alternative to court litigation, by the parties involved in a dispute, the spread of mandatory arbitration may have not only challenged but even reshaped this idea. Such a phenomenon entails the imposition of arbitration on the parties, thus excluding the possibility of taking the dispute to court. Naturally enough, this seems to contradict the nature of the institute itself, as the latter was primarily conceived as a way of giving the parties a choice. Locally, mandatory arbitration has left its mark on a number of sectors. One of these is the law of condominia, particularly the sphere of condominium disputes. The Condominium Act states that where it is so stipulated in the Act, the parties to a condominium dispute are deemed to have agreed to refer the matter to arbitration. This thesis explores the various types of disputes within a condominium and the different outlooks on the mandatory referral to arbitration. In this respect, significant results were attained thanks to interviews that were held with the Registrar of the Malta Arbitration Centre, condominium administrators as well as the director of a condominium administration company. Additionally, a survey was also conducted among a group of condomini. More importantly, our Constitution and the European Convention of Human Rights provide for the right to a fair hearing before an independent and impartial adjudicating authority. Through the study of local judgments, this thesis examines whether or not the arbitral tribunal, as incorporated within the scope of mandatory arbitration, offers sufficient guarantees in order to ensure that this fundamental human right is protected. Ultimately, even though the courts have not always adopted this line of thought, the conclusion is that mandatory arbitration does not appear to be unconstitutional.