Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Malta

I. Sources of private international law

Maltese private international law is composed of a hybrid of sources, which together regulate the three principal facets of this area of law: the international jurisdiction of the Maltese courts, the law applicable to a claim or juridical relation having an international element and the recognition and enforcement of foreign judgments. This area of law is fragmented since Maltese private international law was never comprehensively codified by an Act of Parliament. Some specific rules relating to particular matters could be found in some Maltese enactments, most notably the rules in the Maltese Code of Organization and Civil Procedure (Chapter 12 of the Laws of Malta) (henceforth COCP) regulating the international jurisdiction of the Maltese courts and the circumstances in which foreign judgments are to be recognized and enforced. Not many legal provisions could be found in the area of applicable law, although some rules may be found in particular enactments such as the Maltese Civil Code (Chapter 16 of the Laws of Malta), the Marriage Act (Chapter 255 of the Laws of Malta) and the Consumer Affairs Act (Chapter 378 of the Laws of Malta). In the absence of specific Maltese legislative provisions designating the lex causae, the Maltese courts have applied the conflict-of-law rules of English common law. Indeed, traditionally, English common law was considered to be a very important source of Maltese private international law. Today, much of the gaps in Maltese law have been filled by the regulations of the EU, making English common law less important, although the traditional sources of Maltese private international law continue to be relevant in the limited areas which are still not subject to EU legislation.

Maltese private international law has changed significantly following Malta’s accession to the EU in 2004. Developments at the European level following the EU’s acquired competence in the field of private international law have made European law the most important source of Maltese private international law, leading to a decline in any interest possibly to codify and modernize this area of law by means of a single enactment. Most of the rules in the field of private international law now emerge from directly applicable EU regulations, most notably the Brussels I Regulation (recast) and the →Brussels IIa Regulation dealing with jurisdiction and the recognition and enforcement of judgments, the Rome I Regulation and the Rome II Regulation covering applicable law in contractual and non-contractual obligations, respectively, the Rome III Regulation, the Maintenance Regulation, the Insolvency Regulation, and more recently the Succession Regulation. Within their sphere of application, these European regulations supersede Maltese rules of private international law in accordance with the principle of supremacy of EU law. Where, however, there is still no EU legislation harmonizing the conflict-of-law rules of the Member States, reference must be made to national law and, where relevant, the rules of English common law. In areas subject to EU regulation, the EU has also acquired exclusive external competence as established by the European Court of Justice in Opinion 1/03 of 7 February 2006 ([2006] ECR I-01145) concerning the conclusion by the EC of the 2007 →Lugano Convention.

Malta is also bound by a number of international conventions having a private international law character. In Malta, international conventions are not directly enforceable except by means of an Act of Parliament as stated in the Maltese Ratification of Treaties Act (Chapter 304 of the Laws of Malta). The most important conventions on private international law are those adopted through the →Hague Conference on Private International Law, such as the 1996 Hague Child Protection Convention (Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, 35 ILM 1391) incorporated into Maltese law by means of the Protection of Children (Hague Convention) Act (Chapter 507 of the Laws of Malta), the 1980 Hague Child p. 1Abduction Convention (Hague Convention of 25 October 1980 on the civil aspects of international child abduction, 1343 UNTS 89) incorporated by means of the Child Abduction and Custody Act (Chapter 410 of the Laws of Malta) and three other conventions in the Legal Procedures (Ratification of Conventions) Act: the Hague Service Convention (Hague Convention of 15 November 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters, 658 UNTS 163), the Hague Evidence Convention (Hague Convention of 18 March 1970 on the taking of evidence abroad in civil or commercial matters, 847 UNTS 241) and the Hague Access to Justice Convention (Hague Convention of 25 October 1980 on international access to justice, 1510 UNTS 375).

There is no doctrine of precedent in Malta, and therefore the judgments of the Maltese courts have persuasive value only. Not much has been written on Maltese private international law. There is, thus, a lack of doctrinal writings on national provisions, but in areas where English common law has been made applicable by the Maltese courts, reference is frequently made not only to the case-law of the English courts, but also to authoritative English commentators. The judgments of the European Court of Justice are of course important sources of interpretation of the European regulations, and in numerous instances they supplement the rules provided in the regulations themselves (→Interpretation, autonomous).

II. The international jurisdiction of the Maltese courts

1. Sphere of application of the Maltese rules on jurisdiction

The civil jurisdiction of the Maltese courts is regulated by Sub-Title III of Title II of the COCP. According to art 741(a) COCP, it shall be lawful to plead to the jurisdiction of the court when the action is not one within the jurisdiction of the courts of Malta. Article 742 COCP deals with actions in personam, while arts 742B to 742E COCP deal with actions in rem. Article 742(6) COCP expressly provides that where provision is made in any EU regulation, the provisions of Maltese law shall not apply and shall only apply to matters to which the European provisions do not apply. The traditional Maltese rules on jurisdiction therefore apply where the claim in question falls outside the scope of the European regulations, the most important being the Brussels I Regulation, replaced by the Brussels I Regulation (recast) with effect from 10 January 2015, dealing with the jurisdiction of the courts of the Member States in ‘civil and commercial matters’, an important definitional term, which sets the outer boundaries of the European norms. European rules on jurisdiction also exist for disputes concerning matrimonial matters and matters of parental responsibility, →maintenance obligations, cross-border insolvencies, and with effect from 17 August 2015, disputes relating to succession.

The traditional rules of Maltese law are also applicable to matters falling within the scope of the regulations, where the regulations themselves require the application of Maltese jurisdictional rules. In this respect, it is important to note that art 6 of the Brussels I Regulation (recast) provides that ‘if the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to art 18(1), art 21(2) and arts 24 and 25, be determined by the law of that Member State’. Thus, subject to the said exceptions, the Brussels I Regulation (recast) requires the court to apply Maltese law on jurisdiction where the claim is a civil and commercial matter and thus within the scope of the regulation, but the defendant is not domiciled in a Member State. While there is a uniform definition of domicile (→Domicile, habitual residence and establishment) for legal persons in art 63 of the regulation, the question whether a natural person is or is not domiciled in Malta is to be determined by Maltese law as stated in art 62. As in the case of art 6 of the Brussels I Regulation (recast), Maltese rules on jurisdiction may also be applicable pursuant to art 7(1) of the Brussels IIa Regulation, which provides that ‘where no court of a Member State has jurisdiction pursuant to arts 3, 4 and 5, jurisdiction shall be determined, in each Member State, by the laws of that state’.

2. Actions in personam

Article 742(1) COCP deals with the persons subject to the jurisdiction of the Maltese courts. Subject to the power of the court to stay proceedings or declare a defendant non-suited in accordance with art 742(2) COCP, which deals with the situation where a foreign court has concurrent jurisdiction, art 742(1) COCP provides that the civil courts of Malta shall have p. 1jurisdiction to try and determine all actions, without any distinction or privilege, concerning the persons hereinafter mentioned.

  1. Citizens of Malta, provided they have not fixed their domicile elsewhere.

A citizen of Malta may always be sued in Malta as long as he has not fixed his domicile in another country. Thus, Maltese citizens resident abroad continue to be subject to the jurisdiction of the Maltese courts unless they can show that they have established a domicile in another country. There is rebuttable presumption that citizens of Malta are domiciled in Malta and it is therefore up to the defendant to plead that he has fixed his domicile in another country. In so far as the notion of domicile is concerned, the Maltese courts have interpreted the notion in accordance with English common law.

  1. Any person as long as he is either domiciled or resident or present in Malta.

A defendant may be sued in Malta if he is domiciled in Malta or, since 1995, if he is resident or present in Malta. These grounds are alternative. Hence, it is enough if the defendant is present in Malta, but if he is not actually present when the action is instituted, it is sufficient if he is domiciled or resident in Malta. Citizenship is irrelevant under this ground, but whereas under paragraph (a) the onus is on the Maltese citizen to show that he has established a domicile elsewhere, under paragraph (b), it is the plaintiff who must prove that the non-Maltese defendant is domiciled, resident or present in Malta.

  1. Any person, in matters relating to property situate or existing in Malta.

This ground confers jurisdiction to the Maltese courts over any defendant, if the action relates to property situated or existing in Malta. The →nationality, domicile, residence or presence of the defendant is thus irrelevant. The property may be either movable (→Property and proprietary rights) or immovable, and it could also be of an intangible nature, provided it is located or exists in Malta. For this ground of jurisdiction to apply it is not sufficient that the defendant has property in Malta, since the action must relate to the property itself.

  1. Any person who has contracted any obligation in Malta, but only in regard to actions touching such obligation and provided such person is present in Malta.

This ground confers jurisdiction over persons present in Malta who have contracted an obligation within the territory of Malta with regard to actions touching such obligation. The term obligation is to be interpreted to include obligations arising not only from contract but also from quasi-contract, tort and quasi-tort.

  1. Any person who, having contracted an obligation in some other country, has nevertheless agreed to carry out such obligation in Malta, or who has contracted any obligation which must necessarily be carried into effect in Malta, provided in either case such person is present in Malta.

The elements of this ground of jurisdiction are performance of the obligation in Malta coupled with the presence of the defendant in Malta. It confers jurisdiction over persons present in Malta who have contracted an obligation in another country, which obligation is to be carried out or must necessarily be carried into effect in Malta.

  1. Any person, in regard to any obligation contracted in favour of a citizen or resident of Malta or of a body having a distinct legal personality or association of persons incorporated or operating in Malta, if the judgment can be enforced in Malta.

Under this provision, the Maltese courts have jurisdiction over any person with regard to any dispute concerning an obligation in favour of a citizen of Malta or a resident in Malta or a Maltese company or other legal person incorporated or operating in Malta if the judgment can be enforced in Malta. The defendant need not be domiciled, resident or present in Malta, provided the judgment may be enforced in Malta. Partial enforcement is sufficient, but there must be the existence of movable or →immovable property belonging to the defendant within the territory of Malta rendering possible the execution of the judgment.

  1. Any person who expressly or tacitly voluntarily submits or has agreed to submit to the jurisdiction of the court.

If none of the above grounds confer jurisdiction, the Maltese courts nonetheless have jurisdiction if the defendant submits to their jurisdiction. As regards voluntary submission, this takes place where the defendant enters an p. 1appearance and fails to raise the plea of jurisdiction in limine litis in accordance with the procedural rule as set out in art 741 COCP. In such a case the court cannot raise the plea of jurisdiction of its own motion, since according to art 744 COCP the court may only raise the plea of jurisdiction ex officio if the defendant has either remained contumacious or is an absent defendant. Submission may also take place by agreement where a party has agreed, usually by means of a jurisdiction clause or choice of court agreement, to submit to the jurisdiction of the Maltese courts.

Where the Maltese courts have jurisdiction over the action of the plaintiff, they also have jurisdiction over a counterclaim which the defendant may wish to raise. Article 743 COCP provides that ‘the party against whom the defendant in an action brought by such party sets up a counterclaim shall also be subject to the jurisdiction of the courts of civil jurisdiction’.

Even though a Maltese court may have jurisdiction in terms of art 742(1) COCP, it may stay proceedings or declare a defendant to be non-suited in the situation referred to in art 742(2) COCP. The jurisdiction of the Maltese courts is not excluded by the fact that a foreign court is seized with the same cause or with a cause connected with it, but art 742(2) COCP provides that ‘where a foreign court has a concurrent jurisdiction, the courts may in their discretion declare defendant to be non-suited or stay proceedings on the ground that if an action were to continue in Malta it would be vexatious, oppressive or unjust to the defendant’. Where the court decides to exercise this discretion, the plaintiff would need to have recourse to a foreign court.

The existence of an arbitration clause does not exclude the jurisdiction of the court totally, as the court still retains a residual jurisdiction which it could exercise in appropriate circumstances. Article 742(3) COCP provides that ‘the jurisdiction of the courts of civil jurisdiction is not excluded by the fact that there exists among the parties any arbitration agreement, whether the arbitration proceedings have commenced or not, in which case the court, saving the provisions of any law governing arbitration, shall stay proceedings without prejudice to the provisions of sub-art (4) and to the right of the court to give any order or direction’. The courts of civil jurisdiction are also empowered to issue precautionary acts where the parties have agreed to submit their dispute to arbitration as provided in art 742(4) COCP.

3. Actions in rem

Jurisdiction in actions in rem is dealt with in arts 742B–742F COCP. These provisions contemplate jurisdiction in rem against ships or vessels and aircrafts and they list the types of claims where such jurisdiction may be exercised. Articles 742B, 742C and 742D COCP deal with maritime claims where a ship or other vessel may be sued as defendant. On the other hand, actions in rem against an aircraft may be instituted before the civil courts of Malta in the case of claims falling within the scope of arts 742E and 742F COCP.

4. The attribution of local jurisdiction

As regards the attribution of jurisdiction between the courts of the island of Malta and the courts of the island of Gozo, art 767 COCP provides that parties residing in the island of Malta are given the privilege of being sued in the courts of such island, while parties residing in either of the islands of Gozo and Comino are given the privilege to be sued in the courts of Gozo.

III. Applicable law

1. Substance, procedure and public policy

In so far as the applicable law is concerned, a distinction is to be drawn between matters of →substance and procedure. A foreign applicable law will be applied only to matters of substance. In accordance with the principle forum regit processum, Maltese law enjoys a privileged status on issues which are characterized as matters of procedure. Once an issue is characterized as procedural, Maltese law applies to the issue, a principle which is also recognized by art 1(3) of the Rome I and Rome II Regulations, which exclude the application of the regulations to evidence and procedure. Maltese law also has a privileged status where it is mandatory irrespective of the law otherwise applicable to the dispute or legal relation between the parties. Hence, the fact that the dispute between the parties is governed by a foreign law does not prevent the application of mandatory provisions of Maltese law, a principle which is also stated in art 9(2) p. 1of the Rome I Regulation and art 16 of the Rome II Regulation. An example is art 47A of the Maltese Consumer Affairs Act, which, in implementation of art 6(2) of the Unfair Terms Directive, provides that ‘the provisions of this Part shall apply notwithstanding any term in a consumer contract which applies or purports to apply the law of a non-Member State, if the contract has a close connection with the territory of any Member State’. The effect of this provision is to apply the consumer protective provisions notwithstanding that a →choice of law clause specifies the law of a non-EU country as the law applicable to the contract.

It is also an important principle of Maltese private international law, as well as the Rome I and Rome II Regulations, that the application of a provision of the lex causae may be refused if such application is in breach of the →public policy (ordre public) of Malta. The Maltese courts have held that there is a breach of Maltese public policy only where there is a breach of a juridical or moral principle which is regarded as being fundamental for Maltese society.

2. The traditional conflict-of-law rules of Maltese private international law

As indicated above, some provisions dealing with the identification of the applicable law are found scattered in a number of pieces of Maltese legislation such as art 18 of the Maltese Marriage Act dealing with the validity of →marriage and the provisions in the Maltese Civil Code dealing with the civil effects of marriage and the formal validity of wills made outside Malta. In areas where there are no local rules to determine the applicable law, the rules of English common law, though not English statutory law, are applicable. However, the principles of English common law on the applicable law in contract and tort have now been superseded by the directly applicable provisions of the Rome I and Rome II Regulations covering contractual and non-contractual obligations including not only claims in tort but also claims founded on unjust enrichment, →negotiorum gestio and →culpa in contrahendo. The same applies in other areas such as →maintenance obligations, divorce and legal separation (→Divorce and personal separation) where European conflict-of-law rules have been enacted by means of the Maintenance Regulation and the Rome III Regulation.

The following are some of the traditional conflict-of-law rules of Maltese private international law.

  1. a) Marriage and matrimonial regimes

Article 18 of the Maltese Marriage Act lays down the following conflict-of-law rules:

A marriage, whether celebrated in Malta or abroad, shall be valid for all purposes of law in Malta if (a) as regards the formalities thereof, the formalities required for its validity by the law of the country where the marriage is celebrated are observed; and (b) as regards the capacity of the parties, each of the persons to be married is, by the law of the country of his or her respective domicile, capable of contracting marriage.

Thus, while the essential validity of →marriage is governed by the lex domicilii of the spouses, its formal validity is governed by the lex loci celebrationis.

The civil effects of marriage with regard to property are not regulated by the Maltese Marriage Act but by the Maltese Civil Code which contains a provision of a private international law nature dealing with matrimonial regimes. Article 1316 of the Maltese Civil Code lays down the following rules:

(1) Marriage celebrated in Malta shall, in the absence of an agreement to the contrary by public deed, produce ipso jure between the spouses the community of acquests. (2) Marriage celebrated outside Malta by persons who subsequently establish themselves in Malta shall also produce between such persons the community of acquests with regard to any property acquired after their arrival.

The Maltese courts have interpreted these provisions as follows. In the case of a marriage celebrated in Malta between Maltese citizens or non-Maltese citizens who are domiciled in Malta the community of acquests is applicable unless an agreement to the contrary is made by public deed. In the case of a marriage celebrated outside Malta, the community of acquests applies if the spouses subsequently establish a domicile in Malta with regard to property acquired after their arrival unless an agreement to the contrary is made by the spouses. On the other hand, in the case of a marriage between persons not domiciled in Malta celebrated in a country where the regime of the community of acquests does not exist, any property acquired p. 1by such persons in Malta is not subject to the community of acquests if the spouses have not established a domicile in Malta.

b) Succession

In the field of →succession, following the position under English common law, the lex domicilii of the testator is applicable to succession to movable property while the lex situs applies with respect to succession to immovable property. These rules apply irrespective of whether the devolution takes place under a will or through intestate succession.

With effect from 17 August 2015, the Succession Regulation replaced the traditional rules of Maltese private international law.

c) Property

Following the position under English common law, the lex situs applies to questions concerning →immovable property. Similarly, the traditional approach is that disputes concerning title to tangible movable property (→Property and proprietary rights) are generally also governed by the lex situs of the movable at the date of the event which is alleged to have effected title to it.

IV. The pleading and proof of foreign law

Where according to the conflict-of-law rules a foreign law is the applicable law to a dispute, the following questions arise: (i) whether it is up to the parties to plead the application of foreign law; and (ii) how is the content of foreign law to be ascertained. The general trend that can be identified from the judgments of the Maltese courts is that where the parties do not plead the application of foreign law to the dispute and do not prove its content, Maltese law will apply. There is no provision of Maltese law requiring a Maltese court to apply foreign law ex officio. If a party wishes to rely on foreign law, that party has to plead its application. The approach of the Maltese courts on the pleading of foreign law is similar to the approach in England and, indeed, Maltese jurisprudence has made reference to the position adopted by the English courts. This is not surprising, since as noted above, in the sphere of private international law, any lacuna in Maltese law is usually filled by reference to English common law. Moreover, such an approach is consistent with the adversarial system of Maltese civil procedure.

The application of foreign law should therefore be pleaded by the party invoking its application (→Foreign law, application and ascertainment). Moreover, the content of foreign law is a question of fact, which must be proved by the parties. As Maltese procedural law follows the adversarial system, the judge will not, and should not, make his own private investigation as to the content of foreign law but is to rely on the proof brought during the trial. The presentation of the evidence is left to the parties and the court will decide the case on the basis of the facts that have been proved by the parties during the judicial process (→Evidence, procurement of). This is usually expressed in the Roman maxim quod non est in actis, non est in mundo, which literally means that what is not in the acts of the case does not exist. The Latin legal maxim iura novit curia (the court knows the law) applies only to Maltese law, not to foreign law.

The party who pleads the application of foreign law has the burden to prove its content. Since the content of foreign law is considered to be a point of fact, art 562 COCP is applicable and hence ‘the burden of proving a fact shall, in all cases, rest on the party alleging it’. In Malta proof of foreign law is usually made by means of the evidence of a competent expert on the foreign law in question. The COCP has a specific article dealing with evidence of foreign law. Article 563B(1) COCP states that ‘a person who is suitably qualified on account of his knowledge or experience, is competent to give expert evidence as to the law of any other foreign state, irrespective of whether he has acted or is entitled to act as an advocate, or in any judicial or legal capacity in that state’.

This provision essentially operates as follows. The party invoking the application of foreign law will produce the evidence of an expert on the content of foreign law. The expert must be suitably qualified to give expert evidence as to the foreign law on account of his knowledge or experience. The expert usually submits a report in writing which is confirmed on oath. He may also give evidence viva voce and he should be available for cross-examination by the other party. A copy of the legal provisions of the foreign state may be attached to the report. Evidence may also be given by the expert as to the rules of construction recognized by the foreign legal system and the manner in which the courts of the foreign state have interpreted the foreign provisions.

p. 1The other party is not obliged to bring his own expert but if he wants to contest the content of the foreign law as proved by the other party, it is in his own interest to bring his own expert in order to prove what he considers to be the real content of the foreign law. Where the two experts disagree it would be for the court to decide what it believes to be the true content of the foreign law, either by preferring the evidence of one expert over the other or by accepting some parts of the evidence of one expert and some parts from the evidence of the other. There is nothing which stops the court from appointing its own expert to give evidence on foreign law. In fact the above-quoted art 563A COCP, which is applicable by virtue of art 563B(2) COCP, provides that the opinion of the ex parte expert is without prejudice to the court’s power to appoint a referee according to the provisions of art 646 COCP. As provided in art 646 COCP, where the parties agree on the submission of a name of a referee, the court appoints the referee agreed upon by the parties. Where the parties fail to agree, the court appoints a referee of its own choice. Once the court-appointed expert submits his report he is to be available for questioning by the parties. As in the case of all other issues of fact, it is up to the judge to determine whether the content of foreign law has been proved to his satisfaction.

There is a special procedure for access to the law of foreign states under the Child Abduction and Custody Act, which incorporated into Maltese law the Hague Child Abduction Convention and the European Child Custody Convention (European Convention of 20 May 1980 on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children, 1496 UNTS 37).

IV. The recognition and enforcement of foreign judgments and arbitral awards

While the recognition and enforcement of foreign judgments handed down by a court in the EU or EEA, and falling within the scope of one of the European regulations, is governed by the provisions of the said regulations, the recognition and enforcement of judgments coming from the rest of the world is governed by the COCP. The COCP also applies to judgments coming from the courts of a Member State or a Lugano state if and in so far as the judgment falls outside the scope of the European regulations. In all cases, once a foreign judgment is declared to be enforceable in Malta, the actual enforcement of the judgment is governed by Maltese law.

The basic scheme under the COCP is that the enforcement of a foreign judgment will only be granted if it is a final and conclusive judgment, if it was delivered by a court outside Malta which is considered by Maltese private international law to have possessed international jurisdiction to give a judgment capable of enforcement in Malta, and if no defence can be raised against the enforcement of the judgment in Malta. Indeed, according to art 826 COCP, ‘any judgment delivered by a competent court outside Malta and constituting a res judicata may be enforced by the competent court in Malta, in the same manner as judgments delivered in Malta, upon an application containing a demand that the enforcement of such judgment be ordered’. In terms of art 827(2) COCP, a foreign court will only be considered competent to give a judgment capable of enforcement in Malta if the judgment was given against a person subject to the jurisdiction of the foreign court by reason of domicile or residence (→Domicile, habitual residence and establishment) or if that person had voluntarily submitted to the jurisdiction of the foreign court. Thus, the jurisdiction of the foreign court must have been founded on domicile, residence, or submission, and the Maltese court is entitled to investigate the plea of jurisdiction even though the foreign court may have adjudged upon a plea to its jurisdiction. The notions of domicile, residence and submission are to be interpreted in terms of Maltese law.

Where the requirements of art 826 COCP are satisfied, it is still possible to raise a number of defences against the demand for enforcement of the foreign judgment. Article 827(1) COCP makes applicable as defences against the demand for the enforcement of a foreign judgment, the 12 grounds to set aside a judgment mentioned in art 811 COCP dealing with the institute of retrial, such as a situation where the judgment was obtained by fraud on the part of any of the parties to the prejudice of the other party or where the judgment conflicts with a previous judgment given in a suit on the same subject matter and between the same parties and constituting a res judicata. Moreover, art 827(1) COCP provides that a foreign judgment will not be enforced (a) in the case of a judgment by default, if the p. 1parties were not contumacious according to foreign law; or (b) if the judgment contains a disposition which is contrary to Maltese public policy or to the internal public law of Malta.

The enforcement of foreign arbitral awards, on the other hand, is regulated by provisions of the Maltese Arbitration Act (Chapter 387 of the Laws of Malta). The Act establishes the Malta Arbitration Centre as a centre for domestic and international arbitration, and regulates the conduct of arbitration proceedings. Part V of the Act deals with international commercial arbitration (→Arbitration, international commercial) and incorporates into Maltese law the UNCITRAL Arbitration Model Law (United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration as adopted on 21 June 1985 and as amended on 7 July 2006, UN Doc A/40/17 and A/61/17; →Arbitration, (UNCITRAL) Model Law). Part VII of the Act deals with the recognition and enforcement of foreign arbitral awards. The procedure requires the registration of the award by the Malta Arbitration Centre, after which such awards will be enforceable in the same way as awards granted in domestic arbitrations, provided there is no valid ground to oppose the recognition and enforcement of the foreign arbitral award. Article 74(1) of the Act provides that ‘saving the relevant articles of this Act, foreign arbitration awards, to which the treaties set out in the Second Schedule are applicable (subject to such reservations or 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’. The Second Schedule incorporates into Maltese law the 1958 New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3), the 1923 Geneva Protocol on Arbitration Clauses (Geneva Protocol on Arbitration Clauses, 1923 (Protocol on Arbitration Clauses of 24 September 1923), 27 LNTS 157) and the 1927 League of Nations (Geneva) Convention on the Execution of Foreign Arbitral Awards (Geneva Convention of 26 September 1927 on the execution of foreign arbitral awards, 92 LNTS 301 (also available at <http://interarb.com/vl/g_co1927>)). The Third Schedule to the Act reproduces the Washington Convention of 18 March 1965 on the settlement of investment disputes between states and nationals of other states ((ICSID) 575 UNTS 159) and art 76 of the Act deals with the recognition and enforcement of awards delivered pursuant to this Convention.

Paul Cachia

Literature

Swiss Institute of Comparative Law, The application of foreign law in Civil Matters in the EU Member States and its Perspectives for the Future, JLS/2009/JCIV/PR/0005/E4 (Lausanne 2011) available at <http://ec.europa.eu/justice/civil/files/foreign_law_en.pdf>.