MT
Second Schedule — ARBITRATION ACT
Second Schedule · ARBITRATION ACT
Amended by
XVIII. 1999.31.
Part I
Substituted by
L.N. 304 of 2004.
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
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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 1 hereof are fulfilled, recognition
and enforcement of the award shall be refused if the Court is satisfied
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(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.
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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
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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.
3. 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;
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(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
(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
ARTICLE VII
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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
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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
1. 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
1. 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
1. 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.
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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.
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