The government is expected to appeal against a judgement by the First Hall of the Civil Court, which last week declared the Arbitration Centre’s composition to be “unconstitutional”.
Legal sources claim the decision effectively offers a recourse to stop cases from being heard before the arbitration tribunal, where parties can choose their own arbitrators and when to hold court sittings on cases of motor collisions or insurance claims below Lm5,000.
But the parliamentary secretary in the Ministry for Home Affairs and Justice, Carmelo Mifsud Bonnici yesterday expressed his disagreement with Mr Justice Tonio Mallia’s judgement, defending the set-up of the Malta Arbitration Centre.
Judge Mallia, himself a member of the Chartered Institute of Arbitrators of the UK, declared that mandatory arbitration was neither independent nor impartial because its adjudicators did not enjoy security of tenure, nor independence from the executive.
The case concerned a claim filed in the Small Claims Tribunal by Anthony Grech against Claire Calleja to pay Lm404.70 in damages sustained in a car crash.
Calleja pleaded that the action was null and void as all matters concerning motor vehicle collisions had to be referred to the Arbitration Centre for mandatory arbitration. The case was referred to the First Hall to determine whether taking the case for mandatory arbitration was in violation of the parties’ fundamental human rights.
Mifsud Bonnici has taken issue with the judgement, describing the court’s premise that arbitration involves renouncing one’s right to go to court as “an antiquated view” of an alternative conflict resolution model.
“It is a system that has worked abroad. I don’t agree it is unconstitutional and this has been already shown by the European Court of Human Rights,” Mifsud Bonnici said. “The Maltese system is working, and it opens up new ways for people to settle cases.”
Mr Justice Mallia found the Arbitration Centre guilty of failing to satisfy a number of requirements for a fair trial, including independence from the executive and from the parties to the case, and guarantees afforded by its procedures.
Parties in arbitration can choose one or three arbitrators of their choice, but if there is disagreement as to who is appointed arbitrator, the Arbitration Centre’s chairman can appoint an arbitrator, with this decision being final.
Mr Justice Mallia pointed out that the chairman’s appointment can also be terminated by the minister on the recommendation of the Commission for the Administration of Justice, which means the adjudicators do not enjoy either security of tenure, nor independence from the executive. A judge, on the other hand, can only be deposed by two-thirds of parliament.
Such provisions, Mallia said, were not a suitable guarantee of the independence and impartiality of the Arbitration Centre’s tribunal, declaring that the referral of collision cases to mandatory arbitration was in violation of the fundamental human right to a fair hearing.
But the Arbitration Centre’s chairman George Hyzler said arbitration had several advantages. “In nine out of 10 cases, the parties choose their own arbitrators, they set their case sittings when and where they want, and in certain cases arbitration is cheaper.”
A copy of the judgement has now been sent to the House of Representatives.
Labour MP and shadow justice minister Anglu Farrugia will be delivering a statement on the court sentence on Thursday, when the budgetary vote on the Ministry for Justice and Home Affairs will be discussed.
“Labour had said from the very start that mandatory arbitration was unconstitutional. The matter should have been resolved by the Commission for the Administration of Justice presided by Eddie Fenech Adami, but a year and half later, things are still the same.”