Malta: Cross-Border Litigation In Europe – Malta Chapter

This contribution was published as the Malta chapter in Cross-Border Litigation in Europe (Studies in Private International Law). Hart Publishing.

I. Introduction

Malta joined the European Union ('EU') in 2004. Prior to the transposition of the acquis communautaire, statutory rules on private international law ('PIL') were scarce. The Code of Organisation and Civil Procedure ('COCP') did contain detailed rules on jurisdiction 1 and there were some miscellaneous conflict-of-laws rules in the Civil Code on succession and matrimonial property. 2 Maltese courts tend to refer to the common law of England and Wales (not based on statute) in case of gaps (lacunae) in Maltese private international law. This is due to the fact that Malta was a British colony up to 1964. This had a tremendous impact on the Maltese legal system, which may be defined as a mixed legal system. This is relevant to our debate from two perspectives. First, Malta adopted an adversarial procedural system (which may have implications on whether rules of EU Regulations may be raised ex officio by judges and/or on how foreign law is treated). Second, Malta borrowed conflict-of-laws rules from the common law.

Since Malta did not have a very strong tradition of PIL, the coming into force of the EU PIL Regulations posed a challenge for Maltese judges, lawyers and notaries alike. This was particularly important in view of the growth in service-based industries (eg financial services and gaming) and strengthening of traditional sectors (ship and aircraft registration) which have prevalent cross-border implications. Although some mistakes were made along the way, one should note that even the initial cases on the Brussels I Regulation 3 demonstrated that there is a level of familiarity with the Regulation. This was due to the receptiveness of judges and practitioners to the new changes, but also a degree of collegiality and cooperation between all stakeholders involved to make sure everyone gets up to speed with this new body of rules. With this in mind, one should note that Malta's experience with the EU PIL instruments has been positive. 4

II. Malta's Experience on Cross-border Civil and Commercial Disputes

A. Jurisdictional and Procedural Issues Under the Brussels I Regulation

i. Matters Related to the Scope of Application

Judgments which specifically concern the applicability of the Brussels I Regulation and the Brussels Ia Regulation 5 (together 'Brussels I regime') are limited in number. This is largely owing to a clear-cut distinction at law whereby the legislator sets out a hierarchy of laws in Article 742 of the COCP. 6 The Maltese Courts have had few occasions on which a decision had to be reached as to the application of local or EU law on jurisdictional rules. The clear wording of the law has allowed both regimes to operate independently of one another, even though EU PIL instruments are supreme. 7 In Maltrad (Holdings) Limited v Coll, the direct effect of the Brussels regime in Malta was affirmed. 8 More importantly, the Court stated that that regime prevails over any domestic law with which it may be in conflict. In this case, the Court of Appeal 9 went further and overturned a judgment of the First Hall, Civil Court. 10 The first instance court had assumed jurisdiction on the basis of a choice-of-law clause in favour of Maltese law which was not a valid basis for jurisdiction under the Brussels regime. In this context, the Court of Appeal held that there was no prorogation of jurisdiction on the basis of this clause. 11

That said, in Muiris Seasmus Mahon v GOAGT Limited et, 12 the Industrial Tribunal confused the notions of jurisdiction and competence by broadening the scope of application of national law, that is, the Employment and Industrial Relations Act. 13 It simply stated that it was competent to hear all cases whereby an allegation of unfair dismissal had been made without reference to the Brussels I regime, even though the employee was domiciled in Ireland and the employer had branches in Malta (that is the respondents). 14 Neither did the Tribunal take cognisance of the place where the employee habitually carried out his work, which is a possible basis for jurisdiction as per Article 21(1)(b) of Brussels Ia.

An example of the earlier cases, which canvasses some of the difficult issues presented before the Maltese courts, is GIE Pari Mutuel Urbain v Bell Med Ltd et. 15 In this case, it was noted that the question whether a dispute fell within the ambit of the Brussels regime was separate and distinct from the issue of jurisdiction of the foreign court. Since the question whether the dispute between the parties is within the scope of the Brussels regime was not addressed by the French court, there was nothing to prevent the Maltese Court of Appeal from taking a view on the matter. In delivering a final judgment 16 the Court of Appeal held that the appellant company had exercised public law powers to protect a monopoly, noting that its primary objective was the regulation of French public policy with regard to horse-racing betting. Since it had not acted in the private law sphere to regulate civil or commercial business between private persons, the Court of Appeal refused recognition and enforcement of the French judgment on account of being outside the scope of application of the Brussels I regime. Likewise and more recently, in Giovanni Sidoti v European Insurance Group Limited 17 the Court of Appeal held that the enforcement of an arbitral award was expressly excluded by Article 1(2)(d) of Brussels Ia.

ii. Matters Related to Jurisdiction

Generally, the Maltese Courts correctly apply the Brussels I Regime. There are a number of jurisdictional disputes, showing a high degree of sensitivity in cases where jurisdiction agreements were invoked in commercial transactions.

The Maltese courts assumed jurisdiction under Article 2 in DeBono noe v No Stop Technology Ltd. 18 In this case, the defendant was domiciled in Malta. He challenged the court's jurisdiction by submitting that a distribution agreement, between the parties, contained a jurisdictional agreement. The jurisdictional challenge was dismissed because the court established that the choice-of-court agreement was never clearly and conclusively accepted by the claimant. 19 It was held that a mere reference by one of the parties in an invoice to the 'terms and conditions', which include a choice-of-court agreement, was not sufficient to satisfy the requirements of Article 23.

PWA Co Limited v Luisa Spagnoli SPA 20 is an interesting case where the Maltese Courts sustained a jurisdictional challenge due to an Italian jurisdictional clause. In affirming the application of the jurisdictional clause to the claims raised by the applicant, the Maltese Court referred to Benincasa where a similar agreement was considered. 21 It should be noted that, in this case, the Court cited Article 1002 of the Civil Code 22 which states that there shall be no room for interpretation where the terms of an agreement are clear. Albeit erroneous, these references may be considered as superfluous and unremarkable, ultimately having no impact on the outcome of the Court's decision. That said, the reference might also be an indication that legal traditions/heritages may impact on the interpretation of EU PIL instruments.

iii. Matters Related to Recognition and Enforcement

Proceedings relating to the recognition and enforcement of judgments from the courts of other EU Member States in Malta are efficient and unproblematic. This is largely due to a dedicated team of judges that deal with such matters on a regular basis. The Courts are quick to recognise and enforce foreign judgments, provided that the Brussels I regime requirements are met.

The recognition and enforcement of judgments would be denied only in cases where the conditions for refusal of recognition and enforcement are very clearly met. For example, in Elf Aquitaine v Guelfi, 23 the Court of Appeal dismissed the judgment-debtor's submission that the enforcement of the French judgment would manifestly violate public policy because, under Maltese law, civil proceedings are independent from criminal proceedings. It was held that, with reference to Bamberski, 24 the principle that civil and criminal proceedings are kept distinct is not fundamental.

Public policy was also unsuccessfully invoked as a defence against the recognition and enforcement of an Italian judgment in Cartiera Lucchese Spa v Climaco Group Limited. 25 The Maltese court dismissed the judgment-debtor's argument that the Italian Tribunal's summary proceedings breached the right to a fair hearing on two counts—the insufficiency of time given to the respondent to prepare his defence and the failure to notify the respondent with the acts pertaining to the proceedings brought against it. It was held that the summary proceedings do not necessarily deprive the respondent of the opportunity to present its case, as long as it was notified and allowed to prepare its defence, both in sufficient time.

That said, a recent judgment delivered by the First Hall Civil Court reveals a rather glaring misapplication of Brussels Ia. In De Marco Noe Vs Randazzo Lidia et, 26 the presiding judge declared as enforceable in Malta a Tribunale di Palermo judgment regarding insolvency of a company. Admittedly, the judgment was delivered a mere three months following the coming into force of Brussels Ia. However, the exclusion of insolvency proceedings 27 from civil and commercial matters under Article 1(2) was the same under its predecessor, that is, the Brussels I Regulation. Curiously enough, the respondent did not invoke the inapplicability of the Brussels I regime either. It remains to be seen whether such a defence will be raised at appeal stage.

iv. Matters Related to Relations with Other Instruments

One area where there appears to be a level of confusion is the relationship between the Brussels I Regime and a prior bilateral agreement, which Malta had struck up with the United Kingdom to facilitate enforcement of judgments. This bilateral agreement was made a part of Maltese law in a statutory act of parliament by the name of the British Judgments (Reciprocal Enforcement) Act. 28 This bilateral agreement has been superseded by the Brussels I Regime, see Article 69 of Brussels Ia, but may take effect again after Brexit occurs.

In Catalyst Managerial Services v Libya-Africa Investment Portfolio, 29 by virtue of a judgment given by the High Court of Justice of England and Wales, Queen Bench's Division, the applicant company was acknowledged as a creditor of the respondent for a total sum of $15,422,924.00. By using the Brussels I Regulation as a basis for enforcement, the Court correctly deprived the respondent company of wider defences available to it under the British Judgments (Reciprocal Enforcement) Act, which adopted a different procedure for the enforcement of judgments stemming from the courts in the UK.

B. Rome I and Rome II

Maltese judgments which have been delivered on the Rome I Regulation 30and Rome II Regulation 31 are scarce, but it is known from preliminary judgments on the Brussels I regime and from our professional experience that there are a number of pending cases waiting to be decided on these two Regulations.

There is one judgment of the First Hall Civil Court which contemplated the Rome I Regulation. In DeBono noe v No Stop Technology Limited, which was already briefly discussed above, the claimant sought the payment of €79,141.68 for products sold and consigned to the defendant. 32 The defendant had been registered in Italy, but re-domiciled in Malta in 2010. On the other hand, the claimant was a company registered in Hong Kong with an agent in Germany. The Court confirmed that the Rome I Regulation applied as the 'supreme law' in this case. An earlier preliminary judgment delivered by the same Court declared that there was no distributorship agreement between the parties and that therefore there was no choice-of-law agreement. The First Hall Civil Court opted for a combined reading of Article 4(1)(a) and Article 19(2) of the Rome I Regulation to select the law where the seller has his habitual residence, namely, the location of a branch. Owing to a number of factors, namely the responsibility bestowed on the German agency for the execution of the sales, the carrying out of the sale by that agency, the payment of price to the same agency in a German bank account and the German VAT number of that agency, it was held that the applicable law was German law.

A judgment delivered by the Industrial Tribunal in the earlier Diego Righi v Emerald Shipping Limited 33 attempted to clarify the Maltese position on the governing of contractual obligations prior to the coming into effect and the application of the Rome I Regulation. Indeed, both parties argued in favour of the application of the Rome Convention on Contractual Obligations (Ratification) Act. However it is worth noting that, owing to the imminent coming into force of the Rome I Regulation, the Minister responsible never issued the legal notice required at law for the said Act to come into force. 34 The decision of the Industrial Tribunal was therefore incorrect since it affirmed the applicability of the Rome Convention on Contractual Obligations (Ratification) Act. However, the application of conflict-of-laws rules based on common law rules (which were applicable at the time) by the Maltese Courts would have led to the same result, that is, that Swiss law was applicable to the case.

In Pol-Euro Shipping Lines Plc SA v Zejt Marine Services Limited, the Rome II Regulation was extensively and accurately applied, providing a thorough evaluation of the local interpretation of its provisions, particularly Article 4. 35 Briefly, the facts of the case are as follows: two vessels collided in the port of Sousse, Tunisia. The owner of one of the vessels was a Polish company (the applicant), while the owner of the second vessel was a Maltese company (the respondent). However, at the time of the collision, the Polish-owned vessel had been leased out to a Maltese company. The Court held that the place where the collision occurred and where the damage was suffered was the same. These factual circumstances fall directly within the ambit of Article 4(1) of the Regulation. Therefore, the applicable law should be the place where the damage occurred irrespective of the country where the event which gave rise to the damage occurred. It should be noted that the Court rejected the argument that the general applicability of Article 4(1) could be derogated from by the flag which a ship carries. In fact, Article 4(1) does not distinguish between a physical or moral person or a vessel. The Court referred to academic literature 36 to confirm that the applicable law should not be identified by looking at the law of the flag of the vessel. Therefore, Article 4(1) was deemed to be the applicable provision, as a result of which Tunisian law was the law applicable to the case. The Court went on to dismiss the applicant's invocation of the exception contained in Article 4(2), ie common habitual residence. It was held that, since one of the parties was not resident in Malta, the Article 4(2) exception could not be applied in this case. The Court also turned down the applicants' argument that Article 4(3) should prevail over Article 4(1), holding that there was one connecting factor, namely the location of the ship's owner in Poland, which did not point towards Malta.

III. Malta's Experience on Cross-border Family Law Disputes

A. Jurisdictional and Procedural Issues Under the Brussels IIa Regulation

An increase in free movement of citizens of the European Union led to a climb in the numbers of personal relationships between foreigners and Maltese nationals which made recourse to this Regulation necessary. The Maltese Courts appear to be well-versed in issues relating to the applicability of the Brussels IIa Regulation. This may be attributed to the fact that Malta has specialised and dedicated courts on family disputes.

i. Matters Related to Jurisdiction

a. Divorce, Legal Separation and Marriage Annulment

Above all, it should be noted that there are not many cases raising questions about the scope of application of Brussels IIa. In ABC v DE, 37 the applicant sought to establish jurisdiction under Article 3 of the Regulation. The respondent's jurisdictional challenge was dismissed. The Court held that a brief period of absence, for whatever reason, does not prevent the acquisition of habitual residence. The concept of habitual residence, it said, is determined by the intent and the actual fact of establishing a home in a particular country. The Court went on to declare that it was endowed with jurisdiction from the moment the applicant filed the letter of mediation on 12 February 2015.

Mediation was a determining factor in AB v CB, 38 where the respondent raised a plea on the basis of the Brussels I regime. However, the Court pointed out that whereas the Brussels I regime governs civil and commercial matters, the Brussels IIa Regulation deals with, 'separation and other marital proceedings'. As a result, Article 7 of the Brussels I regime did not cater for family law proceedings, which are excluded from the remit of the Regulation. In this case, the Maltese court assumed jurisdiction under Article 3 of Brussels IIa insofar as divorce and other related issues were concerned. The Court established that the applicant had been a resident of Malta for the preceding five years and was still a resident of the same. The Court further refused the respondent's request for a stay of proceedings under Article 19 of the Brussels IIa Regulation. Although divorce proceedings were filed in the United Kingdom two days prior to the institution of equivalent proceedings in Malta, the Court came to the conclusion that the Maltese Courts were first seised with jurisdiction to hear the case. Its rationale was based on the fact that,

under Maltese Law, separation proceedings have to start by filing a letter in the registry to start the mediation process, which will precede contentious separation proceedings in court if an agreement is not reached between both parties within a fixed time period. After the end of mediation proceedings and where an agreement has not been reached between both parties, either party may file a law suit for marital separation, if the law suit is not filed, then separation proceedings are deemed to have been abandoned. However, if a law suit is filed within the specified time period as per regulation 7 of LN397/2003, then the separation process is considered to be an ongoing one.

Thus, one cannot institute separation proceedings without having first made an attempt at mediation. Article 16 creates two alternative rules for when a court is deemed to be seised and national courts have to determine which of those rules apply for their system and then interpret how those rules are to be applied in relation to that system.

b. Parental Responsibility

1. Child Abduction

In Director of Department for Social Welfare Standards v Sharon Rose Roche, 39 the Court of Appeal examined the earlier judgment given by the superior courts in Gozo. 40 This earlier judgment turned down the request to order the child's return to England on the basis of Article 11(4) of the Brussels IIa Regulation. The justification for its decision lies in the fact that the 'adequate arrangements' required by the foregoing Article were not in place to guarantee the protection of the child upon his return. It was held that the concept of habitual residence should be interpreted autonomously with reference to the situation prior to the child's abduction. Were this to be otherwise, the spectrum of varying definitions could result in different national courts claiming jurisdiction or in reluctance to claim jurisdiction in the first place. Consequently, the Court concluded that the habitual residence of the child is a fact to be determined according to the situation as it existed prior to his abduction from the United Kingdom in this case. It was further held that the rationale of Article 10 is to prevent a change in jurisdiction in the case of an abduction. Apart from this, the Court of Appeal in its previous judgment considered the issue of acquiescence of the father for the child to remain in Gozo and came to the conclusion that there had been no consent or acquiescence on behalf of the father.

ii. Matters Related to Recognition and Enforcement

a. Rights of Access

The Court of Appeal has displayed a particularly strict adherence to the Brussels IIa Regulation and the resulting jurisprudence of the Court of Justice of the European Union (CJEU). By way of example, in Direttur tad-Dipartiment għal Standards fil-Ħarsien Soċjali v Lara Maria Merlevede nee` Borg St. John, 41 the Maltese Court cited Zarraga v Pelz 42 wherein the CJEU offered an explanation of Article 40 of the Brussels IIa Regulation. The CJEU stated that a judgment enforceable in terms of Article 40 of the Regulation and which would have led to the issuing of the certificate in the Member State of origin (as occurred in the Maltese case), is recognised and enforced automatically in another Member State without there being the possibility of opposing its recognition.

The Court dismissed the appellant's argument that the procedure listed in Article 41(2) of the Brussels IIa Regulation had not been followed in its entirety because the child had not been heard. The Court stated that the Regulation does permit the issuing of the certificate even if the minor is not heard, provided that this omission results from the inappropriateness of such hearing in view of the child's tender age. This is what happened in this case, and thus the issuing of the certificate did not suffer from any irregularity. Moreover, the Court also stressed that it is not necessary for the provisions regarding access to be contained in a judgment given ad hoc specifically to address the issue of rights of access. There is nothing in the Regulation in question which prevents the enforcement of part, and not the whole, of a foreign judgment ie that part which considers and contains a decision regarding access to minors.

b. Return of the Child

In Direttur għal Standards fil-Ħarsien Soċjali v Mario Attard, 43 the Court applied Article 42(1) of the Regulation. The judgment of the English High Court of Justice, Family Division was duly certified in the form laid down in Annex IV of the Regulation. Thus, the Court of Appeal enforced the judgment, ordering the return of the minor.

iii. Cooperation between Central Authorities in Matters of Parental Responsibility

An examination of various judgments reveals a tendency between national Central Authorities to cooperate in order to identify the location of the minor child, and ultimately request its return. As was the case in Direttur tad-Dipartiment għal Standards fil-Ħarsien Soċjali v Anita Maria Horry nee Montebello, 44 this standard request is often made under the auspices of the Hague Convention on the Civil Aspects of International Child Abduction, specifically Article 7 of the same. This bears testimony to the intimate relationship between the latter Convention and the Brussels IIa Regulation. 45 Such request is also frequently accompanied and followed by a statement in acknowledgement of the fact that the Maltese Central Authority has been authorised to act on behalf of one of the parents. 46

However, that is not the extent of their cooperation. In Direttur tad-Dipartiment għal Standards fil-Ħarsien Soċjali v A B C nee DE, 47 the French Central Authority corresponded with the Director of Department for Social Welfare Standards ie the Maltese Central Authority. It requested the latter to cooperate and take the measures necessary in order to induce and improve the application of the Brussels IIa Regulation, with the ultimate aim of implementing the decision of the French Court as per Articles 54 and 55(b) of the Regulation.

In delivering judgment, the Maltese Court also ordered a copy of the mother's plane tickets (purchased by the father) to be sent to the French Central Authority, with the latter being bound to reciprocate.

iv. Relations with Other Instruments

As has already been alluded to, the closest relationship which the Brussels IIa Regulation has is with the Hague Child Abduction Convention. Indeed, one may speak of an emerging trend among Maltese courts to treat the two as inseparable in intra-EU child abduction cases—where one is invoked, the other follows. This of course is understandable in view of the similarity in the matters regulated by either as well as the textual references to the Convention contained in the Regulation. However, this element of interrelatedness has developed into a habit to cite the two instruments interchangeably as providing the basis on which judgment will be delivered, but then refraining from providing any further explanation. In fact, in Direttur tad-Dipartiment għal Standards fil-Ħarsien Soċjali v Anita Maria Horry nee Montebello, 48 the Court largely based its decision on Article 13 of the Hague Convention. Although the Regulation was acknowledged as the point of departure, there is no other mention of it in the judgment. This may be due to the fact that the Brussels IIa Regulation expressly refers to Article 13 of the Convention.

IV. Conclusion

As is clearly evident from our findings illustrated above, the Maltese judiciary appears to be confident in the application of the EU PIL instruments and applies them correctly in the majority of cases. Even where we spotted mistakes, it was generally the case that it was corrected at appeal or otherwise did not make a difference to the outcome. It would be equally a mistake to fail to acknowledge that judgments do not always paint a clear picture of the facts of the case and there might be circumstances not known to the reader which may have affected the judgment of the judge in question.

That being said, legal practitioners in Malta feel fairly comfortable with making submissions on the basis of the EU PIL instruments, but also confident that a Maltese judge will understand those submissions and apply the relevant rules correctly. It is still to be seen whether the same experience will be felt with respect to the Maintenance Regulation but we do not see any reason why that should not be the case.

Footnotes

1Ch 12 of the Laws of Malta.

2 Ch 16 of the Laws of Malta.

3 Council Reg 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) [2001] OJ L12/1.

4 It is perhaps worth noting that EU PIL instruments provide a degree of clarity and certainty in a system that lacked rigid rules on private international law. It also provided a statutory basis for the development of the discipline in a jurisdiction that was unused to having to rely on judge-made law.

5 Reg 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1.

6 Ch 12 of the Laws of Malta, Art 742(6): 'Where provision is made under any other law, or, in any regulation of the European Union making provision different from that contained in this article, the provisions of this article shall not apply with regard to the matters covered by such other provision and shall only apply to matters to which such other provision does not apply.'

7 See LR Composizioni Profumati Srl v Ocean Group Limited, First Hall Civil Court (11 May 2015). cp Diego Righi v Emerald Shipping Limited, Industrial Tribunal (10 May 2011).

8 Court of Appeal (27 March 2015).

9 Court of Appeal (27 March 2015).

10 First Hall Civil Court (10 June 2014).

11 Interestingly, the applicant also claimed that there was jurisdiction on the basis of s II of Brussels Ia. The Court pointed out that the agreement had not fixed the 'place of performance' of the obligation assumed by the respondent to repay the money lent to him (this was a loan agreement). It also went on to state that there was nothing to intimately link the loan with the Maltese Islands and invoke the jurisdiction of the latter. It was disappointing that the Court of Appeal referred to the Civil Code to determine where the place of performance of the contractual obligation was located. This appears to run contrary to the principle of autonomous interpretation fundamental to EU PIL instruments.

12 Industrial Tribunal (8 May 2015).

13 Ch 452 of the Laws of Malta.

14 The application of Maltese law as against the Brussels I Reg would not have altered the outcome of the decision.

15 Court of Appeal (26 June 2007).

16 GIE Pari Mutuel Urbain v Bell Med Ltd et, Court of Appeal (28 September 2007).

17 Court of Appeal (11 March 2016).

18 First Hall Civil Court (30 June 2011).

19 See also Case 24/76 Estasis Salotti v Rüwa 1976 ECR 1831.

20 First Hall Civil Court (12 April 2013).

21 Case C-269/95 Benincasa v DentalkitSrl [1997] ECR I-3767.

22 Ch 16 of the Laws of Malta.

23 Court of Appeal (13 May 2008).

24 Case C-7/98 Dieter Krombach v André Bamberski 2000 ECR I-1935, para 37.

25 Court of Appeal (12 February 2016).

26 First Hall Civil Court (26 April 2016).

27 Insolvency proceedings form the subject matter of Reg (EU) 2015/848 of the European Parliament and of the Council on insolvency proceedings (recast) [2015] OJ L141/19.

28 Ch 52 of the Laws of Malta.

29 First Hall Civil Court (12 January 2016).

30 Reg 593/2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6.

31 Reg 864/2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199/40.

32 First Hall Civil Court (3 April 2012).

33 Industrial Tribunal (10 May 2011).

34 Ch 482 of the Laws of Malta.

35 First Hall Civil Court (12 December 2013).

36 Liz Heffernan, 'Rome Il: Implications for Irish Tort Litigation' in John Ahern and William Binchy (eds), The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: a New International Litigation Regime (Leiden, Martinus Nijhoff Publishers, 2009); J Fawcett, J Carruthers and P North (eds), Cheshire, North and Fawcett, Private International Law 14th edn (Oxford, Oxford University Press, 2008).

37 Civil Court (Family Section) (30 June 2015).

38 Civil Court (Family Section) (31 May 2016).

39 Court of Appeal (17 May 2016).

40 There are other child abduction cases under Maltese law but this recent judgment was selected for discussion by way of illustration.

41 Court of Appeal (31 January 2014).

42 Case C-491/10 PPU Zarraga v Pelz [2010] ECR I-14247.

43 Court of Appeal (15 December 2006).

44 Court of Appeal (3 December 2010).

45 Council Reg (EC) No 2201/2003 concerning jurisdiction and the recognition of judgments in matrimonial matters and the matters of parental responsibility.

46 Direttur tad-Dipartiment għal Standards fil-Ħarsien Soċjali v Michael Caruana, Court of Appeal (3 August 2012).

47 Civil Court (Family Section) (8 August 2013).

48 Court of Appeal (3 December 2010).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions