Ship arrest : upcoming developments in light of EU accession

Abstract

With Malta's accession to the European Union the regime of ship arrest in Malta shall face new challenges in light of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The in rem and in personam jurisdiction of the Maltese courts is now subject to the rule that jurisdiction to determine a case on the merits belongs to the courts of the Member State where the defendant is domiciled. Therefore, the traditional approach of the Maltese courts, whereby jurisdiction in rem is founded on the presence of the ship in Malta, along with the established grounds as clearly set forth in Naudi v Ganado, 1 (irrespective of the nationality of the defendant), will be questioned. The arrest of ships in support of an in rem or in personam claim and jurisdiction are closely connected by the principle that the grounds on which a ship can be arrested must be the same grounds over which the courts have the power to determine the merits of the case. Since the rules of jurisdiction are about to undergo certain changes, the regime of ship arrest requires specific attention. The Regulation contains an important exception in article 71 (corresponding to article 57 of the Brussels and Lugano Conventions on jurisdiction and enforcement of judgments in civil and commercial matters). Whereas the Regulation will govern matters of jurisdiction and recognition and enforcement of judgments falling within its scope, article 71 will not affect any Conventions to which the Member States are parties and which, in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. The 1952 Arrest Convention is an important example of such an instrument. The question thus arises as to whether Maltese courts can become vested with jurisdiction through the ratification of the 1952 Arrest Convention. This thesis shall seek to establish the links between the regime of ship arrest in Malta, the Regulation, and the implications of ratifying the 1952 Arrest of Ships Convention.