Transport Malta’s Ports and Yachting Directorate recently issued Port Notice Number 07/20 entitled “Dispute Resolution and Procedures in Connection with Bunkering Operations” to remind recipients about the Dispute Resolution (Procedures) Regulation under Subsidiary Legislation 545.30 of the Laws of Malta.
The port notice highlighted that authorised providers and customers can make complaints to the regulator to settle any disputes between them.
In accordance with the port notice, the regulation applies to bunkering operations where a dispute has arisen between the bunkering fuel operator and provider and the receiving vessel. The procedure provides for an alternative dispute resolution (ADR) mechanism that aims to be swift, economical, transparent and simple.
Much of the port notice’s attraction lies in the fact that disputes between authorised providers must be settled within four months, while disputes between an authorised provider and a consumer must be settled within 90 days, with extensions allowed only in exceptional circumstances.
Complaints and supporting documentation may be filed with the regulator online and, subject to certain conditions, the regulator’s decisions are binding on the parties to the dispute with administrative fines imposed for non-compliance. However, this procedure is entirely voluntary and does not affect the parties’ rights to proceed to arbitration or court should they prefer.
Dispute Resolution (Procedures) Regulation
The relevant parties under the Dispute Resolution (Procedures) Regulation are as follows.
The regulation is not limited to bunkering operations and defines an ‘authorised provider’ as any natural or legal person, whether privately or publicly owned, which is authorised to operate, provide or carry out any activity or operation or provide any service relating to energy and water services.
A ‘consumer’ means any person who uses or requests a service or product, the provision of which is regulated by the act, for purposes outside of their trade, business, craft or profession. This definition raises the question as to who can qualify as a consumer; however, the port notice explains that it applies to “bunker operations where a dispute arises between the bunkering fuel operator and provider and the receiving vessel”.
The regulator, established under the Regulator for Energy and Water Services Act, is composed of a chair and no fewer than four and no more than six members. Members are appointed by the minister for five or seven-year terms and may be reappointed only once.
The Dispute Resolution (Procedures) Regulation provides for two scenarios: dispute resolution where the parties are both authorised providers and dispute resolution where the parties are an authorised provider and a customer. The regulation seeks to provide authorised providers and consumers with an ADR mechanism that aims to be simple and transparent, offering binding decisions in a swift and economical manner.
Where a dispute arises between authorised providers, the regulator must initiate an investigation into the dispute as soon as possible and seek to resolve the dispute within four months from the date on which it was notified. This timeframe may be extended by a further two months where additional information is sought and the parties agree to such an extension.
Under the regulation, the regulator has the power to initiate an investigation on its own initiative. However, the regulator’s jurisdiction is not automatic and they may refuse to initiate an investigation where they are satisfied that other means of resolving the dispute in a timely manner are available to the parties.
The regulator may also refuse to initiate an investigation where the dispute is already subject to legal proceedings. Where a decision has been taken to refuse to initiate an investigation, the regulator must inform the parties as soon as possible. However, where the dispute has not been resolved or the party seeking redress has not initiated legal proceedings within four months from such a decision, the regulator may, at the request of a party, initiate an investigation.
Subject to possible appeal, the regulator’s decision will be binding on the parties and failure to abide by the decision will be considered an infringement of the regulation, subject to an administrative fine.
Under the regulation, the regulator will also have jurisdiction in cases where a consumer alleges that an authorised provider has infringed the Regulator for Energy and Water Services Act or subsidiary legislation made thereunder. When referring a dispute, a consumer must show on a prima facie basis that it has been affected by an act or omission of the authorised provider. In resolving the dispute, the regulator may, among other directives, order the authorised provider to effect reimbursement of payments received or to make compensation payments. Such payments may include the whole or part of the costs relating to the engagement of a lawyer or technical adviser engaged in submitting the dispute. Should a party fail to abide by an order given, the regulator may impose an administrative fine of not more than €600 for each day of non-compliance.
Notably, the regulator is not a compulsory dispute settlement mechanism for disputes arising between authorised providers and consumers. In fact, the regulation makes clear that “the provisions of this Regulation shall be without prejudice to the right of a consumer to have recourse to any other body in resolving any such dispute”.
As many other ADR mechanisms, the regulator aims to be expeditious in its investigations, with the regulation setting out a 90-day period within which disputes must be resolved. This timeframe may be extended only in exceptional circumstances. The regulator aims to increase efficiency by allowing complaints and supporting documentation to be submitted online. Official communication may also be made electronically or if applicable, by post.
When faced with a consumer complaint against an authorised provider, the regulator may refuse to deal with complaint in the following circumstances:
- Where the consumer did not first attempt to contact the authorised provider in order to discuss their complaint and seek to resolve the matter with the authorised provider directly.
- Where the dispute is frivolous or vexatious.
- Where the dispute is or has been considered by another dispute resolution entity or a court.
- Where the consumer did not submit the complaint to the regulator within one year from the date on which the consumer submitted the complaint to the authorised provider.
- Where dealing with the dispute would seriously impair the regulator’s effective operation.
- Where the consumer did not submit the complaint to the regulator within two years from the date on which the facts constituting the substance of the complaint first arose.
According to the regulation, decisions are binding on the parties to the dispute. However, where the dispute is between an authorised provider and a consumer, it is only binding on the consumer if they have been informed of the binding nature in advance and have specifically accepted this.
Although decisions are binding, they are not final and decisions taken by the regulator are subject to appeal before the Administrative Review Tribunal within 20 days of the decision. Appeals may be filed on the following grounds:
- a material error as to the facts has been made;
- there was a material procedural error;
- an error of law has been made; or
- there was some material illegality, including unreasonableness or lack of proportionality.
The Dispute Resolution (Procedures) Regulation aims to provide for an ADR mechanism that seeks to increase consumer protection in a timely and cost-effective manner. In times where courts have been forced to close due to COVID-19 containment measures and where there may be significant backlogs as they slowly open up again, authorised providers or consumers looking to settle disputes quickly may consider this mechanism as a valid alternative. Nonetheless, it is advised that disputes involving complex legal issues, including bunkering operations, should continue to be referred before a court so that the parties can make full use of all of the legal mechanisms available therein.
by Dr Martina Farrugia, Fenech & Fenech Advocates