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The New Insolvency Practitioners Act, 2022

The New Insolvency Practitioners Act, 2022
by
July 27, 2023
in Business News, Laws
249

In the ever-evolving landscape of company insolvency, a significant reform took center stage in December 2022. The Insolvency Practitioners Act, 2022 (Act No. XXV of 2022) marked a pivotal development. This act’s objective is succinctly described as “to provide for the transposition of Directive (EU) 2019/1023, and to regulate the insolvency practitioner, and to make provision for matters ancillary or incidental thereto or connected therewith.” In this article, we delve into the key provisions of this act and shed light on its implications.

Introducing the Insolvency Practitioners Act 2022

The comprehensive Insolvency Practitioners Act 2022, encompassing 29 articles, introduces the new role of Insolvency Practitioner (IP) and aims to partially transpose EU Directive 2019/1023. This act introduces a revamped regulatory framework for IPs, with certain aspects and consequences drawing attention.

The Emergence of a New Authority

The newly established Insolvency and Receivership Service within the Malta Business Registry (MBR) assumes the role of the competent authority for implementing this act and overseeing the activities of insolvency practitioners. Empowered by this act, the competent authority holds the authority to revoke, cancel, or suspend any authorization or registration issued under its purview. Furthermore, the act mandates the maintenance of a Register of Insolvency Practitioners, documenting various crucial details.

Notably, the act bestows extensive discretionary powers upon this new regulatory unit housed within the expanding MBR. The act enumerates a range of powers assigned to the competent authority, encompassing authorization, supervision, ongoing training oversight for IPs, conducting investigations, addressing cases of professional misconduct, disseminating public information, providing advisory insights to the Minister, and publishing an annual report on its activities.

The act outlines the specific information IPs are obligated to submit to the competent authority. Moreover, it empowers the competent authority to “publish guidelines on the interpretation of this Act, and any regulations and directives.” The unit also holds the prerogative to carry out on-site inspections, appoint experts, impose administrative penalties, conduct studies, collaborate with overseas competent authorities, issue cease and desist orders, and release public statements.

Wide Powers and Potential Concerns

The conferred powers on this new unit extend well beyond its establishment. Strikingly, these discretionary powers parallel those vested in the Malta Financial Services Authority (MFSA). Additionally, the considerable powers of intervention granted to the Minister raise concerns regarding the unit’s independence.

A Critical Criminal Offense

Curiously, considering that many practitioners in this domain are likely members of regulated professions such as lawyers, accountants, and auditors, one may question whether IPs genuinely necessitate this extensive layer of regulation and oversight. These three professions are explicitly cited as qualifying for an authorization and align with the categories mentioned in the Companies Act. Consequently, the extent of novelty here becomes a subject of inquiry.

Navigating the Authoritative Landscape

Article 3 stipulates that an insolvency practitioner must seek and obtain a specific authorization from the competent authority, delineating requisite qualifications and criteria for disqualification. Article 4 further outlines the roles an authorized IP can fulfill, including positions envisaged in the Companies Act.

Navigating the Gray Areas

Despite these provisions, ambiguities arise. For instance, when the act states that an IP may serve as a “liquidator, special controller, administrator, or special manager in terms of the Companies Act,” it prompts queries about whether these roles are now exclusively reserved for IPs. This uncertainty calls for clarification, especially as the implications might extend to tacit amendments to the Companies Act.

Balancing Powers and Obligations

However, a critical consideration is the growing allocation of powers to government agencies alongside the imposition of bureaucratic obligations, administrative burdens, and costs on practitioners. Although the newly established Administrative Review Tribunal offers a route for appeals, this balance between power and obligation remains a matter of scrutiny.

Harmonizing with Existing Laws

Harmonizing the Insolvency Practitioners Act with the Companies Act warrants thoughtful analysis. The interplay between these two acts raises questions about the Special Controller under the Company Recovery Proceedings and liquidators authorized under the Companies Act. The overlapping provisions provoke consideration regarding whether the new Act supersedes the Companies Act, inviting reflections on the optimal approach.

A Glimpse into Criminal Law

On a critical note, acting as an IP without the requisite license constitutes a criminal offense. Moreover, engaging in an IP role inadequately also results in criminal liability. The penalties for failing to provide required information to the competent authority range from imprisonment to fines. Breach of professional duties incurs severe penalties under criminal law.

Concluding Reflections

While the intent behind the Insolvency Practitioners Act, 2022 is undoubtedly commendable, the allocation of wide-ranging powers and the potential implications on established practices warrant ongoing scrutiny. As the regulatory landscape continues to evolve, balancing regulatory powers with the autonomy of professionals remains a nuanced challenge that necessitates careful navigation.

Frequently Asked Questions

What is the primary objective of the Insolvency Practitioners Act, 2022?

The Insolvency Practitioners Act, 2022 aims to transpose Directive (EU) 2019/1023, regulate insolvency practitioners, and address related matters.

How does the act establish regulatory oversight for insolvency practitioners?

The act establishes the Insolvency and Receivership Service within the Malta Business Registry as the competent authority for overseeing insolvency practitioners’ activities.

What powers does the competent authority possess under the act?

The competent authority possesses a broad range of powers, including authorization, oversight, investigation, and the issuance of guidelines.

Are insolvency practitioners subject to criminal liability under the act?

Yes, the act establishes criminal liability for acting as an insolvency practitioner without proper authorization or for failing to fulfill required obligations.

What concerns arise regarding the relationship between the act and the Companies Act?

The relationship between the Insolvency Practitioners Act and the Companies Act raises questions about potential overlaps and amendments. Clarification is needed to ensure consistency and clarity in legal practices.

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