Times of Malta - The Corporate Times
The Sofia public inquiry report
“…standards of regulators and regulation in Malta have generally plummeted. No amount of conferences, optimistic sound bites and vague roadmaps will easily resolve what is essentially a crisis situation.” (D Fabri, Studies in Maltese Regulation, MidSea Books, 2022, p203)
The recent Public Inquiry Report into the unfortunate death of a young man at a building site in December 2022 has strongly criticised the State’s inability to regulate the construction industry and to ensure safety on building sites.
The Report pointed to various disturbing regulatory and State lapses and inadequacies. Among its numerous findings, the Inquiry highlighted instances of conflict of interests, incompetence, passivity, superficiality in the work of inspectors, the dangers of self-regulation, badly written and poorly enforced laws and regulations, and the creation of a multiplicity of agencies and structures, which quickly refute any responsibility when something goes wrong.
The Report reveals that policy directions by relevant ministers were given verbally without a record or transparency. Agencies blamed one other and passed the buck.
The Report investigated health and safety at work and the responsibility of the developers, construction industry, architects and public agencies, and, in brief terms, concluded that regulation in this area has, to a considerable extent, been a failure. The Board of Enquiry heard scores of witnesses, several of whom did not much impress the Board. One senior official however made a very strong statement: the construction sector was like “a man who has been sick for 40 years”.
To some extent, this Report has carried on where the Caruana Galizia Inquiry Report of 2021 left off. Differently composed, the two Inquiries reached rather similar conclusions.
Triggered by the unfortunate but avoidable death of two very different people in very different circumstances, the two Inquiries found (a) a generalised failure and systematic inability of the State and of elected politicians to provide security and safety for the public; (b) regulatory capture, superficiality and state failures in various respects; (c) the low standards in which important economic activities are allowed to be carried out in Malta; and (d) regulators not performing adequately and state agencies systematically failing their responsibilities to the public.
The common link between the two Reports is therefore that they both examined the conduct of public regulators and other state agencies and found them wanting, indicting them for their poor and inadequate performance. The resulting set of failures warranted that the State should itself assume their legal and moral responsibility.
The 2024 Board of Inquiry has lucidly and boldly addressed these important themes and challenges. The publication of the recent Sofia Inquiry Report constitutes a landmark event for which the nation should be grateful. It extends to more than 400 pages, and students and practitioners of regulation would do well to study its findings and recommendations, and to analyse the serious lessons that ought to be learnt.
The Companies Act 1995 and the biography of Dr Joseph R Borg
The Companies Act is no ordinary law. It allows and establishes the setting up of companies which are a major force in local trade and business and the creator of thousands of jobs.
A biography of Dr Joe Borg, former Minister and the first Maltese appointed to the post of EU Commissioner, written by Dr Omar Grech, was published last week (Midsea Books, 2024).
Dr Borg lectured on company law to law and accountancy students at the University of Malta for over thirty years. He also supervised dissertations and examined on the subject. He was therefore well-placed to act as the lead drafter and the driving force behind the Companies Act of 1995, one of our most important (and voluminous) laws, a project in which I too participated.
In particular, he ensured that the newly updated 1995 Act would also be perfectly in line with the EU Company Law Directives at the time. This step greatly facilitated the early closure of the Company Law Chapter of the EU Acquis during the Accession negotiations in 1999, in which he was more than deeply involved. A few years later, he returned to his former full-time teaching job with the Commercial Law Department, which I headed at the time. His expertise in the subject was always going to be a very valuable asset for the Department.
I have written at some length on how and why the Companies Act of 1995 came about in my very recent book on the Law of Companies. This biography adds more inside information and personal recollections on the drafting of this Act and the long and often difficult process it took to finalise it.