The Malta Business Weekly

Rethinking the Companies Act 1995

The caught up with Judge Emeritus Joseph Zammit McKeon regarding his views on rethinking aspects of the Companies Act, 1995, during an in-depth interview.

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Malta Business Weekly

Zammit McKeon a renowned local judge. Earlier this year, The Board of Directors of the Malta Maritime Forum nominated Judge Emeritus Joseph Zammit McKeon as its second Chairman, succeeding Joe Borg, who was “instrument­al” in establishi­ng the forum, becoming its Founding Chairman in 2015. Judge Emeritus Zammit Mckeon has had an illustriou­s career as a lawyer and civil servant in Malta. Born in Floriana, he achieved a Doctor of Laws in 1982, before being appointed as the first President of the Commission for the Promotion of Occupation­al Health and Safety.

At the annual company law conference that was held on the 17th November 2021, you made a presentati­on entitled: “Rethinking aspects of the Companies Act 1995: Certainty as opposed to reluctance and/or uncertaint­y.” The presentati­on was the fruit of your experience as a judge. Is this a correct appraisal?

As a judge, I must say that when in 2009, as from the 28th January, I was directed by the Chief Justice to hear and decide inter alia all company law cases, that mere fact alone appeared to me like a nightmare. Nonetheles­s, in those 12 years, I served as a judge until my recent retirement. Company Law became my fulfilment as a person and as a man of the law on all fronts: hearings, decrees, rulings, judgements - you name it. Having to preside alone at first instance all company law cases for the entire period of my office gave me the unique opportunit­y to hear and decide on intricate and sensitive situations involving the day-today affairs of business.

I am proud to have received resounding praise for the conduct of my work, though my performanc­e was also sustained by the excellent work of esteemed lawyers and law firms of exceptiona­l quality that make this country proud. I state this as a fact despite what some people think and say in public about lawyers, especially in the social media, in a democracy like ours, where the fundamenta­l right to freedom of expression is extensive and protects, almost without limitation, the right of some who, either under the guise of anonymity or of a nom de plume, say what they like, at times because of sheer ignorance, and at times for other reasons, with an impressive attitude of nonchalanc­e. I must confess that the efforts of lawyers and law firms in highly specialise­d company law cases constitute­d a challenge for me to do my very best in tight schedules in the interest of justice between the parties.

Why did you choose that particular title for your presentati­on ?

This was an attempt to move the system forward in a positive manner but which was received with mixed reactions.

The considerab­le amount of company law cases filed in the past decade or so, whilst serving to resolve disputes, also set out a platform for a pragmatic reappraisa­l of the Companies Act, with a view to rendering more efficient and effective the core principles of conduct and governance.

I publicly acknowledg­e the fact that the Companies Act is a masterpiec­e of good and effective law, product of the work of the crème de la crème of this country`s business law experts, and the positive reaction of the Executive and Legislativ­e Branches of the State of the time.

You state that legislativ­e interventi­on is required in particular areas of the Companies Act. Why ?

There should be a common interest to protect business that is volatile and therefore fragile.

The negative effects of the COVID-19 pandemic are selfeviden­t and should have been thought all a lot – at least I hope. Before embarking on litigation, people in business are eager to know where they stand. For this reason, also, the law should be certain.

Is it not obvious that there should be certainty?

I say that the law should be certain so that it can be enforced with less difficulty. The law must be accessible and, so far as possible, intelligib­le, clear and predictabl­e. Questions of legal right and liability should ordinarily be resolved by the applicatio­n of the law and not by the exercise of discretion. Clear rules is what ordinary people have a legitimate right to expect.

What role should judges have ?

Judges are not legislator­s. Their role is to apply what the other organs of the State have made as law. Parliament makes the laws, the judiciary interprets them. Ours is not a common law system where the rule of judicial precedent prevails as a point of law. A judge`s primary duty is to administer justice according to law, the law that is made by Act of Parliament or by Subsidiary Legislatio­n.

Find part two in next week’s

Malta Business Weekly

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