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ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.

185 Articles / Provisions · Malta
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Table of Provisions (185)

Preamble Art. 1 First Schedule Art. 2 Second Schedule Art. 3 Set-off and netting. It-Tieni Skeda Art. 4 Art. 5 Applicability to branches in Malta. Art. 6 Inapplicability of article 2013 of the Civil Code. Art. 7 Amendment to the Business Promotion Act, Cap. 325. Art. 8 Amendment of article 3 of the principal Act. Art. 9 Amendment to Malta Financial Services Authority Act, Cap. 330 Art. 10 Art. 11 Art. 12 Amendment of article 17 of the principal Act. Art. 13 Insertion of new article 20A to the principal Act. Art. 20A “Distance selling Art. 21 Amendment of article 38 of the principal Act. Art. 22 Art. 23 Amendment to the Competition Act, Art. 24 Amendment of article 30 of the principal Act. Art. 25 Amendments to the Companies Act, Art. 26 Amendment of article 2 of the principal Act. Art. 27 Art. 28 Amendment of article 4 of the principal Act. Art. 29 Amendment of article 6 of the principal Act. Art. 30 Amendment of article 7 of the principal Act. Art. 31 Amendment of article 21 of the principal Act. Art. 32 Amendment of article 35 of the principal Act. Art. 33 Art. 34 Art. 35 Art. 36 Art. 37 Amendment of article 53 of the principal Act. Art. 38 Amendment of article 58 of the principal Act. Art. 39 Amendment of article 66 of the principal Act. Art. 40 Art. 41 Amendment of article 69 of the principal Act. Art. 42 of Art. 43 Art. 44 Amendment of article 76 of the principal Act. Art. 45 Amendment of article 79 of the principal Act. Art. 46 of Art. 47 Amendment of article 84 of the principal Act. Art. 48 Amendment of article 84A of the principal Act. Art. 49 Insertion of new article 84B to the principal Act. Art. 50 Art. 51 of Art. 52 Art. 53 Art. 54 Art. 55 Art. 56 Art. 57 Art. 58 Amendment of article 113 of the principal Act. Art. 59 Amendment of article 115 of the principal Act. Art. 60 Art. 61 Art. 62 of Art. 63 Addition of new article 136A to the principal Act. Art. 64 Art. 65 of Art. 66 Art. 67 Art. 68 Art. 69 Art. 70 Amendment of article 165 of the principal Act. Art. 71 Amendment of article 167 of the principal Act. Art. 72 of Art. 73 of Art. 74 of Art. 75 Art. 76 Art. 77 Amendment of article 179 of the principal Act. Art. 78 Amendment of article 180 of the principal Act. Art. 79 Amendment of article 183 of the principal Act. Art. 80 Art. 81 Art. 82 Amendment of article 186 of the principal Act. Art. 83 Amendment of article 187 of the principal Act. Art. 84 Art. 85 Art. 86 Amendment of article 194 of the principal Act. Art. 87 Amendment of article 199 of the principal Act. Art. 88 Amendment of article 209 of the principal Act. Art. 89 Amendment of article 210 of the principal Act. Art. 90 Amendment of article 212 of the principal Act. Art. 91 Amendment of article 214 of the principal Act. Art. 92 of Art. 93 of Art. 94 Art. 95 Amendment of article 222 of the principal Act. Art. 96 Amendment of article 223 of the principal Act. Art. 97 Amendment of article 224 of the principal Act. Art. 98 Amendment of article 230 of the principal Act. Art. 99 Amendment of article 238 of the principal Act. Art. 100 Art. 101 of the Art. 102 Art. 103 Art. 104 Art. 105 Art. 106 Amendment of article 270 of the principal Act. Art. 107 Amendment of article 271 of the principal Act. Art. 108 Amendment of article 274 of the principal Act. Art. 109 Amendment of article 279 of the principal Act. Art. 110 Amendment of article 280 of the principal Act. Art. 111 Art. 112 Art. 113 Art. 114 Art. 115 Amendment of article 292 of the principal Act. Art. 116 Amendment of article 298 of the principal Act. Art. 117 Addition of new articles 300A and 300B to the principal Act. Art. 118 Art. 119 Amendment of article 305 of the principal Act. Art. 120 of Art. 121 of Art. 122 Amendment of article 327 of the principal Act. Art. 123 Addition of new articles 329A and 329B to the principal Act. Art. 124 Art. 125 Art. 126 Art. 127 Amendment of article 342 of the principal Act. Art. 128 Amendment of article 343 of the principal Act. Art. 129 Amendment of article 345 of the principal Act. Art. 130 Amendment of article 354 of the principal Act Art. 131 Amendment of article 357 of the principal Act Art. 132 Amendment of article 358 of the principal Act. Art. 133 Art. 134 Amendment of article 360 of the principal Act. Art. 135 Amendment of article 361 of the principal Act. Art. 136 Amendment of article 362 of the principal Act. Art. 137 Amendment of article 363 of the principal Act Art. 138 Amendment of article 368 of the principal Act. Art. 139 of Art. 140 Art. 141 Art. 142 Amendment of article 373 of the principal Act. Art. 143 Amendment of article 374 of the principal Act Art. 144 Re-numbering of Chapter III of Part IX of the principal Act. Art. 145 Addition of new Chapter III of Part IX to the principal Act. Art. 146 Art. 147 Amendment of Part XI of the principal Act Art. 148 Amendment of article 385 of the principal Act. Art. 149 Art. 150 Amendment of article 390 of the principal Act. Art. 151 Amendment of article 391 of the principal Act. Art. 152 Amendment of article 395 of the principal Act. Art. 153 Amendment of article 396 of the principal Act. Art. 154 Addition of new article 399A to the principal Act. Art. 155 Amendment of article 401of the principal Act. Art. 156 Amendment of article 402 of the principal Act. Art. 157 Art. 158 Art. 159 Art. 160 Art. 161 Amendment of article 427 of the principal Act. Art. 162 Art. 163 Art. 164 Art. 165 Art. 166 of the Art. 167 Amendment of the Seventh Schedule to the principal Act. Art. 168 Amendment of the Ninth Schedule to the principal Act. Art. 169 Amendment of the Eleventh Schedule to the principal Act. Art. 170 Amendment of the Tenth Schedule to the principal Act. Art. 171 Addition of new Tenth Schedule to the principal Act. Art. 172 Amendment of the Eleventh Schedule to the principal Act as renumbered. Art. 173 Amendments to the Investment Services Act, Cap. 370. Art. 174 Amendment of article 6 of the principal Act. Art. 175 Amendment of article 12 of the principal Act. Art. 176 of Art. 177 Amendments to the Banking Act, Cap. Art. 178 Amendment of article 7 of the principal Act. Art. 179 Amendment of article 15 of the principal Act. Art. 180 of Art. 181 Art. 182 Art. 183 Art. 184 Art. 185 Art. 186 Amendment of article 20 of the principal Act. Art. 187 Miscellaneous provisions.

Statutory Text (185 Articles)

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Preamble — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

I assent.

(L.S.)

G UIDO D E M ARCO

President

5 th March, 2003

ACT NO. IV of 2003

AN ACT to make provision for the enforceability of set-off and

netting on bankruptcy or insolvency and to amend various other financial

and commercial laws.

BE IT ENACTED by the President, by and with the advice of the

House of Representatives, in this present Parliament assembled and by

the Authority of the same, as follows

PART I

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 1 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) The title of this Act is the Set-off and Netting on Short title and

commencement.

Insolvency Act, 2003.

(2) This Part shall come into force on such date as the

Minister responsible for finance may by notice in the Gazette establish.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
First Schedule — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(Article 167)

“ SEVENTH SCHEDULE”

(Article 184)

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List of persons holding shares or stock in the company on the date to which this return is made up, and of persons who have held shares or stock therein at any time since the

3. List of Past and Present Members

date of the last return, or in the case of the first return, of the registration of the company.

3. List of Past and Present Members (cont. sheet)

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4. Particulars of Directors

Particulars of the persons who are directors of the company at the date of this return.

Signed .........................................................

Director / Company Secretary”

5. Particulars of Company Secretary

Particulars of the person who is company secretary of the company at the date of this return.

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Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 2 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In this Act, unless the context otherwise requires -

Interpretation.

“close-out netting provision” means a provision of a contract

under which on the occurrence of a specified event, whether through

the operation of netting or set-off or otherwise -

(a) the benefit of time for the performance of relevant

obligations by the debtor may no longer be claimed and, or

the relevant obligations become immediately due and

expressed as an obligation to pay an amount representing their

estimated current value, or are terminated and replaced by an

obligation to pay such an amount, and, or ,

(b) any obligation of a party to deliver property to the

other is immediately performable notwithstanding any benefit

of time granted to the debtor and expressed as an obligation

to pay an amount representing its estimated current value or

replacement value or is terminated and replaced by an

obligation to pay such an amount, and

(c) an account is taken of what is due from each party

to the other in respect of such obligations and those obligations

fall to be discharged by the payment of an aggregate net sum

equal to the balance of account by the party from whom the

larger amount is due;

“netting” means the conversion into one net claim or one net

obligation of claims and obligations arising under any contract

with the result that only a net claim can be demanded or a net

obligation be owed.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Second Schedule — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(Article 171)

“ TENTH SCHEDULE

(Article 66A)

Partnerships en commandite or Limited Partnerships

PART I - REGULATIONS FOR PARTNERSHIPS EN COMMANDITE OR

LIMITED PARTNERSHIPS

Interpretation

1. (a)

In this Schedule, unless the context otherwise requires -

“licence holder” means a person who holds an investment services licence

under article 6 of the Investment Services Act.

(b) The provisions of this Schedule shall apply only to partnerships en

commandite or limited partnerships within the meaning of article 66A of the Act.

Formation of Partnerships en commandite or Limited Partnerships

2. (1) A partnership en commandite or limited partnership may be formed by two

or more partners, operates under a partnership name and has its obligations guaranteed

by the unlimited joint and several liability of one or more partners, called general

partners, and by the liability, limited to the amount, if any, unpaid on the contribution

of one or more partners, called limited partners.

(2) A partnership en commandite or limited partnership shall have a legal

personality separate and distinct from that of its partners, and shall accordingly be the

subject of rights and obligations, be capable of owning and holding property under any

title at law and of suing and being sued, in its own name, and such legal personality

shall continue until such time as the name of the partnership shall be struck off the

register, whereupon the partnership shall cease to exist.

Constitution of Partnership en commandite or Limited Partnership

3. (1)

A partnership en commandite or limited partnership shall consist of

(a) one or more general partners who shall be jointly and severally liable for

all debts of the partnership en commandite or limited partnership without limitation

and at least one of whom shall be a licence holder licensed as a manager of a collective

investment scheme within the meaning of the Investment Services Act; and

(b) one or more limited partners who are admitted to the partnership as limited

partners in accordance with the deed of partnership, who upon entering the

partnership, contribute, or agree to contribute to the capital thereof a specified

sum; and save for any unpaid portion of their contribution to the partnership shall

not be liable for any debts of the partnership.

(2) Any person may be a partner in a partnership en commandite or limited partnership.

(3) The contribution of a limited partner may be satisfied by the provision

of cash or other property capable of economic assessment but may not consist of future

services or undertakings to perform work or supply services; and where property other

than cash is so provided, the value of the property shall be deemed to be its fair market

value at the time of its transfer to the partnership.

(4) The provisions of the proviso to article 51 of this Act shall not apply to

partnerships en commandite or limited partnerships.

Partnership name

4. (1) A partnership en commandite or limited partnership may be designated

by any name, but such name shall end with the words “Limited Partnership” or its

abbreviation “LP”.

(2) No person carrying on any business in Malta, other than a partnership en

commandite or limited partnership or a partner therein, shall in any way or manner

describe itself or himself or so hold itself or himself out or reasonably be understood to

indicate, or use any name which indicates or may reasonably be understood to indicate

that it or he is, or is carrying on business as, a partnership en commandite or limited

partnership or, as the case may be, a partner therein.

(3) The name of a limited partner or a distinctive part thereof may not form

part of the partnership name.

(4) A limited partner who knowingly allows his name or a distinctive part

thereof to be used as the partnership name or a part of such partnership name shall be

liable as a general partner to any person who extends credit to the partnership without

knowledge that the limited partner was not a general partner.

(5) A person who contravenes the provisions of sub-paragraph (2) of this

paragraph shall be liable to a penalty, and for every day during which the default

continues, to a further penalty.

Contents of deed of partnership

5. (1) A partnership en commandite or limited partnership shall not be validly

constituted unless a deed of partnership is entered into and signed and a certificate of

registration is issued under this Schedule in respect thereof.

(2) The deed of partnership shall be in writing and shall set out the agreement

of the partners as to the affairs of the partnership and the conduct of its business.

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(3) The deed of partnership shall be binding upon the partners and their

assigns and upon subsequent partners in the same manner as if those persons had

themselves executed it.

(4) The deed of partnership shall state

(a) the name and residence of each of the first partners specifying the first

general and the first limited partners;

(b) the partnership name;

(c) the registered office in Malta of the partnership;

(d) subject to the provisions of subarticle (1) of article 66A of this Act, the

objects of the partnership;

(e) the contribution of each of the first partners to the partnership specifying

the value of the respective contribution and the amount paid up in respect of such

contribution;

(f) the period, if any, fixed for the duration of the partnership.

(5) The deed of partnership shall be delivered for registration to the Registrar

who, being satisfied that it complies with the requirements of this Schedule, shall register

(6) Where the deed of partnership is a public deed or a private writing enrolled

in the records of a notary public, an authentic copy thereof may be delivered in lieu of

the original.

(7) The aforesaid delivery shall be made by any one of the partners or his

authorised agent.

Duty of Registrar and effects of registration.

6. (1) On the registration of the deed of partnership and the payment of the fees

prescribed under paragraph (e) of subarticle (4) of article 66A of this Act, the Registrar

shall certify under his hand that the partnership is registered and the partnership shall

come into existence and shall be authorised to commence business under the partnership

name as from the date of the certificate

Provided that, if registration is obtained before the date fixed in the deed of

partnership for the commencement of the partnership, the certificate shall indicate

such date, and the partnership shall come into existence and shall be authorised to

commence business as from such later date.

(2) A certificate of registration given in respect of a partnership is conclusive

evidence that the requirements of this Schedule in respect of registration and of matters

precedent and incidental to it have been complied with and that the partnership is duly

registered under this Act.

Where certificate of registration is not issued

7. Unless and until a certificate of registration is issued under this Schedule in

respect of a partnership or until the date indicated in a certificate of registration as the

date on which a partnership shall come into existence -

(a) any two or more persons carrying on business under a name falsely

implying the existence of a partnership shall have, as against one another and

limitedly to property acquired from such business, such rights only as are by law

conferred on joint owners;

(b) any obligation contracted in favour of third parties in good faith under a

name falsely implying the existence of a partnership shall be jointly and severally

binding on those persons, who, if a certificate of registration had been issued,

would have been partners carrying on business under that name.

Changes in deed of partnership

8. (1) Unless otherwise provided in the deed of partnership, any alteration or

addition thereto may only be made with the unanimous consent of the partners.

(2) It shall be the duty of the general partner vested with the administration

or representation of a partnership en commandite or limited partnership to deliver to

the Registrar for registration any instrument or a copy thereof altering or adding to the

deed of partnership within fourteen days from the date of the said alteration or addition,

together with a printed copy of the deed of partnership, as amended; and any previous

amended text of the deed of partnership may be discarded by the Registrar when a

subsequent amended text is delivered to him for registration

Provided that in the event of a discrepancy between the text of any amended

deed of partnership and the text of the original registered deed of partnership, the latter

text together with any instruments registered in accordance with the provisions of sub-

paragraph (3) of this paragraph, shall prevail.

(3) Any alteration or addition to the deed of partnership of a partnership en

commandite or limited partnership shall not take effect, unless and until it is registered

as provided in sub-paragraph (2) of this paragraph.

(4) If default is made in complying with the provisions of sub-paragraph (2)

of this paragraph, every general partner who is in default shall be liable to a penalty,

and, for every day during which the default continues, to a further penalty.

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(5) Where a partnership en commandite or limited partnership changes its

name, the general partner shall within fourteen days notify the Registrar of such change

and the Registrar shall enter the new name on the register and shall issue a certificate

of registration altered to meet the circumstances of the case.

(6) If default is made in complying with the provisions of sub-paragraph

(5) of this paragraph, every general partner who is in default shall be liable to a penalty,

and for every day during which such default continues, to a further penalty.

General partners

9. The administration and representation of the partnership shall vest in the

general partners, and unless the deed of partnership otherwise provides, such

administration and representation shall vest in each of the general partners severally.

Limited partners

10. (1) A limited partner shall not participate in the conduct or management

of any business of the partnership and shall not transact the business of, sign, or execute

documents on behalf of the partnership.

(2) A limited partner who acts or purports to act in contravention of the

provisions of sub-paragraph (1) of this paragraph, shall be liable as if he were a general

partner in respect of all debts incurred while he so acts or purports to act.

(3) A limited partner shall not be deemed to have participated in the conduct

or management of the business of the partnership within the meaning of this paragraph

by reason only of any one or more of the following circumstances

(a) he is an employee, agent or contractor of the partnership or of a general

partner;

(b) he acts as a general partner, officer, employee or shareholder of a corporate

general partner;

(c) he consults with and advises a general partner as to the business of the

partnership en commandite or limited partnership;

(d) he investigates, reviews, approves or is advised as to the accounts or

affairs of the partnership en commandite or limited partnership;

(e) he exercises any right or power conferred on limited partners by this

Schedule;

(f) he approves or disapproves an amendment to the partnership agreement;

(g) he participates in or requests the appointment or removal of an auditor

of the partnership;

(h) he votes as a limited partner in any meeting of the partners;

(i) he acts as surety or guarantor of or provides security for the obligations

undertaken by the partnership en commandite or limited partnership;

(j) he lends money to, borrows money from or enters into transaction with

the partnership en commandite or limited partnership.

(4) The provisions of the immediately preceding sub-paragraph shall not be

construed as meaning that, if a limited partner exercises any other right, power or

function, he has necessarily, by reason of that fact alone, participated in the conduct of

the business of the partnership en commandite or limited partnership within the meaning

of this paragraph.

When limited partner ceases to be a partner

11. (1) A person shall cease to be limited partner

(a) upon the valid and absolute assignment of the whole of his partnership

interest;

(b) upon the return of the whole of his contribution (including if appropriate,

the discharge of all his obligations to make a contribution); or

(c) at such time or upon the occurrence of such event as may be specified in

that behalf in the deed of partnership

Provided that, in each case his name is removed from the register of partners.

(2) The fact that a person has ceased to be a limited partner shall not relieve

him of any liability arising under sub-paragraph (4) of paragraph 4 and sub-paragraph

(2) of paragraph (10) of this Schedule.

(3) The fact only that a person ceases to be a limited partner shall not constitute

a change or amendment to the deed of partnership.

When general partner ceases to be a partner

12. (1) A person shall cease to be a general partner upon the occurrence of

any of the following events

(a) his resignation, retirement or removal in accordance with the

requirements, if any, of the deed of partnership;

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(b) in the case of a natural person his bankruptcy, death or legal incapacity;

(c) in the case of a corporate general partner, the dissolution thereof.

(2) A general partner shall within fourteen days of his ceasing to be a general

partner deliver to the Registrar for registration a notification in writing of such fact and

the Registrar shall cause that notification to be registered. A general partner shall not

be relieved of any obligation under this Schedule until such time as he delivers to the

Registrar for registration a notification in writing of such fact.

Records

13. (1) A partnership en commandite or limited partnership shall maintain the

following or a copy thereof at the registered office

(a) the deed of partnership and every amendment thereof;

(b) a register of partners showing their full names and addresses together

with an indication of who is a general and who is a limited partner;

(c) the capital account of each limited partner showing whichever of the

following is applicable in relation to such limited partner -

(i) the amounts and dates of his contributions;

(ii) the amounts agreed to be contributed and the times at which or

events upon which the contributions are to be made;

(iii) the amounts and dates of any payments representing a return of his

contributions or any part thereof;

(iv) where an agreement to make a contribution is released in whole or

in part, the amount and the date of such release;

(d) its accounting records;

(e) the minutes of all meetings of the general partners;

(f) all documents from time to time filed with the Registrar.

(2) All documents or copies of documents required by sub-paragraph (1) of

this paragraph to be kept at the registered office shall, subject to the provisions of the

deed of partnership, be available for inspection by any partner during normal business

(3) The documents mentioned in items (b) and (c) of sub-paragraph (1) of

this paragraph shall constitute prima facie evidence of the matters specified therein.

(4) Notwithstanding the foregoing provisions of this paragraph the

documents described in sub-paragraph (1) of this paragraph may, provided that the

deed of partnership so permits, instead of being maintained at the registered office, be

maintained at such other place as the general partners consider appropriate, without

prejudice to the right of all partners to inspect such documents.

(5) In the event that such other place as is mentioned in sub-paragraph (4)

of this paragraph is outside Malta, copies of accounts, returns in respect of the business

and copies of minutes of meetings of general partners shall be sent to, and kept at, a

place in Malta, where they shall, subject to the provisions of the partnership agreement,

be available for inspection by any partner during normal business hours.

(6) The copies of accounts and returns mentioned in sub-paragraph (5) of

this paragraph which are to be sent to, and kept in Malta shall be such as to disclose

with reasonable accuracy the financial position of the business of the partnership at

intervals not exceeding six months.

(7) Any accounting records which a partnership en commandite or limited

partnership is required by this paragraph to keep shall be preserved by it for a period of

ten years from the date on which they are made and, if default is made in complying

with this sub-paragraph, the partnership and each general partner shall be liable to a

penalty.

(8) Any account, record or other document required by this Schedule to be

kept by a partnership may be kept either by making entries in books or in any other

manner, including without prejudice to the generality of the foregoing, computer or

other electronic forms.

(9) If any such account, record or other document is kept by making entries

other than in a book -

(a) it shall be deemed for the purposes of this Schedule to be kept at the

place where access to it and written copies of it can be obtained; and

(b) if the matters in question are recorded in non-legible form, the recording

thereof shall be capable of being reproduced in legible form.

(10) If in respect of a partnership en commandite or limited partnership

there is a contravention of any of the provisions of sub-paragraphs (1), (2), (5) or (6) of

this paragraph, the partnership and each general partner shall be liable to a penalty and

for any day during which the default continues, to a further penalty.

(11) Any duty imposed by this Schedule to allow inspection of documents

to be kept by the partnership shall, irrespective of the medium in which such documents

are maintained, be construed as a duty to allow inspection of such documents in legible

form.

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Accounts of a partnership en commandite or limited partnership

14. (1) Every partnership en commandite or limited partnership shall maintain

proper accounting records which shall be

(a) sufficient to show and explain the partnership’s transactions;

(b) disclose with reasonable accuracy, at any time, the partnership’s financial

position at that time;

(c) such as to enable the general partners to ensure that the partnership’s

balance sheet and profit and loss account are prepared properly and in accordance

with generally accepted accounting principles and practice and in accordance

with any relevant enactment for the time being in force in Malta;

(d) such as to contain day to day entries of all sums of money received and

expended by the partnership and the matters in respect of which the receipt and

expenditure takes place; and

(e) a record of the assets and liabilities of the partnership.

(2) The general partners of every partnership en commandite or limited

partnership shall prepare for each accounting period individual accounts comprising

the balance sheet as at the last day of the accounting period to which they refer, the

profit and loss account for that period, the notes to the accounts and any other financial

statements which may be required by generally accepted accounting principles and

practice. These documents shall constitute a composite whole.

(3) The individual accounts shall be drawn up clearly and in accordance

with the provisions of this Act and with generally accepted accounting principles and

practice.

(4) The individual accounts shall give a true and fair view of the partnership’s

assets, liabilities, financial position and profit or loss.

(5) The individual accounts shall comply with the requirements of this Act

and with generally accepted accounting principles and practice as to the form and

content of the balance sheet and profit and loss account and as to additional information

to be provided by way of notes to the accounts.

(6) Where the application of the provisions of this Act would not be sufficient

to give a true and fair view within the meaning of sub-paragraph (4) of this paragraph,

additional information shall be given.

(7) Where in exceptional cases the application of a provision of this Act is

incompatible with the obligation for the indivual accounts to give a true and fair view,

that provision shall be departed from in order to give a true and fair view. Any such

departure shall be disclosed in the notes to the accounts together with an explanation

of the reasons for it and a statement of its effect on the assets, liabilities, financial

position and profit or loss.

Application of Chapters IX and X of Part V of this Act

15. Save for what is stated in this Schedule, the provisions of Chapter IX and

Chapter X of Part V of this Act shall, so far as applicable and so far as they are not

inconsistent with the provisions of this Schedule, apply to partnership en commandite

or limited partnerships, with reference to “company” therein being construed as a

reference to partnership en commandite or limited partnership and reference to

“directors” being construed as a reference to general partners.

Accounts to be sent to limited partners

16. At the end of each accounting period the balance sheet and profit and loss

account of the partnership together with the report of the general partners and the

report of the auditors shall be communicated to the limited partners.

Return of limited partner’s contribution

17. (1) A limited partner shall not, on dissolution or otherwise, receive from the

capital of the partnership any payment representing a return of any part of his

contribution to the partnership unless, at the time of and immediately following the

making of the payment, the partnership en commandite or limited partnership is solvent.

(2) Where the partnership is insolvent at the time of or immediately following

the making of such payment, or in the event of insolvency of the partnership within a

period of six months immediately following the time of making such payment, the

payment shall, for a period of one year from the date of its receipt by the limited

partner, be repayable by him to the extent necessary to discharge any debt of the

partnership incurred at a time when his contribution formed part of the partnership

assets.

(3) Subject to the provisions of sub-paragraphs (1) and (2) of this paragraph,

a limited partner may demand the return of his contribution -

(a) on the dissolution of the partnership; or

(b) at such time or upon the occurrence of such event or events as may be

specified in the deed of partnership.

(4) A limited partner may, notwithstanding the nature of his contribution, and

subject to the provisions of the deed of partnership, demand and receive either money

or, where the assets of the partnership are capable of division, such divided part of the

assets of the partnership as is equivalent to the value of his contribution.

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(5) Any reference in this paragraph, however expressed, to the receipt by a

partner of a payment shall include a reference to the release of any debt owed by him

and forming part of the partnership assets (including any obligation on his part to

make a contribution to the capital of the partnership); and accordingly any reference in

sub-paragraph (2) to the making of a repayment by a partner shall be deemed to include

a reference to the due performance or discharge by him of the debt or obligation.

(6) For the purposes of this Schedule the expression “solvent” means that

the partnership en commandite or limited partnership is able to pay its debts in full,

other than payment of the contributions to the partners, on a distribution of assets on a

dissolution of the partnership, as they fall due, out of the partnership assets without

recourse to the separate assets of the general partners not contributed to the partnership;

and the expression “insolvent” shall be construed accordingly.

(7) A distribution of any assets of a partnership en commandite or limited

partnership to a limited partner shall be deemed to be a return of contribution for the

purposes of the provisions of sub-paragraph (1) of this paragraph, to the extent that the

distribution reduces the value of his share and interest in the partnership’s assets,

calculated on the basis of the value of the partnership’s net assets, below the value of

the amount contributed or agreed to be contributed by him.

Admission of additional limited partners

18. Subject to the provisions of the deed of partnership a partnership en commandite

or limited partnership shall allow any number of partners to become limited partners in

the partnership, provided that any such admission shall be made by the execution of an

agreement in writing and shall be evidenced by the entry of the particulars of the new

limited partners in the register of partners.

Assignment of interest of limited partner

19. (1) Subject to the provisions of the deed of partnership the interest of a limited

partner is assignable in whole or in part.

(2) An assignment by a limited partner of his interest in the partnership or

any part thereof

(a) shall not dissolve the partnership;

(b) shall not be valid unless made in writing and in accordance with other

requirements, if any, of the deed of partnership;

(c) shall not, unless and until the assignee is admitted to the partnership in

accordance with the provisions of paragraph 18 of this Schedule, entitle the assignee

to become or to exercise any right or power of a limited partner;

(d) shall upon the assignee being admitted to the partnership as a limited

partner in accordance with the provisions of paragraph 15 of this Schedule, entitle

the assignee to the rights and powers and, subject to item (e) hereunder, render

him subject to the restrictions and obligations (including any obligation to make

contributions to the capital of the partnership) to which the assignor was entitled

or subject in respect of the interest assigned immediately before the assignment;

(e) shall not relieve the assignor of any liability arising under sub-paragraph

(5) of paragraph 4 and sub-paragraph (2) of paragraph 10 of this Schedule.

(3) A limited partner, upon the valid and absolute assignment of the whole

of his interest in the partnership and his removal from the register of partners, shall

cease to be a limited partner and to be entitled to exercise any right or power of a

limited partner.

Causes of dissolution of partnerships en commandite or limited partnerships

20. (1) A partnership en commandite or limited partnership shall be dissolved

upon the occurrence of any of the following events

(a) upon the happening of any event specified in the deed of partnership;

(b) upon the date fixed for its duration in the deed of partnership, if any;

(c) upon the written agreement of all partners that the partnership shall be

dissolved and notice of that fact is given to the Registrar in accordance with sub-

paragraph (8) of paragraph 22 of this Schedule;

(d) if there is no general partner for a period of six months;

(e) if there is no limited partner for a period of six months.

(2) Where no general partner remains, the limited partners may, for the said

period of six months, appoint one of their number or any other person for the

performance of acts of ordinary administration and any limited partner or other person

appointed pursuant to the provisions of this sub-paragraph shall not incur any liability

which would otherwise be incurred under this Schedule for performing acts of ordinary

administration during the said six month period.

(3) Subject to the provisions of the deed of partnership a partnership en

commandite or limited partnership shall not be dissolved by any change in the limited

partners, or by the bankruptcy, insolvency, death, retirement, removal, resignation,

incapacity or dissolution of any limited partner whether an individual, partnership,

company or other body corporate.

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Dissolution by the Court

21. (1) The Court may order the dissolution of a partnership en commandite or

limited partnership on the application of any partner or creditor or on the application

of the Registrar if in its opinion

(a) the partnership is insolvent;

(b) the business of the partnership has been suspended for an uninterrupted

period of twelve months;

(c) the affairs of the partnership are being conducted in a manner which is

oppressive to any of the limited partners or prejudicial to their interests as limited

partners or is calculated to affect adversely the carrying on of the partnership

business;

(d) the limited partners are not being provided with the information relating

to the affairs of the partnership as they might reasonably expect;

(e) the affairs of the partnership are being conducted in such manner as to

defraud creditors or in an unlawful manner;

(f) there has been persistent default by the partnership or by any general

partner thereof in complying with the requirements of this Schedule or any

regulation made under this Act ;

(g) there are grounds of sufficient gravity to warrant the dissolution.

(2) Upon the making of an order under sub-paragraph (1) of this paragraph

for the dissolution of the partnership or at any time thereafter, the Court may make

such other orders in relation to the dissolution as it thinks fit and proper in the

circumstances, including an order for the appointment of one or more liquidators to

wind up the partnership’s affairs and distribute its assets.

General provisions applicable to dissolutions

22. (1) Upon the dissolution of a partnership en commandite or limited partnership

its affairs shall, unless a liquidator has been appointed by the Court under sub-paragraph

(2) of paragraph 21 of this Schedule or under sub-paragraph (3) of this paragraph, be

wound up by the general partners.

(2) Upon the dissolution of a partnership en commandite or limited

partnership no limited partner may, except in accordance with the provisions of

paragraphs 17 and 24 of this Schedule, withdraw any part of his contribution, or

otherwise claim as a creditor of the partnership.

(3) Upon the dissolution of a partnership en commandite or limited

partnership or at any time thereafter, the Court may, on application of any partner

(including an assignee thereof) or any creditor, make such orders in relation to the

dissolution as it thinks fit and proper, including one for the appointment of one or more

liquidators to wind up the partnership’s affairs and distribute its assets.

(4) On the appointment of a liquidator, whether under this paragraph or

under paragraph 21, all powers of the general partners shall cease; and any person who

purports to exercise any power of a general partner at a time when, pursuant to this

sub-paragraph those powers have ceased, shall be liable to a penalty.

(5) Upon the dissolution of a partnership en commandite or limited

partnership the partnership shall cease to carry on business except to the extent necessary

for its beneficial winding up; and where in relation to a partnership there is a

contravention of the provisions of this sub-paragraph, the partnership and each general

partner shall be liable to a penalty.

(6) All expenses properly incurred in the dissolution of a partnership en

commandite or limited partnership, including the liquidator’s remuneration, are payable

from the partnership’s assets in priority to all other debts.

(7) Upon the dissolution of a partnership en commandite or limited

partnership, notwithstanding the provisions of sub-paragraph (8) hereunder pursuant

to which the certificate of registration ceases to be valid, the persons winding up the

partnership’s affairs, in the name of and on behalf of the partnership

(a) may, to the extent necessary for the beneficial winding up of the

partnership, prosecute, defend or settle any civil or criminal action;

(b) shall dispose of the partnership’s property and realise its assets; and

(c) shall, in accordance with the provisions of paragraph 24 discharge the

partnership’s debts and distribute to the partners any remaining assets of the

partnership;

the whole without prejudice to the personal liability of the partners.

(8) Upon dissolution of a partnership en commandite or limited partnership,

notice of the fact shall, within a period of fourteen days from the date of dissolution, be

filed by the general partners with the Registrar who shall cause a notice of that fact to

be published in the Gazette.

(9) Where the general partners fail to give the notice of dissolution required

by the provisions of sub-paragraph (8) of this paragraph, the general partners shall be

liable to a penalty and shall continue to incur liability as if they were the general

partners of a partnership en commandite or limited partnership which had not been

dissolved.

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(10) The dissolution of a partnership shall be deemed to have occurred upon

the earlier of the following

(a) the date of the occurrence of the event upon which, under the provisions

of this Schedule, the partnership is dissolved; or

(b) the date of the order by the Court under this Schedule for its dissolution.

(11) As soon as a partnership en commandite or limited partnership’s affairs

are fully wound up, the persons who conducted the winding up shall

(a) prepare an account of the winding up, giving details of the conduct

thereof and the disposal of the partnership’s property, and stating whether or not

any state of affairs described in paragraph 23 of this Schedule has come to their

attention; and

(b) provide all partners with a copy of the said account; and

(c) deliver to the Registrar a copy of the said account for registration.

(12) The persons conducting the winding up of a partnership en commandite

or limited partnership may, by application, seek the Court’s directions as to any matter

in relation to the winding up; and upon such application the Court may make such

order as it thinks fit and proper.

(13) Upon the delivery to the Registrar of the winding-up account, the

Registrar shall thereupon register it and strike the name of the partnership off the register,

whereupon the partnership’s certificate of registration shall cease to be valid. The

Registrar shall forthwith publish a notice of completion of the winding up and of such

striking off.

Personal liability for certain defaults

23. (1) In any case where -

(a) a partnership en commandite or limited partnership has been dissolved

and is unable to pay its debts; and

(b) there has been in relation to the partnership a contravention of any relevant

provision which-

(i) has contributed to the inability of the partnership to pay its debts;

(ii) has materially misled or deceived any partner or creditor as to, or

has resulted in substantial uncertainty as to, the assets, liabilities, client money

or investment instruments of the partnership; or

(iii) has substantially impeded the orderly winding up of the

partnership’s affairs;

the Court may, on the application of any creditor or partner or of any person

conducting the winding up of the partnership, declare that any officer or

former officer of any general partner in the partnership who is responsible

for the contravention shall be personally liable, without limitation of liability,

for the debts of the partnership or such part thereof as may be specified by

the Court.

(2) Where the Court makes a declaration under sub-paragraph (1) of this

paragraph in relation to any person, it may-

(a) give such directions as it thinks fit and proper for the purpose of giving

effect to the declaration; and

(b) direct that the liability of that person under the declaration shall be a

charge on-

(i) any debt due from the partnership to him, to any person on his behalf,

to any person claiming as assignee from or through him or to any person

acting on behalf of such an assignee; or

(ii) any charge on any partnership assets or any interest in any such

charge held by or vested in him or any such person;

and the Court may also from time to time make such further orders as it

thinks fit for the purpose of giving effect to any charge imposed under this

sub-paragraph.

(3) In sub-paragraph (2) of this paragraph the expression “assignee” includes

any person to whom or in whose favour, by the directions of the person liable, the debt,

charge or interest was created, issued or transferred but does not include an assignee

for valuable consideration (other than consideration by way of marriage) given in good

faith and without notice of any of the grounds upon which the declaration might have

been made.

(4) The Court shall not make a declaration under sub-paragraph (1) of this

paragraph in respect of a person if it considers that -

(a) he took all reasonable steps to secure compliance by the partnership en

commandite or limited partnership with the relevant provisions; or

(b) he had reasonable grounds for believing and did believe that a competent

and reliable person, acting under the supervision or control of or appointed by the

general partners-

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(i) was charged with the duty of ensuring that those provisions were

compiled with; and

(ii) was in a position to discharge that duty.

(5) The foregoing provisions of this paragraph are without prejudice to any

other penalty, remedy or proceedings, whether civil or criminal, in respect of the

contravention.

(6) In any case where-

(a) a partnership en commandite or limited partnership has been dissolved

and is unable to pay its debts; and

(b) there has been in relation to the partnership a contravention of any relevant

provision which-

(i) has contributed to the inability of the partnership to pay its debts;

(ii) has materially misled or deceived any partner or creditor as to, or

has resulted in substantial uncertainty as to, the assets, liabilities, client money

or investment instruments of the partnership; or

(iii) has substantially impeded the orderly winding up of the partnership’s

affairs;

any officer or former officer of any general partner in the partnership who is

responsible for the contravention shall, without prejudice to any civil liability,

be guilty of an offence.

(7) In a prosecution for an offence under this paragraph, it shall be a

defence for the person charged to show that-

(a) he took all reasonable steps to secure compliance by the partnership en

commandite or limited partnership with the relevant provisions; or

(b) he had reasonable grounds for believing and did believe that a competent

and reliable person, acting under the supervision or control of or appointed by the

general partners-

(i) was charged with the duty of ensuring that those provisions were

complied with; and

(ii) was in a position to discharge that duty.

(8) For the purposes of this paragraph -

(a) the expression “officer”, in relation to a general partner, means any director,

manager, member of any committee of management or other controlling authority,

secretary or other similar officer of the general partner, any person in accordance

with whose directions or instructions any of the aforesaid are accustomed to act;

(b) the expression “relevant provision” means any relevant provision of this

Schedule and any other provision for the time being prescribed by regulations

under this Act; and

(c) a person shall be considered to be responsible for a contravention of a

relevant provision if the contravention -

(i) was committed with his consent or connivance; or

(ii) was attributable to or facilitated by any neglect on his part.

Distribution of assets upon dissolution

24. Upon the dissolution of a partnership en commandite or limited partnership,

the assets shall be distributed in the following order-

(a) firstly, to creditors other than partners, to the extent otherwise permitted

by law, in satisfaction of partnership debts;

(b) secondly to limited partners who are creditors and who are not also general

partners, to the extent otherwise permitted by law, in satisfaction of partnership

debts other than debts described in sub-paragraph (c) of this paragraph;

(c) finally, subject to the provisions of the deed of partnership, to partners as

follows-

(i) firstly, to limited partners for the return of their contributions or,

where appropriate, for the release of their obligations to make contributions;

(ii) secondly, to limited partners other than for capital and profits;

(iii) thirdly, to general partners in respect of capital;

(iv) finally, to general partners in respect of profits.

Division of capital into shares

25. (1) Without prejudice to the foregoing provisions of this Schedule, the capital

of a partnership en commandite or limited partnership may be divided into shares.

(2) The provisions of this Act relating to shares in a company other than the

provisions of article 72 thereof shall apply to the shares in a partnership en commandite

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or limited partnership in so far as they are not inconsistent with the foregoing provisions

of this Schedule.

(3) The provisions of article 78, subarticles (4), (5) and (6) of article 137 and

of subarticle (2) of article 142 of this Act shall apply to a partnership en commandite or

limited partnership, the capital of which is divided into shares, with the substitution of

references to general partners vested with administration or representation for references

to directors, officials or the board of directors; with the substitution of references to

partnership en commandite or limited partnership, the capital of which is divided into

shares, for references to company; with the substitution of references to deed of

partnership for references to memorandum or memorandum and articles; with the

substitution of references to partners for references to shareholders; and, with regard

to subarticle (5) of article 137 of this Act, with the substitution of the term “a decision

of the partners” for the term “any resolution of the general meeting or from a decision

of the board of directors”.

(4) A partnership en commandite or limited partnership, the capital of which

is not divided into shares, may change its status to a partnership en commandite or

limited partnership the capital of which is divided into shares, by a decision taken in

accordance with the provisions of the deed of partnership, or, in the absence of any

such provision, with the consent of all the partners, both general and limited

Provided that where one or more limited partners, holding in the aggregate

not more than one-fourth of the total contribution of the limited partners, have not

given their consent the partnership en commandite or limited partnership may

nevertheless proceed with the change of its status, but it shall be required, for the

purpose of such change, to liquidate and re-imburse to every partner who has not given

his consent, if he so requests, his interest in the partnership en commandite or limited

partnership on such terms as may be agreed, or as the Court, on a demand of either the

partnership or the limited partner, may deem fit to order.

(5) A partnership en commandite or limited partnership, the capital of which

is divided into shares, may change its status to a partnership en commandite or limited

partnership the capital of which is not divided into shares, by a decision taken in

accordance with the provisions of the deed of partnership or, in the absence of any

such provision, with the consent of all the partners, both general and limited

Provided that where one or more limited partners, holding in the aggregate

not more than one-tenth of the share capital of the partnership, have not given their

consent, the partnership en commandite or limited partnership may nevertheless proceed

with the change of its status, but it shall be required, for the purpose of such change, to

redeem the shares held by every partner in the partnership en commandite or limited

partnership who has not given his consent, if he so requests, on such terms as may be

agreed or as the court on a demand of either the partnership or of the limited partner

may deem fit to order.

(6) It shall be the duty of the general partner vested with the administration

or representation of a partnership en commandite or limited partnership, which has

decided to change its status in accordance with sub-paragraph (4) or sub-paragraph (5)

of this paragraph, to deliver to the Registrar for registration the instrument or a copy

thereof altering or adding to the deed of partnership together with a printed copy of the

deed of partnership as amended in accordance with the provisions of sub-paragraph

(2) of paragraph 8 of this Schedule.

(7) The change of status referred to in sub-paragraph (4) or in sub-paragraph

(5) of this paragraph shall not take effect unless and until it is registered as required by

sub-paragraph (6) of this paragraph.

(8) (a) The provisions of this paragraph shall only apply to a partnership en

commandite or limited partnership which qualifies as a collective investment

scheme duly licensed in terms of the Investment Services Act, 1994.

(b) For the purposes of this paragraph and unless the context otherwise

requires

“base currency” means the currency in which a sub-class is denominated;

“competent authority” means the competent authority under the

Investment Services Act, 1994;

“currency” means, in addition to the Maltese lira, any convertible

currency in terms of section 186 of this Act;

“fractional share” means a fraction of a whole share in any class of

shares issued by a partnership en commandite or limited partnership with

variable share capital;

“sub-class” means a distinct class of shares in a partnership en

commandite or limited partnership to which are allocated assets and liabilities

distinct from other assets and liabilities allocated to other classes of shares

in the same partnership and which may pursue investment objectives and

adhere to investment policies different from those of other classes of shares

in the same partnership.

(c) A deed of partnership of a partnership en commandite or limited

partnership the capital of which is divided into shares may provide for the

constitution of the partnership as a partnership en commandite or limited

partnership with variable share capital and the provisions of sub-articles (2) to (7)

and subarticle (9) of article 84 of this Act shall, in so far as applicable, apply

mutatis mutandis and reference to the term “memorandum or articles” shall be

deemed to be a reference to a “deed of partnership” and reference to the terms

“company” and “investment company” shall be deemed to be references to a

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“partnership en commandite or limited partnership” and reference to paragraph

(f) of article 69 of this Act shall be deemed to be a reference to paragraph (e) of

subarticle (1) of article 14 of this Act.

(d) A deed of partnership of a partnership en commandite or limited

partnership the capital of which is divided into shares may provide for the

constitution of the partnership as a partnership en commandite or limited

partnership in the form of an umbrella or multi-class partnership, and provide for

the constitution of sub-classes, and the different classes of shares that may be

issued by such partnership, where each class of shares represents a distinct sub-

class of the partnership and denominated in such currency or currencies as may

be provided in the deed.

(e) A partnership en commandite or limited partnership may only be validly

constituted as an umbrella or multi-class partnership if it is so licensed by the

competent authority.

(f) A partnership en commandite or limited partnership duly licensed to be

constituted as an umbrella or multi-class partnership may, with the approval of

the competent authority, establish new sub-classes by the creation and issue of

new classes of shares.

(g) Each class of shares representing a sub-class in any umbrella or multi-

class partnership may be designated in a different currency provided that a class

of shares may be designated only in one currency.

(h) An umbrella or multi-class partnership having its share capital

denominated in different currencies shall draw up its annual accounts in any one

of such currencies, as may be approved by the competent authority.

(i) The general partner of an umbrella or multi-class partnership shall maintain

proper accounting records of the assets and liabilities of each sub-class in the

base currency of that sub-class.

(j) The provisions of sub-paragraph (h) shall mutatis mutandis apply to the

drawing up of any other reports or financial statements which may be required

under this Act or by the competent authority.

(k) For the purposes of sub-paragraphs (h) and (j) hereof, the conversion

from the base currency of a sub-class into the currency in which the annual accounts

of the umbrella or multi-class partnership are to be drawn up shall be made by

using the exchange rate between the former and latter currencies on the balance

sheet date, and such rate shall be the official closing middle rate issued by the

Central Bank of Malta. This note shall be disclosed in the notes to the accounts.

(l) A partnership en commandite or limited partnership constituted as an

umbrella or multi-class partnership may in its deed of partnership elect to have

the assets and liabilities of each sub-class comprised in that partnership treated

for all intents and purposes of law as a patrimony separate from the assets and

liabilities of each other sub-class of such partnership. Where a partnership en

commandite or limited partnership constituted as an umbrella or multi-class

partnership makes the election aforementioned, the assets and liabilities of each

sub-class of that partnership shall, for all intents and purposes of law be deemed

to constitute a patrimony separate from the assets and liabilities of each other

sub-class of such a partnership.

(m) Save for such proportion of the liabilities of a partnership en commandite

or limited partnership constituted as an umbrella or multi-class partnership which

by virtue of the deed of partnership or by virtue of the terms of issue of the shares

constituting a sub-class are, or are to be attributable to, one or more sub-classes in

the proportion established therein, the liabilities incurred in respect of each sub-

class shall be paid out of the assets forming part of its patrimony and in the event

that such assets are insufficient to discharge the liabilities so incurred, the creditors

in respect thereof shall have no claim or right of action against the other assets of

the partnership, and the provisions of any law or regulation in force regulating the

insolvency of partnerships shall not apply.

(n) The general partner of a partnership en commandite or limited partnership

constituted as an umbrella or multi-class partnership shall hold or cause to be

held such separate records, accounts, statements and other documents as may be

necessary to evidence the liabilities and assets of each sub-class as distinct and

separate from the assets and liabilities of other sub-classes in the same partnership.

(o) The provisions of the Fifth Schedule to the Act shall apply mutatis

mutandis to a partnership en commandite or limited partnership with variable

share capital.

(p) (i) A partnership en commandite or limited partnership may, if so

authorised by its deed of partnership, issue fractional shares up to such number

of decimal places, not being less than three, as shall be specified in the deed

of partnership, and under such terms and conditions as may be stipulated

therein.

(ii) Fractional shares shall be automatically consolidated into a whole

share of the same class when the fractional shares held by one shareholder

become equal to a whole share.

Administrative penalties in respect of partnerships en commandite or limited

partnerships

26. (1) Where any provision of this Schedule provides for the imposition of a

penalty, the amount of such penalty shall be determined by reference to Part II of this

Schedule, which specifies the maximum penalty that may be imposed by the Registrar

under any of the provisions of this Schedule.

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(2) In Part II of this Schedule, the first column indicates the paragraph and

sub-paragraph of this Schedule which prescribes that a penalty shall be imposed, the

second column gives a general description of the infringement, which description shall

not be relied on in interpreting any provision of this Schedule, the third column prescribes

the maximum penalty and the fourth column prescribes the maximum daily default

penalty, if any. The penalty shall become due on the day on which the default occurs

and the daily default penalty shall be due for every day during which the default

continues and shall accrue from the day following that on which the default occurs.

(3) Action by the Registrar for the recovery of a penalty under this Schedule

shall be prescribed by the lapse of five years from the day on which the default occurs.

(4) In relation to penalties raised under this Schedule, the provisions of

article 401 of this Act shall apply mutatis mutandis.

PART II - PENALTIES

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Passed by the House of Representatives at Sitting No. 874 of the 24th February,

2003. A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Clerk to the House of Representatives

Mitbug[ fl-Istamperija tal-Gvern – Printed at the Government Printing Press

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 3 Set-off and netting. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) Notwithstanding the provisions of any other law, any

close-out netting provision or any other provision in any contract

providing for or relating to the set-off or netting of sums due from each

party to the other in respect of mutual credits, mutual debts or other

mutual dealings shall be enforceable in accordance with its terms,

whether before or after bankruptcy or insolvency, in respect of mutual

debts, mutual credits or mutual dealings which have arisen or occurred

before the bankruptcy or insolvency of one of the parties, against

(a) the parties to the contract,

(b) any guarantor or any person providing security for any

party to the contract,

(c) the liquidator, receiver, curator, controller, special

controller or other similar officer of either party to the contract,

and

(d) the creditors of the parties to the contract.

(2) When a close-out netting provision is enforced, obligations

expressed in different currencies are converted into a single currency

and such obligations shall be discharged by the payment of an aggregate

net sum equal to the balance of account by the party from whom the

larger amount is due.

(3) Any authority or mandate in a contract to implement

any close-out netting provision shall not be revoked by the declaration

of bankruptcy or the insolvency of any other party to the contract.

(4) Subarticle (1) of this article shall not apply in respect of

any close-out netting agreement entered into at a time at which the

other party knew or ought to have known that an application for the

dissolution and winding up of the company by reason of insolvency

was pending, or that the company has taken formal steps under any

applicable law to bring about its dissolution and winding up by reason

of insolvency.

(5) Subarticle (1) of this article shall also not apply where

the insolvent party is an individual or a commercial partnership other

than a company and the other party knew or ought to have known of

events of the same nature as stated in the preceding sub-article in relation

to the insolvent party.

(6) Notwithstanding the provisions of any other law, nothing

shall limit or delay the application of any provision of any contract

providing for or relating to set-off or netting which would otherwise be

enforceable and no order of any court nor any warrant or injunction or

similar order issued by a court or otherwise and no proceedings of

whatever nature shall have any effect in relation thereto.

(7)

Nothing in subarticle (6) of this article shall -

(a) prevent the application of any law which would render

netting or set-off unenforceable in any particular case on the

grounds of fraud or on any similar ground, or

(b) permit the enforceability of netting or set-off under this article

if any provision of a contract between the parties concerned would make

netting or set-off void because of fraud or any similar ground.

(8) Articles 303, 304 and 315 of the Companies Act and article Cap. 386

485 of the Commercial Code shall only be applicable in relation to a

close-out netting provision where there is fraud on the part of the party

to the agreement not being the insolvent party.

Gazzetta tal-Gvern ta' Malta — Att 2003 4 — ATT Nru. IV ta’ l-2003 ACT No. IV of 2003 ATT ma[ru; b’li;i mill-Parlament ta’ AN ACT enacted by the Parliament of Malta.
It-Tieni Skeda — ATT Nru. IV ta’ l-2003 ACT No. IV of 2003 ATT ma[ru; b’li;i mill-Parlament ta’ AN ACT enacted by the Parliament of Malta. Open official source

(Artikolu 171)

“L-G{AXAR SKEDA

(Artikolu 66A)

So/jetajiet in akkomanditi jew So/jetajiet Limitati

TAQSIMA I – REGOLAMENTI G{AL SO?JETAJIET IN AKKOMANDITI

JEW SO?JETAJIET LIMITATI

Tifsir

1. (a) F’ din l-Iskeda, kemm-il darba r-rabta tal-kliem ma te[tie;x xort’ o[ra -

“detentur ta’ li/enzja” tfisser persuna li jkollha li/enzja g[al servizzi ta’

investiment skond l-artikolu 6 ta’ l-Att dwar Servizzi ta’ Investiment.

(b) Id-disposizzjonijiet ta’ din l-Iskeda g[andhom japplikaw biss g[al soçjetajiet

in akkomanditi jew soçjetajiet limitati skond l-artikolu 66A ta’ l-Att.

Formazzjoni ta’ So/jetajiet in akkomanditi jew So/jetajiet Limitati

2. (1) So/jetà in akkomandita jew so/jetà limitata tista’ tkun furmata minn

]ew; so/ji jew i]jed, topera ta[t l-isem ta’ so/jetà u jkollha l-obbligi tag[ha garantiti

mir-responsabbiltà in solidum b’mod mhux limitat ta’ so/ju jew so/ji, imsej[in so/ji

;enerali, u mir-responsabbilta’, limitata g[all-ammont, jekk ikun hemm, mhux im[allas

mill-kontribuzzjoni ta’ so/ju wie[ed jew i]jed, imsej[a so/ji limitati.

(2) So/jetà in akkomandita jew so/jetà limitata, ikollha personalità ;uridika

separata u distinta minn dik tas-so/ji tag[ha, u skond hekk tkun so;;etta g[all-jeddijiet

u obbligi, tista’ tkun sid ta’ proprjetà u ]]ommha ta[t kull titolu legali u li t[arrek u

tkun im[arrka, f'isimha, u dik il-personalita’ ;uridika g[andha tkompli sa dak i]-]mien

li l-isem tas-so/jetà ikun im[assar mir-re;istru, f'liema ka] is-so/jetà ma tkomplix

te]isti.

Kostituzzjoni ta’ So/jetà in akkomandita jew so/jetà limitata

3. (1) So/jetà in akkomandita jew so/jetà limitata tkun tikkonsisti minn>

(a) wie[ed jew iktar so/ji ;enerali li jkunu responsabbli in solidum g[ad-

djun kollha tas-So/jetà in akkomandita jew so/jetà limitata ming[ajr limitazzjoni

u li g[all-inqas wie[ed minnhom ikun detentur ta’ liçenza li jkun li/enzjat b[ala

A

manager ta’ skema ta’ investiment kollettiv skond kif imfisser fl-Att dwar is-

Servizzi ta’ Investiment< u

(b) wie[ed jew iktar so/ji limitati li jid[lu fis-so/jetà b[ala so/ji limitati

skond l-Att tas-so/jetà, li malli jid[lu fis-so/jetà, jikkontribwixxu, jew jiftiehmu

li jikkontribwixxu g[all-kapital tag[ha somma spe/ifikata< u [lief g[al xi parti

mhux im[allsa tal-kontribuzzjoni tag[hom tas-so/jetà ma jkunux responsabbli

g[al xi dejn tas-so/jetà.

(2)

Kull persuna tista’ tkun so/ju f'so/jetà in akkomandita jew so/jetà

limitata.

(3) Il-kontribuzzjoni ta’ so/ji limitati tista’ tkun sodisfatta bil-provdiment

ta’ flus jew proprjetà o[ra li tkun tista’ ti;i valutata ekonomikament i]da ma tistax

tkun tikkonsisti minn servizzi futuri jew obbligi biex isir xi xog[ol jew ji;u provduti

servizzi< u meta tkun provduta proprjetà li ma tkunx flus, il-valur tal-proprjetà g[andu

jitqies li jkun il-valur tas-suq xieraq fi]-]mien tat-trasferiment tag[ha lis-so/jetà.

(4) Id-disposizzjonijet tal-proviso ta’ l-artikolu 51 ta’ dan l-Att ma

g[andhomx japplikaw g[al soçjetà in akkomandita jew soçjetà limitata.

Isem tas-So/jetà

4. (1) So/jetà in akkomandita jew so/jetà limitata tista’ tissejja[ b'kull isem,

i]da dak l-isem g[andu jintemm bil-kliem “So/jetà Limitata” jew l-abbrevazzjoni “LP”.

(2) Ebda persuna li tkun qed tmexxi xi negozju f’Malta, barra minn soçjetà

in akkomandita jew so/jetà limitata jew so/ji fiha, ma tista’ b’xi mod jew ie[or tiddeskrivi

lilha nnifisha jew i]]omm lilha nnifisha jew b’mod ra;onevoli tkun mifhuma li tindika,

jew tu]a xi isem li jindika jew jista’ b’mod ra;onevoli jiftiehem li, jew li qed tmexxi

negozju b[ala, so/jetà in akkomandita jew so/jeta limitata jew, skond il-ka], jew so/ju

tag[ha.

(3) L-isem ta’ so/ju limitat jew parti distintiva minnu ma jistg[ux ikunu

parti mill-isem tas-so/jetà.

(4) So/ju limitat li xjentiment i[alli ismu jew parti distintiva minnu jintu]a

b[ala l-isem tas-so/jetà jew parti minn dak l-isem tas-so/jetà jkun responsabbli b[ala

so/ju ;enerali lejn kull persuna li tag[ti kreditu lis-so/jetà li ma tkunx taf li s-so/ju limitat

ma jkunx so/ju ;enerali.

(5) Persuna li tikser id-dispo]izzjonijiet tas-sub-paragrafu (2) ta’ dan il-

paragrafu tista’ te[el penali, u g[al kull jum li matulu jkompli n-nuqqas, penali o[ra.

Kontenut ta’ l-att tas-so/jetà

5. (1) So/jetà in akkomandita jew so/jetà limitata ma tkunx validament

kostitwita kemm-il darba ma jkunx sar u iffirmat att tas-so/jetà u dwarha jin[are;

çertifikat ta’ re;istrazzjoni ta[t din l-Iskeda.

(2) L-att tas-so/jetà jkun bil-miktub u g[andu jistabbilixxi l-ftehim tas-

so/ji dwar l-affarijiet tas-so/jetà u t-tmexxija tan-negozju tag[ha.

(3) L-att tas-so/jetà jkun jorbot lis-so/ji u l-assenjati tag[hom u so/ji

sussegwenti bl-istess mod daqslikieku dawk il-persuni kienu esegwenti huma nfushom.

(4) L-att tas-so/jetà g[andu jag[ti–

(a) l-isem u r-residenza ta’ kull wie[ed mill-ewwel so/ji fejn jispe/ifika l-

ewwel so/ji ;enerali u l-ewwel so/ji limitati<

(b) l-isem tas-so/jetà<

(/) l-uffi//ju re;istrat f’Malta tas-so/jetà<

(d) bla [sara g[ad-dispo]izzjonijiet tas-subartikolu (1) ta’ l-artikolu 66A ta’

dan l-Att, l-g[anijiet tas-so/jetà<

(e) il-kontribuzzjoni ta’ kull wie[ed mill-ewwel so/ji tas-so/jetà fejn ikun

speçifikat il-valur tal-kontribuzzjoni relattiva u l-ammont im[allas dwar kull wa[da

minn dawk il-kontribuzzjonijiet<

(f)

i]-]mien, jekk ikun hemm, stabbilit g[all-[ajja tas-so/jetà .

(5) L-att tas-so/jetà g[andu jkun konsenjat g[ar-re;istrazzjoni lir-

Re;istratur li, meta jkun sodisfatt li jkun i[ares il-[ti;ijiet ta’ din l-Iskeda, g[andu

jirre;istraha.

(6) Meta l-att tas-so/jetà jkun att pubbliku jew skrittura privata iskritta fl-atti

ta’ nutar pubbliku, kopja awtentika tieg[u g[andha tkun konsenjata minflok l-ori;inal.

(7) L-imsemmija konsenja g[andha ssir minn wie[ed mis-so/ji jew mill-

a;ent awtorizzat tieg[u.

Dmir tar-Re;istratur u effetti tar-re;istrazzjoni

6. (1) Mar-re;istrazzjoni ta’ l-att tas-so/jetà u mal-[las tad-drittijiet preskritti

ta[t il-paragrafu (e) tas-subartikolu (4) ta’ l-artikolu 66A ta’ dan l-Att, ir-Re;istratur

g[andu ji//ertifika minn idejh li s-so/jetà hi re;istrata u s-so/jetà tibda te]isti u tkun

awtorizzata li tibda tinnegozzja ta[t l-isem tas-so/jetà mid-data ta/-/ertifikat>

A

I]da, jekk tinkiseb re;istrazzjoni qabel id-data stabbilita fl-att tas-so/jetà

g[all-bidu fis-se[[ tas-so/jetà, i/-/ertifikat g[andu juri dik id-data, u s-so/jetà g[andha

tibda te]isti u tkun awtorizzata li tibda n-negozju minn dik l-a[[ar data.

(2) /ertifikat ta’ re;istrazzjoni mog[ti dwar so/jetà jkun prova konklu]iva li

l-[ti;ijiet ta’ din l-Iskeda dwar re;istrazzjoni u [wejje; pre/edenti u in/identali g[aliha

jkunu t[arsu u li s-so/jetà tkun re;istrata kif imiss ta[t dan l-Att.

Meta ma jin[ari;x /ertifikat ta’ re;istrazzjoni

7. Kemm-il darba u sakemm /ertifikat ta’ re;istrazzjoni jin[are; ta[t din l-Iskeda

dwar so/jetà jew sad-data murija f’/ertifikat ta’ re;istrazzjoni b[ala li fiha s-so/jetà

g[andha tibda te]isti -

(a) kull ]ew; persuni jew iktar li jmexxu negozju ta[t isem li b’mod qarrieqi

jindika l-e]istenza ta’ so/jetà jkollhom, kontra xulxin u limitatament g[all-proprjetà

akkwistata minn dak in-negozju, dawk il-jeddijiet biss li bil-li;i huma mog[tija

lil komproprjetarji<

(b) kull obbligazzjoni li tkun saret favur terzi f’bona fide ta[t isem li b’mod

qarrieqi jindika l-e]istenza ta’ so/jetà tkun torbot in solidum lil dawk il-persuni,

li, kieku [are; /ertifikat ta’ re;istrazzjoni, kienu jkunu so/ji li qed imexxu negozju

ta[t dak l-isem.

Bdil fl-att tas-so/jetà

8. (1) Kemm-il darba ma jkunx provdut xort’o[ra bl-att tas-so/jetà, kull tibdil

jew ]ieda g[alih jistg[u jsiru biss bil-kunsens unanimu tas-so/ji.

(2) Ikun id-dmir tas-so/ju ;enerali vestit bl-amministrazzjoni jew

rappre]entanza ta’ so/jetà in akkomandita jew so/jetà limitata li jikkonsenja lir-Re;istratur

g[ar-re;istrazzjoni kull strument jew kopja tieg[u li jibdel jew i]id ma’ l-att tas-so/jetà fi

]mien erbatax-il jum mid-data ta’ l-imsemmi tibdil jew ]ieda, flimkien ma’ kopja stampata

ta’ l-att tas-so/jetà, kif emendat< u kull test qabel emendat ta’ l-att tas-soçjetà jista’ jitwarrab

mir-Re;istratur meta test emendat sussegwenti jkun konsenjat lilu g[ar-re;istrazzjoni>

I]da fil-ka] ta’ nuqqas ta’ qbil bejn it-test ta’ xi att ta’ so/jetà emendat u t-test

ori;inali ta’ l-att ta’ so/jetà re;istrata, it-test ta’ l-a[[ar flimkien ma’ kull strumenti re;istrati

skond id-dispo]izzjonijiet tas-sub-paragrafu (3) ta’ dan il-paragrafu, g[andhom jipprevalu.

(3) Kull tibdil jew ]ieda fl-att tas-so/jetà ta’ so/jetà in akkomandita jew

so/jetà limitata ikunu bla effett, kemm-il darba u sakemm ma jkunux re;istrati kif provdut

fis-sub-paragrafu (2) ta’ dan il-paragrafu.

(4) Jekk ikun hemm nuqqas mit-t[aris tad-dispo]izzjonijiet tas-sub-

paragrafu (2) ta’ dan il-paragrafu, kull so/ju ;enerali li jkun naqas jista’ je[el penali, u,

g[all kull jum li matulu jkompli n-nuqqas, penali o[ra.

(5) Meta so/jetà in akkomandita jew so/jetà limitata tibdel isimha, is-soçju

;enerali g[andu fi ]mien erbatax-il jum jav]a lir-Re;istratur b’dak il-bdil u r-Re;istratur

g[andu jda[[al l-isem il-;did fir-re;istru u jo[ro; /ertifikat ta’ re;istrazzjoni mibdul

skond i/-/irkostanzi tal-ka].

(6) Jekk ikun hemm nuqqas mit-t[aris tad-dispo]izzjonijiet tas-sub-

paragrafu (5) ta’ dan il-paragrafu, kull so/ju ;enerali li jkun naqas jista’ je[el penali, u

g[al kull jum li matulu jkompli n-nuqqas, penali o[ra.

So/ji ;enerali

9. L-amministrazzjoni u r-rappre]entanza tas-so/jetà jkunu vestiti fis-so/ji

;enerali, u kemm-il darba l-att tas-so/jetà ma jipprovdix xort’o[ra, dik l-

amministrazzjoni u r-rappre]entanza jkunu vestiti f’kull wie[ed mis-so/ji ;enerali

individwalment.

So/ji Limitati

10. (1) So/ju limitat ma g[andux jie[u sehem fit-tmexxija jew fl-

amministrazzjoni ta’ xi negozju tas-so/jetà u ma g[andux jag[mel transazzjonijiet tan-

negozju, jew, jiffirma, jew jesegwixxi dokumenti f’isem is-so/jetà.

(2) So/ju limitat li ja;ixxi jew ikun jidher li qed ja;ixxi bi ksir tad-

dispo]izzjonijiet tas-sub-paragrafu (1) ta’ dan il-paragrafu, ikun responsabbli daqslikieku

kien so/ju ;enerali dwar id-djun kollha li jkunu saru waqt li kien hekk qed ja;ixxi jew

kien jidher li qed ja;ixxi.

(3) So/ju limitat ma jitqiesx li jkun [a sehem fit-tmexxija jew fl-

amministrazzjoni tas-so/jetà kif imfisser f’dan il-paragrafu min[abba biss xi wa[da jew

i]jed mi/-/irkostanzi li ;ejjin>

(a) ikun impjegat, a;ent jew kuntrattur tas-so/jetà jew ta’ so/ju ;enerali<

(b) ja;ixxi b[ala so/ju ;enerali, uffi/jal, impjegat jew azzjonist ta’ so/ju

;enerali korporat<

(/) jikkonsulta ma’ u jag[ti parir lil so/ju ;enerali dwar in-negozju tas-

soçjetà in akkomandita jew so/jetà limitata<

(d) jinvestiga, jirrevedi, japprova jew jing[ata parir fuq il-kontijiet jew

affarijiet tas-so/jetà in akkomandita jew so/jetà limitata<

(e) je]er/ita xi jedd jew setg[a li b’din l-Iskeda hi mog[tija lil so/ji limitati<

A

(f)

japprova jew ma japprovax emenda g[all-ftehim tas-so/jetà<

(g) jie[u sehem fi, jew jitlob, il-[atra jew tne[[ija ta’ uditur tal-kumpannija<

(h) jivvota b[ala so/ju limitat f’xi laqg[a tas-so/ji<

(i) ja;ixxi b[ala garanti jew jipprovdi garanzjia g[all-obbligazzjonijiet li

tid[ol g[alihom is-so/jetà in akkomandita jew so/jetà limitata<

(j) jislef flus lil, jissellef flus ming[and jew jag[mel xi transazzjoni mas-

so/jetà in akkomandita jew so/jetà limitata.

(4) Id-dispo]izzjonijiet tas-sub-paragrafu minnufih qabel dan ma

g[andhomx jiftiehmu li jfissru li, jekk so/ju limitat je]er/ita xi jedd, setg[a jew funzjoni,

ikun neçessarjament, min[abba biss dak il-fatt, [a sehem fit-tmexxija tan-negozju tas-

so/jetà in akkomandita jew so/jetà limitata skond kif imfisser f’dan il-paragrafu.

Meta so/ju limitat ma jibqax so/ju

11. (1) Persuna ma tibqax so/ju limitat>

(a)

ma’ l-assenjazzjoni valida u assoluta ta’ l-interess tag[ha kollu fis-

soçjetà<

(b) mar-restituzzjoni tal-kontribuzzjoni tag[ha kollha (mag[dud jekk

xieraq, it-twettiq ta’ l-obbligazzjonijiet tag[ha kollha biex tag[mel kontribuzzjoni)<

jew

(/) f’dak i]-]mien jew ma’ dik il-;rajja li tista’ tkun hekk spe/ifikata fl-att

tas-so/jetà>

i]da, f’ kull ka] b[al dan isimha jitne[[a mir-re;istru tas-so/ji.

(2) Il-fatt li persuna ma tkunx baqg[et so/ju limitat ma je[lisix minn xi

responsabbilta’ li to[ro; mis-sub-paragrafu (4) tal-paragrafu 4 u s-sub-paragrafu

(2) tal-paragrafu (10) ta’ din l-Iskeda.

(3) Il-fatt biss li persuna tieqaf milli tkun so/ju limitat ma jikkostitwix

tibdil jew emenda ta’ l-att tas-so/jetà.

Meta so/ju ;enerali ma jibqax so/ju

12. (1) Persuna ma tibqax so/ju ;enerali ma’ wa[da mill-;rajjiet li ;ejjin>

(a) ir-ri]enja, l-irtir jew tne[[ija skond il-[ti;ijiet, jekk ikun hemm, ta’ l-att

tas-so/jetà<

(b) fil-ka] ta’ persuna naturali, il-falliment, il-mewt jew l-inkapa/ita’ legali

tag[ha<

(/)

fil-ka] ta’ so/ju ;enerali korporat, ix-xoljiment tag[ha.

(2) So/ju ;enerali g[andu fi ]mien erbatax-il jum minn meta ma jibqax

so/ju ;enerali, jikkonsenja lir-Re;istratur g[ar-re;istrazzjoni avvi] bil-miktub ta’ dak

il-fatt u r-Re;istratur g[andu jie[u [sieb li dak l-avvi] ikun re;istrat. So/ju ;enerali

ma jkunx me[lus minn xi obbligu ta[t din l-Iskeda sa dak i]-]mien li jikkonsenja lir-

Re;istratur g[ar-re;istrazzjoni avvi] bil-miktub ta’ dak il-fatt.

Records

13. (1) So/jetà in akkomandita jew so/jetà limitata g[andha ]]omm dawn li

;ejjin jew kopja tag[hom fl-uffi//ju re;istrat>

(a) l-att tas-so/jetà u kull emenda g[alih<

(b) re;istru tas-so/ji li juri l-ismijiet s[a[ u l-indirizzi tag[hom flimkien

ma’ indikazzjoni ta’ min hu so/ju ;enerali u min hu limitat<

(/) il-kont kapitali ta’ kull so/ju limitat li juri dak li japplika g[al kull so/

ju limitat minn dawn li ;ejjin -

(i) l-ammonti u d-dati tal-kontribuzzjonijiet teig[u<

(ii) l-ammonti miftiehma li jkunu kontribwiti u ]-]minijiet meta jew

il-;rajjiet li mag[hom il-kontribuzzjonijiet g[andhom isiru<

(iii) l-ammonti u d-dati ta’ kull [lasijiet li jirrappre]entaw dak li jda[[al

fuq il-kontribuzzjonijiet tieg[u jew xi parti minnhom<

(iv) meta ftehim biex issir kontribuzzjoni jkun me[lus g[al kollox jew

f’parti, l-ammont u d-data ta’ dak il-[elsien<

(d) ir-records tal-kontijiet<

(e) il-minuti tal-laqg[aet kollha tas-so/ji ;enerali<

(f) id-dokumenti kollha li minn ]mien g[al ]mien ikunu konsenjati lir-

Re;sitratur.

(2) Id-dokumenti kollha jew kopji tad-dokumenti li bis-sub-paragrafu (1)

ta’ dan il-paragrafu g[andhom jin]ammu fl-uffi//ju re;istrat g[andhom, bla [sara g[ad-

dispo]izzjonijiet ta’ l-att tas-so/jetà, ikunu disponibbli g[all-ispezzjoni minn kull so/ju

waqt il-[inijiet normali tax-xog[ol.

A

(3) Id-dokumenti msemmija fil-partiti (b) u (/) tas-sub-paragrafu (1) ta’

dan il-paragrafu jikkostitwixxu prova prima facie tal-[wejje; spe/ifikati fihom.

(4) Minkejja d-dispo]izzjonijiet ta’ qabel ta’ dan il-paragrafu, id-dokumenti

deskritti fis-sub-paragrafu (1) ta’ dan il-paragrafu jistg[u, sakemm ikun permess bl-att

tas-so/jetà, minflok li jin]ammu fl-uffi//ju re;istrat, jin]ammu f’dak il-post l-ie[or li s-

so/ji ;enerali jidhrilhom xieraq, bla [sara g[all-jedd tas-so/ji kollha biex jispezzjonaw

dawk id-dokumenti.

(5) Fil-ka] li dak il-post l-ie[or kif imsemmi fis-sub-paragrafu (4) ta’ dan il-

paragrafu jkun barra minn Malta, kopji tal-kontijiet, prospetti dwar in-negozju u kopji

tal-minuti ta’ laqg[at ta’ so/ji ;enerali g[andhom jintbag[tu u jin]ammu f’post f’Malta,

fejn dawn ikunu, bla [sara g[ad-dispo]izzjonijiet tal-ftehim tas-so/jetà, g[all-ispezzjon

minn kull so/ju waqt il-[inijiet normali tax-xog[ol.

(6) Il-kopji tal-kontijiet u prospetti msemmija fis-sub-paragrafu (5) ta’ dan

il-paragrafu li g[andhom jintbag[tu u jin]ammu f’Malta g[andhom ikunu b’mod li

juru bi pre/i]joni xierqa l-qag[da finanzjarja tan-negozju tas-so/jetà f’ intervalli ta’

mhux i]jed minn sitt xhur.

(7) Kull records tal-kontijiet li so/jetà in akkomandita jew so/jetà limitata

hi me[tie;a li ]]omm b’ dan il-paragrafu g[andhom ikunu konservati minnha g[al

perijodu ta’ g[axar snin mid-data li fihom ikunu saru u, fin-nuqqas ta’ t[aris ma’ dan

is-sub-paragrafu, is-so/jetà u kull so/ju ;enerali jistg[u je[lu penali.

(8) Kull kont, record jew dokument ie[or li b’din l-Iskeda hu me[tie; li

jin]amm minn so/jetà g[andu jin]amm jew d[ul f’kotba jew b’kull mod ie[or, ming[ajr

[sara g[all-;eneralita’ ta’ qabel, fuq il-kompjuter jew f’forma elettronika o[ra.

(9) Jekk xi kont, record jew dokument ie[or b[al dak jin]amm b’mod li

jsir d[ul barra minn f’kotba -

(a) g[andu jitqies g[all-finijiet ta’ din l-Iskeda li qed jin]amm f’post fejn

jista’ jkun hemm a//ess g[alih u li jistg[u jinkisbu kopji miktubin tieg[u< u

(b) jekk il-[wejje; in kwistjoni jkunu re;istrati f’forma mhux le;ibbli, ir-

re;istrazzjoni tag[hom trid tkun li tista’ ti;i riprodotta f’forma le;ibbli.

(10) Jekk dwar xi so/jetà in akkomandita jew so/jetà limitata jkun hemm

kontravvenzjoni ta’ xi dispo]izzjonijiet tas-sub-paragrafi (1), (2), (5) jew (6) ta’ dan il-

paragrafu, is-so/jetà u kull so/ju ;enerali jista’ je[el penali u g[al kull jum li matulu

jkompli n-nuqqas, penali o[ra.

(11) Kull dmir impost b’din l-Iskeda biex issir spezzjoni ta’ dokumenti li

jin]ammu mis-so/jetà g[andu, irrispettivament mill-mezz kif jin]ammu dawk id-

dokumenti, jitqies b[ala dmir biex issir spezzjoni ta’ dawk id-dokumenti f’forma le;;ibbli.

Kontijiet ta’ so/jetà in akkomandita jew soçjetà limitata

14. (1) Kull so/jetà in akkomandita jew so/jetà limitata g[andha ]]omm

records tal-kontijiet xierqa li g[andhom ikunu–

(a)

bi]]ejjed biex juru u jispjegaw it-transazzjonijiet tas-so/jetà <

(b) juru bi pre/i]joni xierqa, f’ kull ]mien, il-qag[da finanzjarja tas-so/

jetà f’ dak i]-]mien<

(/) hekk li s-so/ji ;enerali jkunu jistg[u ji]guraw li l-karta tal-bilan/ u l-

kont ta’ qlieg[ u telf jit[ejjew sewwa u skond il-prin/ipji ta’ kontijiet ;eneralment

aççettati u skond kull le;islazzjoni rilevanti li fi]-]mien tkun isse[[ f’Malta<

(d) hekk li jkun fihom ir-re;istrazzjoni ta’ kuljum tas-somom ta’ flus kollha

ri/evuti u minfuqa mis-so/jetà u l-[wejje; li dwarhom dawk l-ir/evuti u l-infieq

ikunu saru< u

(e) record ta’ l-attiv u tal-passiv tas-so/jetà.

(2) Is-so/ji ;enerali ta’ kull so/jetà in akkomandita jew so/jetà limitata

g[andhom i[ejju g[al kull ]mien ta’ kontijiet, kontijiet individwali li jkun fihom karta

tal-bilan/ kif tkun fl-a[[ar jum ta]-]mien tal-kontijiet li g[alih tirreferi, il-kont ta’ qlieg[

u telf g[al dak i]-]mien, in-noti tal-kontijiet u kull dikjarazzjonijiet finanzjarji o[ra li

jistg[u jkunu me[tie;a bil-prin/ipji u l-prattika ta’ kontijiet ;eneralment a//ettati. Dawn

id-dokumenti flimkien g[andhom jiffurmaw dokument s[i[.

(3) Il-kontijiet individwali g[andhom isiru b’mod /ar u skond id-

dispo]izzjonijiet ta’ dan l-Att u skond il-[ti;ijiet tal-prin/ipji u l-prattika ta’ kontijiet

;eneralment a//ettati.

(4) Kontijiet individwali g[andhom juru sewwa u xieraq l-attiv, il-passiv,

il-qag[da finanzjarja u qlieg[ jew telf tal-kumpannija.

(5) Il-kontijiet individwali g[andhom i[arsu l-[ti;ijiet ta’ dan l-Att u tal-

prin/ipji u l-prattika ta’ kontijiet ;eneralment a//ettati dwar il-forma u l-kontenut tal-

karta tal-bilan/ u l-kont ta’ qlieg[ u telf u dwar tag[rif addizzjonali li g[andu ji;i

provdut b[ala noti mal-kontijiet.

(6) Meta l-applikazzjoni tad-dispozizzjonijiet ta’ dan l-Att ma tkunx

bi]]ejjed biex jintwera sewwa u xieraq kif imfisser fis-sub-paragrafu (4) ta’ dan il-

paragrafu, g[andu jing[ata tag[rif addizzjonali.

(7) Meta f’ka]ijiet e//ezzjonali l-applikazzjoni ta’ dispo]izzjoni ta’ dan l-

Att ma tkunx taqbel ma’ l-obbligu li kontijiet individwali juru sewwa u xieraq, dik id-

dispo]izzjoni g[andu jkun hemm deroga minnha sabiex ikun muri sewwa u xieraq. Kull

A

deroga b[al dik g[andha tintwera fin-noti tal-kontijiet flimkien ma’ spjegazzjoni g[ar-

ra;unijiet li wasslu g[aliha u dikjarazzjoni ta’ l-effett tag[ha fuq l-attiv, il-passiv, il-

qag[da finanzjarja u qlieg[ jew telf.

Applikazzjoni tal-Kapitoli IX u X tat-Taqsima V ta’ dan l-Att

15. {lief kif provdut f’din l-Iskeda, id-dispo]izzjonijiet tal-Kapitolu IX u tal-

Kapitolu X tat-Taqsima V ta’ dan l-Att g[andhom, safejn ikunu applikabbli u safejn ma

jkunux inkonsistenti mad-dispo]izzjonijiet ta’ din l-Iskeda, japplikaw g[al so/jetà in

akkomandita jew so/jetà limitata, fejn riferenza fihom g[al “kumpannija” g[andha

tiftiehem b[ala riferenza g[al so/jetà in akkomandita jew so/jetà limitata u riferenza

g[al “diretturi” g[andha tiftiehem b[ala riferenza g[al so/ji ;enerali.

Kontijiet jintbg[atu lil so/ji limitati

16. Fl-eg[luq ta]-]mien tal-kontijiet, il-karta tal-bilan/ u l-kont ta’ qlieg[ u telf

tas-so/jetà flimkien mar-rapport tas-so/ji ;enerali u r-rapport ta’ l-awdituri g[andu

jkun komunikat lis-so/ji limitati.

G[oti lura ta’ kontribuzzjoni ta’ so/ji limitati

17. (1) So/ju limitat ma g[andux, max-xoljiment jew xort’o[ra, jir/ievi mill-

kapital tas-so/jetà xi [las b[ala g[oti lura ta’ xi parti mill-kontribuzzjoni tas-so/jetà

kemm-il darba, fi]-]mien jew minnufih wara li jsir xi [las, is-so/jetà in akkomandita

jew so/jetà limitata ma tkunx solventi.

(2) Meta s-so/jetà ma tkunx solventii fi]-]mien jew minnufih wara li jsir

dak il-[las, jew f’ka] ta’ insolvenza tas-so/jetà fi ]mien sitt xhur minnufih wara ]-

]mien li jsir dak il-[las, il-[las g[andu, g[al ]mien sena mid-data li fiha tkun ri/evuta

mis-soçju limitat, tit[allas lura minnu sal-limitu me[tie; biex jit[allas kull dejn tas-

soçjetà li jkun sar matul i]-]mien meta l-kontribuzzjoni tieg[u kienet tag[mel parti

mill-attiv tas-so/jetà.

(3) Bla [sara g[ad-dispo]izzjonijiet tas-sub-paragrafi (1) u (2) ta’ dan il-

paragrafu, so/ju limitat jista’ jitlob lura l-kontribuzzjoni tieg[u -

(a) max-xoljiment tas-so/jetà< jew

(b) f’dak i]-]mien jew mal-;rajja ta’ xi [a;a jew iktar kif jista’ jkun spe/

ifikat fl-att tas-so/jetà.

(4) So/ju limitat jista’, minkejja n-natura tal-kontribuzzjoni tieg[u, u bla

[sara g[ad-dispo]izzjonijiet ta’ l-att tas-so/jetà, jitlob u jir/ievi jew flus jew, meta l-

attiv tas-so/jetà jkun jista’ jinqasam, dik il-parti maqsuma ta’ l-attiv tas-so/jetà li tkun

daqs il-valur tal-kontribuzzjoni tieg[u.

(5) Kull riferenza f’dan il-paragrafu, tkun kif tkun espressa, li so/ju jir/

ievi [las g[andha tinkludi riferenza g[all-[elsien ta’ kull dejn dovut minnu u li jkun

jag[mel parti mill-attiv tas-so/jetà (mag[duda kull obbligazzjoni min-na[a tieg[u li

jag[mel kontribuzzjoni g[all-kapital tas-so/jetà)< u skond hekk kull riferenza fis-sub-

paragrafu (2) g[al-[las lura minn so/ju g[andha titqies li tinkludi riferenza li jkun

g[amel jew issodisfa b’mod xieraq id-dejn jew l-obbligazzjoni.

(6) G[all-finijiet ta’ din l-Iskeda l-epressjoni “solventi” tfisser li so/jetà in

akkomandita jew so/jetà limitata tkun tista’ t[allas id-djun tag[ha kollha, barra mill-[las

tal-kontribuzzjonijiet lis-so/ji, mat-tqassim ta’ l-attiv max-xoljiment tas-so/jetà

ming[ajr ma tmiss l-attiv separat tas-so/ji ;enerali li ma jkunux kontribwiti lis-so/

jetà< u l-espressjoni “mhux solventi” g[andha tiftiehem f’dan is-sens.

(7) Tqassim ta’ kull attiv ta’ so/jetà in akkomandita jew so/jetà limitata lil

so/ju limitat g[andhu titqies b[ala g[oti lura ta’ kontribuzzjoni g[all-finijiet tad-

dispo]izzjonijiet tas-sub-paragrafu (1) ta’ dan il-paragrafu, sal-limitu li t-tqassim inaqqas

il-valur tas-sehem u l-interess tieg[u fl-attiv tas-so/jetà, kalkolat fuq il-ba]i ta’ l-attiv

nett tas-so/jetà, ikun inqas mill-valur ta’ l-ammont kontribwit jew miftiehem li jkun

kontribwit minnu.

D[ul ta’ so/ji limitati o[ra

18. Bla [sara g[ad-dispo]izzjonijiet ta’ l-att tas-so/jetà , so/jetà in akkomandita

jew so/jetà limitata g[andha t[alli kull numru limitat ta’ so/ji limitati biex isiru so/ji

limitati fis-so/jetà, kemm-il darba dak id-d[ul ikun mag[mul skond ftehim bil-miktub u

jkun ippruvat billi jitni]]lu l-partikolaritajiet tas-so/ji limitati ;odda fir-re;istru tas-

so/ji.

Assenjazzjoni ta’ nteress ta’ so/ju limitat

19. (1) Bla [sara g[ad-dispo]izzjonijiet ta’ l-att tas-so/jetà l-interess ta’ soçju

limitat ikun assenjabbli jew g[al kollox jew f’parti.

(2) Kull assenjazzjoni minn so/ju limitat ta’ l-interess tieg[u fis-so/jetà

jew f’xi parti minna>

(a)

ma g[andhiex ixxolji s-so/jetà<

(b) ma tkunx valida kemm-il darba ma ssirx bil-miktub u skond [ti;ijiet

o[ra, jekk ikun hemm, ta’ l-att tas-so/jetà<

(/) ma g[andhix, kemm-il darba u sakemm min jir/ievi l-assenjazzjoni ma

jid[olx fis-so/jetà skond id-dispo]izzjonijiet tal-paragrafu 18 ta’ din l-Iskeda, tag[ti

l-jedd lil min jir/ievi l-assenjazzjoni biex isir jew biex je]er/ita xi jedd jew setg[a

ta’ so/ju limitat<

A

(d) malli min jir/ievi l-assenjazzjoni jid[ol fis-so/jetà b[ala so/ju limitat

skond id-dispo]izzjonijiet tal-paragrafu 15 ta’ din l-Iskeda, tag[ti lil min jir/ievi

l-assenjazzjoni l-jeddijiet u s-setg[at u, bla [sara tal-partita (e) ta’ hawn ta[t,

tqeg[da su;;ett g[ar-restrizzjonijiet u obbligazzjonijiet (mag[duda kull

obbligazzjoni g[all-eg[mil ta’ kontribuzzjonijiet tal-kapital tas-so/jetà) li l-

assenjatur kien intitolat jew su;;ett g[alihom relattivament g[all-interess assenjat

minnufih qabel l-assenjazzjoni<

(e) ma te[lisx lill-assenjatur minn xi responsabbilta’ li to[ro; mis-sub-

paragrafu (5) tal-paragrafu 4 u mis-sub-paragrafu (2) tal-paragrafu 10 ta’ din l-

Iskeda.

(3) So/ju limitat, ma’ l-assenjazzjoni valida u assoluta ta’ l-interess tieg[u

kollu fis-so/jetà u mat-tne[[ija tieg[u mir-re;istru tas-so/ji, jieqaf milli jkun so/ju

limitat u mid-dritt li je]er/ita xi jedd jew setg[a ta’ so/ju limitat.

Kaw]i ta’ xoljiment ta’ so/jetajiet in akkomanditi jew so/jetajiet limitati

20. (1) So/jetà in akkomandita jew so/jetà limitata tkun xolta meta ti;ri xi

wa[da mill-;rajjiet li ;ejjin>

(a) meta ti;ri xi wa[da mill-;rajjiet spe/ifikati fl-att tas-so/jetà<

(b) mad-data stabbilita g[at-terminu tag[ha skond l-att tas-so/jetà, jekk

ikun hemm<

(/) mal-ftehim bil-miktub tas-so/ji kollha li s-so/jetà g[andha tkun xolta

u avvi] ta’ dak il-fatt jing[ata lir-Re;istratur skond is-sub-paragrafu (8) ta’

paragrafu 22 ta’ din l-Iskeda<

(d) jekk ma jkunx hemm so/ju ;enerali g[al ]mien ta’ sitt xhur<

(e)

jekk ma jkunx hemm so/ju limitat g[al ]mien ta’ sitt xhur.

(2) Meta ma jibqa’ ebda so/ju ;enerali, is-so/ji limitati jistg[u, matul l-

imsemmija sitt xhur, ja[tru wie[ed minn fosthom jew xi persuna o[ra biex twettaq l-atti

ta’ amministrazzjoni ordinarja u kull so/ju limitat jew persuna o[ra ma[tura skond id-

dispo]izzjonijiet ta’ dan is-sub-paragrafu ma g[andhiex tinkorri xi responsabbilita’ li

xort’o[ra kienet tinkorri ta[t din l-Iskeda g[at-twettiq ta’ atti ordinarji ta’ amministrazzjoni

matul l-imsemmija ]mien ta’ sitt xhur.

(3) Bla [sara g[ad-dispo]izzjonijiet ta’ l-att tas-so/jetà, so/jetà in akkomandita

jew so/jetà limitata ma g[andhiex tkun xolta b’xi tibdil fis-so/ji limitati, jew bil-falliment,

insolvenza, mewt, irtirar, tne[[ija, ri]enja, inkapa/ità jew xoljiment ta’ xi so/ju limitat

sew jekk individwu, so/jetà, kumpannija jew korp ;uridiku ie[or.

Xoljiment mill-Qorti

21. (1) Il-Qorti tista’ tordna x-xoljiment ta’ so/jetà in akkomandita jew so/

jetà limitata fuq ir-rikors ta’ xi so/ju jew kreditur jew fuq ir-rikors tar-Re;istratur jekk

fil-fehma tag[ha>

(a)

is-so/jetà ma tkunx solventi<

(b) in-negozju tas-so/jetà ikun sospi] g[al ]mien kontinwu ta’ tnax-il xahar<

(/) l-affarijiet tas-so/jetà jkunu qed jitmexxew b’mod li jkunu oppressiv

g[al xi wie[ed mis-so/ji limitati jew bi pre;udizzju g[all-interessi tag[hom

b[ala soçji limitati jew ikunu kalkolati li jolqtu [a]in it-tmexxija tan-negozju

tas-so/jetà<

(d) is-so/ji limitati ma tkunx qed ting[atalhom l-informazzjoni dwar l-

affarjiiet tal-kumpannija li b’mod ra;onevoli jistg[u jistennew<

(e) l-affarijiet tas-so/jetà jkunu qed jitmexxew b’dak il-mod li jo[loq frodi

tal-kredituri jew b’xi mod li jkun ille;ittimu<

(f) ikun hemm nuqqas persistenti mis-so/jetà jew minn xi so/ju ;enerali

tag[ha mat-t[aris ta’ din l-Iskeda jew ta’ xi regolament mag[mul bis-sa[[a ta’

dan dan l-Att<

(;) ikun hemm ra;unijiet ta’ gravita’ bi]]ejjed biex ji;;ustifikaw ix-

xoljiment.

(2) Ma’ l-eg[mil ta’ ordni ta[t is-sub-paragrafu (1) ta’ dan il-paragrafu

g[ax-xoljiment ta’ so/jetà jew f’xi ]mien wara, il-Qorti tista’ tag[ti dawk l-ordnijiet l-

o[ra dwar ix-xoljiment li jidhrilha xierqa fi/-/irkostanzi, mag[dud kull ordni g[all-

[atra ta’stralçjarju wie[ed jew iktar biex jistral/ja l-affarijiet tas-so/jetà u jqassam l-

assi tag[ha.

Dispo]izzjonijiet ;enerali applikabbli g[al xoljiment

22. (1) Max-xoljiment ta’ so/jetà in akkomandita jew so/jetà limitata l-affarijiet

tag[ha g[andhom, kemm-il darba ma jin[atarx stral/jarju mill-Qorti ta[t is-sub-paragrafu

(2) tal-paragrafu 21 ta’ din l-Iskeda jew ta[t is-sub-paragrafu (3) ta’ dan il-paragrafu,

tkun xolta mis-so/ji ;enerali.

(2) Max-xoljiment ta’ so/jetà in akkomandita jew so/jetà limitata ebda so/ju

limitat ma jista’, [lief skond id-dispo]izzjonijiet tal-paragrafi 17 u 24 ta’ din l-Iskeda,

jirtira xi parti mill-kontribuzzjoni tieg[u jew xort’o[ra jag[mel talba b[ala kreditur tas-

so/jetà.

A

(3) Max-xoljiment ta’ so/jetà in akkomandita jew so/jetà limitata jew f’xi

]mien wara, il-Qorti tista’ fuq rikors ta’ xi so/ju (mag[dud min jir/ievi assenjazzjoni

tieg[u) jew xi kreditur, tag[ti dawk l-ordnijiet dwar ix-xoljiment li jidhrilha xierqa,

mag[dud ordni g[all-[atra ta’ stral/jarju wie[ed jew i]jed biex jistral/ja l-affarijiet

tas-so/jetà u jqassam l-attiv tag[ha.

(4) Mal-[atra ta’ stral/jarju, sew jekk ta[t dan il-paragrafu jew ta[t il-

paragrafu 21, is-setg[at kollha tas-so/ji ;enerali g[andhom jieqfu< u kull persuna li

tkun tidher li qed te]er/ita xi setg[a ta’ so/ju ;enerali f’xi ]mien meta, skond dan is-

sub-paragrafu dawk is-setg[at kienu waqfu, tista’ te[el penali.

(5) Max-xoljiment ta’ so/jetà in akkomandita jew so/jetà limitata s-soçjetà

g[andha tieqaf milli tmexxi n-negozju [lief sal-limitu li jkun me[tie; g[all-istralç

benefi/jali tag[ha< u meta dwar so/jetà jkun hemm kontravvenzjoni tad-dispo]izzjonijiet

ta’ dan is-sub-paragrafu, is-so/jetà u kull so/ju ;enerali jistg[u je[lu penali.

(6) L-ispejje] kollha li b’mod xieraq ikunu saru g[ax-xoljiment ta’ so/jetà

in akkomandita jew so/jetà limitata, mag[duda r-rimunerazzjoni ta’ l-istral/jarju,

g[andhom jit[allsu mill-attiv tas-so/jetà qabel ma jit[allsu djun o[ra.

(7) Max-xoljiment ta’ so/jetà in akkomandita jew so/jetà limitata, minkejja

d-dispo]izzjonijiet tas-sub-paragrafu (8) ta’ hawn ta[t li bis-sa[[a tag[hom i/-/ertifikat

ta’ re;istrazzjoni ma jibqax validu, il-persuni li jkunu qed jistral/jaw l-affarijiet tas-

soçjetà, f’isem u g[an-nom tas-so/jetà>

(a) jistg[u, sal-limitu li jkun me[tie; g[all-istral/ benefi/jali tas-so/jetà,

jag[mlu prosekuzzjoni, difi]a jew jirri]olvu kull azzjoni /ivili jew kriminali<

(b) jistg[u jiddisponu mill-proprjetà tas-so/jetà u jirrealizzaw l-attiv tag[ha<

u

(/) g[andhom, skond id-dispo]izzjonijiet tal-paragrafu 24 ta’ din l-Iskeda

jissodisfaw id-djun tas-so/jetà u jqassmu lis-so/ji kull attiv li jibqa’ tas-so/jetà<

kollox bla [sara g[ar-responsabbilta’ personali tas-so/ji.

(8) Max-xoljiment ta’ so/jetà in akkomandita jew so/jetà limitata, avvi]

tal-fatt g[andu, fi ]mien erbatax-il jum mid-data tax-xoljiment, ikun ippre]entat mis-

so/ji ;enerali lir-Re;istratur li g[andu jie[u [sieb li avvi] ta’ dak il-fatt g[andu jkun

pubblikat fil-Gazzetta.

(9) Meta s-so/ji ;enerali jonqsu li jag[tu avvi] kif me[tie; bid-

dispo]izzjonijiet tas-sub-paragrafu (8) ta’ dan il-paragrafu, is-so/ji ;enerali jistg[u je[lu

penali u jkomplu bir-responsabbiltà tag[hom daqslikieku kienu so/ji ;enerali ta’ so/jetà

in akkomandita jew so/jetà limitata li ma tkunx ;iet xolta.

(10) Ix-xoljiment ta’ so/jetà g[andu jitqies li jkun ;ara ma’ l-ewwel minn

dan li ;ej>

(a) mid-data tal-;rajja li minnha, ta[t id-dispo]izzjonijiet ta’ din l-Iskeda,

is-so/jetà tkun xolta< jew

(b) id-data ta’ l-ordni mill-Qorti ta[t din l-Iskeda g[ax-xoljiment tag[ha.

(11) Malli l-affarijiet tas-so/jetà in akkomandita jew so/jetà limitata jkunu

stral/jati g[al kollox, il-persuni li jkunu mexxew l-istral/ g[andhom>

(a) i[ejju rendikont ta’ l-istral/ li jag[ti dettalji tat-tmexxija tag[ha u tad-

disponiment tal-proprjetà tas-so/jetà, u li jiddikjara jekk xi wa[da mill-affarijiet

imsemmija fil-paragrafu 23 ta’ din l-Iskeda tkunx ;iet g[all-attenzjoni tag[hom

jew le<

(b) jag[tu lis-so/ji kollha kopja ta’ l-imsemmi rendikont< u

(/) jikkonsenjaw lir-Re;istratur kopja ta’ l-imsemmi rendikont g[ar-

re;istrazzjoni.

(12) Il-persuni li jmexxu l-istral/ ta’ so/jetà in akkomandita jew so/jetà

limitata jistg[u, b’rikors, jitolbu d-direzzjonijiet tal-Qorti dwar kull [a;a li g[andha

x’taqsam ma’ l-istral/< u ma dak ir-rikors il-Qorti tista’ tag[ti dik l-ordni li jidhrilha

(13) Mal-konsenja lir-Re;istratur tar-rendikont tal-kont ta’ l-istral/, ir-

Re;istratur g[andu ma’ dan jirre;istrah u j[assar l-isem tas-so/jetà minn fuq ir-Re;istru,

u malli jag[mel hekk i/-/ertifikat ta’ re;istrazzjoni tas-so/jetà ma jibqax validu. Ir-

Re;istratur g[andu minnufih jippubblika avvi] tat-tmiem ta’ l-istral/ u ta’ dak it-t[assir.

Responsabbiltà personali g[al /erti nuqqasijiet

23. (1) F’kull ka] fejn –

(a) so/jetà in akkomandita jew so/jetà limitata tkun ;iet xolta u ma tkunx

tista’ t[allas id-djun tag[ha< u

(b) dwar is-so/jetà tkun saret kontravvenzjoni ta’ xi dispo]izzjoni rilevanti,

(i) tkun ikkontribwit g[all-fatt li s-so/jetà ma tkunx tista’ t[allas id-

djun tag[ha<

A

(ii) tkun b’mod materjali ]gwidat jew qarrqet b’xi so/ju jew kreditur,

jew tkun irri]ultat f’in/ertezza sostanzjali dwar l-attiv, il-passiv, flus tal-

klijenti jew strumenti ta’ investiment tas-so/jetà< jew

(iii) tkun sostanzjalment impediet l-istral/ xieraq ta’ l-affarijiet tas-

soçjetà<

il-Qorti tista’, fuq rikors ta’ xi kreditur jew so/ju jew xi persuna o[ra li tkun

qed tmexxi l-istral/ tas-so/jetà, tiddikjara li xi uffi/jal jew uffi/jal passat ta’ xi so/ju

;enerali fis-so/jetà< li jkun responsabbli g[all-kontravvenzjoni jkun personalment

responsabbli, ming[ajr limitazzjoni ta’ responsabbilta’, g[ad-djun tas-so/jetà jew dik

il-parti minnhom kif jista’ ji;i spe/ifikat mill-Qorti.

(2) Meta l-Qorti tag[mel dikjarazzjoni ta[t is-sub-paragrafu (1) ta’ dan il-

paragrafu dwar xi persuna, din tista’ -

(a) tag[ti dawk id-direzzjonijiet li jidhrilha xierqa sabiex tag[ti effett lid-

dikjarazzjoni< u

(b) tordna li r-responsabbiltà ta’ dik il-persuna ta[t id-dikjarazzjoni tkun

pi] fuq -

(i) xi dejn dovut mis-so/jetà lilha, lil xi persuna f’isimha, lil xi persuna

li tg[id li tkun ir/evit assenjazzjoni ming[andha jew permezz tag[ha jew lil

xi persuna li ta;ixxi f’isem dik il-persuna li tir/ievi assenjazzjoni< jew

(ii) kull pi] fuq xi attiv tas-so/jetà jew xi interess f’xi pi] b[al dak

mi]mum jew vestit f’dik il-persuna jew f’xi persuna o[ra kif imsemmija<

u l-Qorti tista’ wkoll minn ]mien g[al ]mien tag[mel dawk l-ordnijiet l-o[ra

li jidhrilha xierqa sabiex tag[ti effett lil xi pi] impost ta[t dan is-sub-paragrafu.

(3) Fis-sub-paragrafu (2) ta’ dan il-paragrafu, l-espressjoni “persuna li

tirçievi assenjazzjoni” tinkludi kull persuna li lilha jew favur tag[ha, bid-direzzjoni

tal-persuna responsabbli, id-dejn, il-pi] jew l-interess ikun in[oloq, in[are; jew ;ie

trasferit, i]da ma tinkludix persuna li tir/ievi assenjazzjoni g[al konsiderazzjoni

prezzju]a (barra minn konsiderazzjoni ma]-]wie;) mog[tija in bona fide u bla avvi]

ta’ xi ra;unijiet li fuqhom setg[at saret id-dikjarazzjoni.

(4) Il-Qorti ma g[andhiex tag[mel dikjarazzjoni ta[t is-sub-paragrafu (1)

ta’ dan il-paragrafu dwar persuna, jekk tikkunsidra li -

(a) tkun [adet il-passi kollha ra;onevoli biex ti]gura t[aris mis-so/jetà in

akkomandita jew so/jetà limitata tad-dispo]izzjonijiet rilevanti< jew

(b) kellha ra;unijiet xierqa biex temmen u fil-fatt kienet temmen li persuna

kompetenti u ta’ min jorbot fuqha, li kienet qed ta;ixxi ta[t is-sorveljanza jew kontroll

ta’ jew ma[tura mis-so/ji ;enerali -

(i) kienet inkarigata bid-dmir li ti]gura li dawk id-dispo]izzjonijiet

ikunu m[arsa< u

(ii) kienet f’po]izzjoni li taqdi dak id-dmir.

(5) Id-dispo]izzjonijiet ta’ qabel ta’ dan il-paragrafu jkunu bla [sara g[al

xi penali, rimedju jew pro/edura o[ra, /ivili jew kriminali, dwar il-kontravvenzjoni.

(6) F’xi ka] fejn -

(a) so/jetà in akkomandita jew so/jetà limitata tkun ;iet xolta u ma tkunx

tista’ t[allas id-djun tag[ha< u

(b) dwar is-so/jetà tkun saret kontravvenzjoni ta’ xi dispo]izzjoni rilevanti

(i) tkun ikkontribwit g[all-fatt li s-so/jetà ma tkunx tista’ t[allas id-

djun tag[ha<

(ii) tkun b’mod materjali ]gwidat jew qarrqet b’xi so/ju jew kreditur,

jew tkun irri]ultat f’in/ertezza sostanzjali dwar l-attiv, il-passiv, flus tal-

klijenti jew strumenti ta’ investiment tas-so/jetà< jew

(iii) tkun sostanzjalment impediet l-istral/ xieraq ta’ l-affarijiet tas-

soçjetà<

kull uffi/jal jew uffi/jal passat ta’ xi so/ju ;enerali tas-so/jetà li jkun

responsabbli g[all-kontravvenzjoni (bla [sara g[al kull responsabbiltà /ivili) ikun [ati

(7) Fil-prosekuzzjoni g[al reat ta[t dan il-paragrafu, tkun difi]a g[all-

persuna akku]ata li turi li -

(a) tkun [adet il-passi kollha ra;onevoli biex ti]gura t[aris mis-so/jetà in

akkomandita jew so/jetà limitata tad-dispo]izzjonijiet rilevanti< jew

(b) kellha ra;unijiet xierqa biex temmen u fil-fatt kienet temmen li persuna

kompetenti u ta’ min jorbot fuqha, li kienet qed ta;ixxi ta[t is-sorveljanza jew

kontroll ta’ jew ma[tura mis-so/ji ;enerali -

A

(i) kienet inkarigata bid-dmir li ti]gura li dawk id-dispo]izzjonijiet

ikunu m[arsa< u

(ii) kienet f’po]izzjoni li taqdi dak id-dmir.

(8) G[all-finijiet ta’ dan il- paragrafu -

(a) l-espressjoni “uffi/jal”, dwar so/ju ;enerali, tfisser kull direttur,

manager, membru ta’ xi kumitat ta’ l-amministrazzjoni jew awtorita’ o[ra li

tikkontrolla, segretarju jew uffi/jal ie[or simili tas-so/ju ;enerali, u kull persuna

li skond id-direzzjonijiet jew l-istruzzjonijiet tag[ha xi w[ud mill-persuni

msemmija jkunu mdorrija ja;ixxu<

(b) l-espressjoni “dispo]izzjoni rilevanti” tfisser kull dispo]izzjoni rilevanti

ta’ din l-Iskeda u kull dispo]izzjoni o[ra li fi]-]mien tkun preskritta b’regolamenti

ta[t dan l-Att< u

(/) persuna titqies li tkun responsabbli g[al kontravvenzjoni ta’

dispo]izzjoni rilevanti jekk il-kontravvenzjoni -

(i) l-eg[mil tag[ha jkun bil-kunsens jew konnivenza tag[ha< jew

(ii) kienet attribwibbli jew fa/ilitata b’xi negli;enza minn na[a tag[ha.

Tqassim ta’ attiv max-xoljiment

24. Max-xoljiment ta’ so/jetà in akkomandita jew so/jetà limitata, l-attiv g[andu

jitqassam fl-ordni li ;ejja -

(a) l-ewwel, lill-kredituri li ma jkunux so/ji, sal-limitu xort’o[ra permess

bil-li;i, b’sodisfazzjon tad-djun tas-so/jetà<

(b) it-tieni, lil so/ji limitati li huma kredituri u li ma jkunux ukoll so/ji

;enerali, sal-limitu xort’o[ra permess bil-li;i, b’sodisfazzjon tad-djun tas-so/jetà

barra minn djun deskritti bis-sub-paragrafu (/) ta’ dan il-paragrafu<

(/) finalment, su;;ett g[ad-dispo]izzjonijiet ta’ l-att tas-so/jetà, lil so/ji

kif ;ej -

(i) l-ewwel, lil so/ji limitati bi [las lura tal-kontribuzzjonijiet tag[hom

jew, fejn applikabbli, g[all-[elsien mill-obbligi tag[hom li jag[mlu

kontribuzzjonijiet<

(ii) it-tieni, lil so/ji limitati barra milli g[al kapital u profitti<

(iii) it-tielet, lil so/ji ;enerali dwar kapital<

(iv) finalment, lil so/ji ;enerali dwar profitti.

Tqassim ta’ kapital f’azzjonijiet

25. (1) Bla [sara g[ad-dispo]izzjonijet ta’ qabel ta’ din l-Iskeda, il-kapital

ta’ so/jetà in akkomandita jew so/jetà limitata jista’ jitqassam f’azzjonijiet.

(2) Id-dispo]izzjonijiet ta’ dan l-Att dwar azzjonijiet f’kumpannija barra

mid-dispo]izzjonijiet ta’ l-artikolu 72 tieg[u g[andhom japplikaw g[all-azzjonijiet

f’soçjetà in akkomandita jew so/jetà limitata safejn dawn ma jkunux inkonsistenti

mad-dispo]izzjonijiet ta’ qabel ta’ din l-Iskeda.

(3) Id-dispo]izzjonijiet ta’ l-artikolu 78, tas-subartikolu (4), (5) u (6) ta’ l-

artikolu 137 u tas-subartikolu (2) ta’ l-artikolu 142 ta’ dan l-Att g[andhom japplikaw

g[al so/jetà in akkomandita jew so/jetà limitata, li l-kapital tag[ha jkun maqsum

f’azzjonijiet, bis-sostituzzjoni ta’ riferenzi g[al so/ji ;enerali vestiti bl-amministrazzjoni

jew b’rappre]entanza minflok riferenzi g[al diretturi, uffi/jali jew bord tad-diretturi<

bis-sostituzzjoni ta’ riferenzi g[al so/jetà in akkomandita jew so/jetà limitata, li l-

kapital tag[ha jkun maqsum f’azzjonijiet, minflok riferenzi g[al kumpannija< bis-

sostituzzjoni ta’ riferenzi g[al att tas-so/jetà minflok riferenzi g[al memorandum jew

memorandum u statut< bis-sostituzzjoni ta’ riferenzi g[al so/ji minflok riferenzi g[al

azzjonisti< u, dwar is-subartikolu (5) ta’ l-artikolu 137 ta’ dan l-Att, bis-sostituzzjoni

tal-fra]i “deçi]joni tas-so/ji” minflok il-fra]i “xi ri]oluzzjoni tal-laqg[a ;enerali jew

minn deçi]joni tal-bord tad-diretturi”.

(4) So/jetà in akkomandita jew so/jetà limitata, li l-kapital tag[ha ma jkunx

maqsum f’azzjonijiet, tista’ tibdel l-istat tag[ha g[al so/jetà in akkomandita jew so/

jetà limitata li l-kapital tag[ha jkun maqsum f’azzjonijiet, b’de/i]joni me[uda skond

id-dispo]izzjonijiet ta’ l-att tas-so/jetà, jew, fin-nuqqas ta’ xi dispo]izzjoni b[al dik,

bil-kunsens tas-so/ji kollha, kemm ;enerali u limitati>

I]da meta wie[ed jew iktar mis-so/ji limitati, li flimkien ikollhom mhux

iktar minn kwart tal-kontribuzzjoni totali tas-so/ji limitati, ma jag[tux il-kunsens

tag[hom, is-so/jetà in akkomandita jew so/jetà limitata tista’ b’danakollu tg[addi biex

A

tibdel l-istat tag[ha, i]da tkun me[tie;a, g[all-fini ta’ dak it-tibdil, li tillikwida u t[allas

lura lil kull so/ju li ma jkunx ta’ l-kunsens tieg[u fis-so/jetà in akkomandita jew

soçjeta limitata b’ dawk il-kondizzjonijiet li jistg[u ji;u miftiehma, jew kif il-Qorti,

fuq talba jew tas-soçjetà jew tas-so/ju limitat, jidhrilha xieraq li tordna.

(5) So/jetà in akkomandita jew so/jetà limitata, li l-kapital tag[ha jkun

maqsum f’azzjonijiet, tista’ tibdel l-istat tag[ha g[al so/jetà in akkomandita jew so/

jetà limitata `li l-kapital tag[ha ma jkunx maqsum f’azzjonijiet, b’de/i]joni me[uda

skond id-dispo]izzjonijet ta’ l-att tas-so/jetà jew, fin-nuqqas ta’ xi dispo]izzjoni b[al

dik, bil-kunsens tas-so/ji kollha kemm ;enerali u limitati>

I]da meta wie[ed jew iktar mis-so/ji limitati, li flimkien ikollhom mhux

iktar minn g[axra wie[ed tal-kapital azzjonarju tal-kumpannija, ma jag[tux il-kunsens

tag[hom, is-so/jetà in akkomandita jew so/jetà limitata tista’ b’danakollu tg[addi biex

tibdel l-istat tag[ha, i]da tkun me[tie;a, g[all-fini ta’ dak it-tibdil, li tifdi l-azzjonijiet

mi]muma minn kull so/ju tas-so/jetà in akkomandita jew so/jetà limitata li ma jkunx

ta’ l-kunsens tieg[u, jekk hu hekk jitlob, b’dawk il-kondizzjonijiet li jistg[u ji;u

miftiehma jew kif il-Qorti, fuq talba tas-so/jetà jew tas-so/ju limitat, jidhrilha xierqa li

tordna.

(6) Ikun id-dmir tas-so/ju ;enerali vestit bl-amministrazzjoni jew bir-

rappre]entanza ta’ so/jetà in akkomandita jew so/jetà limitata, li tkun idde/idiet li

tibdel l-istat tag[ha skond is-sub-paragrafu (4) jew is-sub-paragrafu (5) ta’ dan il-

paragrafu, li tikkonsenja lir-Re;istratur g[ar-re;istrazzjoni l-istrument jew kopja tieg[u

li jibdel jew i]id ma’ l-att tas-so/jetà kif emendat skond id-dispo]izzjonijiet tas-sub-

paragrafu (2) tal-paragrafu 8 ta’ din l-Iskeda.

(7) It-tibdil fl-istat imsemmi fis-sub-paragrafu (4) jew fis-sub-paragrafu

(5) ta’ dan il-paragrafu ma g[andux jibda jse[[ kemm-il darba u sakemm ma ji;ix

re;istrat kif me[tie; bis-sub-paragrafu (6) ta’ dan il-paragrafu.

(8) (a) Id-dispo]izzjonijiet ta’ dan il-paragrafu g[andhom japplikaw biss

g[al so/jetà in akkomandita jew so/jetà limitata li tikkwalifika g[al skema ta’

investiment kollettiv li/enzjata skond l-Att dwar Servizzi ta’ Investiment.

(b) G[all-finiijet ta’ dan il-paragrafu, kemm-il darba r-rabta tal-kliem ma

te[tie;x xort’o[ra -

“munita ba]i” tfisser il-munita li fiha tkun denominata sotto-klassi<

“awtorità kompetenti” tfisser l-awtorità kompetenti ta[t l-Att dwar is-

Servizzi ta’ Investiment<

“munita” tfisser, barra mil-lira Maltija, kull munita konvertibbli skond

l-artikolu 186 ta’ dan l-Att<

“frazzjoni finanzjarja” tfisser frazzjoni ta’ azzjoni s[i[a f’kull klassi

ta’ azzjonijiet ma[ru;a minn so/jetà in akkomandita jew so/jetà limitata

b’kapital azzjonarju varjabbli<

“sotto-klassi” tfisser klassi distinta ta’ azzjonijiet f’so/jetà in

akkomandita jew f’so/jetà limitata li lilha jkunu allokati attiv u passiv distinti

minn attiv u passiv o[ra allokati lil klassijiet o[ra ta’ azzjonijiet fl-istess so/

jetà u li jistg[u jsegwu o;;ettivi ta’ investiment u jintrabtu ma’ policies ta’

investiment differenti minn dawk ta’ klassijiet o[ra ta’ azzjonijiet fl-istess

so/jetà.

(/) Att ta’ so/jetà in akkomandita jew so/jetà limitata li l-kapital tag[ha

jkun maqsum f’azzjonijiet jista’ jipprovdi g[all-kostituzzjoni tas-so/jetà b[ala

so/jetà in akkomandita jew so/jetà limitata b’kapital azzjonarju varjabbli u d-

dispo]izzjonijiet tas-subartikoli (2) sa (7) u tas-subartikolu (9) ta’ l-artikolu 84

ta’ dan l-Att g[andhom, safejn applikabbli, japplikaw mutatis mutandis u riferenza

g[all-fra]i “memorandum jew statut” g[andha titqies b[ala riferenza g[al “att ta’

so/jetà” u riferenza g[all-fra]ijiet “kumpannija” u “kumpannija ta’ investiment”

g[andha titqies b[ala riferenza g[al “so/jetà in akkomandita jew so/jetà limitata

u riferenza fil-paragrafu (f) ta’ l-artikolu 69 ta’ dan l-Att g[andha titqies b[ala

riferenza g[all-paragrafu (e) tas-subartikolu (1) ta’ l-artikolu 14 ta’ dan l-Att.

(d) Att ta’ so/jetà in akkomandita jew so/jetà limitata li l-kapital tag[ha

jkun maqsum f’azzjonijiet jista’ jipprovdi g[all-kostituzzjoni tas-so/jetà b[ala

so/jetà in akkomandita jew so/jetà limitata fil-forma ta’ so/jetà umbrella jew

multi-class, u jipprovdi g[all-kostituzzjoni ta’ sotto-klassijiet, u l-klassijiet

differenti ta’ azzjonijiet li jistg[u jin[ar;u minn dik is-so/jetà, meta kull klassi ta’

azzjonijiet tirrappre]enta sotto-klassi distinta tas-so/jetà u denominata f’dik il-

munita jew f’dawk il-muniti kif jista’ ji;i provdut fl-att.

(e) So/jetà in akkomandita jew so/jetà limitata tista’ tkun biss validament

kostitwita b[ala so/jetà umbrella jew multi-class jekk tkun hekk li/enzjata mill-

awtorità kompetenti.

(f) So/jetà in akkomandita jew so/jetà limitata li/enzjata kif imiss b[ala

soçjetà umbrella jew multi-class tista’, bl-approvazzjoni ta’ l-awtorità kompetenti,

tistabbilixxi sotto-klassijiet ;odda bil-[olqien u [ru; ta’ klassijiet ;odda ta’

azzjonijiet.

(g) Kull klassi ta’ azzjonijiet li tirrappre]enta sotto-klassi f’so/jetà umbrella

jew multi-class tista’ ti;i msej[a b’munita differenti, i]da klassi ta’ azzjonijiet

tista’ tissejja[ b’munita wa[da biss.

A

(h) So/jetà umbrella jew multi-class li jkollha l-kapital azzjonarju tag[ha

denominat f’muniti differenti g[andha tag[mel il-kontijiet annwali tag[ha f’wa[da

minn dawk il-muniti, kif jista’ ji;i approvat mill-awtorità kompetenti.

(i) Is-so/ju ;enerali ta’ so/jetà umbrella jew multi-class g[andu j]omm

records tal-kontijiet xierqa ta’ l-attiv u l-passiv ta’ kull sotto-klassi fil-munita

ba]i ta’ dik is-sotto-klassi.

(j) Id-dispo]izzjonijet tas-sub-paragrafu ([) g[andhom mutatis mutandis

japplikaw g[all-eg[mil ta’ kull rapporti jew dikjarazzjonijiet finanzjarji o[ra li

jistg[u jkunu me[tie;a ta[t dan l-Att jew mill-awtorita’ kompetenti.

(k) G[all-finijiet tas-sub-paragrafi (h) u (j) ta’ dan il-paragrafu, il-

konver]joni minn munita ba]i ta’ sotto-klassi f’munita li fiha jsiru l-kontijiet

annwali tas-so/jetà umbrella jew multi-class g[andha ssir bl-u]u tar-rata tal-kambju

bejn l-ewwel u t-tieni munita fid-data tal-karta tal-bilan/, u dik ir-rata tkun ir-rata

medja ta’ l-eg[luq ma[ru;a mill-Bank ?entrali ta’ Malta. Din in-nota g[andha

tintwera fin-noti tal-kontijiet.

(l) So/jetà in akkomandita jew so/jetà limitata kostitwita b[ala so/jetà

umbrella jew multi-class tista’ fl-att ta’ so/jetà tag[ha tag[]el li l-attiv u l-passiv

ta’ kull sotto-klassi kompri]a f’dik is-so/jetà ji;u trattati, g[all-finijiet u effetti

kollha tal-li;i, b[ala patrimonju separat mill-attiv u l-passiv ta’ kull sotto-klassi

o[ra ta’ dik is-so/jetà. Meta so/jetà in akkomandita jew so/jetà limitata kostitwita

b[ala so/jetà umbrella jew multi-class tag[mel l-g[a]la kif intqal qabel, l-attiv u

l-passiv ta’ kull sotto-klassi ta’ dik is-so/jetà g[andhom, g[all-finijiet u effetti

kollha tal-li;i jitqiesu li jikkostitwixxu patrimonju separat mill-attiv u l-passiv ta’

kull sotto-klassi o[ra ta’ dik is-so/jetà.

(m) {lief g[al dak il-proporzjon tal-passiv ta’ so/jetà in akkomandita jew

so/jetà limitata kostitwita b[ala so/jetà umbrella jew multi-class li bis-sa[[a ta’

l-att tas-so/jetà jew bis-sa[[a tal-kondizzjonijiet tal-[ru; ta’ l-azzjonijiet li

jikkostitwixxu sotto-klassi jkun, jew g[andu jkun attribwit lil, sotto-klassi wa[da

jew aktar fil-proporzjon stabbilit fih, il-passiv mag[mul dwar kull sotto-klassi

g[andu jit[allas mill-attiv li jifforma l-patrimonju tag[ha u fil-ka] li dak l-attiv

ma jkunx bi]]ejjed biex jit[allas il-passiv hekk mag[mul, il-kredituri dwaru ma

jkollhom ebda dritt jew rimedju kontra l-attiv l-ie[or tas-so/jetà, u d-

dispo]izzjonijiet ta’ kull li;i jew regolament fis-se[[ li jirregola l-insolvenza ta’

so/jetajiet ma g[andhux japplika.

(n) Is-so/ju ;enerali ta’ so/jetà in akkomandita jew so/jetà limitata

kostitwita b[ala so/jetà umbrella jew multi-class g[andu j]omm jew jara li

jin]ammu dawk ir-records, kontijiet, dikjarazzjonijiet u dokumenti o[ra separati

kif ikun me[tie; sabiex ikun jidher li l-attiv u l-passiv ta’ kull sotto-klassi jkun

distint u separat mill-attiv u l-passiv tas-sotto-klassijiet l-o[ra fl-istess so/jetà.

(o) Id-dispo]izzjonijiet tal-[ames Skeda li tinsab ma’ dan l-Att g[andhom

japplikaw mutatis mutandis g[al so/jetà in akkomandita jew so/jetà limitata

b’kapital azzjonarju varjabbli.

(p) (i) So/jetà in akkomandita jew so/jetà limitata tista’, jekk hekk

awtorizzata bl-att tas-so/jetà tag[ha, to[ro; azzjonijiet frazzjonali sa dak in-

numru ta’ postijiet deçimali, li ma jkunux inqas minn tlieta, kif ikun spe/

ifikat fl-att ta’ so/jetà, u ta[t dawk il-pattijiet u l-kondizzjonijiet li jkunu

stipulati fih.

(ii) Azzjonijiet frazzjonali g[andhom ikunu awtomatikament

konsolidati f’azzjoni s[i[a ta’ l-istess klassi meta l-azzjonijiet frazzjonali

mi]muma minn azzjonist wie[ed isiru ekwivalenti g[al azzjoni s[i[a.

Penalitajiet amministrattivi dwar so/jetajiet in akkomanditi jew so/jetajiet

limitati

26. (1) Meta xi dispo]izzjoni ta’ din l-Iskeda tipprovdi g[all-impo]izzjoni ta’

penali, l-ammont ta’ dik il-penali g[andu ji;i stabbilit b’riferenza g[at-Taqsima II ta’ din

l-Iskeda, li tispe/ifika l-og[la penali li tista’ ti;i mposta mir-Re;istratur ta[t xi wa[da

mid-dispo]izzjonijiet ta’ din l-Iskeda.

(2) Fit-Taqsima II ta’ din l-Iskeda, l-ewwel kolonna turi l-paragrafu jew

is-sub-paragrafu ta’ din l-Iskeda li jippreskrivi li penali g[andha ti;i mposta, it-tieni

kolonna tag[ti deskrizzjoni ;enerali ta’ l-informazzjoni, liema deskrizzjoni ma g[andhix

tkun il-ba]i bex ti;i nterpretata xi dispo]izzjoni ta’ din l-Iskeda, it-tielet kolonna

tippreskrivi l-og[la penali u r-raba’ kolonna tippreskrivi l-og[la penali g[al nuqqas ta’

kull jum, jekk il-ka]. Il-penali ssir dovuta fil-jum li fih ji;ri n-nuqqas u l-penali g[al

nuqqas ta’ kull jum tkun dovuta g[al kull jum li matulu jkompli n-nuqqas u tibda

g[addejja mill-jum li ji;i minnufih wara l-jum li fih isir in-nuqqas.

(3) Azzjoni mir-Re;istratur g[all-;bir ta’ penali ta[t din l-Iskeda tkun

preskritta malli jg[addu [ames snin mill-jieum li fih isir in-nuqqas.

(4) Dwar penalitajiet stabbiliti ta[t din l-Iskeda, id-dispozizzjonijiet ta’ l-

artikolu 401 ta’ dan l-Att g[andhom japplikaw mutatis mutandis.

A

TAQSIMA II - PENALITAJIET

Mg[oddi mill-Kamra tad-Deputati fis-Seduta Nru. 874 ta’ l-24 ta’ Frar, 2003.

A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Skrivan tal-Kamra tad-Deputati

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

It shall be lawful for the parties to a contract, when entering Agreements in

relation to

into the contract -

obligations and

transactions.

(a) to agree on any system or mechanism which will enable

the parties to convert a non-financial obligation into a monetary

obligation of equivalent value and to value such obligation for the

purposes of any set-off or netting;

(b) to agree on the rate of exchange or the method to be

used to establish the rate of exchange to be applied in effecting

any set-off or netting when the sums to be set off or netted are in

different currencies, and to establish the currency in which payment

of the net sum is to be effected;

(c) to agree that any transactions or other dealings carried

out pursuant to any contract, whether identified specifically or by

reference to a type or class of transactions or dealings, shall be

treated as a single transaction or dealing for the purpose of the set-

off or netting provisions in the contract and that all such transactions

or dealings shall be treated as a single transaction or dealing by

the parties or any liquidator, receiver, curator, controller or special

controller or other officer acting for the parties and any court.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 5 Applicability to branches in Malta. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

A close-out netting provision entered into by a party which is

a branch in Malta of an oversea company shall be valid and enforceable

in accordance with the provisions of this Act notwithstanding the

provisions of any other law which may be applicable to such party,

including the law under which such company is constituted.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 6 Inapplicability of article 2013 of the Civil Code. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

An assignment of a debt or an action forming a part of an

agreement containing a close-out netting provision shall not be subject

to the provisions of subarticle (3) of article 2013 of the Civil Code.

PART II

AMENDMENT TO THE BUSINESS PROMOTION ACT, CAP. 325

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 7 Amendment to the Business Promotion Act, Cap. 325. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

This Part amends and shall be read and construed as one with

the Business Promotion Act, hereinafter in this Part referred to as “the

principal Act”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 8 Amendment of article 3 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after subarticle (9) of article 3 of the principal

Act, there shall be added the following new subarticle (10)

“(10) Notwhithstanding the provisions of subarticles 4(6) ,

5(7), 5A(6) and 15 of this Act, with effect from the year of

assessment 2004 no company shall be entitled to the incentives

provided by articles 4, 5 and 5A of this Act

Provided that a company may qualify for such benefits and

incentives as may be prescribed by the Minister.”.

PART III

AMENDMENT TO THE MALTA FINANCIAL SERVICES

AUTHORITY ACT, CAP. 330

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 9 Amendment to Malta Financial Services Authority Act, Cap. 330 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) This Part amends and shall be read and construed as one

with the Malta Financial Services Authority Act, hereinafter in this Part

referred to as “the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for finance may by Order in the Gazette establish

and different dates may be so established for different provisions and

different purposes thereof.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 10 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 6 of the principal Act shall be amended as follows:–

Amendment of

article 6 of the

principal Act.

(a) in subarticle (1) thereof, for the words “The Board of

Governors shall also be responsible for advising the Government

as provided in article 4 and for advising the Minister under article

31.” there shall be substituted the words “The Board of Governors

shall also be responsible for advising the Government as provided

in article 4.”; and

(b) in paragraph (d) of subarticle (6) thereof, for the words

“or of body, or to any other cause, or of misbehaviour;”, there

shall be substituted the words “or of body, or of misbehaviour;”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 11 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 16 of the principal Act shall be amended as follows: Amendment of

article 16 of the

principal Act.

(a) in subarticle (1) thereof, for the words “right to request

reasonable access”, there shall be substituted the words “right to

reasonable access and entry”;

(b) in paragraph (b) of subarticle (2) thereof, for the words

“to the Authority.” there shall be substituted the words “to the

Authority; and”;

(c) immediately after paragraph (b) of subarticle (2) thereof,

there shall be inserted the following new paragraph (c)

“(c) require a holder of a licence or other authorisation,

and, or any official thereof, to do or to refrain from doing any

act, including such prohibitions, restrictions and conditions

as may be specified in the notice; and any such directive may

be issued in respect of specific cases or classes of cases; any

holder of the licence or other authorisation and, or the official

to whom the notice is addressed shall obey, comply with and

give effect to any such directive within the time and manner

stated in the directive.”; and

(d) immediately after subarticle (2) thereof, there shall be

inserted the following new subarticle (3)

“(3) Where a licence holder or the manager, secretary,

director or the person responsible for a licence holder

contravenes or fails to comply with any of the conditions

imposed in a licence issued by the Authority in terms of article

4 of this Act or any directives or Guidelines issued in terms

of this article, the Authority may by notice in writing impose

on persons licensed or authorised by it, or falling under its

regulatory or supervisory functions including managers,

secretaries, directors and, or other persons, as the case may

be, an administrative penalty and the provisions of subarticles

(9) and (11) of article 6 of the Investment Services Act shall

apply mutatis mutandis.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 12 Amendment of article 17 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 17 of the principal Act, for the

word “Notwithstanding” there shall be substituted the words “Without

prejudice to”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 13 Insertion of new article 20A to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after article 20 of the principal Act, there shall

be inserted the following new article 20A

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 20A “Distance selling — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

The Minister may, acting on the advice of the

Authority,

make regulations to regulate distance selling

arrangements.

arrangements in relation to financial services and the

conclusion of agreements where the consumer and other

purchasers and the provider of the service are at a distance

from each other, and for this purpose to set out the form and

procedure for concluding such distance selling agreements,

to provide for the inclusion or exclusion of particular terms

and conditions, to establish a cooling-off period for

consumers, to lay down thresholds and exemptions, and to

establish minimum consumer rights, and to introduce

measures to make offers for such agreements more transparent

and informative, and to regulate any other aspect of distance

selling.”.

14. Article 21 of the principal Act shall be amended as follows

(a) subarticle (16) thereof shall be re-numbered subarticle

(17); and

(b) immediately after subarticle (15) thereof, there shall be

inserted the following new subarticle (16)

“(16) An appeal made under this article shall not

suspend the operation of any decision or directive from which

the appeal is made

Provided that a decision to cancel a licence shall not

become operative until the expiration of the period within Cap. 325

which an appeal lies under this article and, if an appeal is

made within such period, the decision shall become operative

on the date of the decision of the Tribunal dismissing the

appeal or the date on which the appeal is abandoned.”.

15. In subarticle (1) of article 26 of the principal Act, for the Amendment of

words “The Centre may establish a Reserve Fund to which may be article

principal Act.

appropriated surplus funds arising from its Income and Expenditure

Account provided the said fund does not exceed at any time the initial

capital of the Centre paid to it under article 13.” there shall be substituted

the words “The Authority may establish a Reserve Fund to which may

be appropriated surplus funds arising from its Income and Expenditure

Account provided the said fund does not exceed at any time the initial

capital of the Authority.”.

16. (1) For the words “Executive Co-Ordination Committee” Amendment of

various articles of

wherever they occur in the various articles of the principal Act, there the principal Act.

shall be substituted in each case the words “Co-Ordination Committee”.

(2) For the word “Centre” wherever it occurs in articles 25

and 26 of the principal Act, there shall in each case be substituted the

word “Authority”.

PART IV

AMENDMENT TO THE MALTA FREEPORTS ACT, CAP. 334

17. This Part amends and shall be read and construed as one Amendment to the

Malta Freeports Act,

with the Malta Freeports Act, hereinafter in this Part referred to as “the Cap. 334.

principal Act”.

18. Article 20A of the principal Act shall be amended as follows: Amendment of

article 20A of the

principal Act.

(a) the present provision shall be re-numbered as subarticle

(1) thereof; and

(b) immediately after subarticle (1) thereof as re-numbered,

there shall be added the following new subarticle (2)

“(2) Notwithstanding the provisions of subarticle (1)

of this article, with effect from the year of assessment 2004,

no person shall be entitled to the benefits provided by articles

18 and 19 of this Act and with effect from first day of January

2003 no person shall be entitled to the benefits provided by

article 20 of this Act

Provided that a person may qualify for such benefits as

may be applicable to him under the Business Promotion Act.”.

PART V

AMENDMENTS TO THE FINANCIAL MARKETS ACT, CAP. 345

19. (1) This Part amends and shall be read and construed as

one with the Financial Markets Act, hereinafter in this Part referred to

as “the principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for finance may by Order in the Gazette establish

and different dates may be so established for different provisions and

different purposes thereof.

20. Article 37 of the principal Act shall be amended as follows

(a) for subarticle (2) thereof, there shall be substituted the

following

“(2) In the exercise of the powers assigned to the

Competent Authority by virtue of this article, the provisions

of subarticle (2) of article 17 of the Investment Services Act

shall apply mutatis mutandis.”; and

(b) subarticle (3) thereof shall be deleted.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 21 Amendment of article 38 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 38 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “not being a person

who may lawfully obtain that information for the purposes of, or

pursuant to, the provisions of this Act, except with the consent of

the person from whom the information was obtained and provided

the information relates solely to that person.” there shall be

substituted the words “and the provisions of section 26 of the

Investment Services Act shal apply mutatis mutandis.”;

(b) subarticle (2) thereof shall be deleted;

(c) subarticles (3), (4), (5) and (6) thereof shall be

renumbered as subarticles (2), (3), (4) and (5) respectively;

(d) in subarticle (3) as renumbered, for the words “of subarticle

(3)” there shall be substituted the words “of subarticle (2)”;

(e) in subarticle (4) as renumbered, for the words “of

subarticle (3) or (4)” there shall be substituted the words “of

subarticle (2) or (3)”; and

(f) in subarticle (5) as renumbered, for the words “in

subarticles (1) and (3)” there shall be substituted the words “in

subarticles (1) and (2)”, and for the words “of subarticles (3) and

(4)” there shall be substituted the words “of subarticles (2) and (3)”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 22 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For article 49 of the principal Act there shall be substituted Substitution of

article 49 of the

the following

principal Act.

“49. The Minister, acting on the advice of the Competent

Authority, may make regulations

(a) to give effect to the provisions of this Act, including

regulations for the better regulation of recognised investment

exchanges and, or the admissibility to listing of securities

thereon and to provide for the direct or indirect membership

of, or access to, recognised investment exchanges within the

terms of and in line with Malta’s international commitments;

(b) to govern the transfer of ownership and, or delivery

of securities quoted on a recognised investment exchange,

clearing and settlement of transactions effected on a

recognised investment exchange, payment in respect of the

transfer of securities quoted on a recognised investment

exchange, pledging of securities quoted on a recognised

investment exchange;

(c) to regulate the application of article 50 to recognised

investment exchanges, other than the Exchange, and to

commercial partnerships other than companies;

(d) to regulate the transposition, implementation and

giving effect to the provisions, requirements, obligations and

commitments relating to regulation of recognised investment

exchanges and, or the admissibility to listing of securities

thereon arising out of membership of, affiliation to or

relationship with international or regional organisations or

groupings of countries or out of any treaty, convention or

other international agreement whether bilateral, regional or

multilateral, to which Malta is a party.”.

PART VI

AMENDMENT TO THE COMPETITION ACT, CAP. 379

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 23 Amendment to the Competition Act, — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) This Part amends and shall be read and construed as

one with the Competition Act, hereinafter in this Part referred to as “the

principal Act”.

(2) This Part shall come into force on such date as the

Minister responsible for commerce may by notice in the Gazette

establish.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 24 Amendment of article 30 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For subarticle (2) of article 30 of the principal Act there shall

be substituted the following

“(2) Undertakings entrusted with the operation of services

of a general economic interest or having the character of a revenue

producing monopoly shall be subject to the provisions of this Act

insofar as the application of such rules does not obstruct the

performance, in law or in fact, of the particular tasks assigned to

them.

(3) The Minister may by order in the Gazette declare a

specific service entrusted to a particular undertaking to be a service

in the general economic interest.”

PART VII

AMENDMENTS TO THE COMPANIES ACT, CAP. 386

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 25 Amendments to the Companies Act, — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) This Part amends and shall be read and construed as

one with the Companies Act, hereinafter in this Part referred to as “the

principal Act”.

(2) This provisions of this Part shall come into force on

such date as the Minister responsible for the registration of commercial

partnerships may, by notice in the Gazette, establish, and different dates

may be so established for different provisions and different purposes

thereof.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 26 Amendment of article 2 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 2 of the principal Act shall be amended as follows

(a)

in subarticle (1) thereof -

(i) for the definition of “ECU” there shall be substituted

the following

“ “euro” refers to the currency unit of the

participating states in the European Monetary Union;”;

(ii) in the definition of “group company”, for the word

“holding” wherever it occurs there shall be substituted in each

case the word “parent”;

(iii) in the definition of “member”, for the words

““member” means a shareholder of a company” there shall

be substituted the words “ “member”, except where otherwise

specifically defined, means a shareholder of a company”;

(iv) in the definition of “prospectus” for the words

“debentures of a company;” there shall be substituted the

words “debentures of a company or other commercial

partnership;”;

(v) immediately after the definition of “public

company” there shall be inserted the following new definition

“ “Recognised Investment Exchange” means a Cap. 345

recognised investment exchange within the provisions

of the Financial Markets Act”; and

(vi) in the definition of “security” for the words

“instrument issued by a company;” there shall be substituted

the words “instrument issued by a company or other

commercial partnership;”;

(b) the present subarticles (3),(4) and (5) thereof shall be

renumbered subarticles (4), (5) and (7) respectively;

(c) immediately after subarticle (2) thereof, there shall be

inserted the following new subarticle (3)

“(3) (a) For the purposes of this Act, the following

shall constitute offers made to the public

(i)

an offer made to the public generally;

(ii) an offer made to offerees exceeding fifty in

number, subject to the provisions of paragraph (b)

hereunder.

(b) The following shall not constitute offers made

to the public notwithstanding that the number of offerees

may exceed fifty in number

(i) an offer where the shares are offered as fully

paid up shares for no consideration; or

(ii) an offer where the total consideration payable

for the shares being offered does not exceed LM 10,000

and the maximum consideration payable by an individual

offeree does not exceed LM 100; or

(iii) an offer where the minimum consideration

which may be paid by any person for shares acquired

pursuant to the offer is at least LM 50,000; or

(iv) an offer made exclusively to existing

members or debenture holders of the company; or

(v) an offer made to an underwriter; or

(vi) an offer made in connection with or pursuant

to a proposed merger of the offering company with

another company; or

(vii) an offer made in connection with a take-over

bid; or

(viii) an offer made exclusively to a restricted

circle of persons, the number of which is below two

hundred and fifty, acting for their own account in the

context of their trade or profession; or

(ix) an offer made exclusively to a select and clearly

identifiable section of the community or group of persons

known to the offeror and acting for their own account,

not exceeding in aggregate two hundred and fifty in

number, sharing with the offeror some clear common

interest, goal or objective, including members of the same

family and membership of a club or association

Provided that in respect of offers made by virtue of sub-

paragraphs (ii), (viii) and (ix) of this paragraph and where

the number of offerees exceeds fifty, the prior approval in

writing of the Registrar shall be required for such offers not

to constitute an offer to the public;

(c) In the event of any reasonable doubt arising

as to whether or not a particular offer of shares amounts

to an offer made to the public, the matter shall be

determined by the Registrar whose decision shall be final.

(d) In this article, the term “shares” includes other

securities that may be issued by a company.

(e) Where the offer is made by a commercial

partnership, not being a company and whether formed

or registered under this Act or any other Act, the

provisions of this article shall apply to such offer mutatis

mutandis.

(f) The Minister may by Order published in the

Gazette revise or amend any of the figures or amounts

referred to in this article.”;

(d) for subarticle (4) thereof as renumbered, there shall be

substituted the following

“ (4) For the purposes of this Act, compliance with

“generally accepted accounting principles and practice” shall

require adherence to International Accounting Standards as

may be issued from time to time by the International

Accounting Standards Board, or any other body succeeding

it by whatever name it may be known, and to any accounting

standards as may be made applicable from time to time in

terms of the Accountancy Profession Act.

In this subarticle, the International Accounting Standards

Board refers to the Board, established by deed of constitution

on the 28th June, 1973 which comprises the professional

accountancy bodies which are members of the International

Federation of Accountants, established at the International

Congress of Accountants in Munich in 1977.”; and

(e) immediately after subarticle (5) thereof as renumbered,

there shall be inserted the following new subarticle (6)

“(6) For the purposes of this Act, where any document,

which is required to be delivered or given to or served on the

Registrar, is to be signed by an expert and such expert is a

company, partnership or other body corporate, such document

shall carry the signature of an individual who is a director,

partner or equivalent officer, as the case may be, duly

authorised to sign on its behalf.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 27 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 3 of the principal Act, for the words Amendment of

article 3 of the

“the Eleventh Schedule” there shall be substituted the words “the Twelfth principal Act.

Schedule”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 28 Amendment of article 4 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (b) of subarticle (1) of article 4 of the principal

Act, for the words “partnership en commandite” there shall be substituted

the words “partnership en commandite or limited partnership”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 29 Amendment of article 6 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 6 of the principal Act shall be amended as follows

(a) for subarticle (2) thereof, there shall be substituted the

following

“(2) In all its business letters and order forms a body

corporate registered under Part XI of this Act shall mention

in legible characters its name, the country of its constitution

or incorporation, its registration number and registered office

in its country of constitution or incorporation, kind of

commercial partnership, the address of the branch or place of

business in Malta, its registration number under Part XI of

this Act and, where applicable, the fact that the oversea

company is being wound up.” ;

(b) in subarticle (4) thereof, for the words “partnership en

commandite” there shall be substituted the words “partnership en

commandite or limited partnership”; and

(c) in subarticle (9) thereof, for the words “every liquidator

who is in default” there shall be substituted the words “every

liquidator or partner, as the case may be, who is in default”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 30 Amendment of article 7 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For the second proviso to article 7 of the principal Act, there

shall be substituted the following

“Provided furthermore that at least one of the partners shall

be either an individual or a body corporate which has its obligations

guaranteed by the unlimited and joint and several liability of one

or more of its members.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 31 Amendment of article 21 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 21 of the principal Act, for the

words “any dissolution of the partnership other than upon expiry of the

period, if any, fixed for its duration” there shall be substituted the words

“any dissolution of the partnership on the grounds mentioned in

paragraphs (b) or (f) of article 35 of this Act”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 32 Amendment of article 35 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 35 of the principal Act, shall be amended as follows

(a) for paragraph (d) thereof, there shall be substituted the

following

“(d) if in the opinion of the Court there exist grounds of

sufficient gravity to warrant dissolution;”; and

(b) in paragraph (f) thereof, for the words “in such other

cases”, there shall be substituted the words “ subject to the

provisions of article 21 of this Act, in such other cases”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 33 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 38 of the principal Act shall be amended as follows: Amendment of

article 38 of the

principal Act.

(a) the present provision shall be renumbered as subarticle

(1); and

(b) immediately after subarticle (1) as re-numbered, there

shall be inserted the following new subarticle (2)

“(2) Where the office of a liquidator becomes vacant,

the provisions of subarticle (2) of article 37 of this Act shall

apply.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 34 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 49 of the principal Act shall be amended as follows: Amendment of

article 49 of the

principal Act.

(a) the present provision shall be renumbered as subarticle

(1); and

(b) immediately after subarticle (1) as re-numbered, there

shall be inserted the following new subarticle (2)

“(2) Where the manner in which the partnership is to be

wound up is provided for in the deed of partnership or is

determined by agreement between the partners, it shall be the

duty of the partners to deliver to the Registrar for registration

a notice, signed by all of them, that the winding up has been

completed and the Registrar shall thereupon register it and

strike the name of the partnership off the register. The

Registrar shall forthwith publish a notice of the completion

of the winding up and of such striking off.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 35 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In Part IV of the principal Act, including the heading thereof, Amendment of Part

IV of the principal

for the words “partnership en commandite “ wherever they occur, there Act.

shall be substituted the words “partnership en commandite or limited

partnership”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 36 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 51 of the principal Act shall be amended as follows: Amendment of

article 51 of the

principal Act.

(a) for the words “called limited partners.” there shall be

substituted the words “called limited partners:”; and

(b) immediately at the end thereof there shall be inserted

the following new proviso

“Provided that at least one of the general partners shall

be either an individual or a body corporate which has its

obligations guaranteed by the unlimited and joint and several

liability of one or more of its members.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 37 Amendment of article 53 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 53 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “A person who

holds himself out” there shall be substituted the words “A person,

including a limited partner, who holds himself out”; and

(b) in subarticle (2) thereof, for the word “partner” wherever

it occurs there shall be substituted in each case the words “general

partner”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 38 Amendment of article 58 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 58 of the principal Act shall be amended as follows

(a) for the words “appoint the partners who are” there shall

be substituted the words “appoint the partners from amongst

themselves who are”; and

(b) in the proviso thereof, for the words “the appointment

or dismissal of partners” there shall be substituted the words “the

appointment of general partners to, or the dismissal of general

partners” .

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 39 Amendment of article 66 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after subarticle (11) of article 66 of the principal

Act there shall be inserted a new subarticle (12) as follows

“ (12) (a) Where a partnership en commandite or limited

partnership, the capital of which is divided into shares, is dissolved

and a liquidator has been appointed, as soon as the affairs of the

partnership are fully wound up, the liquidator shall make an account

of the winding up, showing how the winding up has been conducted

and how the property of the partnership en commandite or limited

partnership has been disposed of, and shall draw up a scheme of

distribution and he shall cause the account to be audited by one or

more auditors appointed by a decision of the partners. The

liquidator shall by judicial act serve on each of the partners a copy

of the accounts and of the scheme of distribution, if any, together

with the auditors’ report and giving any explanation thereof.

(b) The accounts and the scheme of distribution shall be

deemed to have been approved by all the partners if no objection

thereto is lodged by writ of summons by any of the partners within

three months of the service of the judicial act referred to in

paragraph (a) of this subarticle.

(c) The provisions of article 153 of this Act shall apply to

an auditor appointed in terms of paragraph (a) of this subarticle,

and the words “the previous three years” in the said article 153

shall be construed as referring to the last three years immediately

preceding the date of dissolution. Such auditor shall not be a person

who has held the office of auditor of the partnership en commandite

or limited partnership at any time during the last three years

immediately preceding the date of dissolution.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 40 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after article 66 of the principal Act there shall Addition of new

article 66A to the

be added the following new article 66A

principal Act.

“ Partnership

66A(1) This article shall apply to a partnership en

commandite or limited partnership which in the deed of

partnership expressly limits its objects to the collective

investment of its funds in securities and in other movable and

immovable property, or in any of them, with the aim of

spreading investment risk and giving the partners the benefit

of the results of the management of its funds, and to matters

ancillary or incidental thereto, and which qualifies as a

collective investment scheme and is duly licensed in terms of

the Investment Services Act, or for any other purpose as the

Minister may from time to time prescribe by regulations.

(2) A partnership en commandite or limited

partnership within the meaning of subarticle (1) of this article

shall be regulated by the provisions contained in the Tenth

Schedule to this Act and, unless otherwise provided in the

said Schedule, by the provisions of Part IV of this Act but

only in so far as such provisions are not inconsistent with the

said Schedule

Provided that where any particular matter arises in

relation to a partnership en commandite or limited partnership

within the meaning of subarticle (1) of this article which is

not specifically regulated by any provision of the Tenth

Schedule or Part IV of this Act, reference shall be made, where

applicable and to the extent possible, to any relevant provision

of this Act, including any regulations made thereunder.

(3) The Minister may make regulations for the

better carrying out of any of the provisions of the Tenth

Schedule to this Act and of Part IV of this Act as applicable

to partnerships en commandite or limited partnerships within

the meaning of subarticle (1) of this article, and may, without

prejudice to the generality of the foregoing, by such

regulations make provisions as to any of the following matters-

(a) the forms to be used for the purposes of this Act

in respect of such partnerships en commandite or limited

partnerships;

(b) the registration of such partnerships en

commandite or limited partnerships under this Act and

any matters incidental thereto;

(c) any matter to be prescribed under this Act in

respect of partnerships en commandite or limited

partnerships within the meaning of subarticle (1) of this

article;

(d) the amendment of any provision -

(i) relating to matters to be filed with the

Registrar in connection with registration of such

partnerships en commandite or limited partnerships;

(ii) relating to the records to be kept by such

partnerships en commandite or limited partnerships;

(e) to prescribe fees payable under this Act in respect

of such partnerships en commandite or limited

partnerships;

(f) the exemption of partnerships en commandite

or limited partnerships within the meaning of subarticle

(1) of this article or any category thereof from any of the

provisions of the Tenth Schedule or of this Act, as the

case may be, subject to such modifications, variations

and conditions as may be specified.

(5) Regulations made under this article may make

different provisions for different cases or classes of cases.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 41 Amendment of article 69 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 69 of the principal Act shall be amended as follows

(a) in paragraph (f) of subarticle (1) thereof, for the words “in

respect of each share;” there shall be substituted the words “in

respect of each share and, where the share capital is divided into

different classes of shares, the rights attaching to the shares of

each class;”; and

(b) immediately after subarticle (2) thereof, there shall be

inserted the following new subarticle (3)

“(3) Companies formed and registered before the coming

into force of this subarticle shall comply with the provisions

of paragraph (f) of subarticle (1) of this article on the

disclosure, in the memorandum of association of the company,

of the rights attaching to the shares of each different class,

within twelve months from the coming into force of this

subarticle

Provided that companies formed and registered before

the coming into force of this subarticle shall be deemed to

satisfy the requirements of paragraph (f) of subarticle (1) of

this article on the disclosure, in the memorandum of

association, of the rights attaching to the shares of each

different class, if such provision or equivalent thereof is

already incorporated in the articles of association of the

company.”.

Article 70 of the principal Act shall be amended as follows: Amendment

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 42 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

article 70 of the

(a) for subarticle (5) thereof, there shall be substituted the principal Act.

following

“(5) A company shall not be registered by a name which

includes the word ‘nominee’ unless it is a company qualified

to be registered as a nominee company under the Malta

Financial Services Authority Act or the Trusts Act.”;

(b) in paragraph (a) of subarticle (6) thereof, for the words

“or ltd.”, there shall be substituted the words “ or “limited” or

“ltd.”,”; and

(c) in paragraph (b) of subarticle (6) thereof, the words “or

the Investment Services Act,” shall be deleted, and the marginal

note “Cap. 370” in relation thereto shall be deleted.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 43 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the English text, for paragraph (b) of subarticle (3) of article Amendment of the

English text of

74 of the principal Act, there shall be substituted the following

article 74 of the

principal Act.

“(b) there has been some other contravention of this article

which that person knew or ought to have known amounted to a

contravention;

the company shall be entitled to recover from that person any

consideration given by it under the agreement, or an amount equal to

the value of the consideration at the time of the agreement, and the

agreement, so far as not carried out, shall be void.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 44 Amendment of article 76 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 76 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “68 to 75 and of

article 139” there shall be substituted the following words “68 to

73 and of articles 75 and 139”; and

(b) immediately after subarticle (3) thereof, there shall be

inserted the following new subarticle (4)

“(4) Notwithstanding the provisions of subarticle (1) of

this article, and without prejudice to the provisions of

subarticle (2) of article 77 of this Act, the responsibility for

ensuring that the articles of association, if any, of a company,

are correct, complete and in full compliance with this Act

and any other applicable law shall lie with the persons who

have entered into and subscribed to the memorandum of

association.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 45 Amendment of article 79 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 79 of the principal Act shall be amended as follows

(a) for subarticle (2) thereof, there shall be substituted the

following

“(2) It shall be the duty of the directors and of the

company secretary to deliver to the Registrar for registration

a printed copy of any resolution as aforesaid within fourteen

days after the date of the resolution, together with a revised

and updated copy of the memorandum, and of the articles, if

any, as amended by the said resolution and incorporating all

the changes effected to date relating to the directors, company

secretary, the representation of the company, change in

registered office of the company, or any transfer or

transmission of shares or any allotment of shares. Any

previous amended text of the memorandum and articles, if

any, may be discarded by the Registrar when a subsequent

amended text is delivered to him for registration

Provided that in the event of a discrepancy between the

text of any amended memorandum and articles, if any, and

the text of the original memorandum and articles, if any,

registered in accordance with the provisions of article 76 of

this Act, the latter text together with resolutions registered in

accordance with the provisions of subarticle (2) of this article

shall prevail.

Notwithstanding the provisions of subarticle (2) of this

article, where the alteration consists in a change in the

registered office in Malta of the company, the directors or

company secretary shall send to the Registrar for registration

a return of any change in the registered office, specifying the

date of the change, together with the new registered office,

within fourteen days from the happening thereof.”;

(b) subarticle (4) thereof, shall be renumbered subarticle

(5); and

(c) immediately after subarticle (3) thereof, there shall be

inserted the following new subarticle (4)

“(4) The responsibility for ensuring that any proposed

amendments to the articles of association, if any, of a company,

are correct, complete and in full compliance with this Act

and any other applicable law shall lie with the directors of the

said company.”.

Article 83 of the principal Act shall be amended as follows : Amendment

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 46 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

article 83 of the

principal Act.

(a) for the second proviso to subarticle (5) thereof, there

shall be substituted the following

“Provided further that any such reserve shall be used

only for offsetting losses incurred or for increasing the issued

share capital by the capitalisation of such reserve.”;

(b) in subarticle (6) thereof for the words “calls on their

shares.” there shall be substituted the words “calls on their shares:”;

and

(c) immediately after subarticle (6) thereof, there shall be

inserted the following new proviso

“Provided that if the provisions of subarticles (1) and

(2) of this article relating to the rights granted to the creditors

of the company are followed for the purpose of reducing any

sum of money contained in any such reserve, as is referred to

in subarticle (5) of this article, the amounts deriving therefrom

may be used for making payments or distributions to

shareholders.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 47 Amendment of article 84 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 84 of the principal Act shall be amended as follows

(a) for sub-paragraph (ii) of paragraph (c) of subarticle (2)

thereof, there shall be substituted the following

“that the shares of the company shall be purchased by

the company directly or indirectly out of the assets of the

company, at the request of any of the holders thereof or as

otherwise provided by the memorandum or articles of the

company.”; and

(b) in subarticle (7) thereof, for the words “105 to 112” there

shall be substituted the words “105 to 113”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 48 Amendment of article 84A of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 84A of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “to carry on

business of affiliated insurance,” there shall be substituted the words

“to carry on the business of insurance,”;

(b) for paragraph (a) of subarticle (2) thereof, there shall be

substituted the following

“ “business of insurance” shall include the business of

insurance manager, as well as the business of insurance

broking under the Insurance Brokers and other Intermediaries

Act; and reference to “company” shall include reference to a

partnership en commandite or similar or equivalent body

corporate the capital of which is divided into shares;”; and

(c) in paragraph (b) of subarticle (2) thereof, for the words

“in such manner as may be prescribed;” there shall be substituted

the words “ in such manner as may be prescribed and includes a

reference to segregated accounts, compartments or units within a

company having multiple accounts, compartments or units, by

whatever name designated, and the word “cellular” shall be

interpreted and applied accordingly;”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 49 Insertion of new article 84B to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after article 84A of the principal Act, there shall

be inserted the following new article 84B

“Application

84B. Nothing in article 84 of this Act shall be deemed to

of article 84

prohibit a company, which is not a company with variable

(10) (c) to

collective

share capital but which qualifies as a collective investment

investments

scheme and is duly licensed under the Investment Services

schemes

Act, from being constituted as an umbrella or multi-class

company and the provisions of paragraph (c) of subarticle

(10) of article 84 of this Act shall apply mutatis mutandis to

such company.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 50 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (4) of article 85 of the principal Act, for the Amendment of

article 85 of the

words “Registrar for registration,” there shall be substituted the words principal Act.

“Registrar for registration, within fourteen days after the date of the

relative resolution,”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 51 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after subarticle (1) of article 88 of the principal Amendment

article 88 of the

Act, there shall be inserted the following new proviso

principal Act.

“Provided that shares in a company, whether public or private,

shall not be offered on a pre-emptive basis to the company itself,

notwithstanding any other provision of this Act empowering the

company to hold its own shares.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 52 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For paragraph (c) of subarticle (1) of article 89 of the principal Amendment of

article 89 of the

Act, there shall be substituted the following

principal Act.

“(c) by a holder of a collective investment scheme licence

within the meaning of the Investment Services Act provided such

issue is made in accordance with rules or regulations made under

that Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 53 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the English text of paragraph (a) of subarticle (2) of article Amendment of the

95 of the principal Act, for the words “the allotment; or agreement” English

article 95 of the

there shall be substituted the words “the allotment or agreement”.

principal Act.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 54 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 101 of the principal Act, for the Amendment of

article 101 of the

words “on any stock exchange” there shall be substituted the words “on principal Act.

a recognised investment exchange”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 55 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 107 of the principal Act, for the Amendment of

article 107 of the

words “any of its own fully paid up shares otherwise than” there shall principal Act.

be substituted the words “any of its own shares otherwise than”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 56 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (b) of article 109 of the principal Act, for the Amendment of

article 109 of the

word “liabilities” there shall be substituted the word “reserves”.

principal Act.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 57 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 110 of the principal Act shall be amended as follows: Amendment of

article 110 of the

principal Act.

(a) in the marginal note thereto, for the word “holding” there

shall be substituted the word “parent”;

(b) in paragraph (a) of subarticle (1) thereof, for the word

“holding” there shall be substituted the word “parent”; and

(c) in paragraph (b) of subarticle (1) thereof, for the words

“for the purpose of or in connection with” there shall be substituted

the words “for the purpose of”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 58 Amendment of article 113 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Subarticle (1) of article 113 of the principal Act shall be

amended as follows

(a) for the words from “It shall not be lawful” to the words

“in the company, unless -”, there shall be substituted the words “ It

shall be lawful for a company to pay a commission or make a

discount or allowance to any person in consideration for his

subscribing or agreeing to subscribe, whether absolutely or

conditionally for any shares in the company, or procuring or

agreeing to procure subscriptions, whether absolute or conditional,

for any shares in the company, provided that -”; and

(b) for paragraph (d) thereof, there shall be substituted the

following

“(d) in no event may the value of such shares be reduced

to below their nominal value as a result of the payment of

such commission, discount or allowance.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 59 Amendment of article 115 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 115 of the principal Act shall be amended as follows

(a) for paragraph (b) of subarticle (1) thereof, there shall be

substituted the following

“(b) no such shares shall be issued after 1st June 2003

unless the following conditions are satisfied as regards the

terms and manner of redemption-

(i) the date on or by which, or dates between

which, the shares are to be or may be redeemed must be

specified in the company’s memorandum or articles or,

if the memorandum or articles so provide, fixed by the

directors, and in the latter case the date or dates must be

fixed before the shares are issued;

(ii) any other circumstances in which the shares

are to be or may be redeemed must be specified in the

company’s memorandum or articles;

(iii) the amount payable on redemption must be

specified in, or determined in accordance with, the

company’s memorandum or articles, and in the latter case

the memorandum or articles must not provide for the

amount to be determined by reference to any person’s

discretion or opinion; and

(iv) any other terms and conditions of redemption

shall be specified in the company’s memorandum or

articles;” and

(b) in subarticle (5) thereof, for the words “Registrar for

registration.”, there shall be substituted the words “Registrar for

registration, within fourteen days after the date of redemption.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 60 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 122 of the principal Act shall be amended as follows: Amendment of

article 122 of the

principal Act.

(a) in paragraph (a) of subarticle (12) thereof, for the words

“Malta Stock Exchange” wherever they occur, there shall be

substituted in each case the words “recognised investment

exchange”; and

(b) in subarticle (15) thereof, for the words “Registrar within

fourteen days” there shall be substituted the words “Registrar for

registration within fourteen days”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 61 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For subarticle (2) of article 135 of the principal Act, there Amendment of

article 135 of the

shall be substituted the following

principal Act.

“(2) An ordinary resolution shall be passed by a member or

members having the right to attend and vote holding in the

aggregate shares entitling the holder or holders thereof to more

than fifty per cent of the voting rights attached to shares represented

and entitled to vote at the meeting, or such other higher percentage

as the memorandum or articles may prescribe.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 62 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In article 136 of the principal Act, for the words “to borrow Amendment

article 136 of the

money and to hypothecate or charge its undertakings, property and principal Act.

uncalled capital or any part thereof including as security for its obligations”

there shall be substituted the words “to borrow money and to guarantee

the obligations of any third party and, for such purpose, to hypothecate or

charge its undertakings, property and uncalled capital or any part thereof

including as security for its obligations or for those of any third party”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 63 Addition of new article 136A to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after article 136 of the principal Act there shall

be added the following new article 136A

136A(1) A director of a company shall be bound to act

honestly and in good faith in the best interests of the company.

(2) The directors of a company shall promote the

well-being of the company and shall be responsible for

(a) the general governance of the company and

its proper administration and management; and

(b) the general supervision of its affairs.

(3) In particular, but without prejudice to any other

duty assigned to the directors of a company, or to any one of

them, by the memorandum or articles of association or by

this Act or any other law, the directors of a company shall

(a) be obliged to exercise the degree of care,

diligence and skill which would be exercised by a

reasonably diligent person having both -

(i) the knowledge, skill and experience that

may reasonably be expected of a person carrying

out the same functions as are carried out by or

entrusted to that director in relation to the company;

and

(ii) the knowledge, skill and experience that

the director has;

(b) not make secret or personal profits from their

position without the consent of the company, nor make

personal gain from confidential company information;

(c) ensure that their personal interests do not

conflict with the interests of the company;

(d) not use any property, information or

opportunity of the company for their own or anyone

else’s benefit, nor obtain benefit in any other way in

connection with the exercise of their powers, except with

the consent of the company in general meeting or except

as permitted by the company’s memorandum or articles

of association;

(e) exercise the powers they have for the purposes

for which the powers were conferred and shall not misuse

such powers.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 64 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For subarticle (4) of article 137 of the principal Act, there Amendment of

article 137 of the

shall be substituted the following

principal Act.

“(4) Notwithstanding anything contained in the memorandum

and articles of association relating to the manner in which the

representation of the company is to be exercised, anything done

by the board of directors of a company which exceeds the limits of

their authority or by any director which is beyond his powers, shall

be binding on the company unless that act exceeds the powers

granted to the board of directors or to a director, as the case may

be, by virtue of this Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 65 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after subarticle (7) of article 138 of the principal Amendment

article 138 of the

Act, there shall be inserted the following new subarticle (8)

principal Act.

“ (8) If default is made in complying with the provisions of

subarticle (4) of this article every director of the company who is

in default shall be liable to a penalty, and for every day during

which the default continues, to a further penalty.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 66 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For subarticle (1) of article 140 of the principal Act, there Amendment of

article 140 of the

shall be substituted the following

principal Act.

“(1) A company may remove a director before the expiration

of his period of office by a resolution taken at a general meeting of

the company and passed by a member or members having the right

to attend and vote, holding in the aggregate shares entitling the

holder or holders thereof to more than fifty per cent of the voting

rights attached to shares represented and entitled to vote at the

meeting.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 67 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (c) of subarticle (1) of article 142 of the principal Amendment of

article 142 of the

Act, for the words “he is a minor; or” there shall be substituted the principal Act.

words “he is a minor who has not been emancipated to trade; or”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 68 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 143 of the principal Act, for the Amendment of

article 143 of the

words “on account of others; nor” there shall be substituted the words principal Act.

“on account of others, nor”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 69 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In article 150 of the principal Act, for the words “shall be Amendment of

article 150 of the

deemed to be required to be done” there shall be substituted the words principal Act.

“shall be deemed also to be required to be done”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 70 Amendment of article 165 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (b) of subarticle (3) of article 165 of the principal

Act, for the words “under article 180 of this Act” there shall be substituted

the words “under article182 of this Act”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 71 Amendment of article 167 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 167 of the principal Act shall be amended as follows

(a) in subarticle (2) thereof for the words “principles and

practice.” there shall be substituted the words “principles and

practice:”;

(b) immediately after subarticle (2) thereof there shall be

inserted the following new proviso

“Provided that in the event that a provision of this Act is

in conflict or is not compatible with generally accepted

accounting principles and practice, the accounts shall be drawn

up so as to give a true and fair view in terms of the

requirements established under subarticle (3) of this article.”;

(c) for subarticle (3) thereof, there shall be substituted the

following

“ (3) The individual accounts shall give a true and fair

view of the company’s assets, liabilities, financial position

and profit or loss.”;

(d) subarticles (4) and (5) thereof shall be respectively

renumbered subarticles (5) and (6);

(e) immediately after subarticle (3) thereof, there shall be

inserted a new subarticle (4) as follows

“ (4) The individual accounts shall comply with the

requirements of the Third Schedule to this Act as to the form

and content of the balance sheet and profit and loss account

and as to additional information to be provided by way of

notes to the accounts.”; and

(f) in subarticle (6) thereof as renumbered, for the words

“with the obligation laid down in subarticle (3) of this article that

provision shall be departed from in order to give a true and fair

view within the meaning of the said subarticle (3). Any such

departure” there shall be substituted the words “ with the obligation

for the individual accounts to give a true and fair view, that

provision shall be departed from in order to give a true and fair

view. Any such departure”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 72 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 168 of the principal Act, for the Amendment

article 168 of the

words “subarticle (3) of article 167 and of subarticle (6) of article 171 principal Act.

of this Act”, there shall be substituted the words “subarticle (4) of article

167 and of subarticle (4) of article 171 of this Act”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 73 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 169 of the principal Act, for the Amendment

article 169 of the

words “Notwithstanding the provisions of subarticle (3) of article 167” principal Act.

there shall be substituted the words “Notwithstanding the provisions of

subarticle (4) of article 167”.

Article 171 of the principal Act shall be amended as follows: Amendment

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 74 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

article 171 of the

principal Act.

(a) in subarticle (2) thereof, for the words “principles and

practice.” there shall be substituted the words “principles and

practice:”;

(b) immediately after subarticle (2) thereof, there shall be

inserted the following new proviso

“Provided that in the event that a provision of this Act is

in conflict or is not compatible with generally accepted

accounting principles and practice, the accounts shall be drawn

up so as to give a true and fair view in terms of the

requirements established under subarticle (3) of this article.”;

(c) the present subarticles (4), (5) and (6) thereof shall be

respectively renumbered (5), (6) and (4); and

(d) in subarticle (6) thereof as renumbered, for the words

“with the obligation laid down in subarticle (3) of this article that

provision shall be departed from in order to give a true and fair

view within the meaning of the said subarticle (3). Any such

departure” there shall be substituted the words “ with the obligation

for the consolidated accounts to give a true and fair view, that

provision shall be departed from in order to give a true and fair

view. Any such departure”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 75 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the proviso to subarticle (1) of article 173 of the principal Amendment of

article 173 of the

Act, for the words “Malta Stock Exchnage” there shall be substituted principal Act.

the words “recognised investment exchange”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 76 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 174 of the principal Act, shall be amended as follows: Amendment of

article 174 of the

principal Act.

(a) for paragraph (b) of subarticle (1) thereof, there shall be

substituted the following

“(b) where ninety per cent or more in nominal value of

the shares in the said parent company are held by a parent

company and notice requesting the preparation of consolidated

accounts has not been served on the first mentioned company

by shareholders holding in the aggregate the remaining

percentage in nominal value of all the shares thereof. Such

notice shall not be valid unless it is served not later than six

months after the commencement of the accounting period to

which it relates.”; and

(b) in subarticle (3) therof, for the words “ the Malta Stock

Exchange” there shall be substituted the words “a recognised

investment exchange”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 77 Amendment of article 179 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (13) of article 179 of the principal Act, for the

words “Council of the International Federation of Accounts” there shall

be substituted the words “Council of the International Federation of

Accountants”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 78 Amendment of article 180 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after subarticle (6) of article 180 of the principal

Act, there shall be inserted the following new subarticle

“(7) For the purposes of this article, reference to the term

“annual accounts” shall include the directors’ report as specified

in article 177 of this Act and the auditors’ report as specified in

article 179 of this Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 79 Amendment of article 183 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 183 of the principal Act shall be amended as follows

(a) in the proviso to subarticle (2) thereof, for the words

“the directors’ report.” there shall be substituted the words “the

directors’ report:”;

(b) immediately after the proviso to subarticle (2) thereof,

there shall be inserted the following new proviso

“Provided further that where the exempt company which

qualifies to draw up abridged accounts is a company referred

to in paragraph (b) of subarticle (1) of article 185 of this Act,

it may deliver to the Registrar only its abridged balance sheet,

all the notes to the accounts relevant for the purposes of that

balance sheet, but without the profit and loss account, the

directors’ report and the auditors’ report.”;

(c) in the proviso to subarticle (4) thereof for the words “as

drawn up.” there shall be substituted the words “as drawn up:”;

and

(d) immediately after the proviso to subarticle (4) thereof,

there shall be inserted the following new proviso

“Provided further that the provisions of this subarticle

shall not apply to companies referred to in paragraph (b) of

subarticle (1) of article 185 of this Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 80 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For article 184 of the principal Act, there shall be substituted Amendment of

article 184 of the

the following

principal Act.

“184(1) Every company shall, after 1st January 2004, upon

each anniversary of its registration, make a return in the form set

out in the Seventh Schedule to this Act showing the matters therein

specified and made up to the date of such anniversary

Provided that -

(a) where a company was, immediately before the

1st January 2004, in default with respect to the delivery

of one or more annual returns, this article shall not affect

the obligation of the company to make such a return or

returns or the payment of any penalty arising from such

a default;

(b) where a company has converted any of its shares

into stock and registered the conversion as provided in

article 79 of this Act, the list of past and present members

shown in Part 3 of the Seventh Schedule to this Act shall

state the amount of stock held by each of the existing

members instead of the amount of shares and the

particulars relating to shares required by that part.

(2) The annual return, duly completed, shall be signed

by at least one director of the company or the company

secretary and forwarded to the Registrar for registration within

forty-two days after the date to which it is made up.

(3) If default is made in complying with the provisions

of this article, every officer of the company who is in default

shall be liable to a penalty, and, for every day during which

the default continues, to a further penalty.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 81 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 185 of the principal Act shall be amended as follows: Amendment of

article 185 of the

principal Act.

(a) subarticle (1) thereof shall be renumbered as paragraph

(a) of subarticle (1);

(b) in paragraph (a) of subarticle (1) as re-numbered, for

the words “as specified in subarticle (3) of this article.” there shall

be substituted the words “as specified in subarticle (3) of this

article;”;

(c) immediately after paragraph (a) of subarticle (1) of article

185 there shall be inserted the following new paragraph (b)

“(b) Private companies which on their balance sheet dates

do not exceed the limits of two of the three following criteria

- balance sheet total: twenty thousand liri;

- turnover: forty thousand liri;

- average number of employees during the

accounting period: two;

shall be exempted from the provisions of Chapter IX of Part

V of this Act and from the requirement imposed by article

179 of this Act and such companies may, for all purposes of

this Act, draw up abridged balance sheets and abridged layouts

of profit and loss account as specified in subarticle (2) of this

article and abridged notes to the accounts as specified in

subarticle (3) of this article.”;

(d) in subarticle (3) thereof, for the words “indents (d) and

(j) to (o)” there shall be substituted the words “indents (d) and (g)

to (o)”; and

(e) immediately after subarticle (6) thereof, there shall be

inserted the following new proviso

“ Provided that the provisions of subarticle (6) of this

article shall not apply to a parent company which is exempted

from the requirement to prepare consolidated accounts in

accordance with article 174 of this Act.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 82 Amendment of article 186 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 186 of the principal Act, for the

words “ECU shall be a convertible currency.” there shall be substituted

the words “the euro shall be a convertible currency.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 83 Amendment of article 187 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For subarticle (4) of article 187 of the principal Act, there

shall be substituted the following

“(4) Annual accounts shall be published in the currency in which

they are drawn up. They may also be published in both the currency in

which they are drawn up and in euro. The conversion into euro shall be

made by using the exchange rate between the currency used and the

euro on the balance sheet date, and such rate shall be the official closing

middle rate issued by the Central Bank of Malta. This rate shall be

disclosed in the notes to the accounts.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 84 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 188 of the principal Act shall be amended as follows: Amendment of

article 188 of the

principal Act.

(a) in paragraph (e) thereof, for the words “a company; or”

there shall be substituted the words “a company;”;

(b) in paragraph (f) thereof, for the words “share capital is

expressed.” there shall be substituted the words “share capital is

expressed; or”; and

(c) immediately after paragraph (f) thereof, there shall be

inserted the following new paragraph (g) as follows

“(g) amend or vary any of the provisions of this Chapter

for the purpose of bringing them in line with the requirements

of International Accounting Standards or International

Standards on Auditing.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 85 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 191 of the principal Act shall be amended as follows: Amendment of

article 191 of the

principal Act.

(a) in subarticle (1) thereof, for the words “partnership en

commandite the capital of which is not divided into shares are

themselves partnerships en commandite the capital of which is

divided into shares” there shall be substituted the words

“partnership en commandite or limited partnership, the capital of

which is not divided into shares, are themselves partnerships en

commandite or limited partnerships, the capital of which is divided

into shares”;

(b) in subarticle (2) thereof, for the words “partnership en

commandite” wherever they occur there shall be substituted in each case

the words “partnership en commandite or limited partnership”; and

(c) in subarticle (3) thereof, for the words “of a partnership

en commandite the capital of which is not divided into shares are

themselves companies or are partnerships en commandite” there

shall be substituted the words “of a partnership en commandite or

limited partnership the capital of which is not divided into shares

are themselves companies or are partnerships en commandite or

limited partnerships”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 86 Amendment of article 194 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (a) of subarticle (4) of article 194 of the principal

Act, for the words “the Malta Stock Exchange” there shall be substituted

the words “a recognised investment exchange”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 87 Amendment of article 199 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (5) of article 199 of the principal Act, for the

words “the Registrar.” there shall be substituted the words “the Registrar

for registration.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 88 Amendment of article 209 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (b) of subarticle (2) of article 209 of the principal

Act, for the words “offered for sale to the public, within the meaning

given to that expression by article 89 of this Act.”, there shall be

substituted the words “offered to the public, within the meaning given

to the expression “offers made to the public” in subarticle (3) of article

2 of this Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 89 Amendment of article 210 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In article 210 of the principal Act, for the words “duly

convened and held” there shall be substituted the words “duly convened

and held and the provisions of article 155 shall not apply”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 90 Amendment of article 212 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 212 of the principal Act, for the

words “the provisions of subarticle (1) of article 72 of this Act” there

shall be substituted the words “the provisions of article 68 and of

subarticle (1) of article 72 of this Act”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 91 Amendment of article 214 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 214 of the principal Act shall be amended as follows

(a) in subparagraph (i) of paragraph (a) of subarticle (2)

thereof, for the words “twelve months;” there shall be substituted

the words “twenty four months;”; and

(b) for subarticle (4) thereof, there shall be substituted the

following

“(4) Where a company continues carrying on business

without having at least two members beyond the period of

six months referred to in subparagraph (i) of paragraph (b) of

subarticle (2) of this article, a person who, for the whole or

any part of the period that the company carries on business

after the said six months, is a member of the company and

knows that it is carrying on business with only one member,

shall be held unlimitedly and jointly and severally liable with

the company for all the obligations contracted by the company

for the whole period or as the case may be, that part of it,

from the lapse of the six months until the dissolution of the

company or until such time as the default is remedied by the

company in accordance with the proviso to subarticle (3) of

this article.”.

Article 217 of the principal Act shall be amended as follows: Amendment

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 92 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

article 217 of the

principal Act.

(a) in subarticle (1) thereof for the words “The provisions

of this article shall apply where, following its dissolution, a

company -” there shall be substituted the following

“The provisions of subarticles (2) and (3) of this article

shall only apply following the dissolution of a company where

a company before its dissolution -”; and

(b) in paragraph (b) of subarticle (1) thereof, for the words

“paid by way of contribution to its assets,” there shall be substituted

the words “paid by way of contribution to its assets in terms of

article 216 of this Act,”.

Article 218 of the principal Act shall be amended as follows: Amendment

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 93 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

article 218 of the

principal Act.

(a) in subarticle (1) thereof for the words “contributory or

contributories.” there shall be substituted the words “contributory

or contributories:”;

(b) immediately after subarticle (1) there shall be inserted

the following new proviso

“Provided that an application in terms of paragraph (a)

of this subarticle may also be made by any shareholder or

director of the company.”;

(c) in subarticle (4) thereof, for the words “subarticle (2)

of article 214 of this Act.”, there shall be substituted the words

“subparagraphs (ii) and (iii) of paragraph (b) of subarticle (2) of

article 214 of this Act.”; and

(d) for subarticle (5) thereof, there shall be substituted the

following

“(5) By virtue of article 294 of this Act, a winding up

application for a winding up by the Court may be filed

notwithstanding that a company is being wound up voluntarily.

Such an application may also be made by the Official Receiver

appointed in accordance with the provisions of article 225 of

this Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 94 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 219 of the principal Act shall be amended as follows: Amendment of

article 219 of the

principal Act.

(a) the present provision shall be renumbered as subarticle

(1); and

(b) immediately after subarticle (1) thereof as renumbered,

there shall be inserted the following new subarticle (2)

“(2) Notwithstanding the provisions of subarticle (1) of

this article, where the Court is satisfied that the requirements

of paragraph (a) of subarticle (1) of article 218 of this Act

have been complied with, the Court shall accede to the

application.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 95 Amendment of article 222 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In article 222 of the principal Act, for the words “whether

precautionary or executive, issued or carried” there shall be substituted

the words “ whether precautionary or executive, other than a warrant

of prohibitory injunction, issued or carried”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 96 Amendment of article 223 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after the proviso to subarticle (1) of article 223

of the principal Act, there shall be inserted the following new proviso

“Provided further that where a winding up order has been

made by virtue of paragraph (a) of subarticle (1) of article 218 of

this Act, the date of dissolution shall be the date of passing of the

resolution for dissolution and consequential winding up by the

Court or such later date as may be specified in the said resolution.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 97 Amendment of article 224 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 224 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “On the making

of a winding up order, a copy thereof” there shall be substituted

the words “On the making of a winding up order, or on the dismissal

of a winding up application, a copy thereof”; and

(b) subarticle (3) thereof shall be deleted.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 98 Amendment of article 230 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 230 of the principal Act, for the

words “company shall be made by extraordinary resolution of the

company” there shall be substituted the words “contributories shall be

made by a resolution of the contributories”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 99 Amendment of article 238 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 238 of the principal Act shall be amended as follows

(a) in paragraph (f) of subarticle (1) thereof, for the words

“distributing its assets.”, there shall be substituted the words

“distributing its assets:”;

(b) immediately after paragraph (f) of subarticle (1) thereof,

there shall be inserted the following new proviso

“Provided that the Court may provide by an order that

the liquidator may, where there is no liquidation committee,

exercise any of the powers mentioned in paragraphs (a) or

(b) of this subarticle without the sanction of the Court.”;

(c) in subarticle (3) thereof, for the words “any of those

powers:”, there shall be substituted the words “any of those

powers.”; and

(d) the proviso to subarticle (3) thereof shall be deleted.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 100 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the English text of the proviso to subarticle (10) of article Amendment of the

English text of

246 of the principal Act, for the words “the state of in the winding up,” article 246 of the

principal Act.

there shall be substituted the words “the state of the winding up,”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 101 of the — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the English text of article 255 of the principal Act, for Amendment

English text of

the words “claims or to be excluded” there shall be substituted the words article 255 of the

principal Act.

“claims or are to be excluded”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 102 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the English text of subarticle (1) of article 257 of the Amendment of the

English text of

principal Act, for the words “inspection of accounts, according records” article 257 of the

there shall be substituted the words “inspection of accounts, accounting principal Act.

records”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 103 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 265 of the principal Act, for the Amendment of

words “after the passing of the resolution,” there shall be substituted article

principal Act.

the words “after the date of dissolution of the company,”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 104 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For the proviso to article 266 of the principal Act, there Amendment of

article 266

shall be substituted the following

of the principal Act.

“ Provided that where the Court has ordered that the company be

wound up voluntarily by virtue of the provisions of subarticle (3) of

article 214 of this Act, the company shall be deemed to have been

dissolved at the time of the filing of the winding up application.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 105 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 268 of the principal Act shall be amended as follows: Amendment of

article 268 of the

principal Act.

(a) in subarticle (2) thereof, for the words “A declaration

made as in accordance with” there shall be substituted the words

“A declaration made in accordance with”; and

(b) in subarticle (3) thereof

(i) for the words “wound up voluntarily by nature of

the provisions”, there shall be substituted the words “wound

up voluntarily by virtue of the provisions”; and

(ii) for the words “to make the declarations referred

to” there shall be substituted the words “to make the

declaration referred to”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 106 Amendment of article 270 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Subarticle (3) of article 270 of the principal Act shall be

amended as follows

(a) for the words “the directors shall apply to the Court”

there shall be substituted the words “any director shall apply to the

Court”; and

(b) for the words “shall be made by the directors of the

company within fourteen days” there shall be substituted the words

“shall be made within fourteen days”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 107 Amendment of article 271 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 271 of the principal Act shall be amended as follows

(a) in subarticle (2) thereof, for the word “thereof” there

shall be substituted the words “of the meeting”; and

(b) in subarticle (4) thereof, for the words “subarticle (1) of

this article,” there shall be substituted the words “subarticle (1) of

this article, or if a vacancy occurs in the office of a liquidator

appointed by the Court,”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 108 Amendment of article 274 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 274 of the principal Act shall be amended as follows

(a) in the English text of subarticle (1) thereof, for the words

“shall therefore call”, there shall be substituted the words “shall

thereupon call”;

(b) in subarticle (4) thereof for the words “last three years”

wherever they appear there shall be substituted the words “previous

three years”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 109 Amendment of article 279 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 279 of the principal Act, for the

words “the directors of the company” there shall be substituted the words

“any director of the company”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 110 Amendment of article 280 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For subarticle (1) of article 280 of the principal Act there

shall be substituted the following

“(1) The creditors at the meeting to be held in pursuance of

article 278 of this Act, or at any subsequent meeting may, if they

think fit, by resolution appoint not more than five representatives

of the creditors to a liquidation committee, and if such committee

is appointed, the contributories may by resolution appoint up to

five persons to act as their representatives on the committee:”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 111 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In article 282 of the principal Act, for the words “resignation Amendment of

article 282 of the

or otherwise, in the office of a liquidator,” there shall be substituted the principal Act.

words “resignation or removal in the office of a liquidator who was not

appointed by the Court,”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 112 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For subarticle (3) of article 283 of the principal Act there Amendment of

article 283 of the

shall be substituted the following

principal Act.

“(3) A member or members holding not less than one tenth of the

paid up share capital having the right to vote at general meetings of the

company or a creditor or creditors representing not less than one tenth

in value of the company creditors may, at any time, by request in writing

require the liquidator to convene a general meeting of the company, or

a creditors’ meeting, as the case may be. Such request shall be signed

by such member or members, or such creditor or creditors, as the case

may be, and shall state the objects of the meeting.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 113 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 289 of the principal Act shall be amended as follows: Amendment of

article 289 of the

principal Act.

(a) the present provision shall be renumbered as subarticle

(1); and

(b) immediately after subarticle (1) as renumbered there

shall be inserted the following new subarticles (2) and (3)

“(2) A vacancy resulting from the death or resignation

of a liquidator appointed by the Court may, on the application

of any member, creditor or contributory, be filled by the Court.

(3) The person who applied to the Court in terms of

subarticle (2) of this article shall, in the case of a vacancy

resulting from the death of a liquidator, inform the Registrar

of the demise of the liquidator.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 114 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 290 of the principal Act for the Amendment of

article 290 of the

words “within fourteen days from his acceptance of his appointment” principal Act.

there shall be substituted the words “within fourteen days after his

appointment”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 115 Amendment of article 292 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 292 of the principal Act shall be amended as follows

(a) subarticles (2) and (3) thereof shall be renumbered as

(4) and (5) respectively;

(b) immediately after subarticle (1) therof, there shall be

inserted the following new subarticle (2)

“ (2) The liquidator may apply to the Court to fix a time

or times within which creditors are to prove their debts or

claims or to be excluded from the benefit of any distribution

made before those debts are proved.”; and

(c) in subarticle (3) thereof as renumbered for the words

“subarticle (1) of this article” there shall be substituted the

words “subarticles (1) and (2) of this article.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 116 Amendment of article 298 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For paragraph (b) subarticle (1) of article 298 of the principal

Act, there shall be substituted the following

“(b) At a meeting of contributories a resolution shall be

deemed to be passed when three-fourths in value of the

contributories present in person or by proxy and voting on the

resolution, or a majority in value of all the contributories, have

voted in favour of the resolution. The value of the contributories

shall be determined according to the number of votes conferred on

each contributory by the memorandum or articles of the company

or, if the memorandum and articles are silent, according to the

value of their respective liabilities to contribute.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 117 Addition of new articles 300A and 300B to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after article 300 of the principal Act there shall

be added the following two new articles to be numbered as article 300A

and 300B

“Rectification

300A (1) Where in the course of the winding up of a

of Scheme of

Distribution company the liquidator has not taken into account any asset

of the company, and the name of the company has been struck

off the register, any interested person may, by an application,

request the Court to order the rectification of the scheme of

distribution, and the Court may, where it considers it

appropriate, order such rectification under those terms and

conditions it may deem fit.

(2) Where a company has made a distribution to

its shareholders pursuant to a scheme of distribution and the

name of such company has been struck off the register, any

creditor whose claim against the company has not been

satisfied may, by an application, claim what is due to him

from the shareholders of the company pro rata to the amount

received by the shareholders upon the distribution, and the

Court may, where it considers it appropriate, order that

payments be made by the shareholders to such creditor under

those terms and conditions it may deem fit

Provided that in no case shall a shareholder be required

to contribute an amount exceeding that received by him upon

distribution.

(3) No application may be made under this article

after the expiration of five years from the date on which the

name of the company has been struck off the register.

300B (1) Where a company has been struck off the

register, any interested person may, by an application, request

the Court to order that the name of the company be restored

to the register and the winding up be reopened.

(2) Where, on an application made in terms of

subarticle (1) of this article, the Court is satisfied that the

winding up and striking off of the company has been vitiated

by fraud or illegality of a material nature, the Court may order

that the name of the company be restored to the register and

the winding up be reopened for such purposes and such period

as the Court shall specify in its decision, and the Court shall

give such directives and impose such conditions as it may

consider appropriate.

(3) The Court shall only accede to the application

where it is satisfied that this is the only remedy available.

(4) In its decision the Court shall also determine

whether its orders and directives shall be effective in favour

of all persons or shall apply limitedly to specified persons

indicated in the decision.

(5) No application may be made under this article

after the expiration of five years from the date on which the

name of the company has been struck off the register.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 118 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For article 303 of the principal Act there shall be substituted Amendment of

article 303 of the

the following

principal Act.

“303(1) Every privilege, hypothec or other charge, or

transfer or other disposal of property or rights, and any payment,

execution or other act relating to property or rights made or done

by or against a company, and any obligation incurred by the

company within six months before the dissolution of the company

shall be deemed to be a fraudulent preference against its creditors

whether it is of a gratuitous nature or an onerous nature if it

constitutes a transaction at an undervalue or if a preference is given,

unless the person in whose favour it is made, done or incurred,

proves that he did not know and did not have reason to believe

that the company was likely to be dissolved by reason of insolvency,

and in the event of the company being so dissolved every such

fraudulent preference shall be void.

(2) For the purposes of this article,

(a) a company enters into a transaction at an

undervalue if

(i) the company makes a gift or otherwise

enters into a transaction on terms that provide for

the company to receive no consideration, or

(ii) the company enters into a transaction for

a consideration the value of which, in money or

money’s worth, is significantly less than the value

in money or money’s worth of the consideration

provided by the company;

(b) a company gives a preference to a person if

(i) that person is one of the company’s

creditors or a surety or guarantor for any of the

company’s debts or other liabilities; and

(ii) the company does anything or suffers

anything to be done which, in either case, has the

effect of putting that person into a position which,

in the event of the company going into insolvent

winding up, will be better than the position he would

have been had that act or omission not occurred.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 119 Amendment of article 305 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 305 of the principal Act, for the

words “on which the company goes into liquidation” there shall be

substituted the words “of dissolution of the company as determined in

accordance with the provisions of this Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 120 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 322 of the principal Act for the Amendment

article 322 of the

words “send to the Registrar a statement”, there shall be substituted the principal Act.

words “send to the Registrar for registration a statement”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 121 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For article 325 of the principal Act there shall be substituted Amendment

article 325 of the

the following

principal Act.

“325 (1) Where the Registrar has reasonable cause to

believe that a company is not carrying on business or is not in

operation, he may send to the company by post a letter inquiring

whether the company is carrying on business or is in operation.

(2) If the Registrar receives an answer to the effect that the

company is not carrying on business or is not in operation, or does

not within one month of sending the letter receive an answer thereto,

he may send to the company by post and publish a notice in the

Gazette and in a daily newspaper circulating wholly or mainly in

Malta that, at the expiration of three months from the date of the

last publication of the said notice, the company’s name shall, unless

cause is previously shown to the contrary or the Registrar is satisfied

that there are sufficient grounds not to proceed with the striking

off, be struck off the register; and the assets of the company shall

devolve upon the Government of Malta.

(3) If, in any case where a company is being wound up

voluntarily, the Registrar has reasonable cause to believe either

that no liquidator is acting or that the affairs of the company are

fully wound up, and the returns required to be made by the

liquidator in terms of article 322 of this Act are overdue by six

months or more, the Registrar may publish in the Gazette and in a

daily newspaper circulating wholly or mainly in Malta, a notice

that at the expiration of three months from the date of the last

publication of the said notice, the winding up of the company shall,

unless cause is previously shown to the contrary, be deemed to be

concluded and consequently that the company’s name be struck

off the register. The Registrar shall also cause a copy of the said

notice to be sent by post to the company and to the liquidator, if

any. At the expiration of the aforesaid period of three months the

winding up of the company shall, unless cause is previously shown

to the contrary, be deemed to be concluded and the Registrar shall

strike the name of the company off the register and the company’s

assets shall devolve upon the Government of Malta.

(4) If any member or creditor of the company, or any other

person who appears to the Court to have an interest feels aggrieved

by the fact that the name of the company has been struck off the

register by virtue of this article, the Court on an application made

by the member or creditor or such other person before the expiration

of five years from the publication of the notice of the striking off

provided for in subarticles (2) and (3) of this article may, if satisfied

that it is proper that the name of the company be restored to the

register, order that such name be restored to the register, and upon

an official copy of the order being delivered by the Registrar of

the Superior Courts to the Registrar for registration, the company

shall be deemed to have continued in existence as if its name had

not been struck off; and the Court may by its order give such

directions and make such provisions as seem fit for placing the

company and all other persons in the same position as nearly as

may be as if the name of the company had not been struck off.

The Registrar shall forthwith proceed to publish a notice in the

Gazette and in a daily newspaper circulating wholly or mainly in

Malta that the name of the company has been restored to the register.

(5) A notice to be sent under this article to a liquidator may be

addressed to the liquidator at his last known place of business or address,

and a letter or notice to be sent under this article to a company may be

addressed to the company at its registered office.

(6) Notwithstanding that the name of the company has been struck

off the register in terms of the preceding provisions of this article, the

liability, if any, of every director or other officer of the company and of

every member of the company shall continue and may be enforced as if

the name of the company had not been struck off the register.

(7) Notwithstanding the provisions of subarticle (1) of article

429 of this Act, the provisions of this article shall apply to companies

whose dissolution and consequential winding up is regulated by the

Ordinance.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 122 Amendment of article 327 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Paragraph (a) of subarticle (5) of article 327 of the principal

Act shall be amended as follows

(a) for the words “subarticle (4)” there shall be substituted

the words “subarticle (5)”; and

(b) for the words “sub-paragraph (iv)” there shall be

substituted the words “sub-paragraph (iii)”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 123 Addition of new articles 329A and 329B to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after article 329 of the principal Act there shall

be added the following two new articles 329A and 329B

329A. Where the directors of a company become aware

that the company is unable to pay its debts or is imminently

likely to become unable to pay its debts, they shall forthwith,

not later than thirty days from when the fact became known

to them, duly convene a general meeting of the company by

means of a notice to that effect for a date not later than forty

days from the date of the notice for the purpose of reviewing

the company’s position and of determining what steps should

be taken to deal with the situation, including consideration as

to whether the company should be dissolved or, where

applicable, whether the company should make a Company

Recovery Application in terms of article 329B of this Act.

329B (1) (a) Where a company is unable to pay

its debts or is imminently likely to become unable to pay its

debts, a Company Recovery Application may be made to the

Court requesting the Court to place the company under the

Company Recovery Procedure and to appoint a Special

Controller to take over, manage and administer the business

of the company for a period to be specified by the Court subject

to the limitation imposed by paragraph (c) of this subarticle.

(b) A Company Recovery Application, hereinafter

in this article also referred to as the “application”, shall

be made by means of an application which may be made

(i) by the company

following

an

extraordinary resolution;

(ii) by the directors following a decision of

the board of directors; or

(iii)

by creditors of the company

representing more than half in value of the

company’s creditors.

(c) The appointment of a Special Controller shall

be made for a period not exceeding twelve months;

provided that, at any time during which the Company

Recovery Procedure is in force, the Court may, upon

good cause being shown, extend the period by such

additional period or periods which in aggregate do not

exceed a further twelve months.

(d)

The provisions of this article shall apply to

(i) all companies other than companies which

qualify as “small companies” in terms of article 185

of this Act; and

(ii) to “small companies” having more than

Lm200,000 in value owed to creditors.

(e) The Minister may, by regulations, amend or

substitute the criteria set out in paragraph (d) of subarticle

(1) of this article for the purpose of establishing the

applicability of the provisions of this article.

(f) No application may be submitted by a

company after it has been dissolved voluntarily or if, in

respect of the same company, a winding-up order has

already been made.

(2) (a) The application shall, as far as possible,

give the full facts, circumstances and reasons which led

to the company’s inability or likely imminent inability

to pay its debts, together with a statement by the

applicants as to how the financial and economic situation

of the company can be improved in the interests of its

creditors, employees and of the company itself as a viable

going concern.

(b) Where an application is made by the company,

the following documents shall be annexed to it

(i) a statement of the company’s assets and

liabilities made up to a date not earlier than the date

of the application by more than two months; and

(ii) a list containing the names and addresses

of the creditors together with an indication of the

amount due to each such creditor and the security,

if any, of the respective creditors.

(c) Where the application is made by the creditors,

it shall be accompanied by appropriate supporting

documentation and statements.

(3) (a) On the hearing of an application, the

Court may, after examining all the circumstances and

the options that are available, either dismiss the

application or issue a Company Recovery Order,

hereinafter also referred to in this article as an “Order”,

acceding thereto and placing the company under the

Company Recovery Procedure.

(b) The Court shall accede to the application, and

accordingly place the company under the Company

Recovery Procedure and issue an Order, only if-

(i) it is satisfied that the company is, or is

imminently likely to become, unable to pay its debts

within the meaning of subarticle (5) of article 214

of this Act; and

(ii) if it considers that the making of the Order

would be likely to achieve one of the following

purposes

- the survival of the company as a viable

going concern in part or in whole; or

- the sanctioning under article 327 of this

Act of a compromise or arrangement between the

company and any of its creditors or members.

(c) In making an Order, the Court shall take into

account

(i) the best interests of the creditors,

shareholders and of the company itself, and the

possibility of safeguarding employment as appears

to be reasonably and financially possible in the

circumstances; and

(ii) the cost that would have to be incurred by

adopting the Company Recovery Procedure,

particularly the fees and charges that would have

to be incurred.

(d) Where the company is in possession of a licence

or other authorisation under the laws regulating banking,

insurance, investment services, financial institutions or

listing of securities on a recognised investment exchange,

the court shall not proceed to make an Order without

first having consulted with the relevant competent

authority responsible for supervising that company or

any of its activities.

(e) The Court shall take its decision whether to

dismiss the application or to make a Company Recovery

Order within not more than twenty working days from

the filing of the application.

(4) Upon the submission of an application and unless it

is dismissed, or during the period during which the Company

Recovery Procedure is in force

(a) any pending or new winding up application

shall be stayed;

(b) no resolution for the dissolution and

consequential winding up of the company may be passed

or given effect to;

(c) the execution of claims of a monetary nature

against the company and any interest that may otherwise

accrue thereon shall be stayed;

(d) during the tenure of the lease, no landlord or

other person to whom rent is payable may exercise any

right of termination of lease in relation to premises leased

to the company in respect of a failure by the company to

comply with any term or condition of its tenancy of such

premises, except with leave of the Court and subject to

such terms as the Court may deem fit to impose;

(e) no other steps may be taken to enforce any

security over the property of the company, or to repossess

goods in the possession of the company under any hire-

purchase agreement, except with the leave of the Court

and subject to such terms as the Court may deem fit to

impose;

(f) no precautionary or executive act or warrant

mentioned in the Code of Organisation and Civil

Procedure shall be made against the company or any

property of the company except with leave of the Court

and subject to such terms as the Court may deem fit to

impose; and

(g) no judicial proceedings shall be commenced or

continued against the company or its property except

with leave of the Court and subject to such terms as the

Court thinks fit to impose.

(5) (a) In the Order, the Court shall

(i) appoint an individual to act as a Special

Controller and to carry out such functions and

powers as the Court may entrust to him in the

administration and management of the property and

business of the company;

(ii) fix such reasonable remuneration of the

Special Controller, as the Court may consider

appropriate after taking into account the company’s

financial position, business and assets;

(iii) determine the period, not exceeding ten

working days from the making of the Company

Recovery Order, within which the company shall

deposit a sum of money in Court or offer other

suitable guarantee or other appropriate arrangement,

which, in the opinion of the Court, is sufficient to

cover the remuneration, and charges of the Special

Controller connected to his appointment.

(b) The Court shall appoint as the Special

Controller an individual who the Court has ascertained

to its satisfaction enjoys proven competence and

experience in the management of business enterprises,

is qualified and willing to accept the appointment, and

has no conflict of interest in relation to his appointment.

(c) For so long as the Special Controller holds

office, the fact of his appointment to such office and

his full name together with his residential or business

address shall be clearly indicated in all the business

letters, order forms, invoices and any other documents

of the company.

(6) (a) During the period that an Order is in force,

the company shall continue to carry on its normal

activities under the management of the Special

Controller.

(b) The Special Controller shall, as soon as

possible upon his appointment, take into his custody or

under his control all the property of the company and he

shall thenceforth be responsible to manage and supervise

its activities, business and property.

(c) The Special Controller shall examine the

assets, affairs and business performance of the company

and shall ascertain and verify whether there is a

reasonable expectation of the company’s recovery and

continuation as a viable going concern, in whole or in

part, and he shall submit an initial report thereon to the

Court not later than two months from the date of his

appointment.

(d) On the appointment of the Special Controller,

any power conferred on the company, its directors or its

officers, whether by this Act, by any other law, or by the

Memorandum or Articles of Association of the company,

shall be suspended unless the consent of the Special

Controller to exercise such power has been obtained,

which consent may be given either generally or in

relation to a particular case or cases, and no meeting of

the company may be summoned except with leave of

the Court and subject to such terms as the Court may

deem fit to impose.

(e) During such time as the Company Recovery

Procedure is in force, any duty conferred on the company,

its directors or its officers, whether by this Act, by any

other law, or by the Memorandum or Articles of

Association of the company, shall be assumed and

exercised by the Special Controller.

(f) In addition and without prejudice to any other

duty assigned to the Special Controller by the Court or

this Act or any other law, the Special Controller shall be

obliged to perform his functions fairly and equitably

taking into account the best interests of the company, its

shareholders and creditors together with the interests of

any other interested party.

(g) In addition to the functions and powers

entrusted to him by the Court, the Special Controller

shall have the power

(i) after informing the Court, by means of a

note, to remove any director of the company and to

appoint any individual to serve as a manager;

(ii) to engage persons for the provision of

professional or administrative services, and commit

the company to the payment of their respective

fees or charges; or

(iii) to call any meeting of the members or

creditors of the company.

(h) The Special Controller shall not, without the

prior express authorisation of the Court

(i) engage the company into any

commitment of more than six months duration; or

(ii) terminate the employment of company

employees as he considers necessary for insuring

the continuation of the company as a viable going

concern in whole or in part; or

(iii) sell or otherwise dispose of property of

the company to himself, or to his spouse or relatives

and the provisions of article 306 of this Act shall

apply as though references to the liquidator were

references to the Special Controller.

(i) The Court may, upon the request of the Special

Controller, and upon good cause being shown, extend

his appointment and relative functions and powers to

any company being a group company in relation to the

company placed under the Company Recovery

Procedure, provided that, in so far as possible, the Court

shall, before so doing, hear the views of the directors, or

any of them, of such group company, as it may deem

appropriate.

(7) (a) Within one month from his appointment, the

Special Controller shall convene a meeting or meetings

of creditors and members, whether separately or jointly

as he may consider appropriate, for the purpose of -

(i) laying before them for their information

and review a comprehensive statement of the

company’s affairs together with preliminary

proposals on the future prospects and management

of the company; and

(ii) appointing a joint creditors and members

committee, consisting of not more than three

creditors and not more than three members, to

render such advice and assistance as the Special

Controller may require in the management of the

affairs, business and property of the company and

its recovery as a viable going concern.

(b) Not less than fourteen days notice shall be

given of the holding of any such meeting or meetings,

and the Special Controller shall also send a copy of the

notice convening the meeting to any directors or other

officers of the company, including persons who have

been directors or other officers in the past, whose

presence at the meeting is, in the opinion of the Special

Controller, required.

(c) The Special Controller shall publish a notice

of the meetings of creditors and members in a daily

newspaper circulating wholly or mainly in Malta, not

later than fourteen days before the holding of the meeting.

(d) Where for any reason the creditors or the

members or both do not appoint their representatives on

the joint creditors’ and members’ committee, the Special

Controller may proceed to continue in the exercise of

his functions without such committee or solely with a

creditors’ or members’ committee, as the case may be.

(8) (a) If during such time as the Company

Recovery Procedure is in force, it appears that any

business of the company has been carried on with intent

to defraud creditors of the company or for any fraudulent

purpose, the Court on the application of the Special

Controller, may, if it thinks proper so to do, declare that

any persons who were knowingly parties to the carrying

on of the business in the manner aforesaid be personally

responsible, without any limitation of liability for all or

any of the debts or other liabilities of the company as

the Court may direct.

(b) Where the business of a company is carried

on with such intent or for such purposes as is mentioned

in paragraph (a) of this subarticle, every person who was

knowingly a party in the carrying on of the business in

the manner aforesaid, shall be guilty of an offence and

liable on conviction to a fine (multa) of not more than

one hundred thousand liri or imprisonment for a term

not exceeding five years, or to both such fine and

imprisonment.

(9) (a) The provisions of this subarticle shall

apply where a Company Recovery Procedure is in force

and it appears that a person who is a director of the

company knew, or ought to have known, that the

company is unable to pay its debts or is imminently likely

to become unable to pay its debts.

(b) The Court, on the application of the Special

Controller of a company to which this subarticle applies,

may declare the person being a director referred to in

paragraph (a) of this subarticle liable to make a payment

towards the company’s assets as the Court thinks fit.

(c) The Court shall not grant an application under

this subarticle if it is satisfied that the person who is a

director took every step he ought to have taken with a

view to minimising the potential loss to the company’s

creditors.

(d) For the purposes of paragraphs (b) and (c) of

this subarticle, the facts which a director of a company

ought to know or ascertain, the conclusions which he

ought to reach and the steps which he ought to take, are

those which would be known or ascertained, or reached

or taken, by a reasonably diligent person having both -

(i) the knowledge, skill and experience that

may reasonably be expected of a person carrying

out the same functions as are carried out by or

entrusted to that director in relation to the company;

and

(ii) the knowledge, skill and experience that

the director has.

(e) For the purposes of this subarticle, director

includes a person in accordance with whose directions

or instructions the directors of the company are

accustomed to act.

(10) (a) If a vacancy occurs by reason of death,

resignation or otherwise in the office of the Special

Controller, the Court may appoint another individual to

fill the vacancy on an application made for this purpose

by the outgoing Special Controller, by a creditor, by a

member, by a director, or by the Court of its own motion,

as the case may be.

(b) The Court may, of its own motion or on the

application of any member or creditor, review, confirm,

modify or reverse any act or decision of the Special

Controller and give him such directions or orders as it

deems fit or remove a Special Controller if it is satisfied

that there exist sufficient grounds to warrant his removal

and appoint another Special Controller.

(11) (a) At the end of every period of four

months commencing from the date of the making of the

Order until the termination of his appointment, the

Special Controller shall submit to the Court a

comprehensive report in writing on the proceedings of

his administration and of his proposals regarding the

prospects for the recovery of the company as a viable

going concern in whole or in part.

(b) When the Special Controller submits to the

Court the report referred to in paragraph (a) of this

subarticle, the Registrar of the Superior Courts shall

forthwith forward a copy of it to the Registrar for

registration.

(12) (a) If, at any time during which a Company

Recovery Procedure is in force, it results to the Special

Controller, after consulting the joint creditors’ and

members’ committee, that it would serve no useful

purpose for the company to continue with the said

Procedure, the Special Controller shall forthwith make

an application to the Court for the termination of the

Company Recovery Procedure, containing his detailed

and comprehensive reasons therefor.

Following the receipt of the application made by

the Special Controller for the termination of the

Company Recovery Procedure, the Court shall order that

the company be wound up by the Court. On the making

of the winding up order, a copy thereof shall forthwith

be forwarded by the Registrar of the Superior Courts to

the Registrar for registration.

(b) If, at any time during which a Company

Recovery Procedure is in force, it results to the Special

Controller, after consulting the joint creditors’ and

members’ committee, that the affairs of the company

have improved to the extent that it is in a position to pay

its debts, he shall submit an application to the Court,

containing his detailed and comprehensive reasons to

that effect, and requesting the Court to issue an order for

the termination of the Company Recovery Procedure.

In the event that the Court accedes the application, it

shall make such provisions and conditions, as it may

consider necessary in the circumstances of the case.

(c) If, at any time during which a Company

Recovery Procedure is in force, the directors of the

company or the members at an extraordinary general

meeting become satisfied that the affairs of the company

have improved to the extent that it is in a position to pay

its debts, they may submit an application to the Court,

accompanied by appropriate supporting documentation

and information, confirming that they are so satisfied,

and requesting the Court to issue an order for the

termination of the Company Recovery Procedure, and

the Court shall not proceed to make an order acceding

to or declining the application without having first heard

the Special Controller.

In the event that the Court accedes the application,

it shall make such provisions and conditions, as it may

consider necessary in the circumstances of the case.

(d) At the end of the period of his appointment,

the Special Controller shall submit a written Final Report

to the Court containing his detailed and comprehensive

opinions and reasons as to whether or not the company

has a reasonable prospect of continuing as a viable going

concern in whole or in part and will be in a position to

pay its debts regularly in the future.

(e) Where the Final Report submitted by the

Special Controller expresses the opinion that the

company has a reasonable prospect of continuing as a

viable going concern, in whole or in part, or where an

application is made to the Court by the Special Controller

under paragraph (b) of this subarticle, it shall additionally

have attached to it a precise and detailed Recovery Plan

which shall contain all the proposals required to enable

the company to continue as a viable going concern, with

such explanations as may be required to give effect to

such recovery, including proposals in relation to financial

resources, the retention of employees and the future

management of the company. The said Recovery Plan

shall also explain the proposed manner of paying

creditors the whole or a proportion of their claims,

whether a voluntary compromise has been reached with

all the creditors, or whether it is proposed that the Court

sanction a compromise which has not been approved

by all the creditors.

(f) Following receipt of the application referred

to in paragraph (b) of this subarticle or of the Final Report

and the Recovery Plan, the Court may request any

explanations and clarifications as it may consider

appropriate which shall be provided either verbally or

in writing as the Court may direct.

(g) The Court may either reject the proposed

Recovery Plan, or it may accept and approve it in whole

or in part and may require amendments thereto. Where

the Court approves the Recovery Plan submitted by the

Special Controller, whether with or without amendments

as the Court may direct, the Recovery Plan shall be

effective and binding on all interested parties for all

purposes of law.

(13) (a) Upon the submission of a Company

Recovery Application, the issue of a Company Recovery

Order, the appointment and termination of the

appointment of a Special Controller and the appointment

of a replacement thereof, the submission of an application

for the termination of a Company Recovery Order and

the order of the Court terminating the Company

Recovery Procedure for any reason, the Registrar of the

Superior Courts shall forthwith submit a copy of any

such application, Court order or other relevant document

to the Registrar for registration.

(b) The Registrar of the Superior Courts shall

forthwith forward a true copy of the Final Report, as

accepted and approved by the Court, to the Registrar for

registration.

(c) Notwithstanding the provisions of paragraphs

(a) and (b) of this subarticle, a copy of the Recovery

Plan, attached to the Final Report or required to be

attached to an application for the termination of a

Company Recovery Order, shall not be delivered to the

Registrar together with such Report or application.

(14) Where, in terms of any of the provisions of this

article, the Court issues an order for the termination of the

Company Recovery Procedure on the grounds that the

company has no reasonable prospect of continuing as a viable

going concern and will not be in a position to pay its debts

regularly in the future, it shall order that the company be

wound up by the Court. On the making of the winding up

order, a copy thereof shall forthwith be forwarded by the

Registrar of the Superior Courts to the Registrar for

registration.

(15) The Minister may make regulations for the better

carrying out of any of the provisions of this article.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 124 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Subarticle (2) of article 330 of the principal Act shall be Amendment of

article 330 of the

amended as follows

principal Act.

(a) for the words “en nom collectif or en commandite” there

shall be substituted the words “an en nom collectif or an en

commandite or limited partnership”; and

(b) in the proviso thereto, for the words “partnership en

commandite the capital of which is not divided into shares, or one-

tenth of the share capital of the partnership en commandite the

capital” there shall be substituted the words “partnership en

commandite or limited partnership, the capital of which is not

divided into shares, or one-tenth of the share capital of the

partnership en commandite or limited partnership, the capital”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 125 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 335 of the principal Act, for the Amendment of

article 335 of the

words “or a partnership en commandite the unlimited liability of all the principal Act.

partners in the partnership en nom collectif and that of the general

partners in the partnership en commandite” there shall be substituted

the words “or a partnership en commandite or limited partnership the

unlimited liability of all the partners in the partnership en nom collectif

and that of the general partners in the partnership en commandite or

limited partnership”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 126 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 336 of the principal Act shall be amended as follows: Amendment of

article 336 of the

principal Act.

(a) in subarticle (1) thereof, for the words “and en

commandite” there shall be substituted the words “and partnerships

en commandite or limited partnerships”; and

(b) in subarticle (2) thereof, for the words “are all en

commandite” there shall be substituted the words “are all en

commandite or limited partnerships” and for the words

“partnerships are en commandite” there shall be substituted the

words “partnerships are en commandite or limited partnerships”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 127 Amendment of article 342 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (3) of article 342 of the principal Act, for the

words “is a partnership en commandite “ there shall be substituted the

words “is a partnership en commandite or limited partnership”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 128 Amendment of article 343 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 343 of the principal Act for the

words “acquires the assets and liabilities” there shall be substituted the

words “acquires all the assets and liabilities”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 129 Amendment of article 345 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Subarticle (6) of article 345 of the principal Act shall be

amended as follows

(a) in paragraph (a) thereof, for the words “decide on the

draft terms of merger;” there shall be substituted the words “decide

on the draft terms of merger; and”;

(b) in paragraph (b) thereof for the words “the acquiring

company; and” there shall be substituted the words “the acquiring

company:”; and

(c) in paragraph (c) thereof the letter “(c)” shall be deleted

and substituted by the words “Provided that, in any case,”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 130 Amendment of article 354 of the principal Act — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For the proviso to subarticle (3) of article 354 of the principal

Act, there shall be substituted the following

“Provided that any fees that may be payable upon an increase in

the authorised share capital of the acquiring company shall remain due

and payable.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 131 Amendment of article 357 of the principal Act — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the third proviso to subarticle (1) of article 357 of the

principal Act, for the words “to refer to such duty and other fees” there

shall be substituted the words “to refer to such fees”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 132 Amendment of article 358 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 358 of the principal Act shall be amended as follows

(a) in the marginal note thereto, for the words “all its voting

shares” there shall be substituted the words “all its shares”.

(b) in subarticle (1) thereof, for the words “holder of all

their shares conferring the right to vote at general meetings and”

there shall be substituted the words “holder of all their shares and”;

(c)

subarticle (3) thereof shall be amended as follows

(i) in paragraph (a) thereof for the words “takes effect;”

there shall be substituted the words “takes effect; and”;

(ii) in paragraph (b) thereof, for the words “shall

apply;” there shall be substituted the words “shall apply:”;

(iii) in paragraph (c) thereof the letter “(c)” shall be

deleted and substituted by the words “Provided that, in any

case,”; and

(d) subarticle (4) thereof shall be deleted.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 133 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 359 of the principal Act shall be amended as follows: Amendment of

article 359 of the

principal Act.

(a)

subarticle (1) thereof shall be amended as follows

(i) in paragraph (a) thereof, for the words “shall be

published by him at least three months before the date fixed

for the general meeting of the companies being acquired which

is to decide on the draft terms of acquisition;” there shall be

substituted the words “shall be published by him;”;

(ii) paragraphs (b) and (c) thereof shall be respectively

re-numbered (c) and (d);

(iii) immediately after paragraph (a) thereof there shall

be added the following new paragraph (b)

“(b) the general meetings of the companies being

acquired which are to decide on the draft terms of

acquisition shall be held not later than three months from

the publication referred to in paragraph (a) of subarticle

(1) of this article;”; and

(d) in paragraph (c) thereof as re-numbered, for the words

“within the period mentioned in paragraph (a) of this subarticle”

there shall be substituted the words “within the period mentioned

in the preceding paragraph of this subarticle”;

(b) in the proviso to subarticle (2) thereof for the words “to

inspect the documents” there shall be substituted the words “to

inspect and obtain copies of the documents”; and

(c)

subarticle (3) thereof shall be deleted.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 134 Amendment of article 360 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 360 of the principal Act shall be amended as follows

(a) in paragraph (b) of subarticle (1) thereof for the words

“new companies.” there shall be substituted the words “new

companies; or”;

(b) immediately after paragraph (b) of subarticle (1) thereof

there shall be inserted the following new paragraph

“(c) division by a combination of a division by

acquisition with a division by the formation of one or more

new companies;”;

(c) subarticles (4), (5), (6) and (7) thereof shall be

renumbered respectively (5), (6), (7) and (8); and

(d) immediately after subarticle (3) thereof there shall be

inserted the following new subarticle

“(4) Division by a combination of a division by

acquisition with a division by formation of one or more new

companies is the same as the operation described in subarticle

(2) of this article combined with the operation as described in

subarticle (3) of this article.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 135 Amendment of article 361 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (h) of subarticle (2) of article 361 of the

principal Act, for the words “the precise description” there shall be

substituted the words “the precise and detailed description”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 136 Amendment of article 362 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the English text of subarticle (2) of article 362 of the

principal Act, for the words “agreed of as the Court,” there shall be

substituted the words “agreed or as the Court,”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 137 Amendment of article 363 of the principal Act — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 363 of the principal Act, for the

words “the allocation of shares.” there shall be substituted the words

“the allocation of shares. The report shall also describe any special

valuation difficulties which have arisen.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 138 Amendment of article 368 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the second proviso of subarticle (3) of article 368 of the

principal Act, for the words “paragraph (c) of subarticle (1) of article

375” there shall be substituted the words “paragraph (c) of subarticle

(2) of article 375”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 139 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 370 of the principal Act shall be amended as follows: Amendment

article 370 of the

principal Act.

(a) in subarticle (1) thereof, for the words “altered to meet

circumstances” there shall be substituted the words “altered to meet

the circumstances”; and

(b) in subarticle (2) thereof, for the words “article 344” there

shall be substituted the words “article 368”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 140 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 371 of the principal Act shall be amended as follows: Amendment of

article 371 of the

principal Act.

(a) in the English text of paragraph (a) of subarticle (1)

thereof for the words “assets, liabilities and obligations” there shall

be substituted the words “assets, rights, liabilities and obligations”;

and

(b) for the proviso to subarticle (3) thereof there shall be

substituted the following

“Provided that any fees that may be payable upon an

increase in the authorised share capital of the recipient

companies shall remain due and payable.”; and

(c) immediately after subarticle (4) thereof there shall be

inserted the following new subarticle (5)

“(5) Where the assets of the company to be divided

include immovable property or rights relating thereto, the

directors of the recipient companies shall cause within one

month from the coming into force of the division, a declaratory

public deed to be published, containing a detailed description

and the allocation of the immovable property or rights relating

thereto delivered to each of the recipient companies, and a

true copy of the said deed shall be lodged with the Registrar

within fourteen days from the enrolment thereof at the Public

Registry.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 141 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For paragraph (b) and the words immediately following of Amendment of

article 372 of the

article 372 of the principal Act, there shall be substituted the following: principal Act.

“(b) being an expert who is responsible for drawing up on

behalf of the said company the report on the draft terms of the

division,

and who, as a consequence of his wilful or negligent misconduct

in the performance of his duties causes damages to any shareholder

of the company to be divided, shall be liable for such damages.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 142 Amendment of article 373 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 373 of the principal Act shall be amended as follows

(a)

paragraph (a) thereof shall be amended as follows

(i) for the words “article 361 of this Act; or within three

months” there shall be substituted the words “article 361 of

this Act, or within three months”;

(ii) for the words “the resolution of the extraordinary

general meeting” there shall be substituted the words “any of

the resolutions of the extraordinary general meetings

mentioned therein”; and

(iii) for the words “by the Registrar in the Gazette;”

there shall be substituted the words “by the Registrar;”;

(b) in paragraph (c) thereof, for the words “Registrar in the

Gazette,” there shall be substituted the words “Registrar,”; and

(c) in paragraph (g) thereof, for the words “the division shall

not take effect”, there shall be substituted the words “the division

shall not become operative”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 143 Amendment of article 374 of the principal Act — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 374 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “The provisions

of articles 361, 362, 363,” there shall be substituted the words “The

provisions of article 361, subarticles (1) to (5) of article 362, article

363,”; and

(b) for the proviso to subarticle (1) thereof there shall be

substituted the following

“Provided that the proviso to subarticle (3) of article 371

of this Act shall be deemed to refer to such fees as may be

payable upon the registration of the new companies.”;

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 144 Re-numbering of Chapter III of Part IX of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Chapter III of Part IX of the principal Act shall be

renumbered Chapter IV.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 145 Addition of new Chapter III of Part IX to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately before Chapter IV of Part IX of this Act as re-

numbered there shall be added the following new Chapter III

“Chapter III - Division by a combination of a division by

acquisition with a division by the formation of one or more new

companies

374(A) (1) The provisions of articles 361, 362, 363,

subarticles (1) and (2) of article 364 and articles 365 to 373

combination

of this Act shall apply to division by combination of a division

by acquisition with a division by formation of one or more

new companies

by formation

Provided that the proviso to subarticle (3) of article

371 of this Act shall be deemed to refer also to such fees as

may be payable upon the registration of the new companies

where that is the case.

(2) In addition to the information specified in

subarticle (2) of article 361 of this Act, the draft terms of

division, shall also indicate the status, name and registered

office of the new company or companies.

(3) The draft terms of division and, if they are

contained in a separate document, the draft memorandum and

the draft articles of the new company or companies shall be

approved by an extraordinary resolution taken at a general

meeting of the company to be divided and of each existing

recipient company.

(4) Neither article 364 nor article 365 of this Act,

in so far as they relate to the written report drawn up by one

or more experts shall apply in respect of new companies where

the shares in such companies are allocated to the shareholders

of the company to be divided in proportion to their holding in

the issued share capital of that company.

(5) The Registrar shall, after striking the name of the

company to be divided off the register in accordance with the

provisions of subarticle (1) of article 370 of this Act, proceed

to issue a certificate of registration for each one of the new

companies formed, denoting the fact of its formation as a

result of the division.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 146 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 375 of the principal Act shall be amended as follows: Amendment of

article 375 of the

principal Act.

(a) for subarticle (1) thereof there shall be substitued the

following

“(1) The company to be divided may apply to the Court

for it to supervise the division.”;

(b) immediately after the proviso to paragraph (b) of subarticle

(2) thereof, there shall be inserted the following new proviso

“Provided further that the provisions of this paragraph shall,

with regard to division by the formation of new companies, apply

only to the company being divided;”;

(c) in paragraph (a) of subarticle (3) thereof for the words

“subarticle (4) of article 361” there shall be substituted the words

“subarticle (5) of article 361”; and

(d) immediately after subarticle (3) thereof there shall be

inserted the following new subarticle (4)

“(4) The provisions of subarticle (3) of article 368 of

this Act shall not apply to a divison under this Chapter where

a majority in number representing three-fourths in value of

the creditors of the company to be divided have agreed to

forego such joint and several liability as is referred to in

subarticle (3) of article 368 of this Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 147 Amendment of Part XI of the principal Act — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In Part XI of the Act, including the heading thereof, for the

words “place of business” wherever they occur, there shall be substituted

in each case the words “branch or place of business”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 148 Amendment of article 385 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 385 of the principal Act shall be amended as follows

(a) for paragraph (b) of subarticle (1) thereof, there shall be

substituted the following

“(b) a list of the directors and company secretary, if any,

or of the persons vested with the administration of the oversea

company, where that company does not have directors or a

company secretary, and, in all cases, a list of the persons vested

with the representation of the oversea company. Such lists

shall include the following particulars

(i) in the case of an individual, his name, his usual

residential address, his nationality and his business

occupation; and

(ii) in the case of a body corporate, its registered or

corporate name and registered or principal office;” ;

(b) for paragraph (c) of subarticle (1) thereof, there shall be

substituted the following

“(c) a return containing the following particulars -

(i) the name under which the branch or place of

business is carrying on its activities where different from

the name of the oversea company;

(ii) the address of the branch or place of business

established in Malta by the oversea company, and where

more than one branch or place of business has been

established, there shall be indicated the address of the

principal branch or place of business;

(iii) the activities to be carried out by the branch

or place of business established in Malta;

(iv) the names and addresses of one or more

individuals resident in Malta authorised to represent the

oversea company for the activities of the branch or place

of business established in Malta; and

(v) the extent of the authority of any individual

falling within subparagraph (iv) above, including

whether that individual is authorised to act alone or

jointly with others, and in the latter case, the name of

any person with whom he is authorised to act.”; and

(c) immediately after paragraph (c) of subarticle (1) thereof

there shall be inserted the following new paragraph (d)

“(d) unless disclosed by the document specified in

paragraph (a) of subarticle (1) of this article, a return

containing the following particulars about the oversea

company -

(i) the legal form of the oversea company; and

(ii) the identity of the register in which the oversea

company is registered and the number with which it is

so registered.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 149 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 386 of the principal Act shall be amended as follows: Amendment of

article 386 of the

principal Act.

(a) for paragraph (b) thereof, there shall be substituted the

following

“(b) the directors or company secretary or the persons

vested with the administration or the representation of an

oversea company, or in the particulars specified under

paragraph (b) of subarticle (1) of article 385; or”; and

(b) for paragraph (c) thereof, there shall be substituted the

following

“(c) the names or addresses of the individuals authorised

to represent an oversea company for the activities of the branch

or place of business established in Malta;”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 150 Amendment of article 390 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 390 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof for the words “outside Malta.”,

there shall be substituted by the words “outside Malta:”; and

(b) immediately after subarticle (1) thereof there shall be

inserted the following new proviso

“Provided that the said provisions shall not apply to a

prospectus issued by a holder of a collective investment

scheme licence within the meaning of the Investment Services

Act and provided further that the issue of such a prospectus

complies with the rules and regulations made under that Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 151 Amendment of article 391 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (b) of subarticle (6) of article 391 of the

principal Act, for the words “the Malta Stock Exchange” there shall be

substituted the words “a recognised investment exchange”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 152 Amendment of article 395 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 395 of the principal Act shall be amended as follows

(a) for paragraph (b) of subarticle (1) thereof there shall be

substituted the following

“(b) application is made to the Listing Authority for the

admissibility to listing of its shares or debentures on a

recognised investment exchange.”;

(b) in subarticle (2) thereof for the words “Malta Stock

Exchange” there shall be substituted the words “ Listing Authority”;

and

(c) in subarticle (3) thereof for the words “for permission

to the Malta Stock Exchange” there shall be subsituted the words

“for admissibility to listing on a recognised investment exchange”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 153 Amendment of article 396 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (4) of article 396 of the principal Act, for the

words “the Malta Stock Exchange” there shall be substituted the words

“a recognised investment exchange”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 154 Addition of new article 399A to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after article 399 of the principal Act, there shall

be inserted the following new article 399A

399A(1)(a) An oversea company shall within one

month of the closure of its branch or place of business in

Malta deliver a notice to the Registrar for registration

notifying him of such closure.

(b) Where an oversea company, constituted or

incorporated outside Malta, which has established a

branch or place of business within Malta, has been

dissolved or for any other reason is being wound up, it

shall, within one month from the date of the dissolution

or the date on which the winding-up begins, deliver to

the Registrar for registration a return in the prescribed

form containing the following particulars -

(i) a brief description of the winding-up or

other proceedings to which the oversea company

has become subject to, specifying whether such

proceedings amount to insolvency proceedings, or

an arrangement or composition, or any analagous

proceedings;

(ii) whether the oversea company has been

dissolved or is being wound up by an order of a

court;

(iii) if the company is not being so dissolved

or wound up, as a result of what action the

dissolution or winding-up has commenced;

(iv) whether the dissolution or winding up

has been instigated by

(a) the oversea company’s members;

(b) the oversea company’s creditors; or

(c) some other person or persons; and

(v) the date on which the dissolution or

winding-up became or will become effective.

(c) If an oversea company fails to comply with

the provisions of this subarticle, the liquidator or any

officer or agent of the company, as the case may be, who

is in default shall be liable to a penalty and, in the case

of a continuing default, to a further penalty for every

day during which the default continues.

(2) (a) A person appointed to be the liquidator of the

oversea company shall, within one month from the date

of his appointment, deliver to the Registrar for

registration a return in the prescribed form containing

the following particulars -

(i) his name, his residential address and his

business or professional occupation;

(ii) the date of his appointment; and

(iii) a description of his powers together with

an explanation of the extent to which these powers

are derived otherwise than from the general law or

the company’s consititution.

(b) The liquidator of the oversea company shall,

within one month from the termination of the winding

up of the oversea company, deliver to the Registrar for

registration, a return in the prescribed form notifying

him of such termination.

(c) If the liquidator fails to comply with any of

the requirements of paragraphs (a) and (b) of this

subarticle he shall be liable to a penalty and, for every

day during which the default continues, to a further

penalty.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 155 Amendment of article 401of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 401 of the principal Act shall be amended as follows

(a) in paragraph (d) of subarticle (1) thereof, for the words

“any of the provisions of this Act;” there shall be substituted the

words “any of the provisions of this Act and any such delivery,

submission or service to the Registrar and the retention and

registration of any document by the Registrar, may be carried out

in such manner and by such means and in such format, including

electronic communication within the meaning of the Electronic

Commerce Act, as the Registrar may deem appropriate;”; and

(b) in paragraph (g) of subarticle (1) thereof, for the number

“XI” in the English text there shall be substituted the number

“IX” and for the words “of this Act; such notice” there shall be

substituted the words “of this Act, or of the striking off of the

name of a company, under the provisions of article 325 of this Act.

Such notice”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 156 Amendment of article 402 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 402 of the principal Act shall be amended as follows

(a) subarticles (4) and (5) thereof shall be respectively

renumbered (5) and (6); and

(b) immediately after paragraph (g) of subarticle (3) thereof

there shall be inserted the following new subarticle (4)

“(4) When an order is made for the dissolution of a

company in terms of paragraph (g) of subarticle (3) of this

article, the company shall be deemed to have been dissolved

on the date when the order is made and the provisions of

Sub-Titles I and III of Title II of Part V of this Act regulating

the winding up of companies shall apply.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 157 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after subarticle (5) of article 404 of the principal Amendment of

article 404 of the

Act, there shall be inserted the following new subarticle (6)

principal Act.

“(6) The Registrar shall exercise the powers conferred by this

article where it appears to him that it is expedient and in the public

interest to do so.”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 158 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 406 of the principal Act for the Amendment of

words “the company’s subsidiary or holding company, or a subsidiary article

principal Act.

of its holding company or a holding company of its subsidiary,” there

shall be substituted the words “the company’s subsidiary or parent

company, or a subsidiary of its parent company or a parent company of

its subsidiary,”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 159 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 418 of the principal Act for the Amendment of

article 418 of the

words “the powers vested in him under this Part” there shall be principal Act.

substituted the words “the duties and powers vested in him under this

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 160 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 425 of the principal Act shall be amended as follows: Amendment of

article 425 of the

principal Act.

(a) in paragraph (d) of subarticle (1) thereof for the words

“Ninth, Tenth and Eleventh Schedule” there shall be substituted

the words “Ninth, Tenth, Eleventh and Twelfth Schedule”;

(b) in paragraph (g) of subarticle (1) therof for the words

“on any stock exchange” there shall be substituted the words “ on

any recognised investment exchange”;

(c) for paragraph (h) of subarticle (1) thereof, there shall be

substituted the following

“(h) specify the categories of public companies which

may not issue share warrants by whatever designation

described and prescribe rules further regulating and restricting

the issue of share warrants;”;

(d) in paragraph (i) of subarticle (1) thereof for the words

“prescribed; and” there shall be substituted the words “prescribed;”;

(e) paragraph (j) of subarticle (1) thereof shall be re-

numbered as paragraph (l); and

(f) immediately after paragraph (i) of subarticle (1) thereof,

there shall be inserted two new paragraphs (j) and (k) as follows

“(j) provide for the exemption of offshore companies

formed and registered under the Malta Financial Services

Authority Act from any of the provisions of this Act, or for

the application to any such companies of the said provisions

with such qualifications and subject to such variations and

conditions as may be prescribed, including the prescription

of additional or different rules and requirements regulating

such companies;

(k) provide for the exemption of oversea companies,

which establish a branch or place of business within Malta

under Part XI of this Act, from any of the provisions of Part

XI of this Act, or for the application to any such oversea

companies of the said provisions with such qualifications and

subject to such variations and conditions as may be prescribed,

including the prescription of additional or different rules and

requirements regulating such oversea companies; and”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 161 Amendment of article 427 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 427 of the principal Act shall be amended as follows

(a) in subarticle (1) thereof, for the words “the Tenth

Schedule” there shall be substituted the words “the Eleventh

Schedule”;

(b) in subarticle (2) thereof, for the words “the Tenth

Schedule” there shall be substituted the words “the Eleventh

Schedule”, and for the words “The daily default penalty shall be

due for every day during which the default continues and shall

accrue from the day on which the Registrar gives notice under

subarticle (3) of article 401 of this Act that a penalty is due.” there

shall be substituted the following words “The penalty shall become

due on the day on which the default occurs and the daily default

penalty shall be due for every day during which the default

continues and shall accrue from the day following that on which

the default occurs.”; and

(c) immediately after subarticle (3) thereof, there shall be

inserted the following new subarticle (4)

“(4) A company shall be jointly and severally liable with

its officers for the payment of any administrative penalties

imposed under this Act.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 162 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (15) of article 428 of the principal Act the words Amendment of

“registered under this Act, other than any resolution, notice, return or article

principal Act.

other document required to be” shall be deleted.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 163 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For paragraph (a) of subarticle (1) of article 431 of the Amendment of

article 431 of the

principal Act, there shall be substituted the following

principal Act.

“(a) offshore companies formed and registered under the

Malta Financial Services Authority Act shall, subject to the

provisions of the said Act, continue to be regulated by the

Ordinance, and the provisions of this Act shall not apply thereto,

for such period or until such date as the Minister may, by order in

the Gazette, establish and the provisions of this Act shall commence

to apply to them from such date

Provided that the Minister may, by regulations made under

this Act, exempt such companies from any one or more of the

provisions of this Act, with such qualifications and subject to such

variations and conditions as may be specified therein;”

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 164 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the English text of the sub-title of the Second Schedule Amendment of the

Second Schedule to

of the principal Act for the words “Part X of this Act” there shall be the principal Act.

substituted the words “Part XI of this Act”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 165 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (4) of the Fifth Schedule to the principal Act Amendment of the

Fifth Schedule to

for the words “official stock exchange listing” wherever they occur, the principal Act.

there shall be substituted in each case the words “listing on a recognised

investment exchange”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 166 of the — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Paragraph 1 of the Sixth Schedule to the principal Act shall Amendment

Sixth Schedule to

be amended as follows

the principal Act.

(a) in sub-paragraph (c) thereof for the words “development;

and” there shall be substituted the word “development;”;

(b) in sub-paragraph (d) thereof for the word “reserves.”

there shall be substituted the words “reserves; and”; and

(c) immediately after sub-paragraph (d) thereof there shall

be inserted the following new sub-paragraph (e)

“(e) the existence of branches of the company.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 167 Amendment of the Seventh Schedule to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For the Seventh Schedule to the principal Act there shall be

substituted the Seventh Schedule contained in the First Schedule to this

Act.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 168 Amendment of the Ninth Schedule to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after paragraph 13 of the Ninth Schedule to

the principal Act there shall be added the following new paragraph 14

“14. The voting rights in an undertaking shall be reduced

by any rights attaching to shares -

(a) held by way of security, provided that the rights in

question are exercised in accordance with the instructions received;

or

(b) held in connection with the granting of loans as part of

normal business activities, provided that the voting rights are

exercised in the interests of the person providing the security.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 169 Amendment of the Eleventh Schedule to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the title of the Eleventh Schedule to the principal Act for

the words “Eleventh Schedule” there shall be substituted the words

“Twelfth Schedule”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 170 Amendment of the Tenth Schedule to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In the title of the Tenth Schedule to the principal Act for the

words “Tenth Schedule” there shall be substituted the words “Eleventh

Schedule”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 171 Addition of new Tenth Schedule to the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after the Ninth Schedule to the principal Act

there shall be added the Tenth Schedule contained in the Second

Schedule to this Act.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 172 Amendment of the Eleventh Schedule to the principal Act as renumbered. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

The Eleventh Schedule to the principal Act as renumbered

shall be amended as follows

(a)

for the following paragraphs

“66(6) Failure of partner vested 200 liri 10 liri

with administration or representation to

deliver a copy of any instrument altering

or adding to the deed of partnership of a

partnership en commandite the capital of

which is divided into shares to the

Registrar or failure to deliver amended

deed of partnership.

70(6) Trading or carrying on 200 liri None

business under certain prohibited names

74(2) Failure of company to 500 liri

None”

deliver report of proposed acquisition of

asset from subscriber or major

shareholder to Registrar

there shall be substituted the following

“66(6) Failure of partner vested 200 liri 10 liri

with administration or representation to

deliver a copy of any instrument altering

or adding to the deed of partnership of a

partnership en commandite or limited

partnership the capital of which is divided

into shares to the Registrar or failure to

deliver amended deed of partnership.

70(6) Trading or carrying on 200 liri 10 liri

business under certain prohibited names

74(2) Failure of company to 500 liri None”;

deliver to Registrar report of proposed

acquisition of non-cash asset from

subscriber or member

(b) immediately after paragraph

“133(5) Officer of company 200 liri None”

contravening further provisions as to

votes by proxy at meetings of the

company

there shall be inserted the following

“138(8) Failure to appoint a 200 liri

10 liri”;

company secretary

and (c)

immediately after paragraph

“ 397(1) Person responsible for 1000 liri None “

issuing, circulating or distributing a

prospectus etc. for an oversea company

in contravention of articles 391 to 396.

there shall be inserted the following

“399(A)(1) Liquidator, officer or 200 liri 10 liri

agent of oversea company failing to give

notice to Registrar of winding-up of

oversea company or closure of branch or

place of business

399(A)(2) Liquidator of oversea 200 liri

10 liri.”.

company failing to notify Registrar of

appointment

PART VIII

AMENDMENTS TO THE INVESTMENT SERVICES ACT,

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 173 Amendments to the Investment Services Act, Cap. 370. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) This Part amends and shall be read and construed as

one with the Investment Services Act, hereinafter in this Part referred

to as “the principal Act”.

(2) The provisions of this Part shall come into force on such

date as the Minister responsible for finance may by notice in the Gazette

establish.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 174 Amendment of article 6 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In paragraph (b) of subarticle (2) of article 6 of the principal

Act, for the words “reporting requirements, and any other matters”, there

shall be substituted the words “reporting requirements, financial resources,

capital adequacy and related requirements, and any other matters”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 175 Amendment of article 12 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 12 of the principal Act shall be amended as follows

(a) in paragraph (b) of subarticle (1) thereof, for the words

“schemes and to make provisions on capital adequacy

requirements;” there shall be substituted the words “schemes; and

to make provisions on capital adequacy requirements;”;

(b) in paragraph (c) of subarticle (1) thereof, for the words “and

provide for the judicial and legal representation thereof;” there shall be

substituted the words “and provide for the judicial and legal representation

thereof; and such schemes shall be exempt from the payment of income

tax as from the date of establishment of such schemes;”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 176 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

For article 26 of the principal Act, there shall be substituted Amendment

article 26 of the

the following

principal Act.

“26. (1) Information obtained by any person for the

purposes of, or pursuant to, any of the provisions of this Act, or of

any rules or regulatons made thereunder, or in the discharge of

any functions under any of the said provisions, or from overseas

regulatory authority, shall be treated as confidential and protected

by the duty of professional secrecy, and shall not be disclosed to

any other person except in

(a) cases covered by criminal law provisions under this

Act or any other Act, including the detection, prevention or

prosecution of criminal offences;

(b) a summary or collection of information formed in

such a way as not to enable the identity of any persons to

whom the information relates to be ascertained; and

(c) civil or commercial proceedings in relation to the

bankruptcy or dissolution and consequential winding up by

the Court of a licence holder provided such information does

not concern third parties involved in attempts to rescue such

licence holder, and to such overseas bodies responsible for

the liquidation and bankruptcy of a person holding a licence

or an equivalent authorisation from an overseas regulatory

authority or for other similar procedures.

(2) The provisions of subarticle (1) of this article shall not

preclude the disclosure of information, provided the consent of the

person from whom the informaiton originates is obtained –

(a) with a view to the institution of, or otherwise for the

purposes fo any proceedings by the competent authority before

any court under this Act;

(b) to an auditor where such disclosure would assist him in

the exercise fo his functions under article 18 of this Act;

(c) to the Central Bank of Malta or to the Listing Authority

under the Financial Markets Act, where such information is required

by the Bank or the Listing Authority in the exercise of their

respective functions in terms of law;

(d) in response to a request from, or for the purpsoe of

assisting, an overseas regulatory authority pursuant to article 17

of this Act; and

(e) to such other local or overseas regulatory, judicial or

enforcement authorities where such disclosure is required or

requested for the pursuance of serious regulatory concerns.”.

PART IX

AMENDMENTS TO THE BANKING ACT, CAP. 371

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 177 Amendments to the Banking Act, Cap. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) This Part amends and shall be read and construed as

one with the Banking Act, hereinafter in this Part referred to as “the

371. principal Act”.

(2) The provisions of this Part shall come into force on such

date as the Minister responsible for finance may by notice in the Gazette

establish.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 178 Amendment of article 7 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Immediately after paragraph (a) of subarticle (1) of article

7 of the principal Act there shall be inserted the following new proviso:–

“Provided that, without prejudice and subject to the provisions of

article 16A, the competent authority may by provision contained in a

banking directive, increase the amounts laid down in this paragraph,

and such amounts may be designated in such other currency as may be

specified in the directive.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 179 Amendment of article 15 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

Article 15 of the principal Act shall be amended as follows:–

(a) in paragraph (b) of subarticle (1) thereof, for the words

“grant or permit to be outstanding credit facilities or extend other

banking services under terms and conditions more favourable than

the credit institution would have otherwise applied –” there shall

be substituted the words “grant or permit to be outstanding credit

facilities or extend other banking services, under tems and

conditions more favourable than the credit institution would have

otherwise applied,–”;

(b) in paragraph (c) of subarticle (1) thereof, for the words

“of such officer or employee;” there shall be substituted the

following:–

“ of such officer or employee

Provided that the competent authority may by banking

directive extend the restrictions listed in paragraphs (a), (b)

and (c) or any of them to other officers, employees or

shareholders of credit institutions or to other categories of

persons in such manner and to such extent as may be

specified.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 180 of — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 25 of the principal Act, for the Amendment

article 25 of the

words “disclose information to other foreign competent authorities principal Act.

insofar as the authorities to which the information is disclosed are subject

to obligations of professional secrecy which are equivalent to those

applying under the law in Malta.” there shall be substituted the words

“disclose information to other foreign competent authorities.”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 181 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In article 28A of the principal Act, for the words “and to Amendment of

article 28A of the

make provision for any other aspect related to depositor protection principal Act.

schemes including rules on advertising.” there shall be substituted the

words “and to make provision for any other aspect related to depositor

protection schemes including rules on advertising; and such schemes

shall be exempt form the payment of income tax as from the date of

establishment of such schemes;”.

PART X

AMENDMENTS TO THE INSIDER DEALING AND MARKET

ABUSE OFFENCES ACT, CAP. 376

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 182 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) This Part amends and shall be read and construed as Amendments to the

Insider Dealing and

one with the Insider Dealing and Market Abuse Offences Act, hereinafter Market Abuse

in this Part referred to as “the principal Act”.

Offences Act, Cap.

375. (2) The provisions of this Part shall come into force on such

date as the Minister responsible for finance may by notice in the Gazette

establish.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 183 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 7 of the principal Act, for the Amendment of

article 7 of the

words “as mentined in article 5(1)(a), (b) and (c).” there shall be principal Act.

substituted the words “as mentioned in article 5”.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 184 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (1) of article 9 of the principal Act, for the Amendment of

article 9 of the

words “the provisions of article 5(1)(a)” there shall be substituted the principal Act.

words “the provisions of article 5”.

PART XI

AMENDMENTS TO THE FINANCIAL INSTITUTIONS ACT,

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 185 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) This Part amends and shall be read and construed as Amendments to the

Financial

one with the Financial Institutions Act, hereinafter in this Part referred Institutions Act,

to as “the principal Act”.

(2) The provisions of this Part shall come into force on such

date as the Minister responsible for finance may by notice in the Gazette

establish.

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 186 Amendment of article 20 of the principal Act. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

In subarticle (2) of article 20 of the principal Act, for the

words “disclose information to other foreign comopetent authorities

insofar as the authorities to which the information is disclosed are subject

to obligations of professional secrecy which are equivalent to those

applying under the law in Malta” there shall be substituted the words

“disclose information to other foreign competent authorities.”.

PART XII

MISCELLANEOUS PROVISIONS

Malta Government Gazette — Act 2003 4 — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws.
Art. 187 Miscellaneous provisions. — ACT NO. IV of 2003 AN ACT to make provision for the enforceability of set-off and netting on bankruptcy or insolvency and to amend various other financial and commercial laws. Open official source

(1) Without prejudice to any other law in any reprint of

this Act, Parts II to VII need not be reproduced and it shall be sufficient

to reproduce Part I of this Act

Provided that nothing in this subarticle shall be construed

as reducing the validity of anything contained in the Parts not so

reproduced.

(2) Upon the coming into force of Parts II to VII of this

Act, the long title of this Act shall be “An Act to make provision for the

enforceability of set-off and netting on bankruptcy or insolvency.”.

A

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