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The Fiduciary Duty of Company Directors in Malta

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The Fiduciary Duty of Company Directors in Malta THE FIDUCIARY DUTY OF COMPANY DIRECTORS IN MALTA by ILONA SCHEMBRI A thesis submitted to the University of Birmingham for the Degree of DOCTOR OF PHILOSOPHY Birmingham Law School University of Birmingham January 2019 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Abstract This thesis examines the development of the fiduciary duty under the Maltese corporate law as an example of legal transplantation through the Maltese statutory and judicial approach. Based on the review of the legal transplantation literature, it assesses the factors that have influenced the Maltese statutory and judicial process. Historical, cultural, economic, prestige and political factors and familiarity with the law are discussed. It demonstrates that the Maltese statutory path has been influenced by the Italian legal system through the application of mandate law and thereafter by the English legal system with the inclusion of indirect influences, which started to prevail from the 1940s, and subsequently with the enactment of Article 136A of the Maltese Companies Act 1995 in 2003. However, it also indicates that the fiduciary duty in Articles 1124A and B of the Maltese Civil Code 1870 only have a Roman influence. It concludes that, although the statutory regulation of this duty was linear and influenced by historical and cultural factors, most of the Maltese judiciary have been inconsistent in applying the law and has departed from the factors that influenced the legislators from the 1940s onwards by having started to apply the economic and prestige factors. ii Dedication This thesis is dedicated to my daughter, Sherona Briffa Schembri, who is my rock and whose smile brightens my day, and also to my grandmothers Rose Saliba and Andreana Schembri who have always guided me from Heaven and encouraged me not to give up. iii Acknowledgments I would like, first and foremost, to thank my tutors, Professor Rilka Dragneva-Lewers and Dr Katharina Moser, who have been by my side from the very beginning of this journey and who have always guided me and inspired me to keep strong. Their invaluable guidance, support and patience have been remarkable throughout these past four years, and I would not have been able to finish this thesis without them. I would also like to thank Nicola Taylor who has helped me with my writing skills and who has been very patient with me. A big thank you also goes to Oxbridge Editing. Lastly, I would like to thank my family for having always supported me and encouraged me until the end. iv List of judgments Maltese judgments Advocate Doctor Andrew Borg Cardona noe v Priceclub (Holdings) Limited et 12/10/2007 (First Hall Civil Court) Cit. Nru. 24/3003 Advocate Doctor Anthony H Farrugia as a special mandatary of the minors Fabienne Carbone and Rowan Carbone v Vernie Carbone for and on behalf of various companies and Agostino sive Winston Carbone, together with Advocate Dr. Eric Mamo, for and on behalf of other companies 30/05/2001 (Court of Appeal) Cit. Nru. 82/1990/1 Advocate Doctor Ian Refalo noe et v Albert David Boweck et 18/03/1986 (First Hall Civil Court) Advocate Doctor Jean C Farrugia noe v Aqua Oasis Limited (C 41157) et 06/10/1999 (Court of Appeal) Cit. Nru. 651/2008 Advocate Doctor Victor Emanuel Ragonesi v Albert Stagno Navarro 09/01/2009 (Court of Appeal) Cit. Nru. 771/2001/3 Amadeo Balzan v Central Holidays (Travel and Tourism Ltd) and Alexandra Balzan Ruggier et 16/06/2015 (First Hall Civil Court) Cit. Nru. 581/2011 Anthony Caruana et v John Magro et. 06/10/1999 (Court of Appeal) Anthony Caruana and Sons Limited et v Christopher Caruana 28/02/2014 (Court of Appeal) Cit Nru. 573/2005/1 Architect Mariello Spiteri v Registry of Companies et 15/01/2015 (First Hall Civil Court) Cit. Nru. 778/2008 v Architect Raymond Vassallo pro et noe et v Anthony Parlato Trigona et 30/09/2016 (Court of Appeal) Cit. Nru. 716/2011/1 Attilio Vassallo Cesareo et noe vs Tony Cilia Pisani 31/01/2003 (First Hall Civil Court) Borg v Camilleri 07/04/1997 (First Hall Civil Court) Carmen Aquilina et v Edgar Ellul 17/03/2003 (Court of Appeal) Catherine, wife of Joseph Galea v Milica Micovic noe 19/11/2001 (Court of Appeal) Cit Nru. 271/93 GV, Central Holidays (Travel Agents and Organisers) Limited v Alexandra Balzan Ruggier et 23/3/2015 (First Hall Civil Court) Cit. Nru 116/2011 Charles Attard v Carmela Frendo 31/01/2003 (First Hall Civil Court) Cordina v Cordina 26/09/2007 (Court of Magistrates (Gozo) (Superior Jurisdiction)) Deirdre and John Cachia v Gaba Diamonds Company Limited 28/11/2003 (Court of Appeal) Cit. No. 2227/1998/1 Edward and Giovanni Leone Enriquez v Advocate Doctor Anthony Farrugia et 12/10/1989 (First Hall Civil Court) Emanuel Chircop pro et noe v Carmel sive Charles Busuttil et 16/10/2015 (First Hall Civil Court) Cit. Nru. 651/2008 Emmanuele Farrugia v Giovanna Lughermo 29/10/1956 (Court of Appeal) Enemalta Corporation v Vella Group Limited and John Mary Vella 08/06/2006 (Court of Appeal) Cit Nru. 1837/2004/1 Executive Services Ltd v Therese Agius 14/12/2001 (Small Claims Tribunal) Cit Nru. 1062/2001/1 vi Francesco Saverio Musu’ v Vincenzo di Saverio Vella et. Vol. XII B page 527 11/11/1890 Francis Busuttil and Sons Limited v Christopher Apap and Reflex Computer Systems (Malta) Limited 30/05/2014 (Court of Appeal) Cit. Nru 331/1997/1 Frank Cilia noe v Charles Scicluna 27/04/1992 (Commercial Court) Giovanni Anastasi noe v Kaptan Serafino Xuereb M.B.E et 14/06/1951 (Commercial Court) Jane Chircop et v Robert Mizzi pro et noe et. 08/01/2015 (First Hall Civil Court) Cit. Nru. 735/2004 John La Rosa noe v Carmelo Galea 30/05/1958 (Court of Appeal) Vol. XLII.i.344 John Veglio v Catherine Camilleri Catherine 22/01/1973 (Court of Appeal) John Vella noe v Anthony Vella et 03/12/1999 (Court of Appeal) Joseph Chetcuti noe v Peter Paul Camilleri 04/12/1998 (Court of Appeal) Mark Hogg noe v Terra Sana Ltd et 31/10/2016 (First Hall Civil Court) Cit. Nru. 607/13 Messina v Galea 05/01/1881 Oreste Cilia pro et noe v Daniel Cilia pro et noe et. 12/11/2013 (First Hall Civil Court) Cit. Nru. 1223/1997/1 Philip Galea Souchet v Michael Falla 04/05/1973 (Court of Appeal) Salvatore Coleiro v John Ellis 04/02/1914 (Court of Appeal) (Vol. XXI.i.93) Salvatore Schembri v Salvatore Gauci 31/10/1983 Sirap Limited v IT 2010 Limited 7/10/2013 (Court of Magistrates) Cit. Nru. 206/2010 SRAM limited v Geomike Limited et 18/11/2013 (Court of Magistrates) Cit. Nru 146/2011 vii Vascas Enterprises Limited v Adrian Ellul 13/11/2014 (First Hall Civil Court) Cit. Nru 111/2011 Victor Grima noe v Anthony Grech 09/12/1968 (Court of Appeal) Video On-Line Limited v Ian Giles 25/02/2004 (Court of Appeal) Cit Nru. 339/2002/1 English judgments Aberdeen Railway Co. v Blaikie Bros. (1854) 1 Macq. 461 at p. 471 Armstrong v Jackson [1917] 2 KB 822 Boardman v Phipps [1967] 2 AC 46 Boulting v Association of Cinematograph, Television and Allied Technicians [1963] 2 QB 606 Brady v Brady [1988] BCLC 579 Bray v Ford [1896] AC 44 Champagne Perrier-Jouet SA v HH Finch Ltd. [1982] 1 W.L.R. 1359 (26 April 1982). Colin Gwyer & Associates Ltd. v London Wharf (Limehouse) Ltd. [2003] BCC 885 Crown Dilmun v Sutton [2004] All ER (D) 222 (Jan) Currencies Direct Ltd. v Ellis [2002] 1 B.C.L.C. 193 (19 October 2001) Daraydan Holdings Ltd. v Solland International Ltd. [2004] EWHC 622, [2004] 3 WLR 1106; [2005] Ch 1 Extrasure Travel Insurances Ltd. v Scattergood [2003] All ER (D) 364 (Nov) Freeman & Lockyer v Buckhurst Park Properties (Magal) Ltd. [1964] 2 QB 480 Fulham Football Club v Cabra Estates plc. [1994] BCLC 363 viii Gencor ACP Ltd. v Dalby [2000] 2 BCLC 734, [2000] EWHC 1560 (Ch), [2000] 2 BCLC 734 Great Eastern Railway Co. v Turner (1872) 8 Ch. 149 Helmet Integrated Systems Ltd. v Tunnard [2006] EWCA Civ 1735 Hely-Hutchinson v Brayhead Ltd. [1967] 1 QB 549 Hogg v Cramphorn Ltd. [1967] Ch. 254 Howard Smith Ltd. v Ampol Ltd. [1974] UKPC 3 Industrial Development Consultants Ltd. v Cooley [1972] 1 WLR 443 Island Export Finance Ltd. v Umunna [1986] BCC 460 J J Harrison (Properties) Ltd. v Harrison [2002] 1 BCLC 162 Jonathan Ball v Eden Project Ltd. [2001] All ER (D) 128 (Apr) Keech v Sandford [1726] 25 ER 223 Kregor v Hollins (1913) 109 LT 225 Lee Panavision Ltd. v Lee Lighting Ltd. [1992] BCLC 22 (C.A.) London and Mashonaland Exploration Co. v New Mashonaland Exploration Co. [1891] WN 165 Norman v Theodore Goddard [1999] B.C.L.C. 1028 Parker v McKeena (1874) 10 Ch. App. 96 Piercy v Mills & Co. Ltd. [1920] 1 Ch. 77 Ranson v Customer Systems plc [2012] EWCA Civ 841 Re Punt vs Symons & Co Ltd.
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