By David Fabri
1. Various Laws relating to the Establishment and Jurisdiction of the Commercial Court (Amendment) Act, 2025 (Bill no. 133)
Bill no. 133 purports to re-establish a Commercial Court, presided by one judge, with competence restricted to dealing with commercial and business matters.
Having a specialised court is neither a bad idea nor a new one. I remember talks on setting up a specialised company law court and a specialised maritime and shipping court. These were conceived as different courts, not one and the same.
One recalls that the original Commercial Court several decades ago wasted much precious time decoding jurisdictional issues, and many cases were sadly lost on this basis. Hopefully, similar frustration will not afflict this new mechanism.
However, I foresee a possible risk of over-burdening the new court before it has even been launched. Its remit is more extensive and complex than one would have imagined, and this might undermine the much-flaunted efficiency and speed expected of the new tribunal.
This reform, which is broadly a welcome step, will be implemented by the insertion of a new article 32A to the existing Code of Organisation and Civil Procedure. The law sets out the competence of the new court in two ways.
First, it refers generically to disputes arising under or involving “the Commercial Code, the Companies Act, the Competition Act, merchant shipping, collision of sea vessels, salvage, average, marine insurance, marine pollution, intellectual property rights, bills of exchange, promissory notes or other credit instruments, bankruptcy and any other related matter….” It appears that gaming is not included.
As a second step, the law proceeds to list specific laws, and here problems arise. These include, briefly, laws on shipping and maritime trade, carriage of goods, collisions at sea, aviation, financial services, consumer affairs, competition, intellectual property, trade-marks, insolvency, bills of exchange and class actions.
Regrettably, this list looks tentative and incomplete: in other words, a kind of hastily assembled hodgepodge. I shall explain briefly why, limiting my criticism to three areas, namely financial services, consumer protection and class actions. These warrant further study.
Specific reference is made to laws regulating banking and financial institutions. Why have these two been singled out? Several other similar important financial services legislation have been strangely omitted, e.g. investment services, market abuse and insurance-related laws.
In my view, consumer disputes have been erroneously included, as it might place consumers at a disadvantage. And what about the competence of the Consumer Claims Tribunal?
Today we have two separate laws dealing with class actions. Only one of them is included in the Act. The Collective Proceedings (Competition) Act of 2012 has been inexplicably omitted.
2. The Holders of Public Offices and Public Entities (Responsibility) Act 2025
(Bill no.137)
The stated objects of this Bill are to establish and regulate the parameters of personal civil responsibility of persons forming part of the State administration, and to identify the circumstances in which public institutions and entities shall bear or assume responsibility in place of such persons or shall recover damages for acts done in the exercise of public functions.
Government’s original expressed intention was to protect public officials when sued personally, whether civilly or (more controversially) criminally. It seems that better sense has since prevailed, and the law now only refers to protection against civil (i.e. private law) proceedings – usually for the payment of damages.
The State should not find itself defending officials engaged in State corruption, or even of criminal fraud and other offences.
The new law would shield civil servants from “orders for the payment of damages” or “compensation “, in proceedings of a civil or constitutional nature. The law covers any act done “in the exercise of a public function”. No protection should extend to acts that are ultra vires an official’s remit and authority.
The Opposition in Parliament did not oppose this Bill on the premise that it protects civil servants acting in good faith. But this is not what the law actually says. The new law also applies to pending proceedings against public servants, if there are any.
I am not aware of any cases where civil servants acting in good faith and within their legitimate authority have been sued for damages. However, the law will now make it more cumbersome, difficult and perhaps riskier to try to sue public officials under the civil law in the future.
David Fabri LL.D., Ph.D., has taught law and business ethics since 1994 and for many years served as Head of the Department of Commercial Law at the University of Malta. He has recently published three books on Regulation in Malta. This monthly column seeks to encourage awareness and critical thinking regarding relevant legal and corporate developments in Malta and overseas.
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