Forms of redress for financial services licence-holders under Maltese law : a comparative study

Abstract

The purpose of this thesis is to examine the modes of redress available to licenceholders in the event of a dispute with the financial services regulatory authority. The study gives a general overview of the legal framework pertaining to appeals granted to the licence-holder before the Financial Services Tribunal. The grounds under which an appeal may be brought will be closely examined together with the considerations and conclusions reached by the Financial Services Tribunal. This, in turn will reflect the manner in which the Malta Financial Services Authority performs, and whether this is in line with the requirements of procedural fairness and the general principles of Administrative law. A comparative analysis aids at elucidating the lacuna in Maltese law on the provision of a positively documented decision-making procedure undertaken by the Regulatory Authority. Although in practice, the Malta Financial Services Authority exercises a sector-specific means of supervision and investigation, this does not emanate from statute. This may create an appearance of bias, thereby breaching the rules of natural justice which in essence ensure procedural fairness during the decision-making in the licencee’s regard. From an in-depth discussion on the Financial Services Tribunal as the specially constituted forum to take cognisance of financial regulatory disputes, it appears that recourse to such mode of redress may be perceived to be restricted. Therefore, other modes of redress, such as an action for judicial review or a constitutional action, are discussed so as to examine whether an aggrieved licence-holder may have recourse to other fora to resolve regulatory disputes. The discussion proceeds to propose amendments to the current legislative state of affairs in Malta, modelled on that expounded on throughout the comparative analysis with the position in the United Kingdom and Ireland.