A comparative study of the role of company secretaries in modern company law

Abstract

In Malta, the company secretary is established by the Maltese Companies Act, Chapter 386 of the Laws of Malta. The company secretary is an officer of the company and Article 138(1) of the Companies Act states that, “Every company shall have a company secretary.” This includes private and public companies. The Companies Act necessitates that the company secretary must possess the requisite knowledge to take on such responsibilities and are generally expected to have experience in areas such as corporate governance. Various provisions contained in the Companies Act outline the rigorous role, functions, requirements, and liabilities of the company secretary in addition to those imposed and delegated by the Articles of Association and board decisions. Maltese law places a heavy burden on the company secretary. The penalties and legal liability which may lay with the company secretary if in default are typically severe. The law attributes a high level of personal responsibility to the company secretary. A comparative analysis is carried out to evaluate the position of the company secretary under UK common law and civil law legal systems. Civil law jurisdictions such as Italy, do not have set legislation pertaining to the company secretary. Thus, this comparative research shall provide insight which leads to the evaluation that such onerous obligations placed on the company secretary in Malta is unnecessarily too heavy. This dissertation will reach a conclusion that the company secretary should no longer be a legal requirement for private companies, and it will delve into the potential the role of the company secretary has as corporate gatekeeper to benefit public companies.