The notion of un-appealability from decisions concerning Article 402 Companies Act : time to consider a change?

Abstract

This paper will examine the notion and reasoning behind the current position regarding the lack to the right of appeal at law within article 402 of the Companies Act. Article 402 of the Maltese Companies Act entitled ‘Protection of Shareholders Against Unfair Prejudice’, caters for those members of a company which feel that they are prejudiced through some form of wrongdoing from the other shareholders. Although Chapter 386 of the Laws of Malta seeks to protect these prejudiced shareholders, the judiciary causes a setback for any party involved in such an action. This is because upon being given a decree from the first court, the parties are not given a direct right to appeal from such decision. This means that if the court deems such wrongdoing to be grave as to warrant any of the penalties mentioned within this section, such as dissolution of the company, the parties do not have the liberty to appeal from such a decision. To grasp a further understanding of this notion and the logic behind it, the first chapter deals with previous local judgements where the parties are faced with the reasoning regarding the lack of the right to appeal. Moving forward, chapter two aims at finding any other provisions within local legislature whereby such a notion is present. This exercise was compiled to justify the questioning behind this notion of un-appealability from decisions concerning article 402 Companies Act. In the third chapter, an international comparative analysis is attained whereby foreign doctrines are compared to similar principles to those found in Malta’s Companies Act. The jurisdictions studied are the United Kingdom, New Zealand and Australia. The ultimate aim of this dissertation is to set the ball rolling on whether or not it is the time for article 402 to be amended. This is due to the reasons which will be explained, and the overall notions of justice which should never hinder a party seeking fairness.