The company recovery procedure and the role of the special controller

Abstract

The Company Recovery Procedure was one of the amendments that were made to the Companies Act in 2003 aimed at addressing certain shortcomings of the Act, and to ensure compliance with the EC Company Law Harmonization Directives. The Company Recovery Procedure may be defined as: " ...a half-way house that avoids putting such companies into immediate liquidation and looks for some other way out." The objective of this dissertation is to establish the validity of the Company Recovery Procedure in Malta, and will discuss the role of the Special Controller in such a procedure. Based on a number of interviews held with representatives of audit firms, the MFSA, the MACM and with lawyers and insolvency practitioners who specialise in Company Law, this study attempted to establish: • The adequacy of the criteria required to make a Company Recovery Application; • The degree of protection of creditors under the Company Recovery Procedure; • The stimuli given to existing and potential suppliers in dealing with a company in distress; • The factors that might restrain directors from submitting a Company Recovery Application. Furthermore, from a study held through the Registry of Companies it was established how many companies, if any, made use of the Company Recovery Procedure from the date it was introduced, and how many of these companies were eligible to make use of such a procedure. On the basis of the feedback received from the interviews, potential limitations with regards to the validity of the Company Recovery Procedure were identified, and recommendations with regards to these limitations were made.