|.: A Framework for Financial Services :.|
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The Maltese legal system presents quite a sophisticated and comprehensive framework which in part reflects the various foreign influences that have designed the Island’s history. Over the years, Malta has been ruled by Phoenicians, Carthaginians, Romans, Knights of the Order of St. John and for a few years by the French under Napoleon. For long periods in its history, the Island also formed part of the Italian kingdom to its north. More recently, between 1802 and 1964, Malta formed part of the British Empire.
Malta has a written Constitution based on the British Westminster model that has been adopted in many other states forming part of the British Commonwealth. It incorporates the basic constitutional framework adopted by the United Kingdom, but with a single legislature. General elections, based on proportional representation, are held at least once every five years. Responsibility for government lies in a Cabinet of Ministers led by the Prime Minister. The head of state is the President who is elected by Parliament.
Administrative law and practice follow closely British laws and practice. Indeed, the government civil service is broadly organised on the United Kingdom model. In 1964, Malta became an independent nation and a full member of the United Nations. In 1974, the island effected constitutional changes and became a republic. Maltese and English enjoy the status of official languages This means that all laws and regulations are drafted and published in both languages.
While most of public law is inspired by the United Kingdom model, the country’s private law is largely continental (European). Malta is basically a civil law jurisdiction, and much of its law has been codified. Five codes of law still provide the bulk of Malta’s civil and criminal rules and procedures, closely following the model originally introduced by the Napoleonic Code. This system, which traces its origins to Roman law, still prevails in large parts of Western Europe including France, Italy, Belgium and Germany. It is interesting to note that the codified system on the continental (European) model was introduced during the second half of the 19th century by the British administration which had been governing the island as a crown colony since the overthrow of the French occupying forces.
Since Malta follows what is usually referred to as the continental (European) model of private law, English common law as a rule does not apply. Nonetheless, its influence is greatly felt in much of local commercial practice and regulation, especially in company law and in insurance and banking law which closely follow English practice. Most recent legislation, including the various financial services laws adopted in 1994 owe a debt to English statutes. The Investment Services Act had adopted concepts from the Financial Services Act of the United Kingdom of 1986, while the shipping, insurance, money laundering and insider dealing laws (to mention just a few instances) have been largely influenced by European Union legislation. Substantial parts of the Companies Act represent a simplified version of the English Companies Act of 1985, including most of the provisions dealing with the limited liability company, accounting and insolvency. In 1988, Malta also introduced within its legal system the English common law concept of trust.
It may be rightfully claimed that the Maltese legal system has been able to absorb a number of different legal and cultural influences from the two European countries which have shaped a large part of its history, and whose cultural influence remains very high to this day: Italy its closest neighbour to the north, and the United Kingdom.
The Maltese legal profession is a very well established and independent profession. There are currently over 300 lawyers. Many lawyers carry out post-graduate studies outside Malta, especially in England but also in other Western European countries. The courts are impartial and independent. All the normal minimum safeguards for fair judicial proceedings and due process are in place through the Constitution and through Malta’s adoption of the European Convention on Human Rights as part of its domestic law in 1987. This was not an entirely new development as the Constitution already provided for a comprehensive bill of rights.
Since 1988, Malta has been establishing a comprehensive legislative and regulatory framework for financial services activities and international business. This is an ongoing process which is continuously being improved and upgraded.
The current framework reflects developments in three major areas:
THE LEGISLATIVE FRAMEWORK
The initiatives undertaken to develop a comprehensive and integrated set of laws for the financial services sector have involved the enactment of new laws as well as the enhancement, amendment and consolidation of existing legislation.
The legislative framework presents the following features:
THE MALTA FINANCIAL SERVICES AUTHORITY ACT (MFSA)
The MFSA is a public authority set up by special Act of Parliament, the Malta Financial Services Authority Act, 1994 which sets out the functions, responsibilities and structure of the Authority. The Authority is managed by a Board of Governors responsible for laying down the direction and policy, and an Executive Committee responsible for the regulatory function. The Authority comprises several specialised units which together provide a structure for the licensing and supervision of persons or companies engaged in the different financial services activities. The Authority is responsible for ensuring high standards of conduct and management in the financial services industry and it is vigilant in identifying any practices which adversely affect the economic interests of operators and consumers in the areas of financial activity that it supervises. Under the Act, the Authority has a duty to keep under review and to co-ordinate financial activities carried on in Malta and to disseminate information about matters relating to the exercise of its functions to the public. The Authority has the power to investigate possible contravention of the law or of licence conditions by operators. In pursuit of its functions, the Authority co-operates and collaborates with other financial regulatory bodies both locally and overseas. As a public statutory body, the Authority derives its status and powers directly from legislation. The law also determines the principal organs making up the Authority and their respective functions.
THE INVESTMENT SERVICES ACT (ISA)
The Investment Services Act, 1994 is one of the major piece of legislation which is administered by the Authority. The Act provides the statutory basis for the licensing and regulation of persons and companies wishing to set up investment services undertakings and collective investment schemes. The Act requires that investment services business may not be undertaken in Malta or from a base in Malta without a licence from the MFSA. The ISA prescribes the licence application procedure and lays down the broad criteria to be applied by the MFSA when considering applications.
The MFSA regulates and licenses a very broad range of service providers and seeks to provide a stable regulatory environment which encourages the development of investment services business in a sound and professional manner. The protection of investors’ interests is paramount and powers are available to take action against those who trade without a licence as well as against those who fail to meet the required standards. However, the MFSA is mindful of the importance of providing licence holders with the freedom to innovate and to develop new products to meet the changing needs of the market.
When considering whether to grant or refuse a licence, the MFSA is legally required to have regard to three criteria set out in the law:
In addition, when considering an application for an investment services licence or a collective investment scheme licence, the MFSA takes into account the reputation and suitability of the applicant and of all other relevant parties closely connected with the scheme.
Investment Services Licence
An investment services licence is required when the following activities are carried out in relation to an ‘instrument’, an investment services licence is required for:
The term ‘instrument’ is defined in the ISA and covers a wide range of investments and financial products, including shares, bonds and other securities and foreign exchange dealings. The MFSA will only grant a licence if it is satisfied that the applicant, (or in the case of a company, each of its directors and officers), is ‘fit and proper’ to provide the investment services concerned and that the applicant will comply with the applicable rules and regulations. In general there are three criteria which have to be met in order to satisfy the ‘fit and proper’ test. These concern the integrity, competence and solvency of the applicant.
Collective Investment Schemes
The definition of a ‘collective investment scheme’ in the ISA is a very broad one which embraces corporate schemes such as open-ended and closed-ended investment companies, investment partnerships and other non-corporate investment vehicles. The MFSA will grant a licence for a collective investment scheme where it is satisfied that the scheme will comply with the relevant regulations and that its directors and officers, or in the case of a unit trust its trustees, are ‘fit and proper persons’ to carry out the functions required of them. The MFSA will in particular examine and consider the nature and features of the proposed scheme and the type of investors to whom it will be marketed. It will also review into the experience and track record of all parties who are to be involved with the scheme.
Professional Investor Funds
Professional Investor Funds (PIF's) are collective investment schemes designed for professional and high net worth investors aggregated under the term “authorised investors” - a term which requires a minimum investment level of $100,000 or that investors have a minimum net worth of $1m. Careful consideration is given to the needs of fund managers and investors and the MFSA offers a streamlined and rapid processing procedure for licence applications. A PIF is distinguished from a normal retail fund by special rules relating to its establishment, management and marketing in a manner which reflects its distinction from normal retail funds. The object is to reduce to an acceptable minimum the information and documentation needed to establish a PIF.
In most cases a corporate PIF would take the form of a private company, but it is possible that a PIF could be set up as a public company, subject to meeting certain conditions including the condition that units are not offered to the general public.
THE INSURANCE BUSINESS ACT AND THE INSURANCE BROKERS AND OTHER INTERMEDIARIES ACT
Insurance business is regulated by two separate but complementary laws, the Insurance Business Act, 1998 and the Insurance Brokers and Other Intermediaries Act, 1998. These two Acts govern all relevant operators in this sector, including insurers, re-insurers, agents and sub-agents, brokers, and insurance managers transacting business in Malta. The MFSA is the Competent Authority responsible for administering the two Acts. The legislation regulates both domestic and international insurance activities being carried out by authorised companies and insurance brokers. It provides for a highly competitive market operating within a legal framework meeting international standards. The insurance legislation is largely modelled on European Union directives, particularly with regard to solvency margins and technical provision requirements. It provides for the regulation and supervision of different types of insurance companies, including captive insurance companies and reinsurers, and insurance intermediaries.
Amendments to the income tax provisions relating to insurance business have also been incorporated in the new insurance law. These amendments have brought the insurance tax legislation in line with the tax regime for other financial services and create a favourable fiscal environment for international insurance companies to operate from Malta.
THE BANKING ACT
The Banking Act, 1994 replaced previous banking legislation dating from 1970 and introduces modern regulatory and supervisory practices into the Maltese financial system. The European Union Directives are the main source of reference for most changes and the changes introduced reflect Malta’s commitment towards increased harmonisation in international banking regulation. The Banking Act is administered by the Central Bank of Malta, which is responsible for licensing and supervising all banking activities. The Act provides a definition of what constitutes banking activities, and lays down a strict regulatory regime coupled with the flexibility warranted in a modern, competitive and dynamic banking environment.
The Act adopts the concept of “credit institution” - which originates in the European Union First Banking Co-ordination Directive - establishes authorisation procedures for the establishment of representative offices in Malta and includes provisions relating to formal co-operation with foreign regulatory authorities. It also introduced new regulations for auditors of credit institutions. The competent authority must approve persons intending to acquire five per cent or more participation in the share capital of a credit institution.
The minimum paid up capital for a credit institution is Lm2 million (approx. USD 5 million). The adequacy of own funds is measured on a risk-weighted asset basis which is consistent with international supervisory practice based on the Basle Committee 1988 Capital Accord. The provisions relating to prohibited transactions have been clarified and improved. The limits on large exposures reflect the importance of measuring and monitoring concentration of risk.
The Act also established two institutions: (i) the Financial Services Tribunal which offers licensees and applicants an opportunity to appeal from certain decisions taken by the Competent Authority and (ii) the Joint Banking Committee which plays a leading role in establishing supervisory policies in the field of banking.
THE FINANCIAL INSTITUTIONS ACT
The Financial Institutions Act, 1994 defines the activities to be carried out by financial institutions. These include lending, financial leasing, venture or risk capital, money transmission services, issuing and administering means of payment, guarantees and commitments, trading in a range of financial instruments for one's own account or for the account of customers in a range of financial instruments, underwriting share issues and the participation in such issues and foreign exchange bureau activity. In broad terms, the Act regulates areas of financial services not covered either by the Banking Act, 1994 or the Investment Services Act, 1994, and establishes a general regulatory framework for financial activities which do not amount to banking or investment services. It sets out the obligations of licence holders as well as the functions and powers of the Central Bank as the supervisory authority.
THE TRUSTS ACT
The Trusts Act, 1988 provides that every trust must be created by written instrument or by a will. A trust may be created by a unilateral declaration, which is a declaration in writing made by the trustee, giving the name of the trust and containing all the terms of the trust as well as the names or information enabling the identification of all the beneficiaries. Neither the settlor nor the beneficiaries of a trust may be residents of Malta and the trust property shall not include immovable property situated in Malta. The Act provides that the maximum duration of a private trust, unless sooner terminated, is 100 years from the date on which it comes into existence.
The proper law of a trust is determined in accordance with the Hague Convention on the law applicable to trusts and on their recognition which provides for the free choice of the applicable or proper law by the settlor and for the most closely connected law to apply if the settlor makes no valid choice. Malta acceded to the Hague Convention on 31 December, 1995.
Trusts may be either Maltese or foreign trusts. Maltese trusts are those that adopt the law of Malta as their proper law and are governed by the rules contained in the Trusts Act, 1994. These trusts are required to be registered with the MFSA in order to have effect in Malta. The proper law of a Maltese trust may, at any time, be changed to the law of another jurisdiction. Foreign trusts are those trusts the proper law of which is the law of a jurisdiction other than Malta. These trusts are recognised by the Maltese Courts. There is no legal requirement for foreign trusts to be registered with the MFSA. However, unless they are registered, they cannot qualify for the benefits granted or allowed under the Act.
THE RECOGNITION OF TRUSTS ACT
The Recognition of Trusts Act, 1994 was enacted to enable Malta to adopt the Hague Convention on the law applicable to trusts and on their recognition. Consequently unit trusts governed by a foreign trust law may be conducted and managed from Malta. The Act also creates the legal mechanism whereby Maltese Courts may recognise the validity of a foreign trust.
THE COMPANIES ACT
The Companies Act, 1996 replaced the Commercial Partnerships Ordinance of 1962 which had originally introduced modern company law principles into Maltese law. The 1962 Ordinance is being gradually phased out. The Act built on the existing rules and broad structures, improving and updating them to meet the needs of a more sophisticated and complex financial and commercial environment. It has not only modernised and upgraded Maltese company law, but it has also introduced the principles and standards established in the Company Law Harmonisation Directives of the European Union particularly the First, Second, Third, Fourth, Sixth, Seventh and Twelfth Directives.
The Act has retained the three existing categories of commercial partnerships which, once constituted, enjoy a distinct legal personality. These are:
The Act also recognises and regulates new corporate investment vehicles such as the SICAVs which is a limited liability company with variable share capital and the INVCO which is an investment company with fixed share capital. These two novel structures are useful collective investment vehicles.
The Act has a number of important features:
THE PREVENTION OF MONEY LAUNDERING ACT
The Prevention of Money Laundering Act, 1994 defines the crime of money laundering along the lines adopted in the European Union and makes it a criminal offence in Malta to utilise or to employ money derived from crime. The law lays down an extensive list of underlying offences on which a moneylaundering act could be based. It reduces the possibility of the financial system being abused for the purposes of laundering funds derived from illicit activities. The offence may also be committed by those who aid or abet money laundering. The supervisory authorities and operators within the financial sector are obliged to report any evidence of money laundering which comes to their knowledge to the Police.
To avoid any uncertainty, an express statutory exception has been made to the rules governing professional secrecy in order to allow financial operators and supervisory authorities, acting bona fide, to communicate cases of suspected money laundering to the Police.
Detailed regulations govern the duty of financial operators to know and identify clients, to keep proper records and to report suspicious transactions to the authorities. The competent authorities have issued guidelines elaborating and explaining the legal requirements in this regard for the benefit of their respective licensees.
THE INSIDER DEALING ACT
The Insider dealing Act, 1994 brings Maltese legislation on insider dealing in line with European Union directives on the matter. It prohibits dealings on the Malta Stock Exchange in shares or other securities of a company by persons who have confidential information about the company because of various connections including being Directors, officials, consultants and auditors. The Act defines the categories of ‘connected persons’ who may be held liable for breaches of this legislation and provides for criminal sanctions. It criminalises the abuse of confidential corporate price-sensitive information - the disclosure of which could have a significant impact on the price of the securities in question.
The Insider Dealing Act extends the original provisions on the subject introduced by the Malta Stock Exchange Act, 1990 that set up formal procedures for the investigation of insider trading offences by the Malta Stock Exchange Tribunal, which has the competence to award financial compensation to victims of insider dealings.
THE PROFESSIONAL SECRECY ACT
The Professional Secrecy Act, 1994 elaborates the existing provisions of Maltese criminal law with regard to professional secrecy. Article 257 of the Criminal Code had established the basic principle of the protection of professional secrecy in relation to information obtained from customers. A duty of professional secrecy extends not only to government officials and to professionals, but also to their employees and agents. All secret information communicated for professional or government reasons is protected by penal sanctions.
The Act identifies a number of exceptions to professional secrecy where the information is already legitimately in the public domain (and therefore no longer secret), including the following:
THE MALTA FINANCIAL SERVICES AUTHORITY (MFSA)
The Malta Financial Services Authority (MFSA) is the focal point of the Maltese regulatory environment for financial services. Its functions include:
LEGAL GOVERNANCE OF THE MFSA
The Malta Financial Services Authority consists of a Board of Governors and an Executive Committee. Both these organs are constituted and recognised by the Malta Financial Services Authority Act, 1994. The Authority reports to Parliament annually through the Minister of Finance. Its activities are governed and directed by a Board of Governors appointed by the Prime Minister.
The Board of Governors consists of a Chairman and up to five other members. These are to include:
The Board of Governors is responsible to draw up the general policy and direction of the Authority, while the Executive Committee implements these policies in its regulatory activities.
THE REGULATORY UNIT
Regulation is the core activity of the MFSA. The Authority provides the regulatory and administrative infrastructure for the Maltese financial services sector. This part of the Authority’s function is carried out by the Executive Committee, which carries out its functions through a number of Directorates. The Executive Committee carries out the following activities:
THE INTERNATIONAL TAX UNIT
The International Tax Unit forms part of the Inland Revenue Department but is located within the MFSA premises in order to provide a one stop shop for financial services operators. The Unit manages all tax matters relating to financial services and ancillary sectors, and provides advice to the Authority thereon The Unit’s responsibilities include the provision of Advance Revenue Rulings (see below).
THE BUSINESS DEVELOPMENT UNIT
The role of the Business Development Unit is to promote Malta as a reputable international financial services Authority. The Unit works closely with financial practitioners and ensures that the international financial community is made aware of the opportunities in Malta. It also broadly monitors developments in foreign jurisdictions, and in local and foreign media.
THE TAX STRUCTURE
The Income Tax Act and the Income Tax Management Act embody provisions designed to support the development of Malta as an international financial and business Authority. The tax system is designed to:
An overview of the provisions of Maltese tax law in connection with business being carried out from Malta is provided below.
INTERNATIONAL TRADING COMPANIES
A Maltese registered company whose objects are restricted to trading activities outside Malta with persons not resident in Malta may be classified as an “International Trading Company”. Such a company is taxed at the normal company rate of tax (currently 35%) but Malta’s full imputation tax system and the refund of tax provisions described below make the International Trading Company a tax efficient vehicle for non-resident shareholders.
INTERNATIONAL HOLDING COMPANIES
The Maltese system does not have a specific “international holding company” tax regime. However, a Maltese company having income arising outside Malta may benefit from the various forms of relief of double taxation available in Malta. Non-resident shareholders of such companies are also entitled to certain refunds of tax upon a distribution of dividends as described below.
DOUBLE TAXATION RELIEF
Double taxation can be eliminated by companies registered in Malta under three methods:
Double taxation relief is given by virtue of Malta’s comprehensive tax treaty network under the ordinary credit method. Unilateral relief is available where overseas tax is suffered on income received from a country with which Malta does not have a treaty. Unilateral relief for underlying tax suffered is also available where the taxpayer is a Maltese company that holds not less than ten percent of the voting power of the overseas company paying the dividend. A flat-rate foreign tax credit is available if relief from double taxation is not available under other methods. This applies to Maltese companies, (excluding International Trading Companies) receiving income or capital gains from overseas.
A company is assessed and pays tax in the currency in which its share capital is denominated. Any refund of tax is made in the same currency. Any tax payable by a company with respect to profits derived from foreign-sourced income is not payable before the earlier of:-
A non-resident shareholder receiving a dividend payment from an International Trading Company or from other companies out of income or gains derived from overseas is entitled to a refund of tax paid by the company in respect of that income. In most cases, the refund will be two-thirds of the Maltese tax paid, but where the dividend is paid out of income received by the company in respect of a participating holding (generally more than a 10% holding in an overseas company), the non-resident shareholder is entitled to a full refund of the tax paid by the company. The tax refunds are payable by not later than the fourteenth day following the end of the month in which the refund becomes due.
TAXATION OF COLLECTIVE INVESTMENT SCHEMES
Collective investment schemes licensed under the Investment Services Act, 1994 are exempt from tax (except for a 10-15% withholding tax for certain funds that invest in non-equity, Malta-based assets).
Capital gains realised by a scheme listed on the Malta Stock Exchange are exempt from capital gains tax.
TAXATION OF INVESTMENT SERVICES COMPANIES
Licensed investment services companies providing management, administration, safekeeping services and investment advice to collective investment schemes benefit from special deductions in addition to the normal deductions available to companies. These additional deductions are mainly:
TAXATION OF EXPATRIATES IN COMPANIES PROVIDING INVESTMENT SERVICES
Expatriates employed by companies providing investment services are not taxed for the first ten years on a generous list of benefits in kind. They are also exempt from tax on interest and royalties received and on capital gains on the disposal of shares in a company or units in a collective investment scheme.
ADVANCE REVENUE RULINGS
Advance Revenue Rulings are issued by the International Tax Unit. These rulings ensure and guarantee certainty for the commercial operator and guarantee the tax position for a minimum period of five years, and may be renewed for a further five year period. They will also survive any possible change in legislation for a period of two years after the entry into force of any such new law.
BACK OFFICE OPERATIONS
Companies providing back office services may be set up as international trading companies and benefit from the tax framework that applies to such companies.
Back office companies must carry on pure management operations such as routine administration services, book keeping and accounting services (excluding work which may only be carried out by a person or firm holding a warrant under the Accountancy Profession Act), information and data processing services, computer bureau, database and computer outsourcing services to companies which are not resident in Malta or otherwise established in Malta. Approval of companies providing back office services in the financial services sector (investment services, banking, insurance etc), must be sought from the Malta Financial Services Sector.
NON-RESIDENT COMPANIES AND PERSONS
Non-resident persons (including companies) are exempt from tax in respect of interest, royalties and gains or profits made on a disposal of any units in a collective investment scheme and of any shares or securities in a company.
EXEMPTIONS FROM THE DUTY ON DOCUMENTS & TRANSFERS ACT
The following are exempt from the provisions of the Duty on Documents and Transfers Act on acquisitions or disposals of marketable securities made by them and on acquisitions or disposals of marketable securities issued by them: