Pre-insolvency measures in Malta, Ireland and Germany

Abstract

Prior to the enactment of the Pre-Insolvency Act, Chapter 631 of the Laws of Malta, on 23 December 2022, Malta’s pre-insolvency framework was limited to two procedures: the company recovery procedure and the company reconstruction procedure. However, these mechanisms proved fairly unsuccessful in addressing the complex challenges of impending insolvency. In comparison, Ireland and Germany have both had detailed pre-insolvency frameworks in place before the introduction of Directive 2019/1023. This study aims to provide a comparative analysis of how pre-insolvency is addressed in each jurisdiction. This dissertation is divided into five chapters. Chapter 1 provides an introduction, including a literature review, the research questions that the study will answer, and the methodology, outlining the research methods utilised in answering the research questions. Chapter 2 then provides an overview of the pre-insolvency measures in place in each jurisdiction before the transposition of Directive 2019/1023, as well as the main amendments that were introduced in each jurisdiction following transposition. Chapter 3 analyses what duties each jurisdiction places on directors in terms of financial difficulties, and then sets out the early warning tool frameworks of each jurisdiction, also distinguishing between the three. Chapter 4 then sets out the different restructuring procedures available to companies facing financial difficulties in each of the three jurisdictions, noting any similarities and differences. Chapter 5 brings the above analysis together and concludes this study. The research findings provide that whilst Malta’s implementation of a pre-insolvency framework marks a significant step forward in the realm of pre-insolvency law, it is not without its shortcomings. The concluding chapter, therefore, proposes amendments, taking inspiration from Ireland and Germany, that should be made to the Maltese Pre-Insolvency Act in order improve its efficiency.