Perceptions of Corruption and Corporate Mobility: Malta as a real-time case study

This blog post is by Justin Borg-Barthet, a lecturer in EU law and Private International Law. Dr Borg-Barthet is the author of The Governing Law of Companies in EU Law (Hart/Bloomsbury 2012) and several other publications on corporate mobility. He recently formed part of a steering committee overseeing an extensive study for the European Commission on the law applicable to companies.

It is fairly well-established that cost is the primary driver for corporate choice of law and the choice of the physical location of a company’s business. Becht et al, for example, note that entry cost is the primary consideration for choice of corporate law. These authors also note that non-price factors in choice of law have been minimised through the intervention of intermediaries. Recent developments in Malta, however, suggest that non-price factors have some bearing on choices of establishment destinations in the internal market, at least insofar as they concern physical location as opposed to mere choice of law.

By way of background, following the publication of the Panama Papers, allegations concerning kickbacks have emerged involving the current Maltese Prime Minister, his chief of staff, a close aide, and a senior minister. I make no comment here on specific allegations. I am concerned, rather, with the effects of perception on inter-jurisdictional competition for incorporation and physical relocation of businesses.

Anecdotal evidence has emerged suggesting the some companies seeking to relocate from the United Kingdom to an EU-27 jurisdiction are influenced in their choices by the reputation of regulators. Hiscox Ltd, in particular, has chosen to situate its EU business in Luxembourg, having weighed up Malta and Luxembourg as its final shortlist. This cannot be explained with reference to entry cost. Operational costs in Malta are significantly lower than those in Luxembourg. Nor can it be explained with reference to familiarity with laws. Relevant Maltese laws are closely modelled on UK acts, whereas Luxembourg is of a civilian tradition. The key, instead, appears to be in Hiscox’s reference to Luxembourg’s “well-respected regulator”. It is not beyond reasonable interpretation to read this statement in its broader context; that is to say that the alternative regulator is no longer as well-respected, and that this affected choice.

Of course, this could be an isolated example. But it is consistent with the notion that choices of law and physical location are motivated by more than cost; or, more accurately, more than direct pricing. As noted by Devrim Dumladag, among others, ‘corruption in the political system is a threat to foreign investment’. It constitutes a risk which cannot be measured accurately, and which therefore cannot be accounted for with any degree of precision. Perception, therefore, is important. In 2017, Malta dropped ten places in the international Corruption Perception Index. Risk, therefore increased.

What is more, further evidence is emerging of a direct correlation between the ability to exploit the internal market and political reputation. It emerged on 14 May 2017 that, as a consequence of money laundering concerns, Commerzbank AG will no longer accept at face values audits conducted by branches of international firms situated in Malta. There have been no legislative changes in Malta which could have informed Commerzbank’s decision. The motivator appears instead to be political and administrative developments. It seems, therefore, that political branding matters.

Indeed, branding could, in principle affect not only physical corporate mobility, but also the legal fiction of mobility in the form of choice of corporate law. Drury argues, albeit in a quite different context, that a choice of corporate law – and with it the national suffix attached to a company name – affects public perception of a company. ‘Such labels give that company a distinctive national flavour in the minds of the public.’ Clearly then, it is not just the price of entry that would affect incorporation decisions, but also the associations arising from the national label which comes with incorporation.

This suggests that further evidence may emerge of downturns in the establishment of legitimate businesses under Maltese law. In other words, it is quite likely that both de facto and de jure mobility in the internal market may be affected by perceptions of corruption. While any evidence will likely be anecdotal in the absence of sustained academic investment, there is certainly some scope to qualify assumptions concerning price as a driver for corporate mobility.

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Historical documents reveal University’s opposition to Nazis

This is the inaugural blog post of the School of Law at the University of Aberdeen. As noted in our “About” page, this blog will showcase a variety of material, whether that is a work in progress, some published output, participation in a seminar or a conference, or anything that a news item on our website will not quite do justice to.

This post falls into the latter category. Recently, some fascinating minute books of the Faculty of Law (the precursor to our School of Law) resurfaced, leather bound and beautifully hand-written.

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Old documents of this nature have a certain curiosity value, but the minutes for the period from 7 December 1938 to 22 February 1939 are remarkable. The minutes reveal that the School of Law received correspondence from the Faculty of Law at the University of Amsterdam. That Dutch Faculty of Law did not have the North Sea keeping it a relatively safe from Hitler’s gathering military might and that Faculty wanted to highlight “with sorrow and dismay” that people were “being persecuted and tormented on account of their faith race or political convictions”, with a particular mention for the “so-called concentration camps”.  The Faculty of Law at Amsterdam sought support from “all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland”: the Faculty of Law, with the concurrence of the Principal of the University, unanimously supported their resolution.

The minutes imply that Aberdeen was not alone in receiving correspondence, and this resource and this post from Berkeley Law show that this was indeed the case. Beyond that, no other information is available at the School and no warranty is given as to the veracity of the minutes (although we have no reason to doubt them).

What difference did the stance of the Faculty of Law at the University of Aberdeen make? At one level, precious little. Hitler’s Germany looked east to Poland, then west to the Netherlands, and the rest is history. Not only that, the North Sea did not exactly keep Aberdeen entirely safe: the writer of this blog lost his great-grandfather to a German bombing raid on the city. Be that as it may, it is heartening – even just slightly – to note that the University was not completely inactive in the face of the challenges of the time. In fact, there is a certain resonance with the University of Aberdeen’s “Shining Lights” Scholarship Fund, which aims to support those who have refuges status (as reported on the BBC).

It seems fitting to give the final words of this blog over to the minutes themselves, which are transcribed below.

Blog by Malcolm M. Combe

7 Dec 1938

At a special meeting of the Faculty of Law held on the 7th day of December, 1938.

Present: Professors Taylor (Dean of the Faculty) and Morrison, Mr Esslemont, Mr Masson and Mr Mackinnon. The Principal was also present by invitation of the Faculty.

Minute Approved

The minute of meeting of 23rd November 1938 was read and approved.

Faculty of Law of the University of Amsterdam

A telegram of date 30th November, 1938 was submitted from the Faculty of Law of the University of Amsterdam.

After discussion, it was agreed to report to the Senatus as under:-

Intimating that the Faculty of Law had received the following telegram from the Faculty of Law of the University of Amsterdam:-

371 6.6.6.1843 30 Amsterdam 179

R.P 2/- Faculty of Law University of Aberdeen        30:11:38

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution this invitation has been wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland:- “The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith race or political convictions and that particularly in the so called concentration camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated, voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man, appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective Governments” and that the Faculty with the concurrence of the Principal has sent the following reply:- “Faculty of Law University of Aberdeen unanimously support your resolution.

Thereafter the Secretary was instructed to send a copy of the reply to the Faculties of Law of the Universities of Glasgow and Edinburgh and to enquire what steps they propose to take with a view to publishing the resolution and the action taken by them and to suggest that, if they concur a joint communication should be sent by the three Faculties of Law of the Scottish Universities to the leading newspapers in the country and that a joint communication be sent to the Government.

At the next meeting on 25 Jan 1939

Faculty of Law of the University of Amsterdam

In answer to the remit of 7th December, 1938, the Secretary reported that he had sent copies of the Faculty’s reply, regarding the resolution of the Faculty of Law of the University of Amsterdam, to the Faculties of Law of the Universities of Glasgow and Edinburgh. The University of Glasgow replied that it did not propose to take any action as no telegram was received by it. The University of Edinburgh replied that it had sent the following telegram to the Law Faculty, Amsterdam – “Telegram received, sympathise but deprecate action on these lines at this time” and stated that it was not proposed to take any further action.

Thereafter the Secretary submitted a copy of the resolution together with a list of the Universities (a) who had seconded the resolution and (b) who had adopted the resolution.

It was agreed to communicate the resolution to the Government and it was remitted to the Secretary to ascertain from the Secretary of State for Scotland as to whom the resolution should be addressed.

It was further agreed that when the Secretary had ascertained as above, copies of the resolution be published in the “Scotsman”, “Glasgow Herald” and “Aberdeen Press and Journal”.

22 Feb 1939

Faculty of Law of the University of Amsterdam

In answer to the remit of the Faculty of 25th January, 1939 anent the Resolution of the Faculty of Law of the University of Amsterdam, the Secretary reported that he had received a letter of 30th January, 1939 from Mr C C Cunningham of the Scottish Office Whitehall, intimating that it would be quite appropriate to communicate the Resolution to the Secretary of State for Scotland and he saw no strong objection to sending it to the Prime Minister if so preferred.

After discussion the Faculty resolved to send copies of the Resolution to the Prime Minister and to the Secretary of State for Scotland with the following covering letter approved by the Faculty:-

Sir

I have the honour to send you herewith copy of a resolution which has been adopted amongst Law Faculties, by the Faculty of Law of the University of Aberdeen.

I am directed to state that the Senatus Academicus of the University of Aberdeen has also approved of this resolution and of its being forwarded to you.

I have the honour to be, Sir

Your obedient Servant

Secretary

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