12May

Acumum director to host global business and community forum

12 May 2022 Acumum Legal & Advisory 190

Dr Geraldine Spiteri, director and advocate at leading Maltese legal and advisory specialists Acumum – Legal & Advisory, is hosting a chamber on maritime, transport and logistics at the upcoming Women Economic Forum summit taking place in Malta between 16 and 18 May 2022.

The event commences with a one-day meeting hosting G100 event on Monday 16^th May, followed by the Women Economic Forum (WEF) conference, which is a series of discussion chambers as well as networking events on Tuesday 17^th May and Wednesday 18^th May. While G100 is a group of 100 female economic leaders around the world, WEF conducts global summits , offering a compelling platform for women to be increasingly involved in the business world, inspired by some of the world’s most successful entrepreneurs, authors, thought leaders and celebrities.

The event will host women in leading roles – as well as male counterparts – from around the world, as well as Malta. On the agenda will be inclusion, public health, the arts, culture and language, sustainable energy, business and economic development, maritime affairs, logistics and environmental affairs.

Dr Geraldine Spiteri Director and Advocate (Malta) – Acumum Legal & Advisory

Dr Geraldine Spiteri, who specialises in maritime, aviation and corporate law, will be hosting a chamber within the WEF forum covering maritime affairs, blue economy, aviation, transport and logistics. These are matters that are of key interest to Malta in general, with Malta being a maritime hub and transport being a sector that has received major focus in recent years. The classification of the Maltese shipping register as the sixth largest maritime registry worldwide, and Europe’s largest and the increase in the number of aircraft registered under the Malta aircraft register are ample proof of the commitment by the Malta Government to increase these sectors.

‘Receiving an invitation to play a leading role in a global event of this scale, focused on these themes, is important both professionally and on a wider scale, is indeed an honour,’ Geraldine comments. ‘I’m looking forward to meeting passionate people, sharing views and taking part in interesting discussions and also widening my network of contacts in the industries that the chamber I will be hosting is tackling Acumum has always been an inclusive company and supporter of empowering women – encouraging and embedding the advancement of female entrepreneurship in Malta and globally is a cause we’re always pleased to support.’

While the G100 summit is only open to members of that group, the WEF Summit is open to a wider network and includes the chamber hosted by Dr Spiteri. Registration to the WEF Summit is open to all interested parties – male and female – from all over the world.

Acumum Legal & Advisory is a full-service law firm with services including aviation, corporate formation, accounting, estate and wealth planning, taxation, maritime and yachts, energy, intellectual property, to name a few.

To contact Dr Spiteri or to find out more about Acumum and its services call +356 2778 1700, email [email protected] or visit the company’s website at www.acumum.com.

22Dec

Look beyond your horizons: Acumum Advisory on Malta’s specialised maritime and yachting services

22 December 2021 Acumum Legal & Advisory 196

Why Malta?

Situated strategically at the Mediterranean’s heart, the island of Malta is naturally positioned and ideally suited as a homeport for yachts. Malta’s strong maritime tradition has meant that its legal framework is well-geared towards ensuring that international requirements are met, which affords a yacht easy entry into ports around the world. The island has firmly established a deserved reputation for being an internationally compliant, well-run and forward-thinking jurisdiction in this area.

A Maltese yacht may be registered in the name of a company irrespective of place of incorporation, or by European Union citizens and by European Free Trade Area Nationals. The costs of company formation, ship registration and the tonnage tax are comparatively low and some of the incentives may be extended to smaller ships.

The Maltese legal system places no restrictions on the nationality of owners and crew, or on the sale of shares in a company that owns the yacht. Neither is there any restriction on the sale and, or mortgages of yachts. Ships and yachts can be registered while still under construction and the registration of mortgages and bareboat chartering is possible. There are no trading restrictions on Maltese flagged vessels: indeed, vessels under the Malta flag receive preferential treatment in certain ports.

The ownership of a yacht might present itself as a challenging prospect and customers want to enjoy these without the added burdens of administering them, which might seem complex. These challenges that can be faced with confidence when supported by expert services.

Acumum – An Advantage!

Based in Malta, London and the Republic of Ireland, and serving a wide range of private and corporate clients, Acumum Advisory is an established provider of maritime and yachting advisory services. These complement a wider portfolio of others including advisory, corporate, energy, immigration and wealth planning.

‘We fully appreciate the apparent challenges that can be associated with owning and operating yachts in different jurisdictions,’ says Dr Geraldine Spiteri, who manages the Marine and Yachting services at Acumum. ‘Registering a brand-new yacht, or changing flags, or even managing the yacht’s needs might seem so difficult as to discourage; but this doesn’t have to be so.’ This applies whether the yacht is used for personal and family enjoyment or chartered commercially, or both.

‘Our team works closely with Maltese government officials and agencies, maritime service providers, tax specialists and financial advisors to offer a range of advantageous maritime and yachting solutions for clients,’ she elaborates. ‘These include vessel ownership, registration, transactions, leasing, finance and tax arrangements. These services are tailored to the client’s needs.’

‘When dealing with maritime and yachting sector clients or those with other interests, Acumum’s approach and commitment are always the same,’ Dr Spiteri confirms. ‘Undoubtedly, Acumum Advisory can tailor the nature and extent of the services provided to the customer’s profile, which can be established on a case-by-case basis.’

The service offering can range from a one-off transaction to ongoing support, offering a proper base for the operation of the yacht. Some of the salient services relating to yachting are:

Initial registration of the yacht, or transfer from a foreign flag to the Maltese flag
Commercially operating structures for both new-builds and existing yachts
Company and yacht administration services
Procurement of relating services (e.g. tax advisory, accounts, payroll, maritime services) and thus acting as a one-stop shop in Malta for the yacht and her owner.
Emergency line for crew and captains.
Other ancillary services depending on the requirements of the yacht.

For more information on Acumum’s yachting and maritime services or others call +356 2778 1700, email [email protected] or visit the company’s website at www.acumum.com/services/maritime-yachting.

30Nov

Geraldine Noel won the Best Business Woman Award

30 November 2021 Acumum Legal & Advisory 147

Acumum Advisory’s Geraldine Noel had more than one reason for proud celebration at the recently held Malta Best Business Woman Awards. Judges recognised the barrister and managing partner’s accomplishments with two accolades for excellence and outstanding achievement.

Malta’s Best Business Woman Awards are a prestigious recognition, endorsement and celebration of women in business, presented annually to those who have successfully launched and grown their own organisations. The ceremony, run by local organisers Dynamic Events, took place in glittering fashion on 26 November 2021 at the InterContinental Malta.

Among the nine awards given out were two handed to Malta-based businesswoman and qualified barrister Geraldine Noel.

‘I would have been flattered and delighted to receive one award,’ admits Ms Noel, who first established international advisory company Acumum in 2012. ‘It’s hard to express just how proud I feel about winning two. While I may have received individual recognition, however, it’s the Acumum team that are the real stars of our business. Their committed professionalism and dedication to client satisfaction are the foundation upon which we all shine.’

The awards received were for ‘Best Businesswoman in Legal Services’, given in recognition of professional excellence and exceptional client service, and ‘Best Contribution in Business Service’, which recognises outstanding efforts made by a company in support of other businesses.

Organisers noted that during recent times, which have been a challenge for businesses of all shapes and sizes, it remained especially important to recognise those that are, and have been doing, incredible things.

‘Most companies have experienced challenging times lately,’ comments Ms Noel, who has been included on the prestigious Citywealth Power Woman Top 200 list between 2013 and 2020, ‘as the global pandemic has effected established working approaches, patterns and certainties. Yet along with so many others, Acumum has learned, adapted and kept moving forward. Being part of this award process, attending the ceremony and, ultimately, winning the recognition, underscores a sense that we are all going in the right direction.’

22Nov

Keep the home fires burning: exploring Britain’s new world energy quandaries

22 November 2021 Geraldine Noel 130

Great Britain’s Energy Supply Administration Regime, A Real Alternative to the Appointment of a Supplier of Last Resort?

This paper shall deal with the law of Great Britain’s (GB) legislation, as Northern Ireland’s legislative regime, following Brexit[1], in the energy sector, pursuant to the Withdrawal Agreement’s and the Protocol on Ireland/Northern Ireland’s terms[2], as well as ancillary agreements, remains that of the European Community[3]. A further distinction must be made in relation to Scotland, which whilst forming part of GB and thus falling under the remit of Ofgem[4] – a non-ministerial government department, which acts on behalf of the Gas and Electricity Markets Authority[5], from a legislative perspective, particular Scottish insolvency laws apply[6].

It is not the intention of this paper to discuss the reasons why GB energy suppliers fail, but to expound upon the effect of supplier failure vis à vis the most appropriate route to resolution of such failure under the current GB legislative regime.

In respect of energy suppliers, insolvencies of energy suppliers falls within the remit of a special administration regime – the Energy Supply Company Administration[7] (ESCA); since energy suppliers are deemed to be of a public nature and/or the nature of the service, of a wider public interest.

Insolvency Act 1986 (IA 1986) [8]

Whilst it is possible that suppliers may be dealt with under ordinary IA 1986 corporate insolvency procedures (or a scheme of arrangement or Part 26A restructuring plan[9]), in practice the ESCA regime, modifies and restricts the terms upon which, in relation to gas and electricity suppliers operating by virtue of Ofgem granted suppliers’ licenses[10], maybe placed into the ordinary insolvency process pursuant to the IA 1986.

Such restrictions as to the ordinary insolvency procedures afforded by the IA 1986 apply to: (i) winding up orders; (ii) voluntary winding up; (iii) ordinary administration orders; (iv) administrator appointments by creditors; and (v) enforcement of security.

To commence the insolvency process, the supplier or creditor must first serve a minimum of 14 days’ notice on both the Secretary of State and Ofgem. During this notice period, Ofgem will evaluate whether to seek the consent of the Secretary of State[11] in order make an application to the court for an energy supply company administration order. The Secretary of State also has the power to make such an application his or herself[12]. This 14 days’ notice is in addition to Ofgem’s power to revoke a supplier’s license upon 24 hours’ notice pursuant to the terms of [standard] terms of a supplier’s license[13]. The feasibility of saving a supplier from insolvency within such a relatively short period of time is debatable[14].

In the decision as to whether to make such an application to court, Ofgem will consider whether the supplier is: (i) is unable to pay its debts, or any voluntary arrangement is proposed in relation to it[15], or (ii) it enters into any composition or scheme of arrangement[16], or (iii) has a receiver appointed over the whole or any material part of its assets or undertaking; (iv) has an administration order made in relation to it; or (iv) passes any resolution for winding-up other than a resolution previously approved in writing by the Authority; and/ or (v) becomes subject to an order by the High Court for winding-up[17].

Energy Supply Company Administration (ESCA)[18]

According to Ofgem’s published guidance, their preference for a failing supply company will be for a private trade sale of that supply company. However, in circumstances where a trade sale is not achievable, Ofgem has the power to revoke the company’s supply licence upon 24 hours’ notice and exercise its powers to: (i) appoint a ‘Supplier of Last Resort’, or, if this is not feasible; (ii) to seek the Secretary of State’s consent to apply to court for an Energy Supply Company Administration order[19].

The court may only make an energy administration order (EAO) where it is satisfied that either (i) the energy supply company is unable to its debts when due, or (ii) the Secretary of State could apply to wind up the company on public interest grounds.

The overall objective of an EAO is primarily to continue the company as a going concern, or alternatively, to break up the company to one or more other suppliers. In any event, the energy administrator must continue to supply the customer of the failed supplier with an uninterrupted supply of energy.

Indeed, even where the supplier’s directors have obtained a Part A1 moratorium[20] from the court – allowing distressed companies temporary relief from creditor action, the Secretary of State can still apply for an EAO[21].

The modified insolvency process of the ESCA, as compared with the ordinary insolvency process under IA 1986, includes the ability of the Secretary of State, with the consent of HM Treasury Dept. to (i) make grants, or (ii) loans to the company, (iii) agree to indemnities, or (iv) to provide guarantees.[22] These remedies are indeed special to the EASC, as the same are not available to other types of companies under the IA 1986.

Indeed, the peculiarity of this process can be seen by Ofgem’s now dated, pre-Brexit, acknowledgement in the Memorandum of Understanding[23], that such action may fall foul of the European Commission’s State Aid laws[24] – now of course no longer relevant following GB’s departure from the European Union.

Despite the process and the provisions in the law to allow for an EASC, Ofgem’s own guidance makes it clear that the process is reserved only in cases where ‘large’ electricity suppliers fail: ‘‘Energy Supply Company Administration is a special administration regime for large energy supply companies. It ensures uninterrupted and safe operation of essential services in the event of a large energy supply company becoming insolvent.’[25]

What constitutes a ‘large’ supplier cannot be found either in the law or in Ofgem’s guidance. Further, Ofgem’s published Memorandum of Understanding[26], states ‘In the event of deterioration in the financial health of an energy supply company, particularly a large energy supply company’[27]. This general statement of ‘an energy supply company’ is then qualified by the second limb of that sentence: ‘particularly a large energy supply company’ thus confirming that the EASC process is open to all failing supply companies – whatever the size.

Supplier of Last Resort (SoLR)

When a supplier fails, Ofgem has a SoLR process in place, whereby a replacement supplier is sought to take over the supply to the failed suppliers customers; albeit not the contracts themselves that such customers had with the failed supplier.

Ofgem will not seek to appoint an “Energy Administrator” under the ESCA regime where it considers the SoLR process would be achievable.

To be clear, the SoLR is not an insolvency process, its objectives is to achieve the continuity of supply for customers. Upon the appointment of an SoLR, the failing supply company will, no doubt and predictably, still be required to go through the ordinary insolvency procedure – the failed supply company having had its supply license revoked and is thus treated like any other type of company from an insolvency perspective; this is subject to such supply company not having any other type of license i.e. shipper issued by Ofgem.

Following the collection of aggregate information as to the operations and customers of the failed supplier, Ofgem puts out a call to existing SoLR s, requesting that those SoLRs, which would be willing, on a voluntary basis, to take over the customers of the failed supplier to indicate their interest in taking over such customers. This should be a competitive process, however, considering the disruption to SoLRs by being involved in this process, as well as the credit risk posed by assuming the failed suppliers customers’ accounts, voluntary SoLRs may not be forthcoming.

Such ‘trade sale[28]’ being to another supplier on the basis that ‘we consider that trade sales are generally more desirable than regulatory intervention’[29]. A trade sale in this context may involve (i) the SoLR purchasing the debt book of the failed supplier, or (ii) the SoLR acting as a collections agent on behalf of the insolvency practitioner, or (ii) the insolvency practitioner arriving at a final billing position in respect of customers [of the failed supplier] with a view to debt collection[30].

As suppliers – as part of their supplier license conditions[31] – agree to act as SoLRs and thereby agree to take over responsibility for a failed supplier’s customers if asked to do so by Ofgem, Ofgem is not above using its power therein to direct SoLRs to act as such in any particular case[32]. However, preference will be given to SOLRs willing to carry over the credit balances of the customers of the failed supplier.

Ofgem’s objective is clear when selecting a SOLR: “In considering which supplier to direct, we must be satisfied that the SoLR could supply the additional customers without significantly prejudicing its ability to continue to supply its existing customers and to fulfil its contractual obligations for the supply of gas or electricity.” [33]

Policy Considerations

Throughout Ofgem’s guidance for suppliers – whether failed or as SoLRs – and insolvency practitioners, Ofgem is explicit as to its intentions and to its reasoning: ‘[for] customers…to continue to be supplied as cost effective as possible; impact on the industry systems, particularly in relation to balancing and settlement arising from large unpredictable transfers of costs from a failed supplier… are minimised; and [to ensure that] market stability and customer confidence is maintained’[34].

Bearing in mind the overriding policy objective that energy suppliers are deemed to be of a public nature and/or the nature of the service concerns that of a wider public interest, it is Ofgem’s imperative aim to ensure the continuity of service to customers of supply.

To achieve this policy objective a hierarchical resolution method has been adopted by Ofgem. Ofgem’s published guidance is clear that ‘a trade sale of a failing supplier remains our preferred means of ensuring continuity of supply’[35].

Ofgem further elucidates that failing a trade sale, the appointment of a SoLR is the next alternative, or ‘if this [appointment of an SoLR] is not feasible to seek the Secretary of State’s consent to apply to the court for an energy supply company administration order’.[36]

It is only when the appointment of an SoLR is not feasible would the ESCA be invoked and then only if the failed supplier was ‘large’ in size – presumably large being in reference to the number of customers it serviced as opposed to when a smaller energy supplier becomes insolvent.’[37]

It is therefore notable that the ‘Provisions for this administration scheme for energy suppliers were included in the 2011 Energy Act. It has never been used before because a large energy supplier has never been insolvent.’[38] – one should in the current energy climate add the proviso ‘to date’.

It must be concluded therefore, that the EASC is no alternative to the SoLR, the former being reserved for undefined ‘large’ suppliers. The irony being that as more and more suppliers fail in today’s economic climate, more and more pressure is being forced upon the industries larger suppliers to act as SoLR and one wonders whether with this added pressure to take over failed suppliers’ customers, whether such ‘large’ suppliers can continue to withstand such additional risk in the face of their own possible failure, or whether what is occurring is a de facto reversal of the energy supply industry’s liberalisation?

Bibliography

[1] United Kingdom’s departure from the European Union, https://www.gov.uk/brexit

[1] https://ec.europa.eu/info/strategy/relations-non-eu-countries/relations-united-kingdom/eu-uk-withdrawal-agreement_en

[1] Northern Ireland’s electricity sector is deemed an “all island” system, highly integrated with that of the Republic of Ireland via the I-SEM (Integrated Single Electricity Market)

[1] Office of Gas and Electricity Markets – Great Britain’s sole National Regulatory Authority: https://www.ofgem.gov.uk/

[1] Established by virtue of section 1(1) of the Utilities Act 2000

[1] Scotland’s insolvency regime is set out in the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 and the Insolvency (Scotland) (Receivership and Winding up) Rules 2018

[1] The Energy Act 2004 (as it applies by virtue of the Energy Act 2011) and further supplemented by Energy Administration Rules 2005 (SI 2005/2483), introduced the “Energy Supply Company Administration” regime

[1] Notwithstanding the Insolvency Regulations 2006, the provisions of IR 1986 will continue to apply pursuant to Energy Act 2004, Energy Administration Rules 2005 (SI 2005/2483), Energy Act 2011, Energy Supply Company Administration Rules 2013 (SI 2013/1046) and Corporate Insolvency and Governance Act 2020

[1] Companies Act 2006

[1] Supplier licenses are granted pursuant to s7A (1)(a) or (b) Gas Act 1986 or under s6(1)(d) Electricity Act 1989

[1] The Secretary of State for Business, Energy and Industrial Strategy has overall accountability for the security and resilience of energy supplies

[1] S. 156(1) Energy Act 2004 as amended by s96 Energy Act 2011

[1]https://www.ofgem.gov.uk/sites/default/files/docs/2012/01/electricity_supply_licence_revocation_conditions_0.pdf and https://www.ofgem.gov.uk/sites/default/files/docs/2012/01/gas_supplier_licence_revocation_conditions_0.pdf

[1] S.1 Insolvency Act 1986

[1] Other than for the purpose of reconstruction or amalgamation upon terms and within such period as may previously have been approved in writing by Ofgem

[1] ss123(1) or (2) of the Insolvency Act 1986

[1] Energy Act 2004 (as it applies by virtue of the Energy Act 2011) in addition to the Energy Supply Company Administration Rules 2013 or the Energy Supply Company Administration (Scotland) Rules 2013

[1] S.96 Energy Act 2011 96 Energy Act 2011, as amended by s.156-167 Energy Act 2004

[1] Part A1 Moratorium, an insolvency process introduced by the Corporate Insolvency Governance Act 2020

[1] S.A20(2A), IA 1986, as amended by reg.8, the Insolvency (Moratorium) (Special Administration for Energy Licensees) Regulations 2020 (SI 2020/943))

[1] S.165 to 167 Energy Act 2004 as amended by s.96 Energy Act 2011

[1] Memorandum of Understanding Between the Gas and Electricity Markets Authority and The Department for Business, Energy and Industrial Strategy and Her Majesty’s Treasury, paragraph 15 of 05/12/2016

[1] Ibid

[1] https://www.ofgem.gov.uk/publications/memorandum-understanding-energy-supply-company-administration

[1] Memorandum of Understanding Between the Gas and Electricity Markets Authority and The Department for Business, Energy and Industrial Strategy and Her Majesty’s Treasury 09/02/2017

[1] Ibid, paragraph 2

[1] See Ofgem’s Open letter to insolvency practitioners appointed to failed Energy Supply companies, 05/11/2019

[1] Ibid page 4

[1] Ibid page 2

[1]https://epr.ofgem.gov.uk//Content/Documents/Gas%20supply%20standard%20licence%20conditions%20consolidated%20-%20Current%20Version.pdf

[1] Ofgem Guidance on supplier of last resort and energy supply company administration orders dated 21/10/2016, page 9

[1] Energy supply company administration rules, IA No. DECC0084 of 14/01/2013

[1] Ofgem Guidance on supplier of last resort and energy supply company administration orders dated 21/10/2016

[1] Ibid

[1] https://www.ofgem.gov.uk/publications/memorandum-understanding-energy-supply-company-administration

[1] United Kingdom’s departure from the European Union, https://www.gov.uk/brexit

[2] https://ec.europa.eu/info/strategy/relations-non-eu-countries/relations-united-kingdom/eu-uk-withdrawal-agreement_en

[3] Northern Ireland’s electricity sector is deemed an “all island” system, highly integrated with that of the Republic of Ireland via the I-SEM (Integrated Single Electricity Market)

[4] Office of Gas and Electricity Markets – Great Britain’s sole National Regulatory Authority: https://www.ofgem.gov.uk/

[5] Established by virtue of section 1(1) of the Utilities Act 2000

[6] Scotland’s insolvency regime is set out in the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 and the Insolvency (Scotland) (Receivership and Winding up) Rules 2018

[7] The Energy Act 2004 (as it applies by virtue of the Energy Act 2011) and further supplemented by Energy Administration Rules 2005 (SI 2005/2483), introduced the “Energy Supply Company Administration” regime

[8] Notwithstanding the Insolvency Regulations 2006, the provisions of IR 1986 will continue to apply pursuant to Energy Act 2004, Energy Administration Rules 2005 (SI 2005/2483), Energy Act 2011, Energy Supply Company Administration Rules 2013 (SI 2013/1046) and Corporate Insolvency and Governance Act 2020

[9] Companies Act 2006

[10] Supplier licenses are granted pursuant to s7A (1)(a) or (b) Gas Act 1986 or under s6(1)(d) Electricity Act 1989

[11] The Secretary of State for Business, Energy and Industrial Strategy has overall accountability for the security and resilience of energy supplies

[12] S. 156(1) Energy Act 2004 as amended by s96 Energy Act 2011

[13]https://www.ofgem.gov.uk/sites/default/files/docs/2012/01/electricity_supply_licence_revocation_conditions_0.pdf and https://www.ofgem.gov.uk/sites/default/files/docs/2012/01/gas_supplier_licence_revocation_conditions_0.pdf

[14] Roggenkamp, M., & Banet, C. (Eds.). (2017). European Energy Law Report XI. Intersentia. doi:10.1017/9781780686257; Chapter 16: A Comparative Overview. pp 317-345. By René van’t Hoft

[15] S.1 Insolvency Act 1986

[16] Other than for the purpose of reconstruction or amalgamation upon terms and within such period as may previously have been approved in writing by Ofgem

[17] ss123(1) or (2) of the Insolvency Act 1986

[18] Energy Act 2004 (as it applies by virtue of the Energy Act 2011) in addition to the Energy Supply Company Administration Rules 2013 or the Energy Supply Company Administration (Scotland) Rules 2013

[19] S.96 Energy Act 2011 96 Energy Act 2011, as amended by s.156-167 Energy Act 2004

[20] Part A1 Moratorium, an insolvency process introduced by the Corporate Insolvency Governance Act 2020

[21] S.A20(2A), IA 1986, as amended by reg.8, the Insolvency (Moratorium) (Special Administration for Energy Licensees) Regulations 2020 (SI 2020/943))

[22] S.165 to 167 Energy Act 2004 as amended by s.96 Energy Act 2011

[23] Memorandum of Understanding Between the Gas and Electricity Markets Authority and The Department for Business, Energy and Industrial Strategy and Her Majesty’s Treasury, paragraph 15 of 05/12/2016

[24] Ibid

[25] https://www.ofgem.gov.uk/publications/memorandum-understanding-energy-supply-company-administration

[26] Memorandum of Understanding Between the Gas and Electricity Markets Authority and The Department for Business, Energy and Industrial Strategy and Her Majesty’s Treasury 09/02/2017

[27] Ibid, paragraph 2

[28] See Ofgem’s Open letter to insolvency practitioners appointed to failed Energy Supply companies, 05/11/2019

[29] Ibid page 4

[30] Ibid page 2

[31]https://epr.ofgem.gov.uk//Content/Documents/Gas%20supply%20standard%20licence%20conditions%20consolidated%20-%20Current%20Version.pdf

[32] Roggenkamp, M., & Banet, C. (Eds.). (2017). European Energy Law Report XI. Intersentia. doi:10.1017/9781780686257; at Chapter 16: A Comparative Overview. pp 317-345. By René van’t Hoft

[33] Ofgem Guidance on supplier of last resort and energy supply company administration orders dated 21/10/2016, page 9

[34] Energy supply company administration rules, IA No. DECC0084 of 14/01/2013

[35] Ofgem Guidance on supplier of last resort and energy supply company administration orders dated 21/10/2016

[36] Ibid

[37] Ibid

[38] https://www.ofgem.gov.uk/publications/memorandum-understanding-energy-supply-company-administration

07Oct

Getting down to business: Acumum Advisory ready to help

7 October 2021 Acumum Legal & Advisory 166

Acumum Advisory is looking forward to getting down to business at AFSIC – Investing in Africa. And to helping businesses succeed as we move from global uncertainty to exciting opportunity.

As much of the world edges back towards more normal rhythms of life and work, global businesses are rightly moving their attention from short-term fixes to long-term challenges and opportunities.

For some, it will prove a daunting shift.

The need for precise focus on essential innovation, performance and delivery has never been more important. Success or otherwise may well depend both on what you know and who you know to help you do it.
The need to find a trusted, expert advisory and support partner to help unlock business potential has never more essential.

Acumum Advisory, which is attending AFSIC – Investing in Africa between 11-12 October 2021, fully understands this. Director and managing partner Geraldine Noel has dedicated much of an award-winning career building a proven track record to underline it.

‘Even in the best of times, we know that business is never straight forward, never a certainty,’ she verifies. ‘Company owners, partners and managers must keep attention firmly on achieving strategic goals, and less time concerned about structural, functional and admin matters. Especially when there are companies like Acumum specialising in doing these latter things on their behalf.

‘Our message is clear: you get down to business – we take care of the detail.’

Geraldine, who is a qualified barrister and member of the International Bar Association, cites corporate and tax structuring as an example.

‘Establishing firm legal and financial foundations is an essential factor in business success,’ she expands, ‘requiring specialist knowledge and expertise to achieve. With presence and experience in Malta, Ireland and the UK, Acumum can advise on, set-up and administer corporate structures best suited to individual business needs and optimised taxation arrangements for company or ownership profile.’

The forthcoming AFSIC event, which takes place in London, is seen as an ideal opportunity for Acumum to engage with and discuss requirements with present and future clients. And especially interesting given global trends are those operating in the energy and telecom sectors.

‘There’s an amazing level of innovation taking place,’ confirms Geraldine, ‘driven by exploding consumer demand, technological advances and new business paradigms. As we emerge from global uncertainty, these are certainly going to be such exciting times.

Acumum is helping push the boundaries, advising and supporting companies both new to the market and well-established players. Its specialist intellectual property services can make a critical difference, as an example, helping advise on and create the deserved protections demanded by far-reaching, fast-moving, blurred-border environments.

‘Intellectual property sits alongside and compliments Acumum’s portfolio of other services,’ Geraldine concludes, ‘including commercial advice, licensing, immigration, wealth and estate planning. For any business requiring advisory and support, it’s a comprehensive package.’

Geraldine would be pleased to discuss her views and thoughts further, or any of the services offered by Acumum, whether at the forthcoming AFSIC event in London or on any other suitable occasion. Call +356 2778 1700, email i[email protected] or visit the company’s website at www.acumum.com.

16Apr

Brexit – Malta – Rules for British Persons

16 April 2019 Acumum Legal & Advisory 130

Why Malta?
The Republic of Malta, a former colony of Great Britain until 1964 has since maintained a special relationship with the UK.

Added to which, as the only one of two European Commonwealth members, Malta’s relationship with the UK, is based on mutual cultural, legal, and economic understanding.

Accordingly, Legal Notice No. 63 of 2019 (“Legal Notice”) goes some way to protecting British persons resident in Malta before the Brexit withdrawal date – whenever that may be.

Who is included?
The Legal Notice sets out persons to whom these provisions will apply: “British Citizen” means a person who holds British Nationality under the British Nationality Act excluding those holding the following British nationality status:

British nationals (Overseas),
British overseas territories citizens (BOTC),
British overseas citizens (BOC),
British protected persons (BPP),
British subjects (BS)

As well as a British citizen who holds a valid certificate under the Residents Scheme Regulations, if such person within 2 years from UK’s withdrawal date, exchanges their status to the residency status under the Legal Notice.

Family Members?
The provisions of the Legal Notice will apply to established family members of British persons, even if that family member is not residing in Malta as of the withdrawal date. The above rules apply to children adopted or born after the withdrawal date to the British person.

In cases where the British person has died, or divorced or separated, the family member may still have the right to reside in Malta if they have the right to reside under the Free Movement of European Union Nationals and their Family Members Order.

Length of Residency Permit
10 years, renewable subject to the person continuing to meet the requirements set out in the Legal Notice.

Application Process

Applications are to be submitted to the CEO of Identity Malta. The CEO of Identity Malta shall refer all applications to the Principal Immigration Officer to ensure the application is not against the public interest.

Until approval of the application under this Legal Notice, the British person’s (and residing family members’) previous residency rights shall continue to subsist.

Benefits & Related Rights
Except for regulated professions, all rights held by the persons shall continue, prior to Brexit with access to:

Healthcare – if a worker or student
Healthcare entitlements – if covered by the S1 scheme (formerly residual E106),
Healthcare entitlements if self employed
Access to education – except that grants or loans may only be given to persons who have resided in Malta for at least 5 years prior to the withdrawal date.

Equal treatment on par with a Maltese citizen as to :

Recognition of educational qualifications – provided that an application is submitted prior to the withdrawal date to recognise diplomas, certificates and professional qualifications in accordance with Maltese legislation
Access to goods and services
Social benefits, provided that the person does not become a burden on the Maltese social assistance programme.

British nationals will also be able to exchange their UK driving license for a Maltese license without having to take the test.

Loss of Rights
The rights granted to British persons (and appropriate family members) will be lost if the beneficiary is absent from Malta for a continuous period of 2 years, not including:

Temporary absences of 6 months in a year
Absences due to compulsory military service
One absence of a maximum of 12 consecutive months due to important reasons such as pregnancy, serious illness, study or vocational training or a work positing outside of Malta
It is contrary to the public interest or public security
After the withdrawal date the beneficiary is found guilty of an offence and subject to imprisonment of 1 year or more, whether in Malta or abroad
Does not have sufficient funds, equivalent to the national minimum wage, to support themselves, or becomes a burden on the Maltese social assistance system
No application for the Brexit Permit is received within 2 years of the withdrawal date
Concealment of any material fact, by way of fraud, false representation
Beneficiary is spouse or partner who is a 3rd country national, whom after the withdrawal date divorces or separates from the British citizen within 3 years of the marriage or registration of the partnership
A de-facto partner of a British citizen, whose relationship no longer exists.

Refusals & Appeals
Refusals by the Maltese Government should be supplied with reasons, in writing, for the basis of the decision, unless this is contrary to public security. An appeal can be submitted to the Immigration Appeals Board, on the basis and within the time period notified to the British national.

Next Steps
British nationals resident in Malta prior to the Brexit withdrawal date are urged to regularise their position.

Older persons and persons not deemed a worker or student on holding an S1 scheme permit should make inquiries as to an appropriate health insurance
Persons in ‘regulated professions’ such as lawyers, doctors, nurses, social workers, pharmacists, vets are urged to contact their regulating profession in Malta in order to ascertain their work / license status. You can find out whether you are part of a regulated profession here: http://ec.europa.eu/growth/tools-databases/regprof/index.cfm

You are urged to submit their qualifications to the Malta Qualifications Recognition Information Centre prior to Brexit.

16Apr

Brexit – Malta – Rules for British Persons

16 April 2019 Acumum Legal & Advisory 52

Why Malta?

The Republic of Malta, a former colony of Great Britain until 1964 has since maintained a special relationship with the UK.

Added to which, as the only one of two European Commonwealth members, Malta’s relationship with the UK, is based on mutual cultural, legal, and economic understanding.

Accordingly, Legal Notice No. 63 of 2019 (“Legal Notice”) goes some way to protecting British persons resident in Malta before the Brexit withdrawal date – whenever that may be.

Who is included?

The Legal Notice sets out persons to whom these provisions will apply: “British Citizen” means a person who holds British Nationality under the British Nationality Act excluding those holding the following British nationality status:

British nationals (Overseas),
British overseas territories citizens (BOTC),
British overseas citizens (BOC),
British protected persons (BPP),
British subjects (BS)

Family Members?

The provisions of the Legal Notice will apply to established family members of British persons, even if that family member is not residing in Malta as of the withdrawal date. The above rules apply to children adopted or born after the withdrawal date to the British person.

Length of Residency Permit

10 years, renewable subject to the person continuing to meet the requirements set out in the Legal Notice.

Application Process

Until approval of the application under this Legal Notice, the British person’s (and residing family members’) previous residency rights shall continue to subsist.

Benefits & Related Rights

Except for regulated professions, all rights held by the persons shall continue, prior to Brexit with access to:

Healthcare – if a worker or student
Healthcare entitlements – if covered by the S1 scheme (formerly residual E106),
Healthcare entitlements if self employed
Access to education – except that grants or loans may only be given to persons who have resided in Malta for at least 5 years prior to the withdrawal date.

Equal treatment on par with a Maltese citizen as to :

Recognition of educational qualifications – provided that an application is submitted prior to the withdrawal date to recognise diplomas, certificates and professional qualifications in accordance with Maltese legislation
Access to goods and services
Social benefits, provided that the person does not become a burden on the Maltese social assistance programme.

British nationals will also be able to exchange their UK driving license for a Maltese license without having to take the test.

Loss of Rights

The rights granted to British persons (and appropriate family members) will be lost if the beneficiary is absent from Malta for a continuous period of 2 years, not including:

Temporary absences of 6 months in a year
Absences due to compulsory military service
One absence of a maximum of 12 consecutive months due to important reasons such as pregnancy, serious illness, study or vocational training or a work positing outside of Malta
It is contrary to the public interest or public security
After the withdrawal date the beneficiary is found guilty of an offence and subject to imprisonment of 1 year or more, whether in Malta or abroad
Does not have sufficient funds, equivalent to the national minimum wage, to support themselves, or becomes a burden on the Maltese social assistance system
No application for the Brexit Permit is received within 2 years of the withdrawal date
Concealment of any material fact, by way of fraud, false representation
Beneficiary is spouse or partner who is a 3rd country national, whom after the withdrawal date divorces or separates from the British citizen within 3 years of the marriage or registration of the partnership
A de-facto partner of a British citizen, whose relationship no longer exists.

Refusals & Appeals

Refusals by the Maltese Government should be supplied with reasons, in writing, for the basis of the decision, unless this is contrary to public security. An appeal can be submitted to the Immigration Appeals Board, on the basis and within the time period notified to the British national.

Next Steps

British nationals resident in Malta prior to the Brexit withdrawal date are urged to regularise their position.

Older persons and persons not deemed a worker or student on holding an S1 scheme permit should make inquiries as to an appropriate health insurance
Persons in ‘regulated professions’ such as lawyers, doctors, nurses, social workers, pharmacists, vets are urged to contact their regulating profession in Malta in order to ascertain their work / license status. You can find out whether you are part of a regulated profession here: http://ec.europa.eu/growth/tools-databases/regprof/index.cfm .

You are urged to submit their qualifications to the Malta Qualifications Recognition Information Centre prior to Brexit.

13Apr

Key Employee Initiative

13 April 2019 Acumum Legal & Advisory 138

The Key Employee Initiative (KEI) has been introduced in Malta, providing a new, efficient programme for third country nationals / non – EU nationals (TCN) seeking employment and residence in Malta.Key Employee Initiative

The Key Employee Initiative aims to facilitate and to provide a fast track application process to highly-specialised third-country nationals who seek employment in Malta; applications will be approved within five working days from the date of submission of the application.

Eligibility
An individual may apply for a work/residence permit under the scheme if the employment position concerns a managerial or a highly-technical post which requires specific qualifications or adequate experience.

This scheme is also open to innovators who are involved in start-up projects which are specifically approved by Malta Enterprise.

Individuals applying under the KEI must:

Have an annual gross salary of at least € 30,000; and
Provide certified copies of the relevant qualifications, warrants or the necessary work experience;
Provide a declaration by the employer stating that they have the necessary credentials to perform the duties which they have been assigned.

Validity
Once the application is validated and approved, the applicant will be issued with a residence permit which is valid for 1 year. The permit may then be renewed for a maximum period of 3 years, subject to the submission of the documentation requested by Identity Malta, namely:

A definite or an indefinite contract of employment, and
The original annual tax declaration form stamped by the Inland Revenue Department.

Government Fee
The Government of Malta’s fee for the submission of the application is €280.50, to be paid at the time of submission.

Time-frame
Permits are issued within five working days from the date of submission of the application. The applicant does not need to be physically present to submit the application, therefore the applicant would not need to travel to Malta to submit the application.

Documents Required

Application for a residence permit on the basis of employment – the form must be endorsed by the employer with an official stamp and signature of the responsible official;
Identity Registration Form – Non-Maltese Nationals along with the application fee of €280.50;
Full copy of passport;
Declaration by the employer stating that the applicant has the necessary credentials to perform the duties being assigned;
Draft work contract showing an annual gross salary of €30,000;
Curriculum Vitae of the applicant;
Certified copies of the relevant qualifications, warrants or reference letters;
Full health-insurance policy, showing all aspects being covered, which supports the applicant in the eventuality of requiring any type of medical assistance or hospitalisation during the first year of stay in Malta;
Lease agreement or purchase agreement of property.
Depending on type of job, a relevant health screening approval from the Health Promotion and Disease Prevention Directorate.

How can we help?
Acumum can advise and assist third country nationals with the application process under the Key Employee Initiative. Applications for the Key Employee Initiative are required to be made to and processed by Identity Malta by an Authorised Registered Mandatory.

Acumum is an Authorised Registered Mandatory for all Malta Citizenship and Malta Residency programmes.

Kindly contact us on [email protected] for more information.

02Apr

Acumum Wins: Best in Corporate Financial Law Services 2017

2 April 2019 Acumum Legal & Advisory 121

Acumum is pleased to have been awarded Best in Corporate Financial Law 2017 by Corporate Livewire. Corporate Livewire Finance Award is the leading global awards program celebrating growth and strong performance in the finance industry.

Via an extensive judging process, the awards recognise individuals, teams and businesses that have demonstrated excellence over the last 12 months. This awards programme champions the success of industry leaders across the entire finance sector, with specialised category awards recognising achievements in Financial Services, Tax and Accountancy.

Over the past calendar year we have invited over 100,000 professionals working across the various corporate industries, the general public and our subscriber base to nominate associations, companies & individuals based on their achievements and strengths. Additionally Corporate Livewire’s extensive research team has put forward a selection of individuals who have excelled within their sector.

This year saw an unprecedented number of nominations, providing strong competition in every category and the judging panel had the unenviable task of selecting those firms & professionals most worthy of an award.

All winners of the 2017 Corporate LiveWire Awards are subject to the same rigorous assessment criteria, carried out by our experienced in-house professionals. This ensures that only the most deserving teams, practices and individuals walk away with one of these prestigious accolades. Award winners will gain a place in our soon-to-be published awards winners’ guide, which will be distributed to over 500,000 businesses and professionals around the world.

Corporate LiveWire Awards

01Apr

Acumum Sponsors STEP Global Conference

1 April 2019 Acumum Legal & Advisory 99

Acumum is very honoured to be able to sponsor the STEP Global Conference, being held in Amsterdam between 30th June – 1st July.

STEP – Society of Trusts & Estates Practitioners – is the leading practitioner organisation in the fields of trusts, foundations, estates, family office and wealth planning.

Acumum’s Managing Partner, Geraldine Noel, will be attending the conference and welcomes the opportunity to meet other practitioners and service providers in these fields. Please feel free to contact Geraldine Noel – [email protected].

About Acumum – Legal & Advisory

Acumum Legal & Advisory is a well-established set of multidisciplinary legal, tax and accounting firms located and managed in the tax efficient EU jurisdiction of Malta. It operates as a full service law firm with services including aviation, corporate formation, accounting, estate & wealth planning, taxation, intellectual property and more. The firm is overseen by Geraldine Noel, a British barrister – registered in Malta, working alongside an expert team of lawyers and accountants with extensive specialist commercial and private client expertise, particularly to an individual, corporate and family office clientèle.

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