Cap. 330 Art. 21Financial Services Tribunal.

(1) There shall be a tribunal to be called ''The Financial

Services Tribunal'', in this Act also referred to as ''the Tribunal'', which shall exercise and perform the functions and powers assigned to it by law.

(2) The Tribunal shall consist of a chairman and two other members appointed by the Minister.

(2A) The Minister shall appoint a number of substitute members, which number shall lie within the discretion of the Minister but shall not be less than two (2), according to necessity, from time to time, and which substitute members shall satisfy the criteria according to sub-

articles(3) or (4), and sub-articles (5), (6) and (7) shall apply. In case of a vacancy in the composition of the Tribunal or for the reasons contemplated in article 10A, or due to indisposition of any member of the Tribunal, including the Chairman, the Minister shall appoint a substitute member according to the rota, and who satisfies the requisites of the vacancy according to sub-articles (3) or (4), as the case may be.

(3) The chairman shall be an advocate who for a period of, or periods amounting in the aggregate to, not less than twelve years has served as an advocate in Malta or served as a magistrate in Malta, or partly so practised and partly so served.

(4) Subject to any other provision in any other law related to the composition of the Tribunal or to the qualifications of its members, the two other members mentioned of the Tribunal shall be persons who in the opinion of the Minister possess the necessary expertise and experience in the business or regulation of financial services, or finance.

(5) The chairman and the other members of the Tribunal shall hold office for a period of three years, shall be eligible for re-appointment and may not be removed during their term of office except on grounds of proved inability to perform the functions of their office whether arising from infirmity of body or mind or any other cause, or proved misbehaviour.

(6) The chairman and other members of the Tribunal shall receive such remuneration as may be determined in their instrument of appointment.

(7) The remuneration referred to in sub-article (6) shall not be altered during the tenure of office of a member by whom it is receivable, except for such changes as may from time to time be required to preserve at all times during the tenure of the appointment the proportion of the remuneration to the salary of a judge of the superior courts, as existed on the date of the appointment.

(8) An appeal within the terms of sub-article (9) to the Tribunal shall be made in writing explaining clearly the grounds for the appeal by not later than thirty days from the date the decision or act in question has been notified to the aggrieved person, and the competent authority shall have thirty (30) days from the date when it was served by the Tribunal with the appeal in question to file its reply.

(8A) The Tribunal shall proceed to deal with any matter before it with utmost urgency and shall give its decision without delay.

(9) The question for the determination of the Tribunal shall be whether, for the reasons adduced by the appellant -

(a) the competent authority has, in its decision wrongly applied any of the provisions of this Act, or any regulations issued thereunder;

(b) the decision of the competent authority constitutes an abuse of discretion or is manifestly unfair: Provided that the discretion of the competent authority may not, so long as it has been exercised properly, be queried by the Tribunal:

Provided further that no appeal shall lie from any decision imposing a penalty not exceeding two hundred and thirty-two euro and ninety-four cents (€232.94) and from any reprimand, warning or other similar disciplinary sanction or measure.

(9A) The Tribunal shall also determine whether, for the reasons adduced by the appellant:

(a) the Resolution Committee has, in its decision, wrongly applied any of the provisions of this Act or any regulations issued thereunder; or

(b) the decision of the Resolution Committee constitutes an abuse of discretion or is manifestly unfair: Provided that, with respect to an appeal from a decision of the Resolution Committee to take a crisis management measure, the Tribunal shall use the complex economic assessments of the facts carried out by the Resolution Committee as a basis for its own assessment of that decision: Provided further, that the complex nature of such economic assessments shall not prevent the Tribunal from examining whether the evidence relied on by the Resolution Committee is factually accurate, reliable and consistent, and whether that evidence contains all relevant information which should be taken into account in order to assess a complex situation, and whether it is capable of substantiating the conclusions drawn therefrom.

(10) The Tribunal shall hold its sittings in public unless having regard to the nature of the matter before it, the Tribunal deems it fit and proper to conduct the proceedings or any part thereof behind closed doors; in any such case the decision of the Tribunal shall always be delivered in public.

(10A) The Chairman or other members of the Tribunal may be challenged or may abstain from sitting in a case in those circumstances that would disqualify a judge in a civil lawsuit, and in such case the Chairman or member shall be substituted by another member appointed by the Minister in terms of sub-article (2A):

Provided that for the purposes of the Insurance Business Act, such member is to be replaced by another member who shall have the knowledge and experience required in terms of article 57(1) of the Insurance Business Act.

(11) The Tribunal shall have the power to summon witnesses and to administer the oath thereto, and to appoint any expert or experts as it may deem necessary for the determination of the case before it.

(12) (a) All evidence must be relevant to the matter in issue between the parties.

(b) In all cases the Tribunal shall require the best evidence that the party may be able to produce.

(c) The Tribunal shall disallow any evidence which it considers to be irrelevant or superfluous, or which it does not consider to be the best which the party can produce.

(13) Upon the hearing of an appeal, made to it under any law, the Tribunal shall have the power -

(a) to confirm, annul or vary the decision of the competent authority or the Resolution Committee under the relevant law and to give directions within its powers under this Act or any other law to the said competent authority or the Resolution Committee to implement the decision of the Tribunal;

(b) to require the production of any document or other information;

(c) to order the payment of costs and expenses by any party to the appeal.

(14) An appeal on a question of law only from a decision of the Tribunal shall lie to the Court of Appeal. An appeal shall be made by not later than twenty days from the date of the decision of the Tribunal. In the determination of such an appeal, the Court of Appeal shall have all the powers of the Tribunal to make orders.

(15) The Minister may make regulations governing the procedure and fees for bringing and conducting appeals before the Tribunal, provided that in the absence of such regulations and subject to the rules of natural justice, the Tribunal shall regulate its own procedure.

(16) The Minister responsible for Justice may by regulations made under this sub-article establish the fees payable in the registry of the court in relation to the filing of judicial acts in connection with appeals to the Court of Appeal under this article: Provided that until such fees are so established by the Minister, the fees contained in Schedule A to the Code of Organization and Civil Procedure shall apply.

(17) An appeal made under this article shall not suspend the operation of any decision or directive from which the appeal is made:

Provided that a decision to cancel a licence shall not become operative until the expiration of the period within which an appeal lies under this article and, if an appeal is made within such period, the decision shall become operative on the date of the decision of the Tribunal dismissing the appeal or the date on which the appeal is abandoned;

Provided further that, with respect to a decision of the Resolution Committee to take a crisis management measure:

(a) the lodging of an appeal from such decision shall not entail any automatic suspension of the effects of the challenged decision; and

(b) the decision of the Resolution Committee shall be immediately enforceable and it shall give rise to a rebuttable presumption that a suspension of its enforcement would be against the public interest.

(18) In this article, "competent authority" refers to the Authority under this Act and under any other law for the purposes of which it is appointed as the competent authority.