Draft Directive Consultation: Transfer of Commissions
The transfer of commissions, projects and tasks from one perit to another is generally a delicate and potentially complex transition which can give rise to a number of issues related to ethics, commercial interests, and intellectual property rights.
In 2009, the Council of the Kamra had, at the behest of the General Meeting, issued a Directive that sought to govern the transition from an ethical perspective. The focus at the time was not to stifle the possibility for the incoming periti from delivering their professional services and not to unduly harm clients who may be victims of vexatious requests for payments from outgoing periti. As a result, Directive 04/09 had stipulated that outgoing periti must hand over projects to the incoming perit even if there are outstanding payments due.
Over time, however, the original intentions of the directive were thwarted to the point where periti frequently end up not getting paid for their services by their clients, who exploit the directive to move projects from one perit to another, sometimes more than once, to avoid paying for professional services.
The current Council has thus decided to redraft a new Directive to govern the transfer of commissions between periti that shall replace the 2009 Directive. The draft directive seeks to strike a fairer balance between the rights of periti to get paid, and the protection of clients from vexatious claims for payment.
The draft Directive changes many of the dynamics that we have been hitherto accustomed to, including:
- The right for the outgoing perit to refuse to release the commission subject to certain conditions being satisfied;
- The requirement to provide a handover;
- The processes to be undertaken depending on the stage of the project.
The Council has approved the text of the Directive and is hereby publishing it for consultation with members of the profession. There was, however, a minority position within Council on certain parts of the text which members of the profession are being specifically requested to express their opinion about through an online poll.
The two lines of thought are as follows:
Version 1
The outgoing perit may refuse to release the commission if any professional fees clearly established in a written agreement are still due, and the incoming perit shall desist from taking over a project in such situations. If a dispute on the settlement of the fees arises between the outgoing perit and his/her client, the transfer of the commission shall remain pending until the dispute is resolved by the Courts or any other adjudicating body.
Version 2
The incoming perit may take over the commission from the outgoing perit, if the latter institutes formal legal action against the client to recover any outstanding fees within an established period of time, and the incoming perit is duly informed of such action. In such case, the incoming perit may freely take over the commission in the knowledge that the dispute will be settled by the Courts or any other adjudicating body.
Members of the profession are invited to participate in the online poll by selecting their preferred direction for the final text of the Directive.
The poll closes on 25th April 2022.
Full draft Directive text
You can review the two versions of the full text by clicking on the links below. The differences are highlighted in yellow.
Online Poll
Participate in the online poll by selected your preferred version, and drop any additional feedback you may have in the comment box.
Poll is now closed.