Australian Commercial Law

Australian Commercial Law offers a concise yet comprehensive introduction to commercial law in Australia. The textbook provides a thorough and detailed discussion of a variety of topics in commercial law such as agency, bailment, the sale of goods, the transfer of property and the Personal Property Securities Act. The book also offers a detailed overview of topics within the Australian Consumer Law that are now relevant to commercial practice such as unconscionable conduct, consumer guarantees, and misleading and deceptive conduct. Written in a clear and accessible style, each chapter features key points and further reading to enhance students' understanding. Significant cases are discussed in detail and include excerpts from judgments to illustrate points of law. Australian Commercial Law is an indispensable resource for students who are seeking a comprehensive understanding of commercial law.

Litigiousness in Japan: Land of the rising law suit?

For over two decades, Japanese politicians and bureaucrats have struggled to resurrect a lifeless economy. With the 1990s marred by crippling financial crisis, a spate of corporate insolvencies, ongoing scandals in Japan’s premier economic ministries, rising unemployment and low to negative growth, policy-makers responded with successive legislative reforms aimed at restructuring public administration and private governance of the economy. The Big Bang financial reforms, large-scale reform of Japanese corporate law, and a restructured bureaucracy are representative examples of this reform effort.

Is corporate rescue a realistic ideal? Business as usual in Australia and the United Kingdom

This paper seeks to review the operation of Australian corporate law rescue regimes in the context of those originally contemplated by Sir Kenneth Cork and more latterly in Australia, primarily in the hands of Ron Harmer. In doing so, it draws upon some of the observations made by Professor Fletcher in the second wave of 20th century corporate rescue reform in the United Kingdom.

Corporations and corporate governance: what do these concepts mean for multinational corporate power and social responsibility?

International Journal of Liability and Scientific Enquiry 2007 - Vol. 1, No.1/2 pp. 29 - 49 RAE2008

Independent Directors and Corporate Governance

The paper examines the reliance placed in the United Kingdom and Australia on the concept of ‘independent directors’ as a mechanism to ensure better (less crisis prone) corporate governance. The article suggests that there is an over emphasis placed on some rather limited psychological evidence that independence in the boardroom produces more critical thinking and informed discussion thus leading to higher quality decision-making. The article offers others evidence, drawn from the material on the psychology of group formation and group discussion, which suggests that this confidence in ‘independence’ is misplaced. The article exposes a misunderstanding between independence as a character trait and independence as a structural concern which goes to the heart of the corporate governance discourse around the benefits of independence.

Does the existing Corporate Governance structure and strict Legal Framework, affect the strategic decisionmaking of CEOs?

This thesis is a case study on Corporate Governance and Business Ethics, using the Portuguese Corporate Law as a general setting. The thesis was conducted in Portugal with illustrations on past cases under the Business Judgment Rule of the State of Delaware, U.SA along with illustrations on current cases in Portugal under the Portuguese Judicial setting, along with a comparative analysis between both. A debate is being considered among scholars and executives; a debate on best practices within corporate governance and corporate law, associated with recent discoveries of unlawful investments that lead to the bankruptcy of leading institutions and an aggravation of the crisis in Portugal. The study aimed at learning possible reasons and causes for the current situation of the country’s corporations along with attempts to discover the best way to move forward. From the interviews and analysis conducted, this paper concluded that the corporate governance structure and legal frameworks in Portugal were not the sole influencers behind the actions and decisions of Corporate Executives, nor were they the main triggers for the recent corporate mishaps. But it is rather a combination of different factors that played a significant role, such as cultural and ethical aspects, individual personalities, and others all of which created gray areas beyond the legal structure, which in turn accelerated and aggravated the corporate governance crisis in the country.

Reverberations after the HIH and other recent Australian corporate collapses: the role of ASIC

This article focuses on some of the litigation and other developments following the recent spate of corporate collapses in Australia. It gives a basic background to abuses of the 1980s, followed by a short description of some of ASIC's statutory powers. The remaining parts of the article focus on the role ASIC played in instituting actions against the directors of some of the collapsed corporations and in particular what ASIC seeks to achieve with high profile litigation. The article concludes that there is no doubt that in the aftermath of these massive corporate collapses ASIC fulfilled its role as the primary Australian corporate regulator with assiduousness. However, it also draws attention to the fact that the challenges for ASIC now will be to play a far more active role in assuring that signs of corporate collapses are detected at the earliest possible juncture. This will probably mean that ASIC's focus will have to be more and more on monitoring companies, rather than on its role as regulator and enforcer in the strict sense of the word.

Information disclosure and corporate governance in listed companies in China: from Yinguangxia to Enron

China's path to the development of a modern securities market has not been a smooth one. This article argues that efforts to impose Western securities market models on China have been fraught with difficulty. This is especially clear from the adoption of information disclosure principles and practices. While the integrity of disclosure practices is a fundamental element in maintaining investors' confidence in securities markets, disclosure practices need to be attuned to China '5 systemic features, especially in regard to its legal structure and rules. Market failures, such as the collapse of Enron in the United States, have led to a realisation that US disclosure models have their own difficulties and that these should not be uncritically used. This article reviews recent Chinese law andpractice (using the Yinguangxia false disclosure scandal as an example) in this area and calls for the adoption of a more critical approach towards the use of Western models with particular regard to China's own distinctive pathways of reform.

Receiving bankruptcy law into Vietnam

With assistance from foreign donors, countries in developing East Asia are rapidly replacing bureaucratic regulations with statutory norms mainly derived from international trade protocol (eg, WTO and AHA). Using imported legal norms, Vietnam enacted a Law on Business Bankruptcy (LBB) (Luat Pha San Doanh Nghiep) in 1993. By any measure, the [*2] transplanted bankruptcy principles have failed to take root. During the East Asian Economic Crisis (1997-2001) when non-performing business loans dramatically increased, cases heard by the bankruptcy courts in Vietnam declined. This article investigates the ways Vietnamese ideological, cultural and structural conditions have influenced the reception of the LBE. It is concluded that legal transfers are shaped more by political, economic and legal interactions, than by 'chance and prestige'.

Criminal responsibility based on complicity among corporate officers

In a 2001 Issues Paper entitled 'Sentencing: Corporate Offenders', the New South Wales Law Reform Commission outlined a number of reasons for not ascribing liability to individuals within a corporation for unlawful acts arising from the operation of the corporation. One of the reasons raised in the Issues Paper, a reason traditionally used to avoid liability being imposed on individuals for corporate crimes, is that it is conceptually difficult to look behind the form to the substance of a corporate crime in order to establish liability for individual acts, when on the surface the unlawful conduct was caused by a corporation as a collective body. In this article, the authors challenge this position by suggesting that the doctrine of complicity can be used to [*2] pierce the corporate veil and direct criminal liability to those individuals who control the actions of the company. This proposition that company officers can be found liable pursuant to the principles regarding accessorial responsibility is not novel. However, what is unusual is the infrequency with which this wide ranging doctrine is applied in the corporate setting. The focus of this article is to underline the relevance of this doctrine to corporate offenders and, in the process, to assert that the problems of punishing corporate offenders are in principle no different to punishing other crimes which are committed by more than the one offender and can be addressed by the proper application of existing legal principles.

Corporations law text and essential cases

Corporations Law: Text and Essential Cases is designed as a student text but will be a useful book for practitioners seeking a good, current, concise book on corporations law. Author Julie Cassidy is a proven, successful author and has carefully ensured that the case extracts in this book are long enough to be useful to lawyers needing to cite case authorities in opinions and court submissions.

Fixed and floating charges : the latest conflicting law and how to address the gaps

Can book debts be subject to a fixed charge? This question was considered by the House of Lords in National Westminster Bank v. Spectrum Plus Limited [2005] UKHL 41 where the full House was against the idea of a fixed charge on book debts and insisted that only a floating charge had been created. The law in this area is still vague and uncertain in Australia. This paper argues that the financiers and the companies should be given the freedom to decide how they wish to structure their charge documents. The paper sets out to argue that, in respect to the use of book debts as security for a loan, the only way for both the financiers and the companies to do business is to create a sustained workable fixed charge or even multiple fixed and floating charge on book debts. The author explains how this could be possible and how the proposed model would not deny the statutory priority rights of the preferential creditors.