A shareholder’s contractual right to a dividend and a company’s oppressive conduct in withholding dividend payments: Sumiseki Materials Co Ltd v Wambo Coal Pty Ltd

Traditionally, a shareholder’s expectation of receiving a dividend has been limited by the discretion the board of directors has to recommend the appropriate amount of payment as a dividend. As a general rule, shareholders will only be entitled to a dividend after the dividend is declared (normally, at the general meeting), or when the actual date arrives for the dividend to be paid. Because courts were traditionally reluctant to interfere with the internal management of companies, the remedies available to shareholders to compel a company to declare a dividend were very limited. As a result, if the directors have decided to withhold dividend payment, courts will only make an order requiring dividends to be paid under very exceptional circumstances. In this article, the authors discuss the case of Sumiseki Materials Co Ltd v Wambo Coal Pty Ltd [2013] NSWSC 235, which is exceptional for the court’s recognition of a shareholder’s contractual right to a dividend. The article analyses the court’s approach, which found that withholding dividend payments was oppressive and unfairly prejudicial conduct of the company. It also discusses the significance of shareh9olders entrenching their rights in a company’s constitution, irrespective of the fact that a company has a statutory right to alter its constitution by way of a special resolution.

Legal issues: minors' decision-making capacity to refuse life-saving and life-sustaining treatment: legal and psychiatric perspectives

Laws in Belgium and the Netherlands permit euthanasia and assisted suicide for seriously ill children who experience "constant and unbearable suffering" – they have the capacity to request death by lethal injection if they convey a "reasonable understanding of the consequences" of that request. The child's capacity to understand death is therefore a prerequisite to the implementation of the request. However, modern neuro-psychological and fMRI (functional Magnetic Resonance Imaging) studies of the relationship between the neuro-anatomical development of the brain in human beings and their emotional and experiential capacity, demonstrates that both are not fully developed until the early 20s for girls and mid-20s for boys. Unlike Belgium and the Netherlands, the clinical and legal implications of the immaturity of the brain on medical decision-making of minors, in particular life and death decisions, have been implicit in the Australian courts' approach to the refusal of life-saving and life-sustaining treatment by minors. This approach is exemplified by X v Sydney Children's Hospitals Network [2013] NSWCA 320 (and a series of earlier cases).

Mental health diversion courts: a two year recidivism study of a South Australian mental health court program.

The need to develop specialized judicial processes to deal with offenders with mental illnesses is now widely recognized and has led to the introduction of mental health court diversion programs around the world. At present, however, there is only limited evidence from which to assess the impact of these initiatives. This paper describes the South Australian model of diversion, with specific reference to the relationship between identified participant characteristics, program compliance rates, and re-offending outcomes. The results of a two-year recidivism study suggest that involvement with the program has a positive impact on recidivism, but that this is independent from the individual's level of success in the program. Lower risk offenders were more likely to achieve successful outcomes than those in the higher risk categories. The implications of these results, as well the factors that might inform the ongoing development of mental health court programs, are discussed.

A tale of two expropriations: Newcrestia and Agrizania

A comparison will be made between the decision of the High Court of Australia in Newcrest Mining (WA) Ltd v The Commonwealth1 (“Newcrest”) and the decisions of the South African Courts in the Agri South Africa line of cases.2 Although the mineral law systems of the two countries differ insofar as historical development and content,3 the simplified facts of the Newcrest and Agri SA decisions and principles of expropriation law are similar enough to draw an interesting comparison between the respective cases. Both cases dealt with the issue of whether the mineral rights/mining rights of private holders were expropriated by legislation which prohibited mining in one way or another. A comparison between the cases shows the approaches towards the issues and what exactly constitutes deprivation and/or acquisition of property for purposes of expropriation and whether deprivation and/or acquisition actually took place.The differences between the mineral law systems of Australia and South Africa (before the enactment of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter “MPRDA”)) and the protection afforded against the resumption/expropriation of mineral rights or mining rights will be set as background information for a better understanding of the respective decisions. The facts of the two cases will first be set out and simplified for comparative purposes before the respective decisions are discussed. At the end, a comparison will be made between the decisions and a conclusion reached about the similarity of principles and the correctness of the respective decisions.

(Particularly) Burdensome prison time should reduce imprisonment length — and not merely in theory

Imprisonment is the harshest sanction in our system of law. It is a sanction that isincreasingly imposed by the courts. The severity of imprisonment as a sanction stemsprincipally from the considerable restrictions it imposes on an individual’s liberty.However, the deprivation experienced by a prisoner can vary considerably, depending onthe strictness of the prison regime in which the prisoner is confined and his or her state ofhealth. Prisoners subjected to non-mainstream conditions almost invariably suffer morethan those in normal conditions. There is no settled approach regarding the extent towhich prison conditions should impact on the length of a prison term. The jurisprudencein this area is inconsistent. It is particularly unsettled when the additional burden stemsfrom subjective matters relating to an accused, such as ill health. In this article we makerecommendations regarding the manner in which prison conditions should impact on thelength of a prison term. The main recommendation is that prisoners who spend time inparticularly burdensome conditions should have their sentence reduced by a factor of0.5 days for each day spent in such conditions. In this article we also recommend thatAustralia should adopt a model similar to those which exist in some Scandinaviancountries, whereby the only deprivation stemming from imprisonment is the loss ofliberty. This would mean that few prisoners would ever be subjected to particularlyburdensome conditions. This would make many of the recommendations in this paperobsolete. However, there is no evidence that Australian prison conditions are about tofundamentally alter. Hence, the recommendations will remain pragmatically relevant inthe foreseeable future.

The natural death of the Supreme Judicial Commission of Bangladesh and the consequent patronage appointments to the Bench: advocating the establishment of an Independent Judicial Commission

In order to strengthen the constitutional process of appointment of judges in Superior Courts, Bangladesh established a Supreme Judicial Commission in 2008 by promulgating an Ordinance. This Ordinance was neither promulgated in pursuance of any provisions of the Constitution nor by introducing any amendment to the provisions of the Constitution. The recommendations of the Commission were not given binding force on the executive. The power of the executive to accept or reject the candidates recommended by the Supreme Judicial Commission at his pleasure defeated the very objective of establishing the Commission for appointing the most competent and suitable persons as judges of the superior courts in Bangladesh. However, following the general elections held on 29 December 2008, the newly elected Government of Bangladesh Awami League dispensed with the Supreme Judicial Commission by not placing the Supreme Judicial Commission Ordinance before the parliament for its approval. This resulted in restoring the previous system of appointing judges on the satisfaction of the executive, which has resulted in patronage appointments. Thus, the establishment of an independent judicial commission in Bangladesh is an imperative necessity for strengthening the independence and impartiality of the judiciary.

The establishment of the Judicial Appointments Commission in Malaysia to improve the constitutional method of appointing the judges of the superior courts : a critical study

The Judicial Appointments Commission was established in Malaysia in 2009 to ensure unbiased selection of judicial candidates for the consideration of the Prime Minister, who has the final say regarding the appointment of judges to the superior courts. But the provisions concerning Prime Minister’s power to appoint the majority of the members of the Commission and his unfettered power of removing four of the five appointed members without assigning any reason, have calculatedly been devised for ensuring the selection of judicial candidates having right political patronage in accordance with the covert wishes of the Prime Minister. Furthermore, the Prime Minister’s power of rejecting the Commission’s recommendations of multiple candidates renders the undertaking of a lengthy process of selection unproductive and useless. Thus the Judicial Appointments Commission has become a superfluous body with an ineffective modus operandi to attain the stipulated objectives of improving and complementing the constitutional method of appointing judges to the superior courts. Since the Federal Constitution of Malaysia has not empowered the Parliament to enact a law providing for the establishment of a Judicial Appointments Commission, it also appears that the Judicial Appointments Commission Act 2009 is an invalid piece of legislation.

Well-known trade marks, foreign investment and local industry : a comparison of China and Indonesia

Strengthened protection for well-known trade marks in accordance with the TRIPS Agreement is an important issue for developing countries, which has led to trade pressures from industrialised nations in the past. ‘Trade mark squatting’, referring to the registration in bad faith of foreign well-known marks in order to sell them back to their original owners, is a much discussed phenomenon in this context. This article outlines the history and development of well-known trade marks and the applicable law in China and Indonesia. It looks not just at foreign and international brands subjected to ‘trade mark squatting’, but also at how local enterprises are using the system. Rather remarkably in view of the countries’ turbulent histories, local well-known marks have a long history and are well respected for their range of products. They are not normally affected by the ‘trade mark squatting’ phenomenon and are rarely the subject of disputes. Enhanced protection under the TRIPS Agreement is especially relevant for international brands and the article shows the approaches in the two countries. In China, government incentives assist the proliferation of nationally well-known and locally ‘famous’ marks. In Indonesia, lack of implementing legislation has left the matter of recognition to the discretion of the courts.

Sober assessment of the link between substance abuse and crime-eliminating drug and alcohol use from the sentencing calculus

The relevance of drug and alcohol involvement to sentencing law and practice is one of the most perplexing and unsettled areas of sentencing law and practice.1 It is also one of the most important issues in the criminal justice system. Most crimes are committed by offenders who are substance involved, and nearly half of all crimes that are committed are done so by offenders who are intoxicated at the time of the offense. Substance involved individuals are grossly over-represented in the criminal courts. Addiction and intoxication impair sound judgment, and hence, it intuitively appears that intoxicated offenders are less culpable for their crimes. Moreover, there is often a sense that addiction and intoxication causes aberrant behavior and that curing the substance involvement will lead to more prudent (law-abiding) conduct.

Cross-border insolvency law and multinational enterprise groups: judicial Innovation as an international solution

The Article argues that courts confronting the effects of multinational enterprise insolvency must undertake a pragmatic incursion into the separate entity doctrine. This argument is premised on gaps in the current Model Law which confers significant discretion on the courts. Our research shows that courts have fashioned innovative solutions to fill the gaps and thatgreater recognition of the legitimacy of these judicial incursions into the separate entity doctrine would facilitate the reduction of transaction costs in the case of multinational group insolvencies. We identify criteriawhereby a court would be able to determine that the inherentseparateness of the corporate structure should be disregarded andthe group regarded as one.

Informal wages in an economy with active labor courts

In most developing countries, job regulations and the justice branch interfere on several aspects of labor contracts. Inspired by this fact, we build a model that explores the role of labor courts in the determination of the di¤erence between formal and informal wages. We show that the presence of active labor courts in an environment where labor relations are subject to asymmetries of information reproduces features documented by the empirical literature. The main implications of our model are tested using Brazilian data.

Do Brazilian courts contribute to the implementation of the right to housing?

The objective of this paper is to try to understand the Brazilian’s Courts role in the implementation of the Right to Housing. In order to do that, I analyzed three lawsuits (Favela Olga Benario, Favela Fiat/Vila Esperança and Pinheirinho I) in which the Right to Housing collide with the Right to Private Property. I claim that in spite of the adoption of the Social Function of the Ownership Principle and the formal inclusion of the Right to Housing among social rights protected by the Constitution, Brazilians Courts adopt a very conservative conception of the Right to Private Property and because of that, they tend not to enforce the Right to Housing.

Disputing the application of laws: the constitutionality of the Brazilian Statute against domestic violence in the courts

This study aimed to map the key positions regarding the constitutionality of the Maria da Penha Law (Law 11.340/2006) in the Brazilian judicial system. The law, the result of political struggles by the Brazilian feminist movement, has been the subject of discussions in the public sphere and actions aimed at consolidating its constitutionality before the Federal Supreme Court. We examined and discussed the arguments used in the Courts, intending to show that the creation of law is not limited to the legislative moment, but rather that its social meaning is also constituted through disputes within the Judiciary.

Enforcing international financial standards in Brazil: limits and possibilities for adoption of IOSCO principles

Foreign capital and institutional investors play a key role in the Brazilian capital and financial markets. Internationally promoted regulatory patterns, especially IOSCO principles, have been increasingly influencing administrative rule making by the Brazilian Securities and Exchange Commission (CVM) as well as the adoption of transnational rules in Brazil by means of self-regulatory activity. Even though there is a certain level of convergence of market regulatory standards at the transnational level, implementation and enforcement of rules remains essentially domestic. We analyze two case studies regarding the transposition of international standards into the Brazilian legal system, which illustrate this tension between the transnational and domestic dimensions of financial markets regulation. The first case concerns a CVM rule on disclosure of executive compensation and the its interpretation by local courts. The second case refers to the adoption of suitability rules.

The impact of property rights and its limits

The empirical evaluation of the effect of land property rights typically suffers from selection problems. The allocation of property rights across households is usually not random but based on wealth, family characteristics, political clientelism, or other mechanisms built on differences between the groups that acquire property rights and the groups that do not. In this paper, we address this selection concern exploiting a natural experiment in the allocation of property rights. Twenty years ago, a homogenous group of squatters occupied a piece of privately owned land in a suburban area of Buenos Aires, Argentina. When the Congress passed an expropriation law transferring the land from the former owners to the squatters, some of the former owners surrendered the land (and received a compensation), while others decide to sue in the slow Argentine courts. These different decisions by the former owners generated an allocation of property rights that is exogenous to the characteristics of the squatters. We take advantage of this natural experiment to evaluate the effect of the allocation of urban land property rights. Our preliminary results show significant effects on housing investment, household size, and school attrition. Contradicting De Soto's hypotheses, we found nonsignificant effects on labor income and access to credit markets.