Litigiousness in Australia: Lessons from comparative law

How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention — the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.

'Black international business': Critical issues and ethical dilemmas

In this chapter, we explore the 'darker' faces of international business (IB). Over a decade ago, Eden and Len way (2001) raised the need for examining both the 'bright' and the 'dark' side of globalization in order to achieve a better understanding of the concept and of its impact on IB activities. In doing this, they posited the multinational enterprise (MNE) as the 'key agent' and 'f.1ee' of globalization and discussed, primarily, the relationship between MNEs and nation-states as the central interf.1ce of its impact. Additionally, they posited that, by and large, the community of IB scholars positioned themselves at the bright end of the globalization spectrum, seeing it as essentially positive, whilst most non-governmental organizations (NGOs) and international political economy (IPE) academics set themselves at the dark end. Whilst they acknowledged their own 'bright side' tendencies, they called for a more nuanced consideration of MNEs as what they referred to as the Janus bee' of globalization.

Regulating against corporate phoenix activity

This paper considers the adequacy and efficiency of existing legal and regulatory frameworks to deal with corporate phoenix activity. Phoenix activity, which is often triggered by a solvency crisis, is estimated to cost the Australian economy up to $3 billion each year. Despite the raft of piecemeal Australian legislation directed at this activity, phoenix activity does not appear to be abating. This paper considers regulatory approaches to detection and enforcement of the underlying law. This study reveals and explores a perception that the law is deficient, and the tension that exists between the adequacy of the law and the regulatory approach.

Phoenix activity: Regulatory challenges and the law

Remedying the mischief of phoenix activity is of practical importance. The benefits include continued confidence in our economy, law that inspires best practice among directors, and law that is articulated in a manner such that penalties act as a sufficient deterrent and the regulatory system is able to detect offenders and bring them to account. Any further reforms must accommodate and tolerate legal phoenix activity. Phoenix activity pushes tolerance of entrepreneurial activity to its absolute limits. The wisest approach would be to front end the reforms so as to alleviate the considerable detection and enforcement burden upon regulatory bodies. There is little doubt that breach of the existing law is difficult and expensive to detect; and this is a significant burden when regulators have shrinking budgets and are rapidly losing feet on the ground. This front end approach may need to include restrictions on access to limited liability. The more limited liability is misused, the stronger the argument to limit access to limited liability. This paper proposes that such an approach is a legitimate next step for a robust and mature capitalist economy.

The conundrum of phoenix activity in Australia: Is further reform necessary?

Corporate phoenixing activity is estimated to cost the Australian economy $1-3 billion dollars annually. Significant questions arise as to whether existing legal frameworks are adequate to deal with phoenix activity, and whether further reform is necessary. Bills proposing reform appear to be languishing amid doubts as to their potential effectiveness. This paper will examine the conundrum presented by phoenix activity, the importance of further reform and the impact of the lack of a statutory definition of ‘phoenix activity’ on a regulatory environment that not only uses the term, but punishes offenders accused of it.

Japanese women and the ‘new’ administrative state

This chapter questions whether Japanese administrative law reform agenda aimed at promoting greater transparency in decision-making will necessarily lead to better policy outcomes for Japanese women. The chapter evaluates recent legislative reforms and policymaking initiatives in the area of sexual harassment and argues that these developments do not improve the situation for Japanese women. The reason is that the new rules effectively charge corporations with the responsibility to self-regulate, thereby transforming sexual harassment from a public issue of human rights to a domestic issue of corporate governance.

Understanding the use of a bug tracking system in a global software development setup

Bug fixing is a highly cooperative work activity where developers, testers, product managers and other stake-holders collaborate using a bug tracking system. In the context of Global Software Development (GSD), where software development is distributed across different geographical locations, we focus on understanding the role of bug trackers in supporting software bug fixing activities. We carried out a small-scale ethnographic fieldwork in a software product team distributed between Finland and India at a multinational engineering company. Using semi-structured interviews and in-situ observations of 16 bug cases, we show that the bug tracker 1) supported information needs of different stake holder, 2) established common-ground, and 3) reinforced issues related to ownership, performance and power. Consequently, we provide implications for design around these findings.

Using global formulary apportionment for international profit allocation: The case of Indonesia's mining industry

My thesis examined an alternative approach, referred to as the unitary taxation approach to the allocation of profit, which arises from the notion that as a multinational group exists as a single economic entity, it should be taxed as one taxable unit. The plausibility of a unitary taxation regime achieving international acceptance and agreement is highly contestable due to its implementation issues, and economic and political feasibility. Using a case-study approach focusing on Freeport-McMoRan and Rio Tinto's mining operations in Indonesia, this thesis compares both tax regimes against the criteria for a good tax system - equity, efficiency, neutrality and simplicity. This thesis evaluates key issues that arise when implementing a unitary taxation approach with formulary apportionment based on the context of mining multinational firms in Indonesia.

The conundrum of phoenix activity: Is further reform necessary?

Phoenix activity presents a conundrum for the law and its regulators. While there is economic cost associated with all phoenix activity, the underlying behaviour is not always illegal. A transaction with indicators of phoenix activity may be an entirely innocent and well-intentioned display of entrepreneurial spirit, albeit one that has ended in failure. Restructuring post business failure is not illegal per se. Recent reforms targeting phoenix activity fail to grapple with the vast range of behaviour that can be described as phoenix activity since they do not differentiate between legal and illegal activity. This article explores the importance of the distinction between legal and illegal phoenix activity, the extent to which the existing law captures a range of behaviour that can be described as illegal phoenix activity and the response of key regulators and governmental bodies to the absence of single law that attempts to define illegal phoenix activity.

Sexual harassment and the corporation in Australia and Japan: The potential for corporate governance of human rights

The authors explore the legal and social undercurrents in Australia and Japan which are encouraging corporations to embrace broader social responsibilities. They consider a case study of sexual harassment and its regulation within Australian corporations, uncovering the legal and social conditions that have led to the adoption of sexual harassment policies. The authors propose a model for determining when corporate governance of sexual harassment is likely to be effective and test the model by reference to the experience of sexual harassment in Japan. They draw some conclusions about what the experience of corporate implementation of management of sexual harassment might mean for other areas of human rights.