Kumarina and bidders voting in transfer schemes

Transfer schemes are an alternative means of acquiring control of a company to making a takeover bid under the provisions in Ch 6 of the Corporations Act 2001 (Cth). The recent decision Re Kumarina Resources Ltd [2013] FCA 549 overturned long-standing practice in relation to a certain type of transfer scheme. If followed, the decision would allow a “bidder” to vote at scheme meetings where the scheme consideration for the acquisition of the target shares are shares in another company, and the scheme results in a merger. But the bidder is not allowed to vote where the scheme consideration is cash. The article points out the difficulties arising from this decision and argues that it should not be followed. In providing a “no objection” statement, the Australian Securities and Investments Commission (ASIC) has created uncertainty as to the approach it will take towards the bidders being allowed to vote at scheme meetings where the scheme consideration for the acquisition of target shares are shares in another company. The article also points out that in providing the no objection statement in Kumarina, ASIC appears to have ignored breaches of s 606(1) of the Corporations Act. There is a pressing need for ASIC to clarify its position and, in particular, whether or not it will provide a no objection statement in respect of future transfer schemes where a bidder (or its parent company) votes at the scheme meeting.

The 'two strikes' rule on the remuneration report : threats and opportunities for boards

This article examines the fast moving debate on the law and policy surrounding shareholder voting on their companies’ remuneration report, at the AGM. Recently, Australia has moved from the ‘non-binding’ vote provided to shareholders, to the more prescriptive ‘two strikes rule’; that is, two negative shareholder resolutions after 1 July 2011 may result in a board re-election. While much commentary has focused on the potential threats— impacts on remuneration reports and the potential costs to the company — we discuss another potential consequence: an opportunity for board recruitment. At a time when companies are also expected to comment on their diversity policies, planning for a threatened ‘spill’ creates an opportunity for board composition planning and succession. The arguments presented are also placed in the context of the UK debate, where recent proposals advocate for wider stakeholder engagement and diversity in remuneration planning.

Consequences of financial restatements for auditors and top executives

This dissertation consists of three essays and investigates issues related to the impact of financial restatements on auditor change, shareholder actions, and executive turnover in the post-Sarbanes Oxley Act (SOX) period. For the first essay, we examined auditor change at 569 restatement firms and 5,605 control firms for 2004. We found that restatement announcements significantly increased the likelihood of auditor resignation and dismissal in the post-SOX period. The second essay examines shareholder voting on auditor ratifications in 2006 following restatement announcements by SEC registrants in 2005. The proportion of votes not supporting auditor ratification is low even in the presence of a restatement. However, we find that shareholders are more likely to vote against auditor ratification after a restatement when compared to votes at (a) films without restatements, or (b) restating firms in the preceding period. The third essay examines the consequences of financial restatements on the turnover of chief financial officers (CFO). We find that restatement announcements do significantly increase the likelihood of CFO turnover no matter whether the departure is voluntary or forced in nature. Also, the significant relationship is present even after controlling for the effect of CEO turnover.

Abstimmen oder Schwimmen? Plebiszitarer Sport und synchronisierte Wahlen. [Sink or swim: Plebiscitary sport and synchronised voting.][In German]

This chapter starts from the observation that new sporting attributes are growing up unnoticed in popular entertainment and ‘reality’ TV. They celebrate not individual heroics but spectator-oriented teamwork which must look effortless and stylish. Instead of objective measurements – ‘faster, higher, stronger’ – winners are picked by voting and consumer choice. Sport and media are converging and integrating. As they do so, what counts as sport, why it is valued, and what it symbolises for contemporary culture, are all changing. I take these changes to be emblematic of something emergent in the culture at large as the modernist paradigm shifts towards a new consumerist paradigm. This is symbolised in new sports, of which the paradigm example is synchronised swimming. The chapter traces these changes via the career and legacy of the Australian swimming and fashion pioneer Annette Kellerman.

Shareholder values, not shareholder value : the role of 'ethical funds' and 'ethical entrepreneurs' in connecting shareholders' values with their investments

This article rebuts the still-common assumption that managers of capitalist entities have a duty, principally or even exclusively, to maximise the monetary return to investors on their investments. It argues that this view is based on a misleadingly simplistic conception of human values and motivation. Not only is acting solely to maximise long-term shareholder value difficult, it displays, at best, banal single-mindedness and, at worst, sociopathy. In fact, real investors and managers have rich constellations of values that should be taken account of in all their decisions, including their business decisions. Awareness of our values, and public expression of our commitment to exemplify them, make for healthier investment and, in the long term, a healthier corporate world. Individuals and funds investing on the basis of such values, in companies that express their own, display humanity rather than pathology. Preamble I always enjoyed the discussions that Michael Whincop and I had about the interaction of ethics and economics. Each of us could see an important role for these disciplines, as well as our common discipline of law. We also shared an appreciation of the institutional context within which much of the drama of life is played out. In understanding the behaviour of individuals and the choices they make, it seemed axiomatic to each of us that ethics and economics have a lot to say. This was also true of the institutions in which they operate. Michael ·had a strong interest in 'the new institutional economics' I and I had a strong interest in 'institutionalising ethics' right through the 1990s.' This formed the basis of some fascinating and fruitful discussions. Professor Charles Sampford is Director, Key Centre for Ethics, Law, Justice and Governance, Foundation Professor of Law at Griffith University and President, International Institute for Public Ethics.DrVirginia Berry is a Research Fellow at theKey Centre for Ethics, Law,Justice andGovernance, Griffith University. Oliver Williamson, one of the leading proponents of the 'new institutional economics', published a number of influential works - see Williamson (1975, 1995,1996). Sampford (1991),' pp 185-222. The primary focus of discussions on institutionalising ethics has been in public sectorethics: see, for example, Preston and Sampford (2002); Sampford (1994), pp 114-38. Some discussion has, however, moved beyond the public sector to include business - see Sampford 200408299

The Australian election survey: the tale of the rabbit-less hat. Voting behaviour in 2007

This paper examines voter attitudes and behaviour at the 2007 Australian federal election., using data from the Australian Election Study. It considers socio-demographic factors as well as the role of policy issues and voter evaluations of the party leaders. The paper concludes that issues, such as the government's WorkChoices policy, as well as health and leadership contributed to Labor's victory.