Copyright (c) 2010 Bond University All rights reserved. http://epublications.bond.edu.au/blr Recent documents in Bond Law Review en-us Thu, 28 Jan 2010 13:43:37 PST 3600 http://epublications.bond.edu.au/blr/vol20/iss2/7 http://epublications.bond.edu.au/blr/vol20/iss2/7 Thu, 07 Jan 2010 21:28:18 PST The policing of public order is fraught with conflict. The 'right' of one person or group to enjoy public spaces is often presented as being in conflict with the rights of others to do the same. Other rights may conflict with one another in the context of public space, including the right to freedom of expression, the right to freedom of assembly and the right to freedom from interference. Further, interactions in public space between police and members of the public can result in both verbal and physical conflict. Each may harbour resentment and prejudice against the other which influences, and is influenced by, the exchanges that occur between them in public space. In the midst of all this, laws must be drafted to regulate behaviour and protect rights. While the aim is to strike the right balance between competing interests, the interests of some have historically taken precedence over those of others. The 'public nuisance' offence provides an apt example of this. Tamara Walsh http://epublications.bond.edu.au/blr/vol20/iss2/6 http://epublications.bond.edu.au/blr/vol20/iss2/6 Thu, 07 Jan 2010 21:21:38 PST The framework for corporate governance in Vietnam, especially for listed companies, is in the early stages of development. This study examines the corporate governance of Vietnamese listed companies. Some case studies of the corporate governance of listed companies are provided. The study concludes that listed companies need to improve their corporate governance to ensure market transparency, investor protection and effective management in order to ensure better development of the securities market. Toan Le Minh http://epublications.bond.edu.au/blr/vol20/iss2/5 http://epublications.bond.edu.au/blr/vol20/iss2/5 Thu, 07 Jan 2010 21:21:37 PST It has been noted that: 'the law of England has swollen to an unmanageable bulk. There is but one cure and that is codification' 2 . That statement was made approximately 200 years ago, and the situation is by no means better today. Nor can it be said that the situation in Australia is much better than that in England. The volume of case law, particularly when combined with what seems like an endless flow of lengthy and complex statutes, place the Australian law in an unhealthy state. Just like a store or a warehouse periodically needs to take stock of its assets, the common law is now in desperate need of stocktake. Dan Svantesson http://epublications.bond.edu.au/blr/vol20/iss2/4 http://epublications.bond.edu.au/blr/vol20/iss2/4 Thu, 07 Jan 2010 20:54:35 PST The Anglo American economic model, together with its corporate governance practices, is frequently regarded as the optimal instrument for achieving competitiveness and enhancing investor confidence, even by countries which do not share the culture and tradition from which it originated. Its corporate governance structures, shareholder friendly laws and liquid capital markets with high levels of disclosure are regarded as mechanisms which can enable 'global' standards of efficiency, transparency and accountability to be achieved. Many countries outside of the US and UK are encouraged by the international financial community to attract foreign business and investment by emulating this model. But to what extent is this model suitable for countries outside of those in which it was developed?This article examines this issue in relation to South Korea, an economy traditionally based on a state-led developmental model, but which has since the 1990s, experimented with the Anglo American model. Whilst many academics support the implementation of the Anglo American economic system on the basis that it will enable its economy to be competitive, others have counted the significant costs post implementation and have proposed alternative paths to economic growth. Some have gone so far as to suggest that the government should reject the Anglo American system altogether and instead, modernise the traditional state-guided growth model. This article argues that Korean policy makers need not adopt the Anglo American model wholesale, but can create an optimal environment for growth by combining the strengths of its traditional economic model with those under the Anglo American system. Lilian Miles http://epublications.bond.edu.au/blr/vol20/iss2/3 http://epublications.bond.edu.au/blr/vol20/iss2/3 Thu, 07 Jan 2010 20:54:34 PST It is acknowledged that 'it is increasingly common for a wide range of corporate functions to be performed by consultants or other contractors who are not strictly "employees"'. 1 Consultants and business advisers (hereinafter referred to as 'consultants') may need to tread carefully when providing their services to corporate clients. If consultants participate in the making of decisions that affect a substantial part of a corporation's business, they will fall within the statutory definition of 'senior manager' and 'officer' pursuant to s 9 of the Corporations Act 2001 (Cth) (Corporations Act). These consultants, therefore, would become subject to duties imposed by the Common Law2 and the Corporations Act3 upon company senior managers. However, these consultants would not be subject to the significant statutory duty to prevent insolvent trading4 as this duty only applies to parties who fall within the statutory definition of 'director' under s 9 of the Corporations Act. This article provides the first detailed examination of the potential risk to consultants who provide services to corporate clients of falling within the statutory definition of 'de facto director' pursuant to s 9 of the Corporations Act. Consultants at risk of de facto director status of corporate clients in financial crisis may become attractive new targets for liquidators. There have been numerous cases in Australia and the United Kingdom dealing with the issue of de facto director status. However, in only a small number of cases, have consultants been subject to claims of de facto director status. This article sets out the statutory definition of de facto director and briefly discusses issues concerning the burden of proof of establishing that a party falls within the statutory definition of de facto director. It then provides an examination of specific topics to clarify whether they are key indicators of risk of de facto director status. As part of this examination the article provides a review of the limited case authorities in Australia and the United Kingdom where consultants have been subject to claims of de facto director status. Finally, a summary of key findings is provided in the conclusion. Martin Markovic http://epublications.bond.edu.au/blr/vol20/iss2/2 http://epublications.bond.edu.au/blr/vol20/iss2/2 Thu, 07 Jan 2010 20:54:33 PST The introduction of the Integrated Planning Act 1997 (Qld) ('IPA') saw planning law in Queensland implement extensive reform measures. The catch‐cry for IPA was 'integration'. IPA looked to provide a completely integrated development assessment system ('IDAS'). This system sought to combat the inefficiencies experienced under the previous Local Government (Planning and Environment) Act 1990 (Qld).1 Town Planning legislation in Queensland had its roots in the 1930s and until IPA the fundamental nature of the legislation had remained virtually unchanged. In its second reading speech to Parliament on 30 October 19972 Hon. D.E. McCauley touted IPA as 'state‐of‐the‐art planning legislation'3 born from an increasing demand by the community to 'deliver more liveable communities and a better quality of life.'4 The time had arrived for change. This paper proposes to analyse critically IPA's strengths and weaknesses in securing the following purposes ‐  Accountable, efficient and co‐ordinated decision‐making processes;  Lessening or avoiding adverse environmental effects of development; and  Community involvement opportunities within the decision‐making process. Tammy Johnson http://epublications.bond.edu.au/blr/vol20/iss2/1 http://epublications.bond.edu.au/blr/vol20/iss2/1 Thu, 17 Dec 2009 22:51:48 PST Shareholder agreements reflect a reassertion of contractualism in corporate law at a time when statutory regulation is more extensive than ever. Though not displacing the s140 statutory contract between members, shareholder agreements have a role to play both in direct contract between parties but also in setting reasonable expectations that may play a role in oppression actions or winding up on the just and equitable basis. As contracts they are prima facie enforceable but also subject to statutory overlays in the form of the laws of misleading and deceptive conduct and unconscionable conduct. Finally they are subject to some limitation in that the common law suggests that a company cannot in a shareholder agreement deprive itself of its power to alter its own constitution. There is also some doubt about the extent to which directors' duties can be attenuated by shareholder agreement and whether shareholder disputes can be made the subject exclusively of commercial arbitration and kept out of the courts. Michael J. Duffy http://epublications.bond.edu.au/blr/vol20/iss1/5 http://epublications.bond.edu.au/blr/vol20/iss1/5 Thu, 11 Jun 2009 23:59:02 PDT The High Court entertained three appeals concerned with inventiveness after 2000: Firebelt Pty Ltd v Brambles Australia Ltd [2002] HCA 21 (23 May 2002) (relating to a petty patent); Aktiebolaget Hassle v Alphapharm Pty Limited [2002] HCA 59 (12 December 2002) and Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2007] HCA (23 May 2007) . Alphapharm related to the application of the 1952 Patents Act, but both Firebelt and Lockwood No 2 dealt with the threshold test of inventiveness under the 1990 Act, as it stood before the 2001 amendments. Both concerned combination patents, in Firebelt waste removal trucks, and in Lockwood rim-mounted door locks with a new mechanical feature. William Van Caenegem http://epublications.bond.edu.au/blr/vol20/iss1/4 http://epublications.bond.edu.au/blr/vol20/iss1/4 Thu, 11 Jun 2009 23:59:01 PDT The Arab codes give the law of obligations the prominent place it occupies in the civil law system. These codes recognize (liberative or negative) prescription as a mode of barring claims as a result of inaction for a period of time. In addition, the UNIDROIT Principles of International Commercial Contracts of 2004 (PICC 2004) provides that prescription extinguishes an action to enforce a claim of right. The purpose of this article is to conduct a comparative exercise by analyzing similarities and differences between Arab civil codes and the PICC 2004. Arab civil codes and the PICC 2004 wrestle with the same concept, prescription, in more or less the same terms. However, the value of studying the PICC 2004 along with Arab civil codes is even greater because they do differ. The article concludes by arguing that certain prescription provisions in Arab civil codes are unclear and antiquated. Arab countries can reconcile their civil codes with more recent international legal instruments, such as the PICC 2004, without jeopardizing their own traditions and values. Bashar H. Malkawi http://epublications.bond.edu.au/blr/vol20/iss1/3 http://epublications.bond.edu.au/blr/vol20/iss1/3 Thu, 11 Jun 2009 23:45:47 PDT There is mounting evidence about the efficiencies generated by the use of technology at trial. The recent trial in Queensland in Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd proceeded as an "electronic trial" with the use of court-provided technology. It was the first of its kind in Queensland. The Court's aim was to find a means to capture the key benefits offered by trial technology, but in a way that was affordable for parties, was simple to use, and as a result would facilitate the adoption of technology much more widely than has been the case to date. This article explains the technology employed in this case and reports on the perspectives of all of the participants in the process. It also evaluates the potential for this approach to become normal trial practice in Queensland and elsewhere, and considers the means by which that goal might be achieved. Sheryl Jackson