Bond Law Review

Merger Under The Regime of Competition Law: A Comparative Study of Indian Legal Framework With EC and UK

Neeraj Tiwari — Thu, 25 Aug 2011 22:52:26 PDT

We are living in a free market economy age where business entities are engaged in competitive practices. This sometimes (if not always) leads to the monopolisation of the market by way of anti-competitive agreements, abuse of dominance, mergers and takeovers between business entities which result in distortion of the market. Most countries in the world have enacted competition laws to protect their free market economies and have thereby developed an economic system in which the allocation of resources is determined solely by demand and supply. In the case of India, the earlier Monopolies and Restrictive Trade Practices Act, 1969 was not only found to be inadequate but also obsolete in certain respects, particularly, in the light of such international economic developments relating to competition law. To overcome such difficulty Indian Government has enacted the Competition Act in 2002. This enactment is seen as India’s response to the opening up of its economy, removing controls and resorting to liberalization. The Act sought to ensure fair competition in India by prohibiting trade practices which cause appreciable adverse effect on the competition in market within India. The present Indian Act is quite contemporary to the laws presently in force in the European Community as well as in the United Kingdom. In other words, the laws dealing with competition in these jurisdictions have somewhat similar legislative intent and scheme of enforcement. However, these laws are not quite in parimateria with the Indian legislation. This paper is an effort to provide a comparative picture of Indian, EC and UK competition regime on merger.

Australia's Reputation as a Centre for International Arbitration: Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie Sas Missing a Critical Opportunity to Reverse the Eisenwerk Decision

Sophocles Kitharidis — Thu, 25 Aug 2011 22:52:24 PDT

[The Queensland Court of Appeal handed down its decision in Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH, in which the legal framework governing Australia’s international commercial arbitration was reviewed and the ‘Eisenwerk’ principle was established. What was ascertained was that the adoption of arbitration rules were believed to comprise a displacement of UNCITRAL Model Law on International Commercial Arbitration, with a number of legal practitioners and scholars criticising the approach taken by the Eisenwerk decision. On 11 August 2010, the New South Wales Supreme Court reviewed the Eisenwerk principle in Cargill International SA v Peabody Australia Mining Ltd, and nine days later, the Queensland Court of Appeal provided a different interpretation to that of Cargill, in Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie SAS. The diverse approaches taken by both cases have generated controversy regarding the Eisenwerk principle, and also to the amended 2010 legislation governing international commercial arbitration in Australia. Therefore, in order to provide an analysis of Australia’s reputation as a centre for international commercial arbitration, this essay will explore both Eisenwerk and Wagners. In doing so, it will discuss s 21 of the International Arbitration Amendment Act 2010 (Cth) and will argue that Wagners did miss a critical opportunity to reverse the Eisenwerk decision, in the hope of restoring Australia’s reputation as a centre for international commercial arbitration. In the process of providing an analysis of both cases, the issue of whether the impact of the Eisenwerk decision was negated by amendments to the International Arbitration Act 1974 (Cth) will be reviewed. This essay will finally provide a detailed analysis on new reforms to current legislation in the hope of demonstrating Australia’s future prospects as a ‘centre’ for international commercial arbitration.]

Fighting Identity Crime

John H. Farrar — Thu, 25 Aug 2011 22:28:48 PDT

Identity crime is on the increase in most jurisdictions and is a matter of concern to governments and financial institutions as well as victims. In a 2003 study the cost of identity fraud to Australia in 2001-2 was estimated to be $1.1 billion. Only 38% was identified as direct losses. The majority of costs related to resources to combat identity crime. In the United Kingdom the Home Office estimated that for 2007 the cost was £1.2 billion or £25 for every adult in Britain. The subject raises interesting conceptual questions as well as the practical problems of legislating, investigating and prosecuting these types of offences. The techniques of identity crime are well known yet surprisingly little work has been done on profiling this type of fraudster although there is general agreement that identity crime is now being perpetrated by organized crime which is operating on an international basis.

Protection of Companies From Shareholder Class Actions Through Constitutional Amendment: Is This Possible Or Desirable?

Michael J. Duffy — Thu, 25 Aug 2011 22:28:47 PDT

Companies are increasingly the targets of shareholder class actions for nondisclosure and misleading statements. At least one commentator in the US has argued that liability for such actions might be reduced by amendments to the company’s certificate of incorporation. Does the constitution as a statutory contract between shareholders and the company allow elimination or reduction of company liability to shareholders in relation to Australian shareholder class actions? If it does should companies amend their constitution to protect against such actions? The author argues that it is unlikely that company constitutions could eliminate or reduce such liability. On the question of whether companies should attempt to limit liability in this way were it possible, he looks at the financial impact of shareholder class actions and finds mixed evidence.

The International World of Sport and the Liability for Off-Field Indiscretions

Chris Davies — Thu, 25 Aug 2011 22:28:45 PDT

The recent terminations of the contracts of NRL player, Joel Monaghan and the AFL’s Brendan Fevola, for off-field indiscretions, has highlighted the significance of the bringing the game into disrepute clauses contained in standard player contracts. Tiger Woods’ extra-marital affairs received extensive world wide media attention, and the outcome of this negative coverage was the loss of millions of dollars in sponsorship deals. This indicates that such contracts can be terminated on the basis that a sportsperson’s behaviour was having a negative impact on the sponsor’s image. It is for the same reason that sponsors have put pressure on the governing bodies of team sports to take appropriate action for off-field indiscretions. The Court of Arbitration in D’Arcy v Australian Olympic Committee, has also held that a competitor’s behaviour in an incident where criminal charges were laid, may, in itself be sufficient to bring a sport, or themselves, into disrepute, regardless of whether the competitor is later found guilty or innocent. This case would therefore indicate that these ‘bringing the sport into disrepute’ clauses in standard playing contracts are valid, and allow clubs or sport governing bodies to fine and/or suspend players for off-field indiscretions. The recent incident involving Joel Monaghan also highlights the fact that what happens off the field may become public, not through the traditional media outlets, but through other members of the public making it available on the internet.

Consent, Power And Mistake Of Fact In Queensland Rape Law

Jonathan Crowe — Thu, 25 Aug 2011 22:28:43 PDT

This article critically examines the legislative definition of rape in Queensland, ten years after the last round of major amendments in 2000. It begins by examining the approach of the Queensland Court of Appeal to the central notion of consent, focusing on cases decided since the amendments. The article then considers the role played by the defence of mistake of fact under s 24 of the Criminal Code 1899 (Qld) in a number of recent appeals from rape convictions. It is argued that the Queensland legislature should consider significantly limiting the application of s 24 to the offence of rape.

Measuring The Impact Of The Financial Crisis On The General Employee Entitlements And Redundancy Scheme

Mohammed Al Bhadily — Thu, 25 Aug 2011 22:28:41 PDT

With the collapse of high-profile corporations in Australia such as Cobar Mines, National Textiles Ltd and Ansett Airlines, the Howard Coalition Government in Australia (1996-2007) in 2000 established the Employee Entitlements Support Scheme (EESS). EESS was later replaced by the General Employee Entitlements and Redundancy Scheme (GEERS), funded by taxpayers to provide limited protection for employee entitlements in the event of corporate insolvency. However, the increased level of insolvencies between 2007and 2009 due to the economic downturn in Australia, placed greater financial pressure on GEERS to provide protection for employees who had lost their jobs and entitlements. As a consequence, the Rudd Government was required to supplement the reserves of GEERS to cope with applications for relief. In this paper the impact of the financial crisis on the GEERS budget is examined.

Tying the Threads Together

Murray Wilcox AO QC — Thu, 25 Aug 2011 18:17:16 PDT

Four aspects of access to constitutional justice were discussed today;
(i) Standing rules;
(ii) Amici curiae (and interveners);
(iii) Advisory opinions;
(iv) Costs rules.
The discussion of the Australian experience was informed by comments about the United States experience from Professors HW Perry and Jason Pierce.

Rights Protection and Constitutional Justice: Some Comparative Reflections

Jason L. Pierce — Thu, 25 Aug 2011 18:17:14 PDT

Many of the symposium's papers rightly focus on the access gates (elements such as standing, costs, amicus curiae) that enable or prevent individuals from litigating, or the process gates (such as the issuance of advisory opinions) that shape the form of justice that may or may not come from courts. This paper takes the liberty of not comparing Australia's access and process gates to those in other countries. Rather, it focuses on the implements available to litigants and judges to promote constitutional justice once access to the judicial system is secured. In this light, accessing constitutional justice concerns more than simply getting into the system. It also concerns what sort of justice litigants may contest and what sort of justice the courts can provide. This varies cross-nationally, based, in part, on how judicial power is allocated and how legal and political rights are protected in the constitutional system. The simple point is that the justice one can access or secure depends to some extent on what is or is not included in the constitutional system.

Access to Justice: Procedure, Polity, and Politics

H W. Perry Jr — Thu, 25 Aug 2011 18:17:13 PDT

Frankfurter is certainly right in suggesting that we need to focus on procedure and understand that seemingly technical rules can have huge implications for the access to justice in a society. It is for this reason that I find this conference so interesting. I am also pleased that the conference has a comparative component for reasons beyond my good fortune to have been invited to Australia. Societies governed by the rule of law have many things in common, and we can learn from one another. The flip side is the problem I have alluded to about globetrotting constitutionalists. Unless we are willing to learn about some of the nitty-gritty details, our comparisons will be superficial for the reasons Frankfurter proffered. I believe that what helps bridge this dilemma is to try to place the esoteric rule of procedures in a broader context of a constitutional or legal order. This becomes essential if we are trying to make normative judgments, either comparatively or for our own systems.