Expert legal commentary: Liability To Investors For Negligent Credit Ratings

Professor Rowan Russell Adjunct Professor, Faculty of Law, Monash University

Traditionally: no liability for rating agencies

One cause of the global financial crisis was the failure of complicated derivative products based on “unsafe” home loans principally in the USA but also elsewhere. These products were often marketed with the benefit of an AAA rating by one of the major rating agencies. In many cases, upon a post facto review, these ratings were issued negligently. Can rating agencies, which issued these ratings, be liable to investors?

Expert legal commentary: The TIPP method for negotiating with difficult people

George H. Golvan QC Bjuris 1968, LLB 1970

“Never get angry. Never make a threat. Reason with people.”: Don Vito Corleone – The Godfather.

I propose a useful acronym, which I call TIPP, which identifies, in my opinion, the most important strategies to remember when negotiating with difficult people. 

The goal is to try to shift a difficult negotiator from an aggressive competitive approach to a rational problem solving approach. 

TIPP stands for: Time, Interests, Persuasion and Persistence.

Expert legal commentary: Unconscionable conduct must now be accepted as a fundamental principle of commercial law – Reflections on judicial responses

Professor Bob Baxt AO Emeritus Partner at Herbert Smith Freehills and former Dean of the Monash Law Faculty (1980-88)

When the Australian Parliament enacted s 51AA Trade Practices Act 1974 (Cth) (the TPA), and introduced a remedy based on ‘unconscionable conduct’, it was felt by many that Parliament was merely creating a statutory regime to parallel the approach taken by the courts. The High Court of Australia had seemed to adequately sum up the common law approach to unconscionable conduct in Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447.

Monash Law academics in the media

Our Monash Law Faculty academics have been consistently contributing to topical legal discussions.

To find out more, visit our website.

Expert legal commentary: Hong Kong’s Emergence as a Centre of Transnational Arbitration

By Mr Malcolm Chin, Partner, Minter Ellison, Hong Kong

Mr Malcolm Chin

Since the end of the Second World War, arbitration, given impetus by international conventions, has evolved into the leading method of resolving complex cross-border or transnational disputes. As a result arbitration has become something of a growth industry, with jurisdictions increasingly vying with each other to promote their own arbitration regimes to the international community.

Traditionally European centres such as London and Stockholm have been at the forefront of this movement but now cities in Asia have joined them.  While for example Seoul is making great strides, the two front runners remain Hong Kong and Singapore. By some measures Singapore is seen as having overtaken Hong Kong; for example it markets itself aggressively as leading the field in terms of the number of fully administered arbitrations it attracts. The Singapore International Arbitration Centre, SIAC, has certainly modelled itself to a degree on the doyen of institutional arbitration bodies the ICC – with, some suggest, a price tag to match. But there are other measures of success. One of Hong Kong's strengths, other than its large pool of experienced practitioners and acceptability to the PRC and foreign investors as the preferred neutral venue, is the flexibility which it offers.

Expert legal commentary: Reasonable Endeavours: Commercial Gains Trump Energy Supply Security in WA Domestic Gas Markets

By Ms Rowena Cantley-Smith

Ms Rowena Cantley-Smith

The contractual complexities of securing affordable energy supply in a partially privatised market have been revealed in a recent decision of the High Court of Australia, Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7. Against the backdrop of essential energy supply within the State of WA and no available alternative supply sources, the case considers the proper contractual construction and application of a supply clause (cl 3.3) in a long term gas sale agreement (GSA). This clause obliges Woodside Energy Ltd and Others (the Sellers) to use “reasonable endeavours” to supply quantities of supplemental gas to WA’s electricity generation and supply statutory corporation,  Electricity Generation Corporation (t/as Verve Energy) (Verve).

 

Expert legal commentary: New Frontlines in Regulating Unconscionable, Unfair, and Bad Faith Business Conduct

By Professor Bryan Horrigan

 

Overview

Professor Bryan Horrigan

In the last few months since the inaugural edition of The Monash Law e-Briefing, developments have continued on multiple fronts in the regulation of unconscionable, unfair, and bad faith business conduct. The ACCC v Lux case reached its end point in the High Court. The ACCC announced proceedings against Coles for alleged unconscionable conduct towards suppliers. The ANZ bank fees case is heading to appeal. The Abbott Government finalised its panel and terms of reference for the much-publicised ‘root and branch’ review of competition law. The Government also released proposed legislation on new franchising reforms, including the introduction of an obligation of good faith in franchising agreements.

These regulatory and litigious developments are of topical interest to commercial and consumer lawyers, competition and financial regulators, and businesses of all kinds and their corporate counsel. They are also relevant for policy-makers and law-makers, public lobby groups and industry peak bodies, and academics and students who study commercial law, competition law, consumer law, franchising law, contract law, and equity.

Expert legal commentary: Clinical Legal Education and Legal Education Reform

By Professor Frank S. Bloch
Professor of Law Emeritus, Vanderbilt University School of Law
Executive Secretary, Global Alliance for Justice Education



Professor Frank Bloch

Legal education faces uncertain times, not only in Australia but around the world.  This is due in part to the Global Financial Crisis, which has hit law schools on two fronts: severe budget pressures from their home universities and a shrinking demand for their graduates from the profession.  But there are longer-existing uncertainties about the future of legal education resulting from a widening gap between the legal academy and the legal profession, as both institutions have become more distant from the societies they serve.  How law schools respond to these challenges will dictate the course of legal education for generations to come.

Expert legal commentary: Monash Law Academics in the Media

Our Monash Law Faculty academics have been consistently contributing to topical legal discussions.

Expert legal commentary: Melbourne as an Emerging Player in the Region: an Arbitrator Perspective

Mr Neil Kaplan
CBE QC SBS

By Neil Kaplan CBE QC SBS

It surprises me that with all the natural resources produced by Australia, the inevitable disputes that arise from trade of this nature often find themselves being dealt with in international arbitration outside of Australia. The question arises whether Australian corporations and their legal advisers are negotiating hard enough to keep the disputes within Australia. I accept that there may well be a geographic problem. But given the size of the business, the generally favourable law of arbitration throughout Australia, the Australian legal diaspora and the large number of eminent Australian arbitrators, it does seem strange that so many of these cases are dealt with outside Australia.

Expert legal commentary: Abbott Government’s ‘Root and Branch’ Review of Competition Law and Unconscionable Business Conduct

Professor Bryan Horrigan

By Professor Bryan Horrigan
Dean, Faculty of Law, Monash University

The Bottom Line
Unconscionable business conduct towards small business and consumers is a growth area for regulatory reform as well as ‘test case’ advice and litigation. So, what should the Abbott Government’s ‘root and branch’ review of competition law (‘“root and branch” review’) do with the regulation of unconscionable business conduct towards small business? The Government’s draft terms of reference for this review clearly signal that reforming business-to-business unconscionability and extending the ‘unfair contracts regime’ to small business are both clearly on the agenda of possible outcomes. These two areas of possible reform are linked, in ways outlined in this comment.

Expert legal commentary: Revised ASX Corporate Governance Principles and Recommendations

By Bruce Dyer, Partner and Corey Lewis, Special Counsel, Ashurst Australia

Mr Bruce Dyer

Mr Corey Lewis

The ASX Corporate Governance Council has undertaken consultation on a draft 3rd edition of its Principles and Recommendations, expected to come into effect for financial years commencing on and after 1 July 2014.  The Principles are important, and not just for ASX listed entities (which need to report whether they comply, and if not, why not).  The Principles are also adopted, formally or informally, by a wide range of other organisations. 

The changes in the 3rd edition include (for others see link (pdf, 273kb)):

Tenure and independence
Tenure of more than 9 years has been added as an indicator that a director may not be independent (which is relevant in determining whether there is a majority of independent directors, as recommended, on the board and certain committees).  This will not preclude such directors being treated as independent where appropriate, but is likely in practice to reduce the number of directors with longer tenure.  Whether this is desirable, given the consequential loss of experience and corporate memory it risks, is open to question.

Expert legal commentary: Mad Dogs and Tennis Players go out in the Midday Sun

Dr Eric Windholz

By Dr Eric Windholz
Lecturer, Faculty of Law, Monash University

On days when the Victorian Health Department issued Heat Health Alerts warning the extreme hot weather substantially increased the risk of heat-related illness and mortality, and outside work on Victorian construction sites ceased, the Australian Open Tennis Championships continued.

Players continued to play; umpires and lines people continued to officiate; ball kids continued to retrieve balls; the numerous employees, contractors and volunteers that make the Open possible continued doing their jobs; and the spectators continued to watch in the stadium.

The decision to continue play in temperatures that exceeded 41.5 degrees Celsius on four consecutive days (play only being halted temporarily on the fourth day) raises issues concerning the intersection of professional sports and occupational health and safety (OHS) law.

Read the full commentary on The Conversation where this article was first published.

Expert legal commentary: Children and human rights abuses: coming to an international stage?

Associate Professor
Paula Gerber

By Associate Professor Paula Gerber
Lecturer, Faculty of Law, Monash University

For the first time, children will soon be able to bring complaints of human rights violations to the United Nations. Although the UN’s Convention on the Rights of the Child has been in operation since 1990, there has not been a mechanism for children to bring a complaint that a government is breaching their rights until now.

This is in stark contrast to the UN’s other major human rights treaties, all of which have a process for people to bring allegations of human rights abuses.

In December 2011, the UN sought to rectify this omission by adopting an Optional Protocol to the convention. This sets up a system for children to bring a complaint to the committee, made up of 18 independent, international child rights experts. The Optional Protocol enters into force three months after the tenth country ratifies it and, on January 14, Costa Rica did just that.

Read the full commentary on The Conversation where this article was first published.