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.

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.

Professional know-how

The Commercial Law Group

The Commercial Law Group (CLG), Faculty of Law, Monash University has a strong emphasis upon the commercial dimensions of private, transnational, and international law in academic research and teaching.

It has just under 30 Faculty members actively engaged in a broad range of commercial research and teaching areas that include both higher research degree supervisions as well as electives and core units within the LLB, JD, and LLM courses.

The CLG has been active, holding a range of seminars both last year and this year. It features single current and topical events as well as two dynamic seminar series. The two seminar series are the Commercial CPD Seminar Series and the National Commercial Law Seminar Series. These two seminar series are separate and complimentary ventures that focus upon important current issues involving commercial law matters.

Upcoming events

Commercial Law and Practice Seminars

The Faculty is very proud in its 50th anniversary year to be collaborating with both the Supreme Court and the Federal Court, together with other arms of the Victorian legal profession, in providing continuing professional education through a series of landmark seminars of topical relevance to commercial law and practice.

To that end, the Faculty's pre-existing involvement in the successful Commercial CPD Seminar Series continues this year under the chairmanship of Justice Clyde Croft from the Supreme Court of Victoria, with organising assistance from the Faculty and its Commercial Law Group, the Victorian Bar Association, the Law Institute of Victoria, and the Judicial College of Victoria.

The Faculty is also newly involved in a national seminar series on commercial matters within the jurisdiction of the Federal Court of Australia, in a collaboration between the Federal Court, the Commercial Bar Association of Victoria, and the Faculty and its Commercial Law Group.