Risk-Based Regulation, the Credit Crisis and the Compliance Conundrum

(9 December 2008)

Speaker: Professor Iain MacNeil, University of Glasgow

Description: The focus of the seminar is on the relationship between risk based regulation and enforcement in the context of the credit crisis and the implications for regulatory reform.

Non-Profit Governance Conference

(19 November 2008)

Speakers: Steve Bowman, LifeMastery Pty Ltd; Maureen Cleary, Governance and Management Pty Ltd; David Fishel, Positive Solutions; Myles McGregor-Lowndes, CPNS; Nerida Nettlebeck, Matrix on Board; Gavin Nicholson, QUT; David Thompson AM, Jobs Australia.

Insider Trading: Recent Developments and Implications for Market Players

(28 August 2008 Melbourne, 9 September 2008 Sydney)

Speakers: Cathie Armour, Executive Director, Macquarie Capital Advisors Division (Sydney seminar); Richard Flynn, Manager, Surveillance, ASX Markets Supervision Pty Ltd (Melbourne and Sydney seminars); Michael Hoyle, Division Director, Macquarie Capital Advisors (Melbourne seminar); Robert Simkiss, Partner, Allens Arthur Robinson (Melbourne seminar); John Warde, Partner, Allens Arthur Robinson (Sydney seminar).

Description: ASIC has recently announced that it is giving higher priority to detecting and prosecuting insider traders. Other international regulators have made similar announcements. The current market volatility has, according to some commentators, facilitated insider trading. At the same time, there have been criticisms of the insider trading laws, including criticisms by judges.This seminar brings together leading speakers from the ASX and a major investment bank and law firm to discuss recent developments in insider trading and their implications for market players. The topics discussed at the seminar will include:

  • The role and activities of ASX in dealing with insider trading and market manipulation
  • Current problems in relation to insider trading, including the extent of significant price movements ahead of M & A announcements, regulatory responses to these problems in Australia and elsewhere and some of the measures that firms can take to reduce the risk of market abuses.
  • Topical issues in the current market including:
    • civil penalty proceedings: ASIC’s scorecard to date
    • stock lending to hedge funds and margin call trigger points: is this inside information?
    • the equal information defence - can this be a fraud on the market?
    • narrowing the prohibition to exclude unlisted shares and OTCs

Continuous Disclosure: Key Issues for Companies and Their Advisers

(16 July 2008 Sydney, 23 July 2008 Melbourne)

Speakers: David Barnett, General Manager-Issuers Department, ASX Limited (Sydney seminar); Malcolm Cooke, Partner, Freehills (Melbourne seminar); Quentin Digby, Partner, Freehills (Sydney seminar); James Gerraty, Manager of Issuers, ASX Limited (Melbourne seminar); Marie McDonald, Partner, Blake Dawson (Sydney seminar); Elizabeth Pakchung, Partner, Blake Dawson (Melbourne seminar); John Walker, Managing Director, IMF (Australia) Ltd (Sydney and Melbourne seminars).

Description: Australia’s continuous disclosure regime is regarded as critical to an informed market and the confidence of investors. The importance of the regime is reflected in the fact that the government has given ASIC its own power to impose financial penalties on companies where ASIC believes there has been a breach of the continuous disclosure rules. However, there are concerns about the operation of the regime such as whether it requires disclosure prematurely and thereby disadvantages companies. In addition, companies in breach of the continuous disclosure rules are potentially subject not only to enforcement action by ASIC but are also increasingly subject to civil claims by investors. In an important development, in late May 2008 it was announced that shareholders have reached a conditional settlement with Aristocrat Leisure in what is believed to be the largest payout by a company alleged to have breached the continuous disclosure rules. The payout is reported to be $140 million.

The seminar brings together key speakers from ASX, IMF Australia (a litigation funder involved in funding investor actions based on alleged breaches of the continuous disclosure rules) and legal advisers to major corporations who regularly advise their clients on continuous disclosure matters. The speakers will address matters such as:

  • The operation of the continuous disclosure rules in merger negotiations
  • The enforcement role of ASIC - is it sufficiently sensitive to the practical realities faced by companies when enforcing the continuous disclosure rules?
  • The role and perspective of ASX in continuous disclosure and, in particular:
    • ASX’s guidance in relation to finance arrangements and margin loans
    • trading halts and suspensions
    • dealing with speculation and ASX queries
  • The role and perspective of litigation funders in litigation alleging breaches of the continuous  disclosure rules and, in particular:
    • the credit crunch and continuous disclosure
    • proving causation
    • quantifying loss
    • CAMAC deliberations
    • future issues
  • Key matters that have arisen for consideration under the continuous disclosure rules but have not yet been the subject of court decisions such as:
    • at what stage do the thoughts/views of senior executives become information requiring disclosure?
    • how do companies and their advisers interpret the requirement that material information be disclosed “immediately”?
    • fraud on the market as a means of assisting investors to establish claims for compensation.

Employee Share Ownership in Small and Medium-Sized Enterprises: Objectives, Current Practice and Regulatory Reform

(2 April 2008)

Description: The Employee Share Ownership Project at Melbourne Law School invites you to participate in a one-day workshop on the regulation of employee share ownership in small and medium-sized enterprises (SMEs).

SMEs in Australia are much less likely to have broad-based employee share ownership plans than their larger, listed counterparts. The low incidence of employee share ownership in the SME sector is attributable in part to the current regulatory regime in corporate and taxation law. The current ‘one-size fits all’ approach is ill-suited to serving the diverse objectives for which SMEs may seek to implement employee share ownership and, in many cases, operates to effectively deny SMEs equal access to employee share ownership plans.

This workshop will discuss the diversity of objectives for which SME owners and managers may seek to implement employee share ownership plans (ESOPs); and how the current regulatory regime in corporate and taxation law structures and constrains the use of ESOPs in this sector. We will consider the case for introducing regulatory reforms to remove identified constraints and discuss practical proposals for reform.

Directors' Duties: Navigating the Storm on Board

(19 March 2008 Melbourne, 1 May 2008 Sydney)

Speakers: Bob Baxt A.O., Partner, Freehills (Melbourne seminar); Tim Bednall, Partner, Mallesons Stephen Jaques (Sydney seminar); Alan Cameron A.M., Company Director and former Chairman of ASIC (Sydney seminar); Sir Rod Eddington, Chairman of JPMorgan (Melbourne seminar); David Gonski A.C., Chairman of Investec Bank Australia Limited (Sydney seminar); Alison Lansley, Partner, Mallesons Stephen Jaques (Melbourne seminar); Stuart McCulloch, Partner,  Allens Arthur Robinson (Sydney seminar);  Jon Webster, Partner, Allens Arthur Robinson (Melbourne seminar).

Description: Issues to do with directors’ duties have recently been the subject of extensive media and regulatory scrutiny. In part, this is a result of enforcement action by ASIC against both executive and non-executive directors. It is also a result of high profile corporate transactions that highlighted difficult issues of directors’ duties.

This seminar brings together leading speakers to discuss topical issues in directors’ duties. The speakers bring different perspectives including that of legal advisers to directors as well as the perspective of a practicing director. The issues that will be discussed during this seminar include:

  • Whether directors occupying special positions, such as the chair of a board committee, have a higher standard of care than other directors
  • The business judgement rule – when does it apply and how helpful is it?
  • Directors’ duties in the context of management buyouts – what protocols do directors have to follow when management presents a buyout offer?

The London Takeover Panel – Approach to Regulation and Current Issues
(13 March 2008)

Speaker: Noel Hinton, Deputy Director General,  London Takeover Panel

Mr Hinton will speak about:

  • Background to the London Takeover Panel
  • The Panel’s approach to regulation (speed, flexibility, certainty, consultation)
  • General Principles (equality of treatment; provision of information in a timely manner; and preservation of fair markets)
  • Key Rules (advice to shareholders; mandatory bids; frustrating action)
  • The Takeover Directive (history; impact on system; and rule changes)
  • Recent Developments

Replacing Misused Limited Liability with Enterprise Analysis in Corporate Groups
(4 March 2008)

Speaker: Professor Kurt Strasser, Law School, University of Connecticut, USA.

Description: Traditional corporate law rules limit the liability of corporate shareholders to the value of their investment, with some familiar exceptions. These rules were developed in a simpler time when a business enterprise was made up of one corporation which was typically owned directly by its shareholders. However, a modern business enterprise is typically a group of commonly owned and controlled corporations all working together, such as the contemporary multinational company. Professor Strasser argues that limited liability for these groups of corporations should be determined by looking to the whole business enterprise, not just the separate corporations, and analyzing whether enterprise wide liability is good policy under the particular law in question. While this idea appears to be a radical change at first, a closer examination shows that this enterprise analysis is already in wide use.

Criminalising Cartel Conduct: Issues of Law and Policy

(25 February 2008)

Speakers: Dr Caron Beaton-Wells, Director of Studies for Competition Law, University of Melbourne; Brent Fisse, Ross Parsons Centre of Commercial, Corporate and Taxation Law; Justice Peter Heerey, Federal Court of Australia; Professor Bob Baxt A.O., Partner, Freehills.

Description: On 11 January 2008 the government released an Exposure Draft of the long awaited bill to criminalise serious cartel conduct, together with a Discussion Paper, and draft Memorandum of Understanding between the ACCC and DPP. The government is seeking submissions on the draft bill by 29 February.

This seminar will inform and facilitate public debate on this major development in competition law enforcement and business regulation. There will be a joint paper by Dr Caron Beaton-Wells and Mr Brent Fisse highlighting the key points and critical legal and policy issues, with commentaries by Justice Peter Heerey of the Federal Court and Professor Bob Baxt AO.