2019 Harold Ford Memorial Lecture: "The Intersection of Companies and Trusts"

(26 September 2019)

Presented by: The Honourable Chief Justice James Allsop AO, Federal Court of Australia

In 1981, Professor Harold Ford wrote an article on 'Trading Trusts and Creditors’ Rights'. In it, he described trading trusts, an intersection of companies and trusts that had emerged in the decade prior as an increasingly popular alternative to the proprietary company, as a 'commercial monstrosity'. It has been nearly 40 years since those comments yet there is still no coherent and unified approach by Australian courts as to their treatment under Australian company law, nor is there any clear treatment of them in the Corporations Act 2001 (Cth). On 5 February 2019, the High Court heard the appeal of what is commonly known as the Amerind matter. In the context of this appeal and other recent significant case law, this lecture examined the development of the law on trading trusts, specifically on the issue of trust property in an insolvency administration.

Blockchain - Critical Questions for Lawyers and Legal Practice

(14 August 2019)

Presented by Timothy Spangler, UCLA School of Law

Since the launch of bitcoin in 2009, cryptocurrencies and the encrypted, decentralized blockchain protocol that underpins them have grown from abstract theories to a transformational force that is disrupting the way many industries will operate for decades to come. Decentralized ledger technology and smart contracts could ultimately reshape many industries, including financial services, intellectual property, logistics and supply chain, the internet of things, energy, health care, insurance and the sharing economy. In particular, the landscape for financial products and services integrating blockchain technology is evolving rapidly. Whether launching funds to invest directly or indirectly in digital assets or creating new coins or tokens in connection with the launch of new distributive networks, clients operating in this area will have specialized needs that lawyers must be prepared to address.

Supervising and Regulating Science and Technology: Supervisory Challenges and Dimensional Construction of Financial Technology

(7 August 2019)

Professor Dong Yang, Renmin University of China

The technological and operational risks in technology-driven financial innovations, and even the possibility of induced systemic risk force regulators to make effective responses. However, due to the absence of regulatory technology, the lag in regulatory laws and out-of-date regulatory concepts, traditional regulatory systems and laws focused on prudential, functional and behavioural supervision cannot effectively respond to the present state of disintermediation and decentralized financial transactions. Therefore, to the traditional prudential and behavioural dimensions of financial supervision must be added the technological dimension, forming a two-dimension regulatory system that is better able to cope with the inherent risks in financial science and technology and the consequent regulatory challenges. We should be committed to relying on technologies such as big data, cloud computing, artificial intelligence and blockchain to build a technology-driven regulatory system. With data driven regulation at its heart, this system should build a financial monitoring system centred on distributed equal supervision, intelligent real-time supervision and a pilot regulatory sandbox, breaking through the inherent predicament of traditional financial supervision and innovating regulatory models to protect financial consumers and maintain financial stability.

Private Takings of Land for Urban Redevelopment: A Tale of Two Cities

(29 July 2019)

Professor Kelvin Low, City University of Hong Kong

In 1999, both Hong Kong and Singapore brought into force legislation that permitted a supermajority of unit owners within a development that met certain statutory criterion to force a minority of dissents to sell the development as a whole. Both territories did so because, as land scarce cities, it was considered that the redevelopment of aging buildings was an urgent imperative. In so doing, although they claimed to be following other jurisdictions, both Hong Kong and Singapore broke new ground in pioneering the private takings of land among common law jurisdictions. These developments have proven controversial in both territories although the controversies have differed because of differences in implementation and historical background in both cities, despite their sharing a past as British colonies in Asia. This presentation compares the two regimes against each other as well as against the more mature regime permitting private takings of shares in mergers and acquisitions law to highlight the lessons to be learnt in order to prevent abuse.

Unconscionable conduct and the 'bookup' system of credit provided to the Indigenous community in the remote APY lands in South Australia

(10 July 2019)

In the recent decision, ASIC v Kobelt [2019] HCA 18, the High Court held that an informal, expensive and largely undocumented credit scheme known as ‘book-up’ provided by Mr Kobelt to the Indigenous residents of the remote South Australian APY Lands, the Anangu people, was not unconscionable under the ASIC Act.

An expert panel of speakers considered the decision and its legal and policy consequences.

  • Nathan Boyle, Senior Analyst, ASIC Indigenous Outreach Program
  • Gerard Brody, Chief Executive Officer, Consumer Action Law Centre
  • Professor Jeannie Marie Paterson, Melbourne Law School
  • Professor Ian Ramsay, Melbourne Law School (chair)
  • Dr Michelle Sharpe, Barrister, Castan Chambers

View recording of the panel discussion

Shareholder Protection in Close Corporations and the Curious Case of Japan

(22 May 2019)

Speaker: Mr Alan Koh, National University of Singapore

Oppressed, outvoted, and outgunned, minority shareholders have an obvious solution for their woes: vote with their feet, sell their shares, and leave the company. But this ‘Wall Street walk’ is only available to shareholders in public, listed corporations; shareholders in close corporations – privately-owned business entities from which shareholder exit might not be possible – have no market for their shares. Legal solutions which enable the shareholder to voluntarily exit a company with their capital such as the oppression or unfair prejudice remedies in US and Anglo-Commonwealth corporate law – which the speaker defines as ‘withdrawal remedies’ – are therefore vital in close corporations. However, until relatively recently, shareholders in Japan’s close corporations had no access to withdrawal under the law, as neither of Japan’s then-dominant close corporation forms offered it. By revealing how shareholders in Japan responded to the absence of withdrawal, the speaker shows how Japan’s experience powerfully demonstrates the importance of withdrawal remedies in practice. Withdrawal remedies at law for close corporations became available in Japan for the first time with the watershed Companies Act of 2005, which introduced a new close corporation form, the Gōdō Kaisha (GK). The speaker discusses the various challenges faced by Japan’s new withdrawal regime, and show how comparative corporate law – armed with the law and experience of withdrawal in United States, United Kingdom, and Germany – offers valuable insights for the development of withdrawal in Japan.

Law Reform for the Cash Economy: What is needed and how will things change?

(14 May 2019)

Presented by Michael Andrew AO

Expert panel discussion: Professor Helen Anderson, Professor Miranda Stewart, Professor John Howe, Anna Chapman (chair)

The cash economy, sometimes known as the black economy, is one of the key challenges for government today. Cash dealing, under the table and informal economic activity have always been with us, but new threats and vulnerabilities are arising from fundamental economic, technological and social changes. What changes to our laws are needed to address root causes as well as immediate consequences? Is law reform likely to succeed and where will it have the most impact? Mr Michael Andrew AO was appointed by the Government in December 2016 to Chair the Black Economy Taskforce, which was tasked with developing an innovative, forward-looking and genuinely whole-of-government strategy to combat the black economy. The Taskforce reported to the Government in October 2017, after wide-ranging consultations with businesses and community members around Australia, and presented findings on the size and features of the black economy, and proposals for law reform to address it. The focus of the Taskforce was on practical and resilient solutions to overhaul reporting systems, incentives and deterrents, enforcement and shaping societal norms for the future. Many proposals for change were taken up in recent federal budgets and reform consultations are ongoing across a range of areas of law.

"There is a road, (but still) no simple highway": The IMF Position on Capital Controls and the Coming Clash with Trade and Investment Agreements.

(7 May 2019)

Speaker: Professor Bryan Mercurio, Chinese University of Hong Kong

Cross-border capital flows are the engine of international finance and have assisted in the expansion, development and prosperity of nations. But the benefits of cross-border capital are not without risk as crises in Asia (1997), Argentina (2001) and globally (2008) illustrate. Asset bubbles, ‘hot’ money movements, currency appreciation and the like can overwhelm regulators and increase susceptibility to large and unstable outflows. For this reason, some nations resort to capital controls – including limitations or restrictions on the transfer of financial assets, use of foreign currency and bank deposits/withdrawals; cross-border transaction taxes; capital exit levies; and differential exchange rates – as a policy instrument.

In 2012, the International Monetary Fund (IMF) developed a new ‘institutional view’ on the regulation of cross-border capital flows – shifting away from its traditional role as an ardent proponent of liberalised capital accounts to endorsing and even requiring under certain circumstances regulation through capital controls (‘capital flow management measures’ (CFMs)). The IMF recognises but does not resolve the sizeable risk of conflict between CFMs in IMF stability/loan programmes and trade/investment obligations – namely the General Agreement on Trade in Services (GATS), bilateral/regional trade agreements and international investment agreements – simply requesting other institutions and members ‘take [its] view into account’ when drafting new agreements. Simply stated, what the IMF now condones and may require could directly conflict with obligations under the trade/investment regime.

This presentation focuses on the potential conflicts between the IMF’s view and the three strains of International Economic Law, offering preliminary findings on the major sources of conflict – that is, the authority under Article VI of the IMF Articles to issue the view (and resulting controversies), various articles in the GATS Agreement and with IIA’s free transfer clauses, as well as issues with safeguards under the latter two regimes.

Book Launch: Company Directors' Duties and Conflicts of Interest

(2 May 2019)

By Associate Professor Rosemary Teele Langford, Melbourne Law School

Launched by Justice Michelle Gordon, AC, High Court of Australia

Company Directors’ Duties and Conflicts of Interest provides detailed analysis on directors’ duties arising under UK case law, codes and statutory regulation, with extensive reference to the law in Australia, Canada, Hong Kong and New Zealand. The book provides comprehensive analysis of the conflicts faced by directors, including conflicts of duties, unauthorised profits, corporate opportunities, multiple directorships, nominee directorships, and conflicts involving stakeholders’ interests.

The author subjects difficult aspects of these topics to rigorous and original analysis informed by a range of common law jurisdictions. This extensive, multi-jurisdictional examination presents solutions to complex legal issues that have, to date, confounded courts and commentators alike and enables clarification of existing legal approaches. This is both a key reference work set in a practical legal context and an exhaustive and original theoretical re-assessment of this important and dynamic area of company law.

What are the implications of AI technologies for the concept of responsibility from a 'human rights' perspective?

(12 April 2019)

Speaker: Professor Karen Yeung, University of Birmingham, UK

Professor Yeung will discuss some of her findings emerging from a research study she has recently undertaken as part of a Council of Europe study of the implications of Advanced Digital Technologies (Including AI Systems) for the concept of responsibility within a human rights framework. A copy of her paper is available here

Driving Digital Financial Transformation: Finance, Technology and Regulation

(11 April 2019)

Speaker: Professor Douglas Arner, University of Hong Kong

In this presentation, Professor Arner argues that to reap the greatest benefits for financial inclusion and maximize the potential of FinTech, a framework that supports infrastructure and an enabling policy and regulatory environment, built on a strong foundation of digital identification and electronic payment systems, will support much broader digital financial transformation. The full potential of FinTech for financial inclusion may be realized with a strategic framework of underlying infrastructure and an enabling policy and regulatory environment to support digital financial transformation.

Sustainable Finance – Trends and Challenges

(26 March 2019)

Panellists: Jan Job de Vries Robbé, Dutch Development Bank FMO, Geoff Earl, MinterEllison, and Geraldine Johns-Putra, MinterEllison.

Is sustainable finance the answer to climate change, poverty and inequality? What are the trends in Australia and overseas? And what challenges does sustainable finance face? The topics covered by this seminar and panel discussion include the various tools of sustainable finance – from micro-finance to green bonds, renewable energy and refugee financing – and endeavours to provide some answers to the above questions.

What Is Going On With Ghosn?

(8 March 2019)

Speaker: Professor Vicki L. Beyer, Hitotsubashi University Graduate School of Law, Japan

As the third largest economy in the world, Japan is important in the world of business. And increasingly, its business endeavours involve cooperative efforts with companies in other countries. The November 2018 arrest of Carlos Ghosn based on allegations of improprieties in his management at Nissan, and his continued detention in Japan, call into question a number of issues relating to doing business in or with Japan as well as how its criminal justice system operates. Professor Vicki Beyer outlines the Ghosn situation and its implications for Australian business.

Financial Regulation in South Africa – Lessons from (and for) Australia

(20 February 2019)

Speaker: Dr Gerda van Niekerk, University of Limpopo, South Africa

Fundamental reform occurred in 2018 when South Africa adopted a Twin Peaks model of financial regulation.  This model was pioneered in Australia and is based on functional separation between market conduct regulation and prudential regulation. In this seminar, Dr van Niekerk outlines the regulatory reforms in South Africa and identifies the lessons that each jurisdiction might learn from the other, particularly in respect of financial stability.