In Touch looks at what’s been happening in the Australian competition, consumer and regulatory world, and what it means for your business.
Allens Latest publications
Client Update: Ruralco decision shines a light on incentive-backed schemes and the need for shareholder disclosure
A recent Federal Court decision in Ruralco Holdings Limited  FCA 878 (Ruralco) emphasises the importance of disclosing to shareholders voting on a proposed scheme of arrangement any incentive from which a person recommending that scheme may benefit. Partners Kim Reid and Richard Kriedemann, Associate Sophie Allchurch and Lawyer Sevanne McGarity report.
In this issue IKEA presses its case against Stylkea; Penfolds copycat distributors seeing red; Sandoz secures a licence to exploit the Lexapro patent; we take a stroll around the world of key trade mark developments; and IP insurance – it’s a viable option, but do you need it?
Welcome to our monthly snapshot of regulatory updates and other developments in corporate law. We know you are busy, so our focus is on capturing key issues.
In this update we summarise the progress of new and existing rule change requests across the month of May and take a closer look at the AEMC’s final report on the regulatory framework for stand-alone power systems (SAPS).
ASIC has issued its promised consultation paper on the use of stub equity in control transactions, which will, if adopted, have the potential to make the use of a stub equity as an alternative form of consideration in schemes and takeovers more difficult. In our update last December [link to previous client update] we flagged ASIC’s intent to crack down on offers of stub equity in a proprietary Holdco. However, the consultation paper goes further, and proposes a ban on the use of custodian structures in stub equity schemes (i.e. the requirement that participating target shareholders hold their interests in the stub-equity vehicle through a custodian). The custodian structure has the effect of keeping the number of registered shareholders in the Holdco below 50, with the result that the takeover provisions and disclosing entity provisions of the Corporations Act do not apply. Partners Guy Alexander and Tom Story and Managing Associate Noah Obradovic report on the implications.
The Victorian Government has proposed amendments to the Duties Act 2000 (Vic) (Duties Act), which could have a dramatic impact on the stamp duty outcomes for development projects, particularly for residential developments, and other fee for service arrangements for real estate in Victoria. Partner Craig Milner , Managing Associate Tim Chislett and Law Graduate Simon Chiarelli report.
Three recent UK decisions highlight contractual mechanisms for managing aspects of risks associated with delay in project delivery. Projects Partner Leighton O’Brien considers the implications for Australian projects.
Bidders and targets must exercise caution in securing shareholder support over more than 20 per cent of target shares for bids and schemes, as ASIC continues its clamp down on shareholder intention statements and prepares to issue new guidance on ‘truth in takeovers’. In this article, we take a closer look at ASIC’s policy concern and recent market practice, and set out our views on the right way forward for shareholder intention statements.
The need for companies to manage and report on climate-change risks is gaining momentum in Australia. This is part of a global trend, as investors and governing bodies increasingly expect companies to integrate climate risks into their strategy and reporting – yet, tools for monitoring and disclosing climate-change risks are at a relatively early stage. Partner Jillian Button, Senior Overseas Practitioner Emily Turnbull and Lawyer Maddy Foote look at the state of play in Australia and abroad, and at the direction of travel in 2019.
Fund financing activities in Australia remained strong in 2017, with particular focus on infrastructure, private equity funds and private debt funds, all of which took advantage of the additional liquidity and funding flexibility in this market.
Our Contract Law Update has been summarising appellate contract law decisions since 2012. We are breaking with tradition this year and, for the first time, including a foreign judgment in this Update, which will tell you whether, according to the UK Supreme Court, it is possible for parties to prevent their written contracts being amended orally (and whether Australian courts agree). We also consider the doctrines of abandonment and frustration; explain the differences between novation and nomination, and between inferring and implying terms; and examine the latest judicial consideration on when loss of opportunity damages might be available.
The Ministry of Industry and Trade of Vietnam (the MOIT) recently introduced amended regulations on wind power projects, and issued new model power purchase agreements for wind projects and rooftop solar power projects. New policies and feed-in tariffs for solar power projects are also on the horizon. Partner Melissa Keane and Associates Hien Nguyen and Trang Dang discuss the key developments.
The Papua New Guinea Government has revised proposed changes to PNG’s foreign investment laws after concerns were raised about the potential economic effect of the initial reform package. The proposed amendments, if enacted, could still have far reaching consequences for PNG’s foreign investment community, including: (1) the creation of a new register and Registrar of certified foreign investors; (2) clarification of the functions of the Investment Promotion Authority, its Board, Managing Director and the Registrar; and (3) the classification of restricted activities and introduction of new conditions of certification, along with a proposed introduction of minimum investment requirements for business-residence visas. Partner, Sarah Kuman, Senior Associate Chris Case and Lawyer Maddy Foote explain.
Focus: A development from the English Court of Appeal regarding legal professional privilege in internal investigations
In a recent judgment, the English Court of Appeal reversed a controversial High Court decision that had severely limited the application of legal professional privilege in internal investigations under English law. The decision has consequences for Australian corporates conducting cross-border investigations into potential criminal misconduct, as well as more generally for the development of the law of legal professional privilege in Australia in relation to internal investigations. Partner Rachel Nicolson, Senior Overseas Practitioner Christopher Kerrigan, Associate Charlette Bunn and Law Graduate Amelia van der Rijt report.
In this update we summarise the progress of rule changes across the month of September and take a closer look at the release of and response to AEMO’s first Integrated System Plan for the NEM.
Client Update: ASIC extends by a further year licensing relief for foreign financial service providers
The recent ASIC Corporations (Amendment) Instrument 2018/807 extends by a further year licensing relief for foreign financial service providers who carry on a financial services business in Australia without an Australian financial services licence. While it’s another welcome licensing reprieve for such providers, it is likely to be short lived, as ASIC continues to consult on its proposals in Consultation Paper 301. Partner Penny Nikoloudis, Financial Services Counsel Jo Ottaway and Lawyer Tom Lawson report.
In our article on competing class actions dated 20 August 2018, we made the fairly obvious observation that the Royal Commission would inevitably prove to be a hot bed for class actions. And in years to come, we will undoubtedly look back on the Royal Commission as a watershed moment in class action history, which, just like the GFC, spawned multiple large and long-running class actions.