Regulator - November 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
China's intervention in global M&A heats up while AML private actions cool down - 4 November 2009
China’s Ministry of Commerce (MOFCOM) has again imposed conditions on the merger clearance of yet another global transaction, the acquisition by Panasonic Corporation (Panasonic) of Sanyo Electric Co. Ltd. (Sanyo), while the conclusion of two private actions (one dismissed and one involving a nominal settlement) under the Anti-Monopoly Law (AML) suggests that firms still have some time to prepare before the threat of further private actions becomes a reality.
Regulator - October 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Regulatory investigation and waiver of privilege - ASIC v Lindberg - 16 October 2009
The recent decision of the Victorian Court of Appeal in ASIC v Lindberg [2009] VSCA 234 considered whether someone who holds legal professional privilege (LPP) can assert that privilege in information that is in the hands of a third party who has obtained it from someone other than the holder of the LPP.
China's competition regulator imposes conditions on two proposed mergers under the AML - 6 October 2009
China’s Ministry of Commerce (MOFCOM) has continued its recent trend of taking an activist approach to merger control in imposing conditions under the Anti-Monopoly Law (AML) on the clearance of two proposed mergers, Pfizer/Wyeth and General Motors/Delphi.
Productivity Commission releases recommendations on executive remuneration - 30 September 2009
The Productivity Commission has released its draft discussion report on executive remuneration for public consultation. The report proposes reforms to the Corporations Act, the ASX Listing Rules and corporate governance standards to improve the accountability of boards, remove conflicts of interest and enhance shareholder engagement on executive remuneration.
Mallesons acts on ground breaking Opes Prime scheme of arrangement - 7 September 2009
On Friday, the Full Federal Court affirmed Justice Finkelstein’s decision to approve the Opes Prime schemes of arrangement.
Director and executive termination benefits - Government releases final regulation - 7 September 2009
On 3 September 2009, the Government released the final regulations and explanatory material relating to the proposed reforms to termination payments (Regulations), which define “base salary”, clarify and expand the types of benefits that are (and are not) subject to shareholder approval and prescribe circumstances in which a benefit is given in connection with a person’s retirement.
Proposed amendments to taxation of employee share schemes: realse of Exposure Draft - 14 August 2009
Treasury has released the much anticipated exposure draft and draft explanatory materials (Exposure Draft) for the proposed amendments to the taxation of employee share schemes. These measures were first announced as part of the Federal Budget on 12 May 2009.
Regulator - 2nd edition - 14 August 2009
Regulator - 2 July 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Unfair terms Bill introduced into Federal Parliament - 24 June 2009
The Minister for Competition Policy, Craig Emerson, today introduced the much-anticipated Trade Practices Amendments (Australian Consumer Law) Bill 2009 (Bill) into Federal Parliament.
China outbound investment approval process refined - 24 June 2009
中文版
China’s National Development and Reform Commission (NDRC) has issued new rules to enable it to exert greater control over strategic overseas investments by Chinese companies.
Financial incentives for multinationals setting up regional headquarters in Beijing - 4 June 2009
Hoping to attract more multinational companies to invest in Beijing, the city issued new rules in May providing financial incentives for multinational companies to set up regional headquarters (RHQ) in Beijing. Detailed rules on implementation of those incentives are expected to be issued this month.
China issues new corporate restructuring tax rules - 15 May 2009
China has released new rules on the tax treatment of various types of corporate reorganisations, including equity and asset acquisitions, mergers, debt restructurings and enterprise spin-offs. These rules fill a gap that has existed since China’s new Corporate Income Tax Law (CIT Law) became effective on 1 January 2008 and provide clarity and guidance on what tax treatment applies during a restructure and how to qualify for the available tax benefits.
Important changes to the employee share scheme tax concession - 14 May 2009
As part of the 2009/10 Federal Budget announcements yesterday, the Treasurer issued a press release indicating that new measures would be introduced to remove some tax concessions, and limit others, for employees who acquire shares and options under employee share schemes.
Octaviar - proposed solutions for the past and the future - 1 May 2009
The Qld Supreme Court's decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37 (6 March 2009) has generated a great deal of concern (and inconsistent positions) in the banking and finance industry, and among legal and other advisers. In an effort to focus the debate and begin to stabilise market practice in a post-Octaviar environment, Mallesons Stephen Jaques and Allens Arthur Robinson are making available to the market some practical solutions which we have formulated together, working with John Sheahan SC.
Executive remuneration - tighter regulation moves a step closer- 8 April 2009
The Productivity Commission yesterday released its issues paper regarding the review into Executive Remuneration in Australia previously announced by the Rudd Government. The release of the issues paper now gives corporations and their advisers the opportunity to contribute to what will no doubt be an extensive debate on the best regulatory framework for executive remuneration in Australia.
Business response to government intervention in golden handshakes - one to watch - 19 March 2009
The issue of executive remuneration is the subject of intense public debate and the reforms announced yesterday by the Rudd Government aimed at curbing “golden handshakes” are the first steps of government intervention to override the free market. It will be interesting to see the response of the business community to what is a populist measure.
Court widens category of registrable instruments relating to charges - 10 March 2009
The Queensland Supreme Court handed down its decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009] QSC 37 last Friday, 6 March 2009. The decision is widely regarded as surprising because it appears to cut across current market practice.
Court confirms cheap share registry access for predatory buyer - 24 February 2009
The recent decision in AXA Asia Pacific Holdings Limited v Direct Share Purchasing Corporation Pty Ltd [2009] FCAFC 15 (20 February 2009) highlights the difficulties faced by companies in dealing with predatory share offers.
ASIC takes further action on placements -24 February 2009
The Australian Securities and Investments Commission accepted an enforceable undertaking from Droga Capital on 18 February 2009. It follows an investigation by ASIC into Droga Capital’s trading of securities in Flinders Mines Limited.
Deferred Implementation of Extended Black Out Period Rule - 6 January 2009
The implementation of one proposed change to the Hong Kong Stock Exchange Listing Rules has been deferred for three months. This Client Alert supplements our previous alert on 5 December 2008 on the Amendments to Hong Kong Stock Exchange Listing Rules 2009.
HKEx clarifies certain rule requirements for listed issuers
On 28 November 2008, The Stock Exchange of Hong Kong Limited (HKEx) published the Frequently Asked Questions on Rule Requirements relating to Notifiable Transactions, Connected Transactions and Issues of Securities by Listed Issuers (FAQs).
New Australian short selling regime - 16 December 2008
The Corporations Amendment (Short Selling) Act 2008 became law on 11 December 2008. The three key measures include a legislative ban on naked short selling, a disclosure regime for permitted covered short selling, and clarification of the Australian Securities and Investments Commission's (ASIC) powers.
Tax issues affecting rights issues, share purchase plans, demergers and returns of capital - 28 November 2008
A recent class ruling issued by the Commissioner of Taxation (CR 2008/61) has highlighted an important tax issue that may arise in relation to any rights issues, share purchase plans, demergers or returns of capital you are undertaking.
ACCC releases new Merger Guidelines 2008 - 25 November 2008
On 21 November 2008, the Australian Competition and Consumer Commission (ACCC) released its new Merger Guidelines (New Guidelines). The New Guidelines replace the original Merger Guidelines issued by the ACCC in 1999.
Government releases consultation paper on superannuation clearing house & lost members - 14 November 2008
Today the Minister for Superannuation and Corporate Law released a two-part consultation paper entitled Superannuation Clearing House and the Lost Members Framework. The issues canvassed in the paper are far-reaching and will be relevant to employers, superannuation trustees, administrators and custodians.
UK Companies Act 2006 - October 2008 implementation
The UK Companies Act 2006 is being implemented in stages. In previous Alerts on the Act we outlined some of the provisions that came into force on 1 October 2007 and 2 April 2008. This Alert briefly describes the most significant changes coming into force on 1 October 2008.
ASIC modifies covered short selling ban - 23 September 2008
Late yesterday the Australian Securities and Investments Commission (ASIC) further modified the ban it introduced on covered short selling to extend it to managed investment schemes and stapled securities. This will be reviewed in 30 days along with the ban in relation to securities. See the ASIC explanatory statement and class order.
Australia’s National Innovation Report- Key Points for Corporate Counsel - 11 September 2008
On 9 September 2008, the Federal Government released a major report on Australia’s National Innovation System. The Report was prepared by a panel chaired by Dr Terry Cutler, which included respected economists and research industry experts. This Alert identifies the specific key recommendations and issues raised by the Report which would have a legal impact on major corporations.
Suppliers and lessors of goods beware - personal property securities reform is coming - 16 May 2008
Do you supply goods on retention of title terms? Or do you own goods that you lease to someone else? If so, proposed changes to the law of personal property securities mean that you may need to take additional steps to protect your interest in these goods. Failure to do so could result in your goods being sold out from under you.
Non-traditional Undocumented Rights Issues - ASIC Class Order - 15 May 2008
Accelerated rights issues can now be done without a disclosure document - such as a prospectus or product disclosure statement.
Collateral Benefits in Takeovers - Takeovers Panel Guidance Note released - 18 April 2008
On 15 April 2008, the Takeovers Panel released Guidance Note 21: Collateral Benefits. This follows from the Issues Paper on the same subject that the Panel released in November 2005 and the period of consultation following that paper’s release.
Equity Derivatives - Takeovers Panel Guidance Note issued - 14 April 2008
The long-awaited Equity Derivatives Guidance Note was released by the Takeovers Panel on 11 April 2008.
Regulation of Direct Offshore Foreign Insurers - Limited Exemption Arrangements - 8 April 2008
The Assistant Treasurer and Minister for Competition Policy and Consumer Affairs today announced the limited exemption arrangements for direct offshore foreign insurers.
UK Companies Act 2006 - April 2008 implementation - 2 April 2008
The UK Companies Act 2006 is being implemented in stages. In our last Alert on the Act we outlined some of the provisions that came into force on 1 October 2007. This Alert briefly describes some changes to the implementation timetable and the more significant provisions coming into force on 6 April 2008.
It may not be a bargain after all - matters to be aware of when purchasing distressed assets - 28 March 2008
Whilst the current market conditions provide a number of buying opportunities, there are considerations that must be taken into account.
Abolition of WA security duty - 25 March 2008
This is to remind you that mortgage duty will be abolished in Western Australia from 1 July 2008.
ASIC changes policy on secondary sale relief for convertible bonds - 17 March 2008
Until recently ASIC had been prepared to grant secondary sales relief in connection with most offers of convertible bonds made by Australian issuers into the offshore institutional markets, but that is about to change…
Personal property securities reform still on the agenda - 14 March 2008
The Australian Attorney-General has confirmed that the Australian Government remains committed to reforming the law on personal property securities (PPS) and that it plans to release exposure draft legislation shortly.
Corporate Governance Update - February 2008
This update reviews a number of recent developments relevant to an entity’s corporate governance practices.
Counsel Seminar: Force Majeure clauses - Key questions answered - 22 February 2008
On 20 February 2008 James Fahey provided a broad ranging presentation on force majeure clauses as part of Mallesons’ Corporate Counsel CPD program.
Oil Over Troubled Water – The Petrol Inquiry – 22 January 2008
On 18 December 2007, the ACCC publicly reported on its inquiry into the cost of petrol in Australia.
Undocumented Rights Issues and Non-traditional Rights Issues - ASIC Relief Update - 2 October 2007
The new legislative regime introduced by the Corporations Legislation Amendment (Simpler Regulatory System) Act 2007 (No 101) (Amendment) permits rights issues under the Corporations Act without formal disclosure.
China’s New Employment Promotion Law - 25 September 2007
The Standing Committee of the National People’s Congress issued the Employment Promotion Law of the People’s Republic of China (EPL) on 30 August, 2007. The EPL, which will enter into effect on 1 January, 2008, is intended to promote employment and prohibit job discrimination.
Equity Derivatives - new Takeovers Panel draft Guidance Note - 11 September 2007
The Takeovers Panel has released a draft Guidance Note on equity derivatives, which is now available for comment. The Panel has requested comments on the draft Guidance Note by 7 December 2007.
China passes Anti-Monopoly Law - 31 August 2007
The National People's Congress today finally passed China's first anti-monopoly law after over a decade of drafts and debates. The law will take effect on 1 August, 2008.
China’s highest court rules on the choice of law for foreign-related contracts - 15 August 2007
The Supreme People’s Court issued the Provisions on Several Issues regarding the Applicable Law in the Hearing of foreign-related Civil or Commercial Contract Disputes 最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定 on 23 July 2007.
ASX Corporate Governance Principles and Recommendations - 7 August 2007
On 2 August 2007 the ASX Corporate Governance Council (the Council) announced changes to its Principles of Good Governance and Best Practice Recommendations. These will now be known as the Corporate Governance Principles and Recommendations.
Corporate Governance update - 20 June 2007
This update focuses on issues concerning the remuneration arrangements for directors and officers.
Takeovers Panel releases guidance note on insider participation in control transactions - 12 June 2007
On 7 June 2007 the Panel released Guidance Note 19: Insider Participation in Control Transactions.
China regulates telemarketing of non-life insurance products - 7 June 2007
China’s insurance industry regulator, the China Insurance Regulatory Commission issued a notice on 24 April 2007 regulating the telemarketing of non-life insurance products.
Personal property security reform - Will you be affected? - 28 May 2007
In our previous Review, we outlined the current proposal to reform the law on personal property securities (PPS), including the proposal to replace the current system of registration with a single national register. In this Review, we examine which types of transactions may be affected by the PPS reform.
It's time to start thinking about personal property security reform - 9 May 2007
Reforming the law on personal property security (PPS) in Australia has been on the agenda for some time. However, the most recent proposal appears to be gaining momentum (including allocation of funding for the reform announced in last night’s budget). So it may be time to start thinking about how the proposed changes will affect your business.
China finally enacts landmark Property Rights Law - 5 April 2007
China’s top legislating body has enacted the country’s first property law. This is one of the most significant laws China has issued in the last ten years, and is as much a political event as a legal development. It is a clear attempt, by a nominally Communist government, to provide legal protection to personal wealth.
Corporate governance update - March 2007
Energy Efficiency Opportunities Act 2006 (Cth) Deadline 31 March 2007 - 22 March 2007
On 7 December 2006, the Australian Parliament passed the Tax Laws Amendment (2006 Measures No. 4) Bill 2006. Following the introduction of the Energy Efficiency Opportunities Act 2006 (Cth), corporate groups that used more than 0.5 petajoules (PJ) of energy in 2005-2006 have to register under the Act by 31 March 2007.
Sons of Gwalia: shareholders as creditors - 1 February 2007
Are misled shareholders now to be treated equally with ordinary creditors in insolvency? For the moment, the answer is yes.
New changes to Capital Gains Tax for foreign residents - 8 December 2006
On 7 December 2006, the Australian Parliament passed the Tax Laws Amendment (2006 Measures No. 4) Bill 2006. The Act amends the capital gains tax (CGT) provisions of the Income Tax Assessment Act 1997 (Cth) as they relate to foreign residents. The changes take effect from the date of Royal Assent of the Act, which is expected to be on about 15 December 2006.
ASX recommends listed trusts improve corporate governance reporting - 3 November 2006
On 24 October 2006, ASX announced its first specific review of corporate governance reporting by listed trusts. The review assessed compliance with the ASX Listing Rules and the ASX Corporate Governance Councils Good Corporate Governance Principles and Best Practice Recommendations. There are likely to be further developments, particularly concerning disclosure of director independence and remuneration.
On Board update - October 2006
A newsletter for Chairs and non-executives. In this issue, we consider: the Chemeq and Jubilee Mines decisions, in which guidance was given for compliance with continuous disclosure obligations, and significant penalties were imposed; the Vines decision on penalties for breach of duty by company executives; the Whitlam decision on indemnification for costs in defamation actions; and issues in D&O insurance.
New APRA Prudential Standards on Outsourcing - 11 October 2006
On Friday 6 October 2006, the Australian Prudential Regulation Authority (APRA) released its new prudential standards on outsourcing for authorised deposit-taking institutions (ADIs), general insurers and life companies (regulated institutions). ADIs must comply with the new prudential standards from 1 January 2007.
Corporate class actions in Australia - 15 June 2006
A comprehensive review of the increasing trend towards Australian corporate class actions.
Is there sufficient support for personal property securities law reform in Australia? - 24 April 2006
Australia has started down the path to change its personal property securities law to match USA, Canada and New Zealand. This could lead to a single national electronic scheme affecting all property other than interests in land. The Attorney-General, Philip Ruddock is driving the change. An Options Paper invites your comments by 2 June 2006.
Document destruction: Victoria introduces new criminal offence - 12 April 2006
In Victoria the Crimes (Document Destruction) Act 2006 creates a new criminal offence of destroying documents that are, or are reasonably likely to be, required as evidence in existing or potential legal proceedings. The new offence extends liability beyond the current common law. Corporations can be potentially criminally liable if a “corporate culture” existed within the organisation that encouraged or tolerated destruction of relevant documents. For a statute that imposes severe criminal penalties, the Act uses a surprising number of vague expressions.