Regulator - November 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
Regulator - October 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
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
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.
Bill introduced to amend Australia's Foreign Investment Regime - 26 August 2009
The Foreign Acquisitions and Takeovers Amendment Bill 2009 has been introduced in Federal Parliament. If passed the Bill will make significant amendments to the Foreign Acquisitions and Takeovers Act 1975 (FATA).
James Hardie: former directors banned and penalised - 20 August 2009
Seven former non-executive directors and three former senior executives of James Hardie Industries Limited have today been ordered to pay a pecuniary penalty and banned from managing a corporation (including being a company director) for their roles in the release of a misleading ASX announcement.
Regulator - 2nd edition - 14 August 2009
Chinese regulator issues new rules to regulate derivatives transactions - 10 August 2009
中文版
In a move designed to protect onshore (domestic) Chinese banks and their customers from exposure to derivative products which are perceived as being high risk, the China Banking Regulatory Commission (CBRC) has unveiled stringent new rules to further regulate the issue and use of derivative products.
Regulator - 2 July 2009
Mallesons’ Regulator Newsletter offers perspectives on current regulatory issues from the Market Regulation team.
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
China outbound investment approval process refined - 24 June 2009
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
Widening the scope of share and interest purchase plans - ASIC class order - 18 June 2009
ASIC has today announced major changes to the rules relating to share and interest purchase plans (SPPs), extending the ability of ASX-listed entities to raise capital by offering shares or interests, including stapled securities (securities), to existing members without a prospectus or product disclosure statement.
Major NSW Stamp Duty changes announced - 18 June 2009
The NSW government has announced significant changes to the stamp duties laws which will impact on financiers, borrowers, property development and the secondary market for landowning entities.
On Board May 2009
“On Board” is a periodic Mallesons publication for directors of Australian public companies and other large organisations. Our aim is to provide insights and commentary around recent developments in law and policy affecting those directors. This edition of “On Board” is devoted to commentary on the decision of the New South Wales Supreme Court in ASIC’s case against James Hardie Industries NV, James Hardie Industries Limited, and a number of former directors and executives of those companies.
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.
Government releases new laws to limit executive termination benefits - 5 May 2009
The Government has now released a draft of its new laws regulating executive termination payments. Under these new laws, termination benefits for directors and certain senior executive employees exceeding one year’s average base salary will require shareholder approval.
On Board April 2009
“On Board” is a periodic Mallesons publication for directors of Australian public companies and other large organisations. Our aim is to provide insights and commentary around recent developments in law and policy affecting those directors. This edition reviews developments over the past 18 months including: Recent cases on directors’ duties; decisions of the Takeovers Panel concerning the actions of directors of target companies; and proposals concerning executive remuneration.
Chinese regulators nearly battle ready - 30 April 2009
Predictions of a Chinese antitrust/competition law revolution appear to be well founded following new incentives to encourage whistle-blowing, unique minimum fines of one per cent of turnover, a court system increasingly prepared to accept private actions and another conditional merger control decision.
James Hardie decision puts directors’ responsibilities in the spotlight - 24 April 2009
The Australian Securities and Investments Commission (ASIC) commenced proceedings in the NSW Supreme Court against James Hardie Industries Limited (JHIL), James Hardie Industries NV (JHINV), and seven former directors and three former executives of JHIL.
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.
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.
Ingot Capital case - Implications for investment banks - 30 January 2009
The recent decision in Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [2008] NSWCA 206 provides important guidance for investment banks involved in capital raisings.
Further developments in Chinese merger control to welcome in the New Year - 9 January 2009
The Chinese Ministry of Commerce’s Anti-Monopoly Bureau (AMB) has issued a series of guidelines on the merger review framework and process, including guidelines on the information required by the AMB about transactions that must be notified to the AMB in accordance with the compulsory pre-merger notification regime under the PRC Anti-Monopoly Law (AML).
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.
Federal Court Decision: Liquidators not personally liable for GST - 15 December 2008
On 12 December, Logan J of the Federal Court handed down his decision in a GST “test case”. The case involved the sale of “new residential premises” (which attracted GST) by a liquidator that had been appointed to a company. The question was which entity is liable for the GST on the sale: the liquidator (personally) or the company?
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.
Australian Government releases guarantee scheme documents - 21 November 2008
The Australian Government (“Government”) has today published its guarantee facility under which Australian authorised deposit-taking institutions (“ADIs”) may apply to have deposit amounts over A$1 million and certain funding liabilities guaranteed by the Government. Foreign banks (“Foreign ADIs”) authorised to carry on banking business in Australia under the Banking Act 1959 may also apply to have certain deposits and funding liabilities held by Australian residents guaranteed by the Government.
Chinese merger review receives its first toast - 21 November 2008
On 18 November 2008, the Chinese Ministry of Commerce (MOFCOM) announced that it has cleared the acquisition by InBev N.V./S.A. (InBev) of Anheuser Busch Companies Inc. (A-B), the largest transaction it has yet considered under China's new Anti-Monopoly Law (AML). The parties announced that the transaction had closed shortly thereafter.
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.
ASIC bans naked and covered short sales from 22 September
The Australian Securities and Investments Commission (ASIC) banned covered short selling in the Australian market late on Sunday 21 September 2008. This followed an earlier move by ASIC on Friday 19 September 2008 to ban naked short selling and introduce reporting for covered short sales.
Mutual Recognition Agreement between the US and Australia - 29 August 2008
This week the Australian Securities and Investments Commission, the US Securities and Exchange Commission and the Australian Minister for Superannuation and Corporate Law, entered into a mutual recognition arrangement. Initially it will be limited to certain national exchanges and broker dealers who deal with institutional clients.
China's merger control laws - an event of Olympic proportions - 22 August 2008
China’s new Anti-Monopoly Law (AML), including its new merger control regime, recently came into effect. Under the new merger control regime, transactions that meet specified turnover thresholds must be notified to, and cannot be closed until they are cleared by, the Chinese merger control authority.
Greenhouse Gas Storage Bill - House of Representatives Report released - 15 August 2008
The House of Representatives Standing Committee on Primary Industries and Resources released its Final Report on the Offshore Petroleum (Greenhouse Gas Storage) Amendment Bill exposure draft (the CCS Bill). The Committee made significant recommendations in several areas, particularly in relation to the interaction between CCS and petroleum titles, and the long term liability of CCS operators.
Clear Channel litigation - specific performance of financing and merger agreements - 23 May 2008
Litigation concerning the alleged refusal of a consortium of banks to fund the proposed $21 billion leveraged buyout of Clear Channel Communications Inc (Clear Channel) by private equity firms Bain Capital and THL Partners (Bain/THL) settled last week leaving unanswered some interesting legal questions.
Greenhouse Gas Storage Bill released - 20 May 2008
After much anticipation, the long awaited exposure draft of the Offshore Petroleum (Greenhouse Gas Storage) Amendment Bill has been released for public comment. The bill is a significant step at the Federal level to set up a regulatory regime to facilitate carbon capture and storage (CCS), a major potential abatement measure to reduce the emissions of greenhouse gases.
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.
Anti money laundering changes for securities dealing - 5 May 2008
On Friday 2 May 2008, the much awaited Anti-Money Laundering and Counter-Terrorism Financing Rule relating to securities dealing was made by the Acting CEO of AUSTRAC (Securities Rule).
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.
China publishes draft filing obligations for merger control regime - 3 April 2008
In preparation for its first Anti-Monopoly Law (AML), which will take effect on 1 August of this year, the State Council of the People’s Republic of China has released draft Implementing Regulations for public consultations.
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.
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.
ACCC releases new draft merger guidelines 2008 - Safe harbours and first ports of call - 14 February 2008
On 8 February 2008, the ACCC released its Draft Merger Guidelines 2008 for public consultation. The new guidelines will replace the original Merger Guidelines issued in 2008.
The demise of AWAs? – 13 February 2008
The first phase of the Rudd Labor Government’s reform agenda began this morning with the introduction of its transitional workplace relations bill into Parliament.
Managed investment scheme issuers are now subject to anti-money laundering laws - 30 January 2008
On Thursday 31 January 2008, the Anti-Money Laundering and Counter-Terrorism Financing Regulations 2008 will take effect under the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (AML/CTF Act).
Corporate Governance Update - November 2007
When a corporation breaks the law, suffers loss or causes loss or damage to its stakeholders, the executive officers often face legal proceedings against them personally. The potential liability of these officers arises under a range of state and federal legislation, including the Corporations Act 2001.
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.
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.
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.
ASIC claims against Citigroup rejected - 29 June 2007
The Federal Court has held that the law will enable an investment bank to contract out of, or modify, any fiduciary obligations owed to a client.
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.
Wider powers proposed for the Takeovers Panel - 26 February 2007
The Australian Government proposes to expand the powers of the Takeovers Panel and simplify the procedural requirements in Panel proceedings under the Corporations Amendment (Takeovers) Bill introduced into Parliament on 14 February. The issue of disclosing cash settled equity swaps remains unresolved.
Takeovers Panel responds to increased private equity activity - 23 February 2007
On 21 February 2007 the Takeovers Panel responded to the increase in private equity transactions by releasing for public comment a draft Guidance Note and Issues Paper on insider participation in control transactions. Submissions are due by 6 April 2007. The draft Guidance Note considers when the conduct of such transactions may give rise to unacceptable circumstances.
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.
The new formal merger clearance process available for complex mergers - 23 November 2006
Last months amendments to the Trade Practices Act introduced a new option of seeking a formal clearance of a merger. Although the option offers some advantages, you will need to carefully consider when to use the new formal merger process.
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.
The Dawson Bill - Amendments to the Trade Practices Act 1974 - 20 October 2006
Long-awaited reforms to the Trade Practices Act 1974 have cleared both Houses of Parliament. New processes for merger clearances and authorisations have been created, collective bargaining and joint venture procedures have been liberalised and the ACCC's enforcement powers have been strengthened.
Key media ownership reforms passed - 18 October 2006
On 18 October 2006, the Australian Parliament passed the three key pieces of legislation that make up the Governments media reform package. The Government stated that the new regime would allow Australia to prepare for and respond to a media environment that faces dramatic change in the availability of communication platforms. The legislation will become law once Royal Assent is given (expected shortly). The media ownership changes will take effect on a date to be proclaimed some time in 2007.
Setting up business in Australia 15th Edition
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