Since 2020, the world has been plunged into uncertain times. The world economy was significantly affected by the outbreak of the coronavirus disease of 2019 (COVID-19), which rapidly evolved and was quickly declared a global pandemic. As conflict in Eastern Europe raged from the beginning of 2022, the pandemic being far from over and inflation gripping the world economy, the financial stress individuals and entities were experiencing continued to escalate. At the time Australia and India signed the Comprehensive Economic Cooperation Agreement (AI-CECA) in April 2022. The signing of this economic partnership is a major step forward for both countries. The proposed economic benefits for both nation states are estimated to be significant, and will extend across many sectors including agriculture, financial services, science and innovation. This article will examine the AI-CECA and make the case that cross-border insolvency cooperation must be an ongoing priority for both countries to ensure strong economic management, and inserted into future amendment of this agreement. Problematic though is the fact that the current approach taken by Australia and India varies greatly. This article will also examine the United Nations Commission on International Trade Law , Cross-Border Insolvency Model Law, in the context of Australia and India. Australia, India, Comprehensive Economic Cooperation Agreement, Cross-Border Insolvency, Trade Agreement
{"title":"Cross-Border Insolvency and the 2022 Australia-India Comprehensive Economic Cooperation Agreement","authors":"Robert Walters","doi":"10.54648/bula2022029","DOIUrl":"https://doi.org/10.54648/bula2022029","url":null,"abstract":"Since 2020, the world has been plunged into uncertain times. The world economy was significantly affected by the outbreak of the coronavirus disease of 2019 (COVID-19), which rapidly evolved and was quickly declared a global pandemic. As conflict in Eastern Europe raged from the beginning of 2022, the pandemic being far from over and inflation gripping the world economy, the financial stress individuals and entities were experiencing continued to escalate. At the time Australia and India signed the Comprehensive Economic Cooperation Agreement (AI-CECA) in April 2022. The signing of this economic partnership is a major step forward for both countries. The proposed economic benefits for both nation states are estimated to be significant, and will extend across many sectors including agriculture, financial services, science and innovation. This article will examine the AI-CECA and make the case that cross-border insolvency cooperation must be an ongoing priority for both countries to ensure strong economic management, and inserted into future amendment of this agreement. Problematic though is the fact that the current approach taken by Australia and India varies greatly. This article will also examine the United Nations Commission on International Trade Law , Cross-Border Insolvency Model Law, in the context of Australia and India.\u0000Australia, India, Comprehensive Economic Cooperation Agreement, Cross-Border Insolvency, Trade Agreement","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"28 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82554313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
As we are (hopefully) emerging from a period in which we have been constrained in our ability to travel (particularly internationally), a recent decision of the European Court of Justice offers some helpful guidance on the interaction between the European Union’s Data Protection legislation and the requirement for data exchange by air passengers.
{"title":"‘To Travel Hopefully Is a Better Thing than to Arrive’ David Flint","authors":"David Flint","doi":"10.54648/bula2022033","DOIUrl":"https://doi.org/10.54648/bula2022033","url":null,"abstract":"As we are (hopefully) emerging from a period in which we have been constrained in our ability to travel (particularly internationally), a recent decision of the European Court of Justice offers some helpful guidance on the interaction between the European Union’s Data Protection legislation and the requirement for data exchange by air passengers.","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"22 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83929575","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The reinsured (original insurer) would face liability by section 13A of the Insurance Act 2015 in the UK and incur the costs or expenses of investigating and defending against the insured’s valid claims, where the reinsured withholds or delays paying insurance proceeds to the insured. The reinsurer generally would not be held liable for the unreinsured contractual liability and costs unless special requirements are met. The critical points for the reinsured to recover the reimbursement of damages and expenses from the reinsurer are to confirm the reinsurer’s actual participation or intention in refusing to indemnify the original assured timeously or in defending against the insured’s valid claims by way of proving the reinsurer’s compulsion or identifying them as a joint enterprise. The follow-the-settlements clause cannot render the reinsurer liable for the unreinsured liability. It is more reasonable that the policy limits only restrict the sums reinsured but do not cap the unreinsured damages and costs. Reinsurance, contractual liability, late payment, joint enterprise, policy limits
{"title":"Reconsidering the Reinsured’s Damages and Costs for Late Payment: A Comparative Analysis Between English and American Law","authors":"Luo Li","doi":"10.54648/bula2022035","DOIUrl":"https://doi.org/10.54648/bula2022035","url":null,"abstract":"The reinsured (original insurer) would face liability by section 13A of the Insurance Act 2015 in the UK and incur the costs or expenses of investigating and defending against the insured’s valid claims, where the reinsured withholds or delays paying insurance proceeds to the insured. The reinsurer generally would not be held liable for the unreinsured contractual liability and costs unless special requirements are met. The critical points for the reinsured to recover the reimbursement of damages and expenses from the reinsurer are to confirm the reinsurer’s actual participation or intention in refusing to indemnify the original assured timeously or in defending against the insured’s valid claims by way of proving the reinsurer’s compulsion or identifying them as a joint enterprise. The follow-the-settlements clause cannot render the reinsurer liable for the unreinsured liability. It is more reasonable that the policy limits only restrict the sums reinsured but do not cap the unreinsured damages and costs.\u0000Reinsurance, contractual liability, late payment, joint enterprise, policy limits","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"273 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73376527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A relatively recent phenomenon, smart contracts have slowly revolutionized the sphere of commercial transactions through faster, cheaper and automated means, by removing layers of unnecessary negotiation. A combination of law and coding, smart contracts have the potential to redesign our understanding of the basic doctrines of contract law. This article investigates the possible link which exists between smart contracts and the theory of detrimental reliance through the application of such contracts to certain age-old landmark cases, predominantly cited in the realm of contract law. It proposes the notion that issues pertaining to negotiation and miscommunication which have been the core matter of disputes in such cases, may have been easily avoided through an application of smart contracts, which compel enforcement at every stage. In particular, this article has explored the verdict of the jury in the matter of Pennzoil v. Texaco and construed that smart contracts have a key role to play even in instances of in-principle agreements. Further, this article has explored the possibility that, like any novel invention, smart contracts are not without their flaws and has examined the criticisms put forth regarding the applicability and adoption of such contracts, in certain instances. Finally, the author has concluded that a mechanism which would combine the strengths of both smart contracts and paper-based agreements is the need of the hour, to eliminate issues of ambiguity, enforcement and to permit the determination of more subjective legal criteria, as may be contractually required. Consideration, detrimental reliance, Pennzoil v. Texaco, promissory estoppel, smart contracts
{"title":"Smart Contracts and the Theory of Detrimental Reliance: Exploring the Link","authors":"Ayesha Bhattacharya","doi":"10.54648/bula2022038","DOIUrl":"https://doi.org/10.54648/bula2022038","url":null,"abstract":"A relatively recent phenomenon, smart contracts have slowly revolutionized the sphere of commercial transactions through faster, cheaper and automated means, by removing layers of unnecessary negotiation. A combination of law and coding, smart contracts have the potential to redesign our understanding of the basic doctrines of contract law. This article investigates the possible link which exists between smart contracts and the theory of detrimental reliance through the application of such contracts to certain age-old landmark cases, predominantly cited in the realm of contract law. It proposes the notion that issues pertaining to negotiation and miscommunication which have been the core matter of disputes in such cases, may have been easily avoided through an application of smart contracts, which compel enforcement at every stage. In particular, this article has explored the verdict of the jury in the matter of Pennzoil v. Texaco and construed that smart contracts have a key role to play even in instances of in-principle agreements. Further, this article has explored the possibility that, like any novel invention, smart contracts are not without their flaws and has examined the criticisms put forth regarding the applicability and adoption of such contracts, in certain instances. Finally, the author has concluded that a mechanism which would combine the strengths of both smart contracts and paper-based agreements is the need of the hour, to eliminate issues of ambiguity, enforcement and to permit the determination of more subjective legal criteria, as may be contractually required.\u0000Consideration, detrimental reliance, Pennzoil v. Texaco, promissory estoppel, smart contracts","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"20 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75169793","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The purpose of this article is to critically examine the role played by insurance brokers in the non-life or general insurance sector in Fiji with reference to consumer protection. The article evaluates the regulatory framework enshrined under the Insurance Act 1998 (Fiji) (1998 Act) related to intermediaries in the insurance sector. The article aims to analyse and compare the position of the Act in Fiji with that in the United Kingdom and Australia. The comparative analysis reveals shortfalls in the Fijian legislation and paves the way for legislative reforms in the 1998 Act. Insurance, insurance broker, consumer protection, Fiji, UK, Australia
{"title":"The Role of an Insurance Intermediary in Fiji: A Critical Perspective of the Consumer","authors":"Pradeep Tiwari","doi":"10.54648/bula2022039","DOIUrl":"https://doi.org/10.54648/bula2022039","url":null,"abstract":"The purpose of this article is to critically examine the role played by insurance brokers in the non-life or general insurance sector in Fiji with reference to consumer protection. The article evaluates the regulatory framework enshrined under the Insurance Act 1998 (Fiji) (1998 Act) related to intermediaries in the insurance sector. The article aims to analyse and compare the position of the Act in Fiji with that in the United Kingdom and Australia. The comparative analysis reveals shortfalls in the Fijian legislation and paves the way for legislative reforms in the 1998 Act.\u0000Insurance, insurance broker, consumer protection, Fiji, UK, Australia","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"11 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88692779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recent case law in the UK courts has established the possibility for the parent companies of multinational corporations (MNCs) to hold liability in tort negligence for harms caused by their foreign-based subsidiaries. The UK’s approach – a general duty of care for cross-border torts – is noteworthy in that it has developed organically through the common law despite conflicting with established principles of company law. By comparison, European neighbours such as France, Switzerland and Germany have developed statutory regulatory regimes which utilize due diligence obligations that appear more reflective of recent international accountability standards, such as the UN Guiding Principles for Business and Human Rights (UNGPs) of the late John Ruggie. This work serves as an in-depth investigation for scholars of tort law, company law, private international law and human rights, who are interested in understanding this rapidly developing area of practice from an English perspective. This work is offered in two parts. This first part contextualizes the current law within contemporary academic discourse and offers a historically informed explanation for the conceptual underpinnings of the unique approach currently taken within English jurisprudence and their coherence with the broader principles of domestic UK company law. The second part offers an analysis of UK law as it stands including the caselaw that builds the corpus of parent company liability in England and Wales. It analyses how effective the current liabilities identified by the Courts are in securing fair remedy for corporate misfeasance. It identifies and categorizes its key features and contrasts them with comparative elements of statutory due diligence approaches adopted by France and Germany or pursued as in the case of Switzerland. It will finally consider whether they offer any concepts worthy of consideration for the regulation of parent company liabilities in future. Parent Company, Corporate Groups, English Company Law, Human Rights Due Diligence, UNGPs, Okpabi, Vedanta, Mass Torts, Supply Chain Liability, Limited Liability
{"title":"Parental Corporate Liability as Tort in the United Kingdom Part I: How the Past Informs the Challenge of Contemporary Regulation","authors":"Gregory Chilson","doi":"10.54648/bula2022036","DOIUrl":"https://doi.org/10.54648/bula2022036","url":null,"abstract":"Recent case law in the UK courts has established the possibility for the parent companies of multinational corporations (MNCs) to hold liability in tort negligence for harms caused by their foreign-based subsidiaries. The UK’s approach – a general duty of care for cross-border torts – is noteworthy in that it has developed organically through the common law despite conflicting with established principles of company law. By comparison, European neighbours such as France, Switzerland and Germany have developed statutory regulatory regimes which utilize due diligence obligations that appear more reflective of recent international accountability standards, such as the UN Guiding Principles for Business and Human Rights (UNGPs) of the late John Ruggie.\u0000This work serves as an in-depth investigation for scholars of tort law, company law, private international law and human rights, who are interested in understanding this rapidly developing area of practice from an English perspective. This work is offered in two parts. This first part contextualizes the current law within contemporary academic discourse and offers a historically informed explanation for the conceptual underpinnings of the unique approach currently taken within English jurisprudence and their coherence with the broader principles of domestic UK company law.\u0000The second part offers an analysis of UK law as it stands including the caselaw that builds the corpus of parent company liability in England and Wales. It analyses how effective the current liabilities identified by the Courts are in securing fair remedy for corporate misfeasance. It identifies and categorizes its key features and contrasts them with comparative elements of statutory due diligence approaches adopted by France and Germany or pursued as in the case of Switzerland. It will finally consider whether they offer any concepts worthy of consideration for the regulation of parent company liabilities in future.\u0000Parent Company, Corporate Groups, English Company Law, Human Rights Due Diligence, UNGPs, Okpabi, Vedanta, Mass Torts, Supply Chain Liability, Limited Liability","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"35 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81339626","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Construction joint ventures are amongst the most common instances of open joint ventures. In 2018, the International Chamber of Commerce (ICC) published a model open joint ventures contract for construction projects to provide businesses with a balanced form of the agreement, enabling them to work together as joint operators. While the model contract provides a well-structured framework to regulate the relationship between the parties, the authors of this article are of the opinion that the basis for liability among joint venture members in the ICC Model Contract is dubious, if not wholly fallacious. Although much of what we say on the issue of liability of joint venture members in this article can equally be applied to all types of open joint venture agreements, or even close joint venture contracts, our main focus in this article is to scrutinize and criticize the proposed liability clause in the ICC Model Contract.
{"title":"Dubious Allocation of Liability in the ICC Model Joint Venture Contract","authors":"Shahab Jafari, Elahe Jahangard","doi":"10.54648/bula2022031","DOIUrl":"https://doi.org/10.54648/bula2022031","url":null,"abstract":"Construction joint ventures are amongst the most common instances of open joint ventures. In 2018, the International Chamber of Commerce (ICC) published a model open joint ventures contract for construction projects to provide businesses with a balanced form of the agreement, enabling them to work together as joint operators. While the model contract provides a well-structured framework to regulate the relationship between the parties, the authors of this article are of the opinion that the basis for liability among joint venture members in the ICC Model Contract is dubious, if not wholly fallacious. Although much of what we say on the issue of liability of joint venture members in this article can equally be applied to all types of open joint venture agreements, or even close joint venture contracts, our main focus in this article is to scrutinize and criticize the proposed liability clause in the ICC Model Contract.","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"31 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82456597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-30DOI: 10.24886/blr.2022.09.36.3.191
Nog-Young Sung
{"title":"A Study on the Subject of Application of the Commercial Act Regulations under the Regulatory Sandbox Act - Focusing on Cases the Special Regulatory Free Zone Act -","authors":"Nog-Young Sung","doi":"10.24886/blr.2022.09.36.3.191","DOIUrl":"https://doi.org/10.24886/blr.2022.09.36.3.191","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"60 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74341969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-30DOI: 10.24886/blr.2022.09.36.3.139
Sung-Nam Lee, Young-Kwan Ko
{"title":"Research on the Material Facts to be Disclosed in Insurance Contract","authors":"Sung-Nam Lee, Young-Kwan Ko","doi":"10.24886/blr.2022.09.36.3.139","DOIUrl":"https://doi.org/10.24886/blr.2022.09.36.3.139","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"82 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76110621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-30DOI: 10.24886/blr.2022.09.36.3.9
Min-seop Yun
{"title":"Research for Introduction of Security Token","authors":"Min-seop Yun","doi":"10.24886/blr.2022.09.36.3.9","DOIUrl":"https://doi.org/10.24886/blr.2022.09.36.3.9","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"451 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2022-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77700495","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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