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Australian Business Law Review
Volume 38, Number 2, April 2010
Shareholder rights in the face of corporate bankruptcy events
Cary Di Lernia
A recent Corporations and Markets Advisory Committee review of shareholder claims against insolvent companies saw an affirmation of the decision handed down by the High Court in Sons of Gwalia Ltd (admin apptd) v Margaretic  HCA 1; 231 CLR 160. The decision, which allowed shareholders to rank equally with unsecured creditors in cases of insolvency involving fraudulent or misleading conduct, flew in the face of traditional perceptions of the distinction between debt and equity and the primacy historically accorded to creditors upon insolvency. In light of the government's decision in January to ignore the Committee's advice and reverse the effect of the judgment in Sons of Gwalia, it is worth revisiting the Committee's recommendations to determine whether they were indeed well considered. To do this it is necessary to appreciate some of the history of defrauded shareholder claims, as well as the ramifications of any policy position on financial markets. This article begins with an exposition of the key issues addressed in Sons of Gwalia and the Committee's recommendations in relation to the High Court's decision before focussing on the arguments for and against parity treatment of defrauded shareholders in modern markets.
Biomedical innovation: How compulsory is competition?
There are difficulties in determining whether innovation is best served through facilitating upstream or downstream innovation, an issue that is particularly pertinent in cumulatively-structured, high technology industries. This article examines issues associated with seeking access where it is not voluntarily granted, and does so in the context of the biomedical industry. Impinging on the exclusive right to practice an invention involves complex considerations at the intersection between intellectual property and competition law. An amendment to s 133 of the Patents Act 1990 (Cth) introduced a competition ground as a basis for making application for a compulsory licence. This article examines whether the amendment will make the compulsory licensing provisions more effective, by analysing the difficulties likely to be faced in establishing a refusal to license a patent constitutes a breach of s 46 of the Trade Practices Act 1974 (Cth), and evaluating the potential efficacy of seeking a compulsory licence under the Patents Act 1990 (Cth) as opposed to the Trade Practices Act 1974 (Cth).
Australian cruise passengers travel in legal equivalent of steerage—considering the merits of a passenger liability regime for Australia
Two Australian passengers contact their travel agent on the same day. Each books a cruise of similar duration, embarking at an Australian port for a Pacific cruise, on a different cruise ship line. One contract claims to be governed by United States law, with any claim to be brought in Florida within one year, and a limit on liability of about Α$80,000 for personal injury or death claims. The second, (the lucky one), boards a ship with a contract governed by Australian law, allowing commencement in an Australian court within two years. Any legal recovery for injury or death sustained on the cruise is already fraught with complexity. But the variation between cruise ship liner's passenger contracts for voyages departing Australia can be significant. This article argues that the time has come for Australia to introduce a regime for the liability for passengers carried by sea from or to Australian ports.
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Australian Offshore Laws by Dr Michael White
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