University of Melbourne Law School Legal Studies Research Paper Series最新文献

{"title":"An Analysis of ESG Shareholder Resolutions in Australia","authors":"Lloyd Freeburn, I. Ramsay","doi":"10.53637/aznf5816","DOIUrl":"https://doi.org/10.53637/aznf5816","url":null,"abstract":"This article analyses the recent significant increase in number, prominence and impact of shareholder resolutions focused on environmental, social and governance (‘ESG’) issues in Australia. The analysis is placed in the context of the legal framework for shareholder resolutions and uses two sources of data: information about shareholder ESG resolutions in listed companies between 2002 and 2019, and interviews with representatives of resolution proponents, institutional shareholders, company directors, governance professionals, and the Australian Securities and Investments Commission. It finds a significant increase in the last three years in ESG shareholder resolutions, particularly climate change resolutions, concentrated in a small number of filers, companies and industries. Against a background of modest average levels of support for shareholder ESG resolutions, examples of companies which have recorded high levels of support are notable. Shareholder ESG resolutions are generally recognised as a valuable corporate stakeholder engagement mechanism, producing positive change in some companies.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129329348","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}

{"title":"Insolvent Trading, Charitable Companies and COVID-19","authors":"R. Langford","doi":"10.2139/ssrn.3612514","DOIUrl":"https://doi.org/10.2139/ssrn.3612514","url":null,"abstract":"In light of the challenges caused by by COVID-19 for all companies, this article analyses the interaction between temporary insolvent trading relief and directors' duties, with particular focus on directors of Australian charitable companies.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125351874","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}

{"title":"Green Bonds: Legal and Policy Issues","authors":"Lloyd Freeburn, I. Ramsay","doi":"10.1093/cmlj/kmaa018","DOIUrl":"https://doi.org/10.1093/cmlj/kmaa018","url":null,"abstract":"The market for green bonds has grown rapidly in recent years. This has resulted in increased attention on legal and policy issues associated with green bonds. These issues are the focus of this article. The article first describes key aspects of the green bond market including the nature and role of green bonds. It then discusses the main features of green bonds and the green bond market, including their benefits, cost and the role of green bond standards. The final section of the article examines selected issues, including various aspects relating to ‘greenwashing’ – the practice of falsely attributing environmentally positive credentials to a bond claimed to be ‘green’. Other issues discussed include pressures to relax green bond standards arising from demand for green bonds outstripping supply, and the position applying in cases of ‘green defaults’ – where the green promises made in relation to a bond are not fulfilled.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115372017","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}

{"title":"Consumer-citizens and Competition Policy in the Era of Supermarketisation","authors":"J. Dixon, Caron Beaton-Wells, Jo Paul-Taylor","doi":"10.2139/ssrn.3550935","DOIUrl":"https://doi.org/10.2139/ssrn.3550935","url":null,"abstract":"There is a burgeoning body of consumer scholarship that identifies a consumer-citizen identity, reconstructing the consumer as a social and political actor and not just an economic actor. In food systems dominated by supermarkets, some hail the coming of the consumer-citizen as an antidote to the power of large retailers. Drawing on an empirical study of the Australian grocery sector, this paper interrogates the claim that consumer-citizenry will fulfil this promise. It emphasises the need for tempering any optimism in this regard, taking account of the impact of socio-economic constraints facing most consumers, and for which the supermarkets must be held in part responsible. The paper explores the role of government in supporting citizen-inspired consumer concerns and argues that the prevailing adherence to a neo-liberal paradigm of managing markets explains why thus far the state has failed in providing this support. Using a focus on competition regulation, the paper concludes that market-related policies need to be sensitive to the social effects of concentration, on inequality in particular, and that in the face of substantial private economic power, faith in self-regulation and self-correcting markets is misplaced.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122178571","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}

{"title":"The Transfer-Pricing Profit-Split Method After BEPS: Back to the Future","authors":"Michael Kobetsky","doi":"10.32721/ctj.2019.67.4.sym.kobetsky","DOIUrl":"https://doi.org/10.32721/ctj.2019.67.4.sym.kobetsky","url":null,"abstract":"In 2018, the Organisation for Economic Co-operation and Development/Group of Twenty (OECD/G20) Inclusive Framework on base erosion and profit shifting (BEPS): action 10 issued revised guidance on the transactional profit-split method. Regrettably, the revised guidance failed to provide the opportunity for the profit-split method to be more often the most appropriate transfer-pricing method. The revised guidance expressly states that the lack of comparable uncontrolled transactions, by itself, is not a basis for the use of the profit-split method. Under the former guidance, the profit-split method was used infrequently. In the revised guidance, the threshold requirements for the use of the profit-split method are still restrictive. Consequently, it is likely that the profit-split method will rarely be the most appropriate transfer-pricing method. Nevertheless, the residual profit-split method is being considered for BEPS action 1, on the taxation of the digital economy. Two of the proposals under pillar 1 of the Inclusive Framework's 2019 short policy note involve the use of the residual profit-split method to allocate profits. These proposals involve new profit allocation rules that go beyond the arm's-length principle.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"2004 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125804587","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}

{"title":"Varieties of Damages for Breach of Privacy","authors":"Jason N. E. Varuhas","doi":"10.2139/ssrn.3167091","DOIUrl":"https://doi.org/10.2139/ssrn.3167091","url":null,"abstract":"This paper offers a comprehensive account of the law of damages within the action for misuse of private information in English law. The paper interrogates which types of damages are and ought to be available for breach of privacy, and the legal rules and principles governing each form of damages including the approach to quantification. In examining the law of damages the paper considers the nature of the emergent privacy action, arguing that it has shed its equitable origins in breach of confidence and now closely resembles 'vindicatory' actions such as false imprisonment, battery and trespass to land. In turn the remedial approach for breach of privacy increasingly follows that adopted within these torts. The paper first considers compensatory damages, arguing that a 'vindicatory' model ought to characterise the approach to compensatory damages, and is the prevailing approach in English law following the High Court and Court of Appeal's important decisions in Gulati v MGN Ltd. According to this approach, damages are available for the wrongful invasion of privacy in itself, irrespective of the suffering of material loss. In addition consequential losses are recoverable, including distress, recognised psychiatric illness and financial loss. Damages are available as of right and are not to be analogised with awards of 'just satisfaction' made by the European Court of Human Rights. The paper then examines non-compensatory damages. The courts are yet to authoritatively determine the availability of such damages for breach of privacy, and the principles governing their award. The paper argues that exemplary damages ought to be available, but quantum should not be so high as to constitute disproportionate interference with free expression. An account of profits should not be available. But if such remedy were to be recognised it ought to be awarded only exceptionally and the criteria for granting an account should follow the normative concerns that underpin the privacy action. Reasonable fee or user damages are one means of measuring loss in property torts; they are not restitutionary. They ought not to be available for breach of privacy as it would be inapt to treat dignitary interests as if they were interests in tradeable commodities. The novel head of 'vindicatory' damages, recognised in a series of Privy Council appeals, should not be available as they would add nothing to existing remedies. Lastly, the paper considers damages in lieu of an injunction, arguing that these damages compensate for the loss of a legal liberty to enforce primary rights; they are not restitutionary. Such damages ought very rarely to be awarded in the place of an injunction in a case of ongoing, unjustified invasion of privacy.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125507679","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}

{"title":"Trends and Developments in Chinese Insolvency Law: The First Decade of the PRC Enterprise Bankruptcy Law","authors":"Stacey Steele, Andrew Godwin, Chun Jin, Changyin Han, Yimin Ren, Weihong Chi","doi":"10.2139/ssrn.3049685","DOIUrl":"https://doi.org/10.2139/ssrn.3049685","url":null,"abstract":"Insolvency law in the People’s Republic of China (PRC) has gained increased prominence in the last five years in light of changing economic circumstances and government policies. This Article analyzes trends and developments in Chinese insolvency law since the enactment of the PRC Enterprise Bankruptcy Law in 2007, focusing on the dynamic transformation of insolvency practice, jurisprudence, and the profession over the last five years. It also draws on examples from Japan to highlight that China is not alone in relation to a number of contemporary debates and developments in insolvency law. Moreover, the Article brings together academic, judicial, and practitioner perspectives to examine key contemporary issues in China, including the influence of Chinese courts; the treatment of secured creditors; the professionalization, appointment, and remuneration of insolvency practitioners; and reorganizations of listed companies, unlisted real estate companies, and unlisted foreign investment enterprises. The Article also emphasizes the different rates of development in more sophisticated economic regions, such as Shenzhen City and Zhejiang Province, from which recent data and case studies are drawn. Finally, the Article analyzes China’s approach to cross-border insolvencies. Whilst challenges remain, the Article evidences China’s indigenous and increasingly sophisticated insolvency framework and highlights future innovations including publication of insolvency-related information and the potential for a personal insolvency regime.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129523664","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}

{"title":"Australia's Carbon Pricing Mechanism","authors":"Lisa Caripis, J. Peel, L. Godden, R. Keenan","doi":"10.3233/CL-2011-052","DOIUrl":"https://doi.org/10.3233/CL-2011-052","url":null,"abstract":"The commencement of the carbon pricing mechanism (CPM) on 1 July 2012 marks a significant milestone in Australia’s legal and policy response to climate change. Negotiated as part of a suite of measures forming the Clean Energy Package, the CPM represents an important achievement for Australia, which has up until this point struggled to implement comprehensive national climate change policy. After an initial fixed price period, the CPM will transition to fully flexible cap-and-trade emissions trading scheme on 1 July 2015, bringing it into line with other jurisdictions around the world. This note outlines five key features of the CPM: (1) the institutions and governance arrangements; (2) the price containment measures; (3) the scope for inclusion of offset credits; (4) the possibility for linking with other emissions trading schemes; and (5) the compensation arrangements for emissions-intensive industries. The article comments on how these design features affect Australia’s ability to contribute effectively to global emissions reduction efforts through the CPM.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128425673","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}

{"title":"Maximising Permissible Exceptions to Intellectual Property Rights","authors":"A. Christie","doi":"10.4337/9780857931542.00015","DOIUrl":"https://doi.org/10.4337/9780857931542.00015","url":null,"abstract":"Much attention has been paid in recent times by academics and policy-makers to the issue of exceptions to IP rights, and in particular to the issue of the extent to which the ‘three-step test’ in international treaties restrict the ability of national legislatures to introduce new exceptions to IP rights. Unfortunately, much of the published discussion on this topic suffers from a failure to properly conceptualize the nature of exceptions to IP rights. This chapter seeks to remedy some of these failures. In particular, it seeks to provide a reasoned conceptualization of the nature of exceptions and limitations. Then, building on that conceptualization, this chapter offers an insight into how, in a practical manner, a national legislature can maximize the scope of permissible activities in respect of IP rights while remaining compliant with the three-step test.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129924678","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}

{"title":"Submission to the 2011 Australian Inquiry into Tobacco Plain Packaging by the House Committee on Health and Ageing","authors":"A. Mitchell, Tania Voon","doi":"10.2139/SSRN.2151773","DOIUrl":"https://doi.org/10.2139/SSRN.2151773","url":null,"abstract":"This is a submission made in 2011 to the Inquiry into Tobacco Plain Packaging conducted by the Standing Committee on Health and Ageing of the Australian House of Representatives. The submission addresses the implications of the law of the World Trade Organization for the Tobacco Plain Packaging Bill 2011 (Cth) as introduced into the House of Representatives on 6 July 2011.","PeriodicalId":368661,"journal":{"name":"University of Melbourne Law School Legal Studies Research Paper Series","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133413089","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}