{"title":"The EU-US Data Privacy Framework: Doomed Like Its Predecessors?","authors":"","doi":"10.54648/bula2023024","DOIUrl":"https://doi.org/10.54648/bula2023024","url":null,"abstract":"As of 10 July 2023, the EU-US Data Privacy Framework became active 1 and allows for personal data to flow between the EU and US without the need for separate contractual arrangements (such as Standard Contractual Clauses (‘SCC’s’). However, with years of challenges and invalidation of (i) the EU-US Safe Harbor Framework and (ii) the EU-US Privacy Shield, it remains to be seen whether this new mechanism will fall foul of the same data privacy challenges as those mechanisms.\u0000Data Protection, International Data Transfers","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762246","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":"Good Faith in English Contract Law: Should the Law Retreat?","authors":"Alberto Tassoni","doi":"10.54648/bula2023020","DOIUrl":"https://doi.org/10.54648/bula2023020","url":null,"abstract":"English courts have traditionally adopted a highly restrictive approach when implying good faith terms in commercial contracts. However, a series of recent judgments has seemed to depart from this tradition. In this paper, first, I reinforce and expand upon arguments that doctrinal support for the implication of such terms is lacking. Second, I clarify why the semantic behaviour of ‘good faith’, contrary to what is typically claimed, does not amount to innocent context-sensitivity. I present a new account of what is distinctively objectionable about implying good-faith terms and also demonstrate its explanatory power. These results also inform the moral architecture of English contract law, suggesting that it should be more minimalist than it might have been thought.\u0000Good faith, Contract law, implication of terms, context-sensitivity, legal certainty.","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"161 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135761994","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":"Rethinking Directors’ Statutory Fiduciary Duties in the Commonwealth Caribbean: Should Sequana be Followed?","authors":"Akeem Lopez","doi":"10.54648/bula2023023","DOIUrl":"https://doi.org/10.54648/bula2023023","url":null,"abstract":"The scope and nature of directors’ duties has been the subject of much judicial and academic debate. In the recent BTI 2014 LLC v. Sequana SA decision, the UK Supreme Court firmly established the creditor duty in English company law. This paper proposes to examine the basis and nature of the duty including its Commonwealth origin. The focal point of this paper is to determine the question of whether such a creditor duty would be accepted as existing by courts in the Commonwealth Caribbean. In providing the answer to that question, this article makes reference to numerous Canadian cases in which the question was answered and many scholarly works which advocate against the creditor duty.\u0000Commonwealth, Commonwealth Caribbean, Directors’ Fiduciary Duty, Creditor Duty, BTI 2014 LLC v. Sequana, Companies Act","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135761999","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":"Is the Derivative Action Regime in India a Historical Relic?","authors":"Abhijnan Jha, Urvashi Misra","doi":"10.54648/bula2023022","DOIUrl":"https://doi.org/10.54648/bula2023022","url":null,"abstract":"In 1843, the Court of Chancery pronounced its landmark judgment in Foss v. Harbottle.((1843) 67 ER 189) The judgment sparked the evolution of a critical common law remedy, in the form of derivative actions, to protect a company’s interests. Soon courts in other countries, including India, adopted this approach, allowing interested parties to initiate suits on behalf of companies. Over time, most countries, including the United Kingdom, proceeded to codify derivative actions into a statutory remedy. India however continued with the common law route.\u0000Indian civil courts have been entertaining derivative actions, initiated by interested parties on a company’s behalf, for several years now. However, recently an interesting judicial trend has emerged wherein High Courts are restricting the jurisdiction to consider such actions solely to the National Company Law Tribunal (NCPL), a specialized forum established for adjudicating upon company law related matters.\u0000In this article, we discuss the reasons leading to this new trend, the position taken by the High Courts on derivative actions in three recent judgments, the shortcomings of this approach and its impact on the future of corrective actions which may be initiated by third parties on the company’s behalf in India.\u0000Big data, business secret, cybersecurity, data right, e-commerce platform, information processing, legal boundary, market competition, network platform, personal privacy","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762014","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":"Cybersecurity in Business: A Case Study of DiDi","authors":"Kai Liu, Zixuan Li, Jie Yang","doi":"10.54648/bula2023021","DOIUrl":"https://doi.org/10.54648/bula2023021","url":null,"abstract":"Big data has substantially improved the efficiency of information collection and processing (Fadhil et al., 2021). (Fadhil, S. A., Kadhim, L. E. and Abdurazaq, S. G. (2021) ‘Protection measurements of computer network information security for big data’, Journal of Discrete Mathematical Sciences and Cryptography, Vol. 24, No. 7, pages 1959–1965, doi: 10. 1080/09720529.2021.1959996). Nevertheless, the transparentizing and openization of information could also increase the risk of disclosure of personal information and business secrets, leading to various illegal and criminal activities (Lim et al., 2018). (Lim, S., Woo, J., Lee, J. and Huh, S. -Y. (2018) ‘Consumer valuation of personal information in the age of big data’, Journal of the Association for Information Science and Technology, Vol. 69, No. 1, pages 60–71, doi: 10.1002/asi.23915). This paper adopts qualitative analysis and single-case study to investigate the approaches and outcomes of network information collection. It is found that many e-commerce platforms utilize big data technologies to collect, screen and process customer information. Yet, the collected customer information might be maliciously used by others to infringe on personal privacy, result in property damage and loss, trigger unhealthy market competition, and hinder economic development (Taylor, 2017). ((Taylor, I. (2017) ‘Data collection, counterterrorism and the right to privacy’, Politics, Philosophy & Economics, Vol. 16, No. 3, pages 326–346, doi: 10.1177/ 1470594X17715249). Thus, this paper recommends that the application of big data should have a legal boundary. It needs to be strictly defined and regulated to facilitate its positive role in protecting cybersecurity and promoting fair market competition.\u0000Big data, business secret, cybersecurity, data right, e-commerce platform, information processing, legal boundary, market competition, network platform, personal privacy","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135762018","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 Regulation of NFTs: Much Ado About Nothing?","authors":"Pinar Aksoy","doi":"10.54648/bula2023016","DOIUrl":"https://doi.org/10.54648/bula2023016","url":null,"abstract":"The year 2021 was marked by the rise of NFTs (non-fungible tokens). The widespread use and sales volume of NFTs have created a wide range of legal problems regarding contract, property, capital markets, intellectual property, consumer law, and criminal and tax laws. The first step toward resolving these legal problems would be to define crypto assets and determine how they relate to NFTs. Even though most governments in the world have opted for the regulation of crypto assets, or at least are preparing to do so, NFTs fall into a grey regulatory zone. This is true for both civil law countries and common law countries. For instance, most NFT marketplaces in the world do not apply ‘know your customer’ (KYC) and anti-money laundering (AML) requirements. The taxation of NFTs is highly debated. It can even be concluded that most countries are somehow reluctant to regulate NFTs and NFT marketplaces. To understand the legal regime that will be applied to NFTs, currently, the definition of the term ‘crypto asset’ or ‘virtual asset’ is observed. Is the regulation of crypto assets fit for the unique characteristics of NFTs? Should legal systems develop a specific and unique understanding of NFTs? Or has that time not come yet?\u0000Regulation, Web 3.0, NFT, Crypto assets, Digital assets, Blockchain","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"27 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89560336","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":"Dilemma of the Interested Director in Pakistan: Lessons from English Courts’ Jurisprudence","authors":"Farqaleet Khokhar","doi":"10.54648/bula2023018","DOIUrl":"https://doi.org/10.54648/bula2023018","url":null,"abstract":"No-conflict and no-profit rules thrive in Company Law to extract the director’s undivided loyalty towards the company and oblige him to avoid conflict of interest and not to earn profit at the expense of the company and its shareholders. Disclosure of interest is required if the director steps into a situation of conflict of interest. Despite the statutory clarity, Pakistani courts’ attitude is not uniform and provides ample space for a loose or broad interpretation of the law concerning the application of these equitable rules, as the stringent application of rules satisfies the statute but the flexible application of these rules, and the categorization of disclosure of interest and exoneration of the director from breach of duty in cases of non-disclosure seem problematic and this does not sit well with the statutory requirement. Thereby setting up unhindered bridges to fill gaps between the Companies Law and Pakistani courts’ jurisprudence. The article focuses on the penumbral manners, as for the sake of completeness it compares the Pakistani legal regime with the English courts’ jurisprudence, which is more uniform and advanced, with the intent that Pakistani courts can learn the lessons from well-established English courts’ jurisprudence.\u0000Directors’ fiduciary duties, duty to avoid conflict of interest, no-conflict rule, no-profit rule, company’s best interest, director’s personal interest, interested director, disclosure of interest, nature and extent of disclosure, implied or explicit disclosure","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"4 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81165640","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":"Repaying an Unlawfully Paid Dividend","authors":"Nicholas A. Grier","doi":"10.54648/bula2023017","DOIUrl":"https://doi.org/10.54648/bula2023017","url":null,"abstract":"It is well settled that directors are jointly and severally liable for an unlawfully paid dividend, being one that is not paid out of distributable profits. Strict rules apply to the meaning of distributable profits and the authorization of the payment of a dividend. What is not so clear is when a member may retain an unlawfully paid dividend. Section 847 of the Companies Act 2006 (CA 2006) indicates that a member must repay it if he knows that it is unlawfully paid, though it is not clear what constitutes ‘knowing’ in this content, or what the position should be if a member does not immediately know if the payment is unlawful, but subsequently discovers that it is. Case law is not especially helpful in dealing with this point. It is suggested that a solution to this gap in the law may be found in the precise wording of section 847, and that a member’s liability to repay should be limited to a period of six months after payment (similar to an unfair preference).\u0000Directors, Liability, Shareholders, Dividends, Unlawful distribution","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"50 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80809491","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":"ChatGPT: Is This New AI Tool a Risk to Your Business?","authors":"Rebecca Henderson","doi":"10.54648/bula2023019","DOIUrl":"https://doi.org/10.54648/bula2023019","url":null,"abstract":"It is difficult not to have heard about and/or be intrigued by the latest version of the Artificial intelligence (AI) software, ChatGPT, which since being launched in January 2023 has quickly become one of the most popular applications used by consumers. With its impressive abilities to write about a very wide range of topics and subject matters, now over 100 million people worldwide use ChatGPT on a daily basis. However, with increased use of this tool for work purposes, does your organization need to consider some rules/regulations around employee use of ChatGPT?\u0000Artificial Intelligence, Digital Transformation, Legal regulation, Technology","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"33 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76673115","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":"A Study on the Evaluation and Future Tasks of the Amendments to the ‘Special Act on the Growth Promotion and Competitiveness Improvement of High Potential Enterprises’","authors":"Yong-Su Kwon","doi":"10.24886/blr.2023.06.37.2.9","DOIUrl":"https://doi.org/10.24886/blr.2023.06.37.2.9","url":null,"abstract":"","PeriodicalId":42005,"journal":{"name":"AUSTRALIAN BUSINESS LAW REVIEW","volume":"47 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90315586","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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