Our experienced Banking & Finance legal team regularly publishes articles and updates - the full list of publications appears below. These publications contain the latest news and developments, and look at the ramifications for your business. If you'd like to be notified when we add new banking & finance publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.
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- 04 February 2010
Focus: Important changes to Australia's foreign investment rulesThe Foreign Acquisitions and Takeovers Act 1975 (Cth) has been amended so that transactions that result in foreign investors gaining, whether now or in the future, influence or control over an Australian company are now subject to Australia's foreign investment rules. In addition, there have been several other developments in foreign investment regulation, as Partners Alex Ding and Phillip Cornwell and Lawyer Tim Cardiff report
- 13 January 2010
Focus: Asia Finance - When a little bit of knowledge can be dangerous - the 'indoor management rule'The long-established common law 'indoor management rule' protects outsiders in their dealings with companies and allows them to assume that a company's internal management requirements have been complied with. A recent Hong Kong Court of Final Appeal decision has examined the circumstances in which a lender would be put on notice of possible internal procedural irregularities in the borrower's approval process, thereby limiting the lender's ability to rely on the indoor management rule. Partner Matthew Barnard and Senior Associate Justin Chin report
- 11 January 2010
Focus: The new Australian Consumer Law and funds managementPartner Susan Burns and Lawyer David Marcus consider how the proposed Australian Consumer Law will affect managed fund products.
- 18 November 2009
Client Update: AIRC removes exemption clause in Clerks and Banking Modern AwardsOn 16 November 2009, the Australian Industrial Relations Commission varied the Clerks - Private Sector Award 2010 and the Banking, Finance and Insurance Award 2010 by removing the exemption provision from each Award, and replacing it with an annualised salary clause. Senior Associate Veronica Siow and Law Graduate Sarah Hampton report.
- 16 November 2009
Focus: Payments under letters of credit open to attackThe cases considered below are a reminder of the risk that payments secured under a letter of credit may be set aside as an unfair preference in certain circumstances. Direct pay letters of credit have been used to mitigate this risk but recent case law suggests that payments under these may be open to attack. Partner Phillip Cornwell and Lawyer Maya Greenberg report.
- 02 November 2009
Client Update: Government moves to amend unfair contract terms legislationThe Federal Government has tabled in the Senate material changes to the regulation of unfair contract terms in consumer contracts. Partner Catherine Parr reports
- 02 November 2009
Focus: Privacy law and credit reportingThe Australian Government has released the first stage of its response to the Australian Law Reform Commission's report on privacy law. Partner Catherine Parr, Special Counsel Karin Clark and Lawyer Nicholas Tobias report on the credit reporting implications of the proposed reforms
- 30 October 2009
Focus: Mortgagee loses priority to guarantor - drafting of guarantees not wide enough to help itIn a recent case, the High Court of Australia examined the subrogation rights of guarantors, and applied them to the disadvantage of mortgagees. In this Focus, Partner Diccon Loxton analyses the principles in the case. In a separate Focus, he will look at the drafting of guarantees in the light of the decision
- 30 October 2009
Focus: Drafting of guarantees after the Bofinger case - some thoughtsPartner Diccon Loxton looks at the drafting of guarantees in the light of the recent High Court decision concerning guarantors' subrogation rights
- 21 October 2009
Focus: Lehman, Metavante and ISDAs: shutting stable doors after counterparties have bolted?In Australia and other jurisdictions, the 'flawed asset' aspect of the ISDA Master Agreement is a powerful weapon in the hands of parties dealing with insolvent counterparties. However, the recent US case of Lehman Brothers and Metavante has weakened it in the US context. Partners Diccon Loxton and Tom Highnam and graduate trainee Tom Gibson analyse the decision and its likely effects on existing swap agreements
- 19 October 2009
Client Update: Octaviar, round 3 - the saga continues. What should we do now?As we reported last week, in the ongoing Octaviar matter an application was lodged with the High Court on Thursday 15 October 2009 for special leave to appeal against the decision of the Queensland Court of Appeal, which had overturned the unsettling first instance judgment. In this Client Update, Partners Diccon Loxton and Andrew Boxall discuss the implications and suggest ways forward pending the High Court decision. As with some of our previous communications on this matter, this Client Update has been prepared jointly by us and Mallesons Stephen Jaques in consultation with John Sheahan SC
- 16 October 2009
Client Update: Octaviar 3 - Just when you thought it it was safe to get back into the waterAn application has been lodged this morning with the High Court of Australia for special leave to appeal from the decision of the Queensland Court of Appeal in the Octaviar case, discussed in our Client Update: Octaviar - was it all just a bad dream? Partners Diccon Loxton and Andrew Boxall report
- 21 September 2009
Client Update: Octaviar - was it all just a bad dream?The Octaviar decision has been overturned by the Queensland Court of Appeal. But this does not yet mean that life necessarily returns to the way it was. For a start, there is the possibility of appeal. In any event, the 'genie is out of the bottle': parties who want to attack charges will be looking closely at the registration provisions of the Corporations Act and the drafting and registration of charges and variations, and at least one remark in the appeal judgment may leave some uncertainty. Thus, parties taking security will need to remain alert, though not alarmed. For now, pending resolution of any further appeal, little should change in terms of documentation and practice, though some parties in some transactions may choose to proceed more slowly in addressing concerns. In this Client Update, we discuss the elements of the appeal court's decision, and what the decision means for Australian banking and finance market practice.
- 14 September 2009
Focus: The Bell Group litigation: liquidator seeks directionsPartner Michael Quinlan and Lawyer Peter Kim discuss the latest decision relating to the Bell litigation. In this decision, the Supreme Court of Western Australia considered the liquidator's application for directions under section 479(3) of the Corporations Act 2001 (Cth) about a proposed course of action in the liquidation
- 09 September 2009
Client Update: Credit regulation and unfair contract termsThe Senate Economics Legislation Committee has delivered its reports on new legislation that will introduce unfair contract terms provisions, and the National Consumer Credit Protection Package. Partner Catherine Parr and Senior Associate Cameron Ball summarise some key recommendations from these reports and comment on some key practical issues raised by the draft National Consumer Credit Protection Regulations
- 01 September 2009
Focus: Mistakes and misdeeds: Setting aside the Octaviar DOCAsThe Queensland Supreme Court recently set aside two deeds of company arrangement because they were not in the best interests of the company's creditors, and because misleading and incomplete information had been provided to the creditors at the time they voted on whether to approve the two deeds. Senior Associate Christopher Prestwich and Lawyer Ruth Greenwood report
- 01 September 2009
Focus: Personal property security reformA Senate Committee has released its report on the Personal Property Securities Bill 2009 that will significantly alter financial and commercial law and procedures in Australia. Partners Diccon Loxton and Catherine Parr report
- 27 August 2009
Focus: Australian foreign investment rules to catch convertible notesAs foreshadowed by the Treasurer in his announcement of 12 February 2009, the Federal Government has introduced into the House of Representatives a Bill to amend the Foreign Acquisitions and Takeovers Act 1975 (Cth) as it applies to the acquisition of shares or voting power in Australian companies by foreign investors. Partners Alex Ding and Phillip Cornwell and Lawyer Tim Cardiff report on the key features of the amendments.
- 20 August 2009
Focus: Asia Finance - Vietnamese companies may issue international bondsThe Vietnamese Government has issued the long-awaited Decree 53/2009/ND-CP on Issuance of International Bonds , which will, for the first time, allow Vietnamese companies to issue foreign currency denominated bonds in the international market. Partner Thomas Miller and Lawyer Minh Duong report
- 08 July 2009
Focus: Infrastructure Australia releases jurisdiction-specific guidanceInfrastructure Australia has recently released the final volume of its National PPP Detailed Guidance Material, setting out jurisdiction-specific requirements and departures from the National PPP Guidelines. Partner Ren Niemann and Senior Associate Nicholas Ng report
- 01 July 2009
Focus: National Consumer Credit Protection Reform Package introducedThe core legislation for the National Consumer Credit Reform Package was introduced into Federal Parliament last week. Partner Catherine Parr and Senior Associate Cameron Ball report
- 29 June 2009
Focus: Bill for Commonwealth regulation of unfair contract terms introducedAnother step in the establishment of a uniform national consumer law was taken on Wednesday with the introduction into Parliament of the Trade Practices Amendment (Australian Consumer Law) Bill 2009. The Bill will introduce a single national consumer law (to be known as the Australian Consumer Law), which includes provisions regulating unfair contract terms. Partner Catherine Parr reports on the implications of the Bill for financial service providers and provides an update on new guidance on unfair terms in consumer credit contracts in Victoria.
- 26 June 2009
Client Update: Personal property securities reformAmong a blizzard of significant new legislation, the Federal Government has introduced into Parliament the Personal Property Securities Bill 2009.Implementation may be delayed until 2011 rather than the original 2010, but its effects are so extensive you will need to start considering it now. Partners Diccon Loxton and Catherine Parr look at the new legislation
- 22 June 2009
Client Update: NSW toughens mortgage duty provisionsA Bill has been introduced into the NSW Parliament that proposes to make major changes to NSW mortgage duty, with effect from 1 July 2009. Borrowers with existing or potential security arrangements over NSW property, and who are intending to drawdown or grant security on or after 1 July 2009, should urgently review their existing or proposed arrangements. Partners Adrian Chek and Tony Sheehan report
- 11 June 2009
Client Update: Developments in Victorian and Commonwealth regulation of unfair contract termsThere have been further developments in the regulation of unfair contract terms in Victoria and by the Commonwealth. Partner Catherine Parr and Lawyer Katya Rozenblit report.
- 04 June 2009
Focus: Asia Finance - Governance of shadow directors in Hong KongThe Hong Kong Companies Ordinance imposes a number of liabilities and prohibitions on shadow directors. Banks need to be aware of what conduct, in a workout situation, could give rise to the accusation of being a shadow director of a distressed corporate borrower. Partner Matthew Barnard and Foreign Lawyer Caroline Chan report on some cases that clarify the issue
- 03 June 2009
Client Update: Victorian unfair contracts changes a realityYesterday, the Victorian Legislative Council passed the Fair Trading and Other Acts Amendment Bill 2008. The changes in the Bill will come into effect on the day after the day on which the Bill receives Royal Assent. Partner Catherine Parr reports
- 26 May 2009
Client Update: Senate committee endorses 'RuddBank'The Senate Standing Committee on Economics has tabled a report which recommends that the Senate pass the Australian Business Investment Partnership bills. Partner Nicholas Cowie and Lawyer Andrew Selim take a closer look at the committee's findings
- 21 May 2009
Focus: National licensing regime for credit providers, finance brokers and intermediariesThe proposed national regulation of consumer credit involves the introduction of a licensing regime for all credit providers, finance brokers and other intermediaries. The licensing regime will impose responsible lending requirements, extensive conduct and disclosure obligations, and substantial penalties for non-compliance. Partner Catherine Parr and Lawyer Katya Rozenblit outline the proposed regime and its potential consequences.
- 13 May 2009
Focus: Proposed changes to Consumer Credit CodeThe proposed national regulation of consumer credit involves changes to the existing Uniform Consumer Credit Code that will have important implications for lenders. Partner Catherine Parr and Senior Associate Cameron Ball look at what will change
- 12 May 2009
Focus: Draft legislation to regulate unfair contract termsThe Federal Government has released The Australian Consumer Law - Consultation on draft provisions on unfair contract terms. The draft provisions have been developed by the Federal Treasury to reflect the proposals in the Discussion Paper An Australian Consumer Law Fair markets - Confident consumers released in February 2009. Partner Catherine Parr reports
- 08 May 2009
Focus: Release of exposure draft of margin lending regulationThe Federal Government yesterday released the exposure draft of the Corporations Legislation Amendment (Financial Services Modernisation) Bill 2009 and requires feedback on its proposed reforms within three weeks. This follows the announcement in January 2009 that the Government was commencing consultation with industry about its proposed margin lending reforms. Partner Warwick Painter and Senior Associate Justine Woodford provide an overview of the reforms
- 01 May 2009
Client Update: Octaviar - practical solutionsOn 13 March 2009 we sent out a Focus about the Queensland Supreme Court's decision in Re Octaviar Ltd; Re Octaviar Administration Pty Ltd 2009 QSC 37, which raised issues around the registration of charges and variations to them
- 28 April 2009
Client Update: National Consumer Credit Reform packageYesterday the Federal Government released its National Consumer Credit Reform package, including the National Consumer Credit Protection Bill 2009. The proposed reforms will have significant consequences for credit providers and other participants in the credit industry. Partner Catherine Parr, and Senior Associate Cameron Ball report
- 24 April 2009
Focus: Victoria to regulate unfair contract terms in consumer credit contractsVictoria is set to extend the provisions in Part 2B of the Fair Trading Act 1999 (Vic), which prohibit the use of unfair terms in consumer contracts, to consumer credit contracts. Partner Catherine Parr and Lawyers Katya Rozenblit and James Greenwood report
- 07 April 2009
Focus: Cambodia Legal UpdateWe look at the legal regime for mergers, recent regulatory developments in the banking industry, key issues under the current mining regime and the National Social Security Fund scheme
- 01 April 2009
Focus: Asia Finance - Vietnamese interest rate developmentsConsumer finance companies and banks in Vietnam have recently had some reason to rejoice, thanks to a joint effort by the State Bank of Vietnam and the Vietnamese Government to stimulate consumption, lending and investment activity. Partner Thomas Miller and Senior Associate David Hinchey report
- 18 March 2009
Focus: Proposal to allow remote participation in futures marketsThe Hong Kong Securities and Futures Commission has proposed to amend the definition of 'dealing in futures contracts' in the Securities and Futures Ordinance in order to assist overseas market players to participate in regulated Hong Kong futures markets. Partner Matthew Barnard and Lawyer Angeline Wong report
- 13 March 2009
Focus: Asia Finance - M&A loans in ChinaIn order to help sustain China's economic growth through the global financial crisis, the China Banking Regulatory Commission has for the first time permitted commercial banks to extend loans financing mergers and acquisitions. Partner Seamus Cornelius, Senior Associate Troy Zhang and Consultant Wen Zhang report
- 13 March 2009
Focus: Variation of registered charges and the Octaviar decisionA recent decision of the Queensland Supreme Court may have serious consequences for many existing secured financing arrangements. Partner Andrew Boxall and Senior Associate Nicholas Adkins report that it might also force a change in market practice for notification to ASIC of variations in liabilities secured by registered charges
- 06 March 2009
Focus: Asia Finance - Singapore's new money lending law comes into effectSingapore's new money lending legislation will give greater certainty to corporates, offshore non-licensed lenders and funds. In the latest in our series of articles in the Focus: Asia Finance series, Partners Robert Clarke and Robert Fish and Lawyer Jonathan Teo report on the significance of the Moneylenders Act 2008, which this week came into effect
- 04 March 2009
Focus: Asia Finance - Taking security in Hong Kong - Companies Ordinance rewriteA comprehensive review and rewrite of the Companies Ordinance was launched in mid-2006. Three stages of public consultations were sought and consultation conclusions have now been released. Among them, are proposed changes to the laws in relation to the registration of charges. Partner Matthew Barnard and Lawyer Lucia Chan look at the present regime and the proposed changes
- 25 February 2009
Focus: 'Reasonable grounds' in suspicious matter reporting - the UK perspectiveIn a recent decision, the High Court of England and Wales discussed the requirement to report suspicious matters under the UK Proceeds of Crime Act. The court rejected the argument that a suspicious matter report must be based on 'reasonable grounds'. However such a requirement does exist in Australia and Partners Peter Jones and Matthew McLennan look at some of the issues that arise from such a requirement in light of the court's comments and guidance from the Australian Transaction Reports and Analysis Centre
- 18 February 2009
Focus: National regulation of unfair contract terms in consumer credit contractsThe Federal Government has released a discussion paper, An Australian Consumer Law Fair markets - Confident consumers, indicating its preference to introduce national and state legislation to, among other things, extend to consumer credit contracts provisions similar to those in Part 2B of the Fair Trading Act 1999 (Vic) that prohibit the use of unfair terms in consumer contracts. Partners Catherine Parr and Peter Jones report
- 03 February 2009
Focus: Asia Finance - New lending opportunities in CambodiaThis is the first of a regular series of Focus articles dealing with banking and finance issues in Asia. This edition looks at a recent milestone in the development of the legal framework for secured lending in Cambodia, the introduction of the Law on Secured Transactions. While a number of major challenges to commercial financing transactions in Cambodia remain, the establishment of a clear legal framework for secured lending is a key step in developing the financial sector
- 20 January 2009
Focus: Asia - Real EstateIn the current climate of financial instability, it is timely to consider issues arising from the insolvency of real estate fund managers (or 'sponsors') and how such an insolvency can affect a fund and its investors. Partners Tim Manefield and Robert Clarke and Senior Associate Charlie Harrison look at this issue in an Asian context
- 19 January 2009
Client Update: Capital MarketsFollowing consultation with industry during 2008 about whether margin lending should be subject to more formal regulation as a financial product, the Federal Government yesterday announced that it is now proceeding with plans to implement such regulation. Partner Warwick Painter and Senior Associate Justine Woodford provide details of the latest developments
- 14 January 2009
Client Update: Asia - Banking & FinanceAfter close to two years of deliberation, the Ministry of Finance has issued a new decision to regulate the activities of foreign investors in Vietnam.
- 22 December 2008
Client Update: InfrastructureInfrastructure Australia has released its interim report listing 94 potential projects across the country as candidates for the National Infrastructure Priority List. As Partner Ren Niemann and Lawyer Nicholas Ng write, the report released to the Council of Australian Governments last Friday also details how Infrastructure Australia will review the candidate projects to determine the final list of projects
- 17 December 2008
Client Update: TaxSince 2001, Australia has renegotiated its double tax treaties with some of its major trading partners. In mostcases, the revised treaty contains an exemption from interest withholding tax that would otherwise be payable by an Australian borrower where the interest is derived by a financial institution (as defined in the treaty) resident in the country with which Australia has the relevant double tax treaty, or by the government or central bank of that country. Senior Associate Thomas McAuliffe and Partner Charles Armitage review the current state of play
