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In a recent case, the Federal Court of Australia considered the validity of shareholder proxy forms that are forwarded via an intermediary to the company holding the general meeting. Justice McKerracher found that, although there is no express requirement under the Corporations Act, for practical reasons, proxy forms should be returned directly to the company holding the general meeting, rather than via an intermediate party

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The Australian Securities & Investments Commission has just updated its regulatory guide on 'no-action letters'. This is the first major update of the policy since its release in 1996 and although it does not signal a significant shift in policy, it clarifies ASIC's approach in determining whether to issue a no-action letter and it also addresses the issue of 'class' no-action letters. Partner Matthew McLennan and Senior Associate Stephanie Wee look at Regulatory Guide 108 and what it means

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The Parliamentary Joint Committee on Corporations and Financial Services has inquired into the engagement and participation of shareholders in the corporate governance of companies in its report titled Better Shareholders - Better Company: Shareholder Engagement and Participation in Australia. Partner David Robb and Lawyer Jessica Choong report

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The Singapore Exchange has warned directors and financial advisers of listed companies to pay particular attention to the interests of shareholders when assessing the commercial terms of acquisitions supported by profit guarantees. Partners Robert Clarke and Stefanie Yuen Thio, Senior Associate Ian Stewart and Lawyer Jonathan Teo report on the use of profit guarantees and the recommendations of the Singapore Exchange

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The Federal Court has again flagged difficulties associated with claims for privilege over communications between in-house lawyers and their internal clients. Partner Paul Nicols and Senior Associate Richard Harris report that the court has reiterated concerns about the ability of in-house lawyers to establish an 'appropriate' degree of independence to enable a claim for privilege to be made.

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In the wake of the Cole report on the United Nations' Oil-for-Food Programme, the Commonwealth Government introduced the International Trade Integrity Bill 2007, which seeks to strengthen Australia's response to breaches of UN sanctions and bribery of foreign officials by Australian companies and individuals. On 1 August 2007, the Senate Legal and Constitutional Affairs Committee released a report recommending that the Bill be passed.

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The Federal Court has rejected ASIC's charges of conflict of interest and insider trading against Citigroup. Partner Michael Schoenberg, Lawyer Alex Danne and Articled Clerk Simon Sherwood report

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Two recent releases from the Australian Securities and Investments Commission give us an insight into how the regulator attempts to respond flexibly to suspected breaches of the law. For business, however, this flexibility gives rise to what will often be a difficult choice: should the business fight ASIC or compromise and accept a 'softer' penalty? Partner Guy Foster and Senior Associate Matthew McLennan look at the two procedures

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In response to recommendations made by the Auditor-General and recent public concerns about the efficacy of certain contracts entered into by the NSW Government, the Freedom of Information Amendment (Open Government - Disclosure of Contracts) Act 2006 (NSW) came into force on 1 January 2007. The purpose of the Act is to promote greater transparency in all contractual dealings between NSW government agencies and the private sector. Partner Leighton O'Brien and Lawyer Joel Sturgeon report

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The Federal Government has recently issued three discussion papers on corporate law reform, covering the insider trading laws, the sanctions regime for Corporations Act breaches and ASIC infringement notices for continuous disclosure contraventions. Senior Associate Matthew McLennan and Partners John Warde and Richard Spurio highlight the main issues in each paper

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In this edition: Australian media and ownership law changes; The importance of being a financial product; Tax promoter penalty rules; and more ...

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Companies and their directors are unlikely to face drastic changes to the law of directors' duties to make companies more socially responsible, if (as is likely) the Federal Government accepts the latest recommendations of its Corporations and Markets Advisory Committee in its recently released report, The Social Responsibility of Corporations.

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The appeal to the High Court arising out of the Full Federal Court decision in Arms v Houghton [2006] FCAFC 46 is challenging the notion that where an employee engages in misleading or deceptive conduct in the course of their employment, the employee can in certain circumstances be held personally liable and cannot hide behind the corporate veil. Partner Steve Clifford and Articled Clerk Chris Carr discuss the Full Federal Court decision, the appeal and the possible implications of this case

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Companies typically indemnify their directors for third-party claims made against them for liability arising from the performance of their duties as directors. However, a recent New South Wales Supreme Court decision suggests that some companies may be providing a broader indemnity than they realise. Partner Dean Carrigan and Senior Associate Mark Lindfield discuss the implications

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A parliamentary inquiry into corporate responsibility in Australia, concluded in June, has attracted little attention despite several recent high-profile corporate collapses and scandals. The Corporate responsibility: Managing risk and creating value report that surfaced from the inquiry found that no major changes to the law were necessary.

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The Corporations and Markets Advisory Committee has issued its Corporate Duties Below Board Level Report. Partner Wendy Rae discusses the recommendations made in the Report

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A recent Federal Court decision may make it easier for corporate groups to continue to benefit from widely used accounting relief. Senior Associate Gadi Bloch and Lawyer Alex Brown discuss the case and its implications

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Australian companies and corporate executives must stay updated on current governmental inquiries into possible reform of corporate law to enhance corporate social responsibility and 'triple bottom line' reporting. AAR Consultant, Professor Bryan Horrigan, says they should also consider making individual or industry submissions

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A recent NSW Supreme Court decision that three former officers of GIO Insurance Limited, a subsidiary of GIO Australia Holdings Limited, breached their duties during a takeover bid by AMP Insurance Holdings Pty Ltd for GIO Australia in late 1998 further clarifies the roles and responsibilities of company executives. Lawyer Christine Swan and Partner Jon Webster report

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The extent to which corporate officers and other individuals may be held personally liable is considered in two recently released Corporations and Markets Advisory Committee discussion papers. Senior Associate Katrina Bobeff and Lawyer Christine Swan explain

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Partner Anna Lenahan and Lawyer Matti Bechler look at recent developments in the anti-money laundering area and provide an update on issues associated with the proposed reform of Australian anti-money laundering legislation

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The newly introduced Public Administration Bill 2004 (Vic) proposes a new framework for the regulation of the Victorian public sector. The Bill will not only affect the public service but also authorities and corporations with a public function. Partner Paul Kenny and Lawyer Ann Birrell look at the changes

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ASIC has recently taken a strict approach to failures to comply with the conditions of accounting relief commonly relied upon by corporate groups. Partner Greg Bosmans and Lawyer Kaelene McLennan report that ASIC's stance may mean that many corporate groups are unwittingly ineligible for the relief

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The CLERP 9 amendments to the Corporations Act take effect on 1 July 2004 and bring substantial changes to the Australian corporate reporting and disclosure landscape. Senior Associate Carl Bicego and Lawyer Tim James outline transitional provisions, provide some background to the amendments, and look at the final Bill

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Constitutions that include what is considered to be a fairly standard definition of 'transaction costs' and that have been lodged with, and accepted by, ASIC in the past are now being rejected, reports lawyer Janna Vynokur

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Partner Paul Meadows and Special Counsel Anne Ferguson review the recent Water Wheel decision in Elliott v ASIC and its impact on non-executive directors

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Corporate governance continues to be a major issue on Australia's corporate reform agenda in 2004. Partner Richard Alcock, Senior Associate Carl Bicego and paralegal Andrew Daly report on the recent CLERP 9 developments

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In two articles first published in the November edition of Company Director, the journal of the Australian Institute of Company Directors, Professor Bob Baxt looks at the proposed CLERP 9 changes and reviews some recent corporate law cases involving the ACCC

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In two articles first published in the October edition of Company Director, the journal of the Australian Institute of Company Directors, Professor Bob Baxt looks at the likely approach of the new chairman of the ACCC, Graeme Samuel, and reviews some recent corporate law cases on use of company funds, directors' duties, and other issues.

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The Federal Government's proposal to empower ASIC to issue 'on-the-spot' fines raises practical issues for listed entities. Partner Greg Bosmans and Lawyer James McConvill also report that the further CLERP 9 proposal to extend disclosure liability for individuals will create uncertainty for officers and advisers

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The recently released draft CLERP 9 Bill sets out the Government's proposed legislative response on audit reform and corporate disclosure, as well as incorporating recommendations made by Justice Owen in the HIH Royal Commission Report. As Partner Richard Alcock and Senior Associate Carl Bicego explain, the amendments will impact on the design of executive remuneration policies and their disclosure to shareholders

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Online proxy voting has been popular in the United States for the last five years and can benefit an organisation by providing timely voting outcomes and reducing costs. AAR partner Richard Alcock and Andrew Daly, Research Assistant look at the issues of Australian implementation

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The sudden decision of David Knott to stand down as chairman of ASIC has surprised everyone. The decision is not a welcome one, particularly because Knott has been a very good leader at ASIC and has shown a willingness to tackle the difficult tasks that are imposed on the organisation with great dedication and energy

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AAR Partner Bob Baxt reviews a number of recent corporate law cases, including the MIM/Xstrata decisions on schemes of arrangement and share splitting

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There is little doubt that the New South Wales Court of Appeal's decision in the recent Whitlam appeal (ASIC v Whitlam [2003] NCWCA 183) has caused more public, professional and academic reaction, than any case involving directors' duties for some considerable period of time

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Directors' insurance is becoming a much more important issue with the increasing spotlight on duties and other issues of corporate governance

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In an article on disqualifying directors we comment on the judgment of Bryson J in the One.Tel litigation and the penalty imposed on Brad Keeling (ASIC v Rich & Ors)

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The collapse of One.Tel has already spawned some spectacular cases. A civil case brought by the Australian Securities and Investments Commission (ASIC) against Rich and others will be going back to the courts to evaluate the different responsibilities of directors (the chairman of directors and non-executive directors)

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Recently the Victorian Supreme Court found that a non-executive director breached the Corporations Act, in circumstances where he was said to have turned a blind eye to the company's liquidity crisis. Partner Paul Meadows and Special Counsel Anne Ferguson analyse this decision and explain some of the lessons that non-executive directors can learn from it

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Promoting whistleblowing needs to be done carefully to avoid opening the doors to an institutionalised gossip session. Partner Professor Bob Baxt and Senior Associate Cathy Heeley outline how to implement an appropriate whistleblowing policy

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The CLERP 7 changes that will come into effect on 1 July 2003 change the way companies and managed investment schemes need to report to ASIC. Partner Paul Quinn and articled clerk Alistair Newton outline these changes

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Issues about director and executive remuneration have been raised again as a result of the recently passed Corporations Amendment (Repayment of Directors' Bonuses) Act 2003,as Partner Professor Bob Baxt and Lawyer Helen Horsington explain

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Partner Deborah Chew and Senior Associate Gerry Cawson from our Private Equity team consider some of the issues facing a director approached by a private equity investor in relation to a potential management buy-out

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The Report of the HIH Royal Commission was tabled in the Federal Parliament in April. Partner Richard Alcock and Senior Associate Carl Bicego explain that the report provides authoritative support for the one-size-does-NOT-fit-all policy foundation of the ASX Corporate Governance Council recommendations on principles of good corporate governance and best practice

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The ASX Corporate Governance Council is to be commended for creating a well-articulated and comprehensive corporate governance framework with its Corporate Governance Best Practice Recommendations. The ASX now faces the challenge of preserving flexibility in the system, as partner Richard Alcock explains

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Prescriptive laws may have been avoided but prescriptive disclosure has arrived with the release of the ASX Corporate Governance Council's Best Practice Recommendations on 31 March 2003. As John Cadell and Richard Alcock explain, listed companies should start considering these issues as soon as possible.

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Contrary to press commentary about Justice Austin's decision in the <i>ASIC v Rich </i>preliminary proceedings, the court did not hold that chairmen now have a duty to ensure that only financially competent people are appointed finance directors, that all statements to the ASX are accurate, and that a company takes reasonable steps to ensure that it maintains sufficient cash reserves to continue its existing operations. As AAR Partner Richard Alcock and Senior Associate Carl Bicego report, the court's substantive response on directors' duties is yet to be revealed.

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Effective 1 January 2003, the false market rule is in, the preliminary final report is expanded, and new rules on corporate governance will reduce much of the flexibility that the ASX has previously trumpeted would result from amendments to the Listing Rules, reports Senior Associate Carl Bicego