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The A.C.T.'s big new property tax

Under the ACT’s crown leasehold land system, it is only possible to build something on land if your lease says you can. To get an approval to build in excess of your lease entitlements, a tax needs to be paid to the government. That tax has always been calculated as a proportion of the difference between the value of your lease before the change, when compared to the value of your lease after the change. From 1 July 2011 the system for the imposition of that tax, once called “betterment” and more lately “change of use charge”, has been completely revamped.

The new laws intend to “codify” the value of approved changes to leasehold rights so that, in theory, any property owner can work out how much it will cost to obtain “higher and better use” rights. The changes are significant and have been accompanied by much controversy.

In this Property Reporter, we explain the lease variation charge legislation, and review its legal operation and likely implications. We conclude that the philosophy of the charge is outdated, and that a lot of the heat could be taken out of the debate if that was recognised and the basis for the charge was to be recast. We also feel that the new legislation will force the ACT Treasury to adopt a planning role, creating yet another stumbling block for development. We also conclude that the charge compares unfavourably, in terms of expense and legal rights, to the system in place “just across the border” in New South Wales.

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The A.C.T.'s big new property tax

 

Australia-China trade deal - prospects and pitfalls

In recent announcements, the Australian and Chinese Governments have suggested that they will re-energise their free trade agreement (“FTA”) negotiations. New enthusiasm for this initiative will be welcomed by traders and investors. However there is nothing to suggest that the negotiations will be any easier than before. The 15 rounds of the negotiations so far, first launched in May 2005, have underlined the difficulties of the exercise. But viewed in a positive light, the talks up to now have exposed the differences in trade policy that exist between the two countries, differences which can now be of greater focus and new bargaining. Other developments in world trade and in the bilateral relationship suggest that there is more at stake than before, adding greater impetus to the negotiations.

In this China Messenger, we take a look at what the current issues are, and what they tell us about the prospects for a successful consummation of this ambitious undertaking.

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Australia-China trade deal - prospects and pitfalls - English version
Australia-China trade deal - prospects and pitfalls - Chinese version

 

2011 - trade protection back in the spotlight

Two recent events, and another one which will soon be revealed, foretell that “dumping” and “subsidisation” will share part of the industry regulation spotlight with carbon tax policy in 2011. The first of these events was the introduction of amendments to dumping laws which will make decisions to revoke dumping measures before their five year expiry less frequent. Secondly, a private Member’s bill introduced into Parliament on the same day proposes amendments which will step up the pressure on the Government to improve and extend the scope of protection afforded to Australian industries against allegedly dumped or subsidised goods.

And, to add to this intense focus on trade protection, Australian Customs is in the midst of preparing its response to the recommendations of last year’s Productivity Commission report on Australia’s anti-dumping and countervailing system. In that report the Commission made recommendations concerning many procedural, substantive, and operational matters. Of these, the most controversial has proven to be the recommendation that the Minister should not impose duties where that would not be in the “public interest”.

In this Trade Law Bulletin we look at these proposals in more detail, and explain the implications for Australian industries, for exporters and for importers.

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2011 - trade protection back in the spotlight

 

Changes to environmental impact study requirements in the ACT

A major concern for the community and for developers alike is to identify when and where an environmental impact assessment (“EIS”) should be required for major or sensitive projects, and the procedures that must be followed by the ACT Planning and Land Authority (“ACTPLA”) and the relevant Minister in undertaking such an assessment.

Recent changes to Canberra ’s planning and development laws will:

In this Property Reporter we give a summary of the relevance of EISs to development approvals, and how the new laws will change the existing rules and procedures and impact on developers.

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Changes to environmental impact study requirements in the ACT

 

Australian governments change voltage in renewable energy tariffs, again

Commercial renewable energy operators and electricity customers have again been jolted by changes to Australian feed-in tariff (“FiT”) rates.

In September the ACT Government announced its intention to become “Australia’s Solar Capital”, and significantly expanded its existing scheme. In contrast, the New South Wales Government announced in October that it will reduce FiTs from a healthy 60c per kW to only 20c per kW. In South Australia, the Solar Feed-In Scheme tariff will be increased by ten cents, taking it up to 54 cents per kW hour.

In 2008 the idea of a Federal FiT scheme was considered by the Senate Standing Committee on Environment, Communications and the Arts which recommended the implementation of “a FiT framework that is as far as possible nationally uniform and consistent”. With that recommendation; with the current public interest and clear support for FiT schemes more generally; with evidence of the success of such schemes in encouraging the take up of green technologies; and with a minority Government in which Greens and Independents hold the balance of power, there is certainly a stronger sense that the Federal Government may intervene.

This newsletter outlines the changes and highlights the reforms which are needed… and which may be on their way.

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Australian governments change voltage in renewable energy tariffs, again

 

Export regulation – the WTO’s blind spot?

The Members who have negotiated the GATT and the WTO Agreements have to date focussed on the self-interest of their own producers to sell to customers in the territories of other Members. Not the same amount of attention has been paid to the interest of a Member in being able to buy from another Member, and the proposition that one Member’s producers should be “forced” to sell to the input users or consumers of another Member has been entirely absent.

Faced with supply problems caused by specialisation, globalisation and scarcity, what does the WTO offer by way of guidance as to what is expected of Members on export freedoms? What recourse is available to Members who demand to be able to buy what they want, when they want? The GATT 1994 and its WTO Agreements are impressive in their breadth of coverage and depth of thought. But despite the efforts that went into drafting the original GATT in the late 40s, and the seven completed trade rounds since then, measures of a Member which restrict its own exports continue to be something of a “blind spot” in world trade regulation.

In this Trade Law Bulletin, we look at this issue of growing concern in international commerce.

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Export regulation – the WTO’s blind spot?

 

Feed-in tariff jumble – a failure of leadership and a disincentive for investment

Australia currently has eight separate renewable electricity feed-in tariff schemes, one for each State and Territory. The operation of these schemes is governed by the legislation and agencies of each State and Territory, and each scheme has different benefits, structures and obligations. This diversity has resulted in uncertainty within the market and industry, which in turn has hampered long term, Australia-wide investment in the Australian renewable energy industry.

A key reason behind the success of national feed-in tariff schemes in Europe has been that they encourage long-term investment in renewable energy technologies and industries. However, in a country like Australia, with a small population, and with eight different schemes operating, and with State and Territory governments demonstrating a propensity to suddenly and dramatically change and weaken their local schemes, the outcomes of feed-in tariff schemes in Australia are far from optimal.

In this Focus on Energy and Emissions newsletter, we examine the state of Australia’s feed-in tariff jumble, and the options and challenges for a uniform national scheme. We urge the Australian government to take a leadership role on feed-in tariffs. A single national feed-in tariff scheme should be implemented across all jurisdictions. Investors will be encouraged to back renewable energy technologies and industries if there is a predictable regulatory environment in place.

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Feed-in tariff jumble - a failure of leadership and a disincentive for investment.

 

Statutory demands: an easy way to make your debtors pay?

Overdue commercial debts impede the cash flow of a company. Restricted cash flow increases interest cost, prevents due payment of your own debts, and can ultimately lead to insolvency. Many late payers are simply habitual, and will eventually meet their obligations after steadily more insistent reminders. However, where polite demands do not produce results, companies are forced to consider formal remedies.

Commercial litigation is a tool that is appropriate when there is a dispute about the amount or existence of a debt. In such a circumstance the judicial “umpire” will resolve these issues, or the parties will settle their dispute, after following the applicable legal rules and procedures. This is usually costly, risky and time-consuming.

However, in many commercial transactions there is no dispute in relation to the existence and amount of the debt. The debtor may simply fail to pay, or refuse to make payment. In such cases a statutory demand under Section 459 of the Corporations Act 2001 (C’th) (“the Act”) can be a direct and effective way to force payment.

Because of the uncertain financial outlook presently faced by many companies, this area of law recently has been of great interest to a number of our clients. Knowing when and how to use a statutory demand, and obtaining the best advice, is essential. Inappropriate use of statutory demands can cause creditors to lose even more time and money in recovery of their unpaid bills.

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Statutory demands: an easy way to make your debtors pay?

 

Artful strategy stops foreign litigant from suing in Australia

In response to the commencement of legal proceedings, defendants are usually advised by their legal advisers that they can admit and pay the claim, or defend against the claim. However those are not always the only two options. In international commercial disputes, the question of whether the claim can legitimately be pursued by a foreign plaintiff in a local court, or whether it can be permanently stayed, should always be considered.

A recent decision of the Magistrates Court of the Australian Capital Territory, that it was a “clearly inappropriate forum” to hear an art industry dispute between a UK plaintiff and an Australian defendant about the hiring of an exhibition space in London, has illuminated the rules applicable to this legal tactic, and underlined its great utility in the right circumstances.

In this Litigation Monitor, we explain the case and the surrounding law of forum non conveniens in Australia. We have found that it is not well understood, even to the extent of being overlooked when foreign litigants come knocking on the doors of domestic courts. Awareness of this law, the clever drafting of pleadings, and the proper use of court procedures, can save you time and money, and make all the difference between success and failure in your dispute.

Moulis Legal represented the Australian defendant in the dispute.

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Artful strategy stops foreign litigant from suing in Australia

 

Making sense of “copyright” in a “copycat” world

Three recent cases have intensified the attention of business and the public on the value of copyright and how it can be captured, or lost, in our increasingly interconnected electronic world. Hollywood, Telstra and that iconic Australian rock band Men At Work were all playing the copyright “game”. All lost:

What really happened to deprive them of the rights they thought they had? In this IP and Media Communiqué , we explain why the cases were decided against them, and what our governments are doing to properly balance individual rights against the mass exploitation made possible by the internet, by new technologies and by new consumer devices.

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Making sense of “copyright” in a “copycat” world

 

2010 property development in Canberra – “live, work and play” gets serious

The object of Canberra’s Territory Plan is to ensure that planning and development provide the people of the ACT with an attractive, safe and efficient environment in which to live, work and play. With growing demands on the fabric of the Territory, caused by increased population, changing demographics, reduced Commonwealth funding and higher land servicing costs, implementing that “credo” is now a serious job. After a short hiatus caused by the economic slowdown, Canberra’s investors and policy makers are in for a busy year. City planning, energy efficiency, transport, development costs, and retail and tenancy competition are all on the agenda.

The activities which are underway represent big plans for a little city. They underline the modern-day importance of the Australian Capital Territory in business and investment terms, and focus attention on how our lifestyle will be maintained and funded in the future. The days when public expenditure and government planning were directed towards the mainly symbolic significance of the National Capital are long past.

Opportunities to profit, to comment on, or to be informed about what’s going on should not be missed. In this Property Law Reporter we collect and summarise the property issues to watch out for in 2010.

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2010 property development in Canberra – “live, work and play” gets serious

 

Moulis Legal continues to be recognised amongst the world’s best trade law firms

Who’s Who Legal, in its October 2009 analysis of the world’s trade and customs lawyers, has included Daniel Moulis as one of three internationally well-regarded lawyers outside the US, Canada and Belgium. The publication, which compiles its results based on its poll of the opinions of law firm clients and trade and customs lawyers from around the world, reported that Daniel Moulis of Moulis Legal was “superb”, “experienced in dispute settlement body proceedings”, and had “been involved in many of the landmark trade law cases in Australia”.

For these and other plaudits we must pay tribute to the patronage of our long term clients, and for the instructions we have received from new clients, over the past 12 months. It has been another busy year. We have advised our foreign government clients "in the background" of their cases in the World Trade Organisation; handled cross border commercial disputes, especially between Australian and Chinese parties; argued trade rules cases before investigating authorities and courts in Brasilia, Brussels and Luxembourg; and conducted the anti-dumping and subsidy defences for foreign governments and corporations under Australia’s regulatory regime.

Moulis Legal acknowledges all of our valued clients, and we thank you for your continued interaction with us.

 

Streamlining movement of goods is the goal of draft WTO facilitation treaty

Streamlining and expediting the movement of goods across international borders through simplified, transparent customs procedures is essential to boost trade and economic growth. This is called “trade facilitation”. WTO negotiations on trade facilitation began in July 2004, on the basis of the mandate set out in the so-called “July Package”. A revised draft of the possible trade facilitation treaty - the only entirely new treaty expected to come out of the Doha Development Round – is in circulation amongst negotiating parties. Amongst other things, the draft text would improve information disclosure by customs authorities and the use of the internet; require transparent appeal procedures to be implemented; ensure that fees and charges are cost-based; allow the release of goods before final payment of duties; establish standardised risk management procedures, including the recognition of “authorised traders”; mandate a “single window” for the interaction of importers with regulatory authorities; and eliminate pre-shipment inspections. In this Trade Bulletin we outline the importance of trade facilitation, and the key issues that the new agreement will seek to address.

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Streamlining movement of goods is the goal of draft WTO facilitation treaty

 

Climate change litigation – the new cost of “going green”

Two events which took place in courts in the US and in Australia in September of this year have accelerated the prospects for expensive “climate change litigation” against carbon-emitting companies and government regulators.The significance of these cases is that they have opened a new avenue for litigants to undertake litigation against regulators and alleged perpetrators of climate change. This movement may be compared to the way that US courts began accepting litigation against tobacco companies. Australian courts followed suit, and proceedings against tobacco companies in Australia became commonplace. Massachusetts v Environmental Protection Agency has attracted a great deal of interest in the US, as it has been seen by some as a sign that the Supreme Court may be called on to decide whether climate change is “man-made” and to assign blame to parties for the affects of climate change.In this Focus on Energy and Emissions, we ask what is “climate change litigation”? Are cases like these a warning sign for carbon emitting companies and governments in Australia, or can they be ignored? We conclude that climate change litigation is likely to emerge in Australia as a new threat to the balance sheets of greenhouse gas-emitting companies, and to the public revenue of governments that do not respond to the threat of climate change in an appropriate way.

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Climate change litigation - the new cost of "going green"

 

Civilian technology with military uses – safely traverse the export minefield

In an increasingly integrated world trading environment, globalisation and the threat of terrorism have brought security concerns to the fore. New regulations dealing with everything from container inspection requirements to “trading with the enemy” restrictions are increasingly common. They range from the imposition of sanctions (like export bans) to the regulation of exports and the handling of the product that is to be exported. Most of these regulations are well-intentioned. Some create trade “tilts” between countries, bringing opportunities for some and barriers for others. Strict compliance is essential, in all cases.Products do not have to be specifically designed for a military purpose, or be inherently lethal, in order to be caught by international licensing requirements. So-called commercial dual-use goods (“dual-use goods”) are products essentially intended for commercial, or civilian, use that nonetheless could be used for military purposes. Some restrictions also extend to the export of services and information.Moulis Legal acts for a number of exporters involved in the exportation of information technology, technical equipment, and high-tech products. We have advised on the cross-border movement of products ranging from printed circuit boards to steel assemblies for ship building. The value of trade in high technology goods and the penalties for getting it wrong underline the importance of ensuring that you are aware of the issues you face and that your documents and procedures are absolutely correct.

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Civilian technology with military uses – safely traverse the export minefield

 

European Court improves "market economy status" prospects for Chinese exporters

The Court of First Instance at Luxembourg has handed down a decision that will further liberalise the treatment of Chinese exporters accused of the practice of selling products at low prices to European customers (“dumping”). In its decision handed down on 17 June 2009 in Zhejiang Xinan Chemical Industrial Group Co Ltd v Council of the European Union the Court has ruled that the participation of the State in the ownership of Chinese companies cannot be the sole reason for denying them market economy status (known as MES). The decision will give further impetus to the continuing China-EU dialogue on MES. It echoes sentiments expressed by Chinese Vice-Premier Wang Qishan at the Second China-EU High-Level Economic and Trade Dialogue held in Brussels in May of this year, where he urged the EU to “evaluate the conditions of the Chinese economy in an objective and unprejudiced manner”. Holman Fenwick Willem LLP represented Zhejiang Xinan in the proceedings, in collaboration with Moulis Legal, an Australian-based law firm which acts as the company’s international legal counsel.More information:
European Court improves "market economy status" prospects for Chinese exporters

 

Merger control, investment scrutiny and foreign investor protection

24 April 2009
Foreign investment stories have dominated media headlines in recent months. Coca-Cola’s USD2.4 billion bid for Huiyuan Juice Group, claimed to be the leading local player in the pure fruit juice market in China, was blocked by China’s Ministry of Commerce. The Australian Competition and Consumer Commission, Australia’s national competition law watchdog, has not opposed the proposed USD19.5 billion acquisition by Chinalco of share interests in Rio Tinto. China Minmetals’ AUD 2.6 billion takeover of Australia’s OZ Minerals was blocked by the Australian Treasurer, Wayne Swan, on national security grounds, while at the same time he gave conditional approval of Chinese Hunan Valin Iron and Steel Group’s proposed acquisition of a 17.55% shareholding in Fortescue Metals Group. Lastly, Australia’s Senate Standing Committee on Economics will inquire into Australian acquisitions by state-owned overseas companies and sovereign wealth funds. Our lastest China Messenger examines what these developments mean for companies operating in the Australia-China business circle, in these difficult economic times. If business plans are frustrated, are there any foreign investor protection mechanisms which could be used to seek redress?

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Merger control, investment scrutiny and foreign investor protection

 

Trade protection set for shake-up as economic think-tank enters the arena

26 March 2009
On 24 March 2009 the Assistant Treasurer, Chris Bowen, and the Home Affairs Minister, Bob Debus, jointly announced that the Government has requested the Productivity Commission, Australia's highest level economic research and advisory body, to undertake an inquiry into the "effectiveness and impact" of Australia's anti-dumping and countervailing system.

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Trade protection set for shake-up as economic think-tank enters the arena

 

Property development in Canberra under a Greens-supported Labor government

3 November 2008

The two week post-election political stalemate in Canberra has ended with the announcement that the Greens will support the Labor Party’s Jon Stanhope as Chief Minister of the ACT. The Greens have decided not to take up any Ministerial portfolios. Instead the focus of the Greens has been on establishing an agreed Agenda for Parliamentary Reform and a Policy Programme with the Labor Party, representing their vision and their demands for the future governance of the ACT.What does this union of the previous Labor incumbents, and of the new political force constituted by the Greens, mean for property development in the ACT?

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Property development in Canberra under a Greens-supported Labor government

 

Better government assistance for SME exporters on the way?  

2 October 2008
The Mortimer review of export policies and programs, entitled Winning in World Markets (“Mortimer Report”) was released on 1 September 2008. It provides an export blueprint for small to medium enterprises (“SMEs”) that are or might become exporters over the next 5 years, and makes important recommendations about how they might be supported by the government in the future. These include greater coherence and coordination of Commonwealth and State policies,  improvements to the speed of delivery of marketing grants, concessional funding “secured” on future sales, and new venture capital funded dollar-for-dollar by the public and private sectors. The Mortimer Report “picks winners”, in an industry wide sense, and identifies Australia’s best trade destinations in the coming years.

The Government has welcomed receipt of the Report, and has announced that it will provide its response to the recommendations later in the year. In our Trade Law Bulletin we provide a detailed summary of the Mortimer Report’s export blueprint.

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Better government assistance for SME exporters on the way?

 

Moulis Legal presents on procurement liberalisation at Thai Government seminar

7 August 2008

Anna Plotkin, Senior Associate, and Jane Drake-Brockman, Consultant to Moulis Legal, presented the findings of a six-month study on opportunities for government procurement liberalisation at the Amari Watergate Hotel in Bangkok on 7 August 2008. The high-level seminar was opened by Mr Suchart Thadatamrongvej, Deputy Minister of Finance. It was attended by representatives of the Department of International Trade Negotiation, the Ministry of Commerce, the Ministry of Foreign Affairs, the Thai Chamber of Commerce, the Federation of Thai Industries, and the Thailand Development Research Institute, and was moderated by the Comptroller General’s Department. Moulis Legal’s participation, in association with colleague law firm Hunton & Williams, is part of a wider project sponsored by the Thai Ministry of Finance which is investigating the challenges and opportunities for government procurement liberalisation under international agreements. The final report prepared by Hunton & Williams and Moulis Legal, taking into account discussion and views presented at the seminar, will now be completed and presented to the Thai Government.

 

GATS: death by complication? Moulis Legal presents on services trade liberalisation at CLA conference

1 August 2008

Moulis Legal lawyers Daniel Moulis, Anna Plotkin and Jun Wang participated in the interesting and topical Commercial Practice in a Global Economy conference in Sydney on 1 August 2008, hosted by the Commercial Law Association of Australia in conjunction with the Ross Parsons Centre of Commercial, Corporate and Taxation Law of the University of Sydney. In commenting on a paper presented by Dr Brett Williams on Obtaining Market Access for Australian Service Suppliers: Effective Use of the General Agreement on Trade in Services, Daniel Moulis offered the view that the “commercial presence” mode of providing services in overseas markets was the mode which deserved much closer attention, and stronger market opening efforts. He doubted the ability of the GATS to deliver the liberalisation sought by Australian companies in this regard, and suggested that advances in services access would be best approached through bilateral or regional treaties. He also proposed that “commercial presence” be treated in an investment context, rather than in a multi-stranded “services” context, and that consideration be given to the negotiation of service provider-State rights, in the same way that investor-State rights have been created in bilateral investment treaties and FTAs. This would allow private parties to arbitrate any restrictions imposed by the government agencies of Australia’s trade partners on the level of services access agreed under the treaty concerned.The conference also heard from other speakers and commentators on conducting business in China, the impact of GST and VAT on cross border transactions, and conflict of laws. The conference proceedings will be published by the Centre in due course.

 

New policy will require deeper assessment of Chinese investment proposals

29 February 2008

Australia has been a popular target for Chinese outbound investment over the last decade, especially in the mining and resources industries. The Federal Treasury’s Foreign Investment Review Board (“FIRB”), which is based in Canberra, has the role of assessing such investment proposals in the “national interest”. For the most part, FIRB has adopted a liberal attitude towards approvals, grounded in rules and policies which are well-publicised and transparent.On 17 February 2008 the newly elected Federal Treasurer, Wayne Swan, issued a new policy concerning foreign investment in Australia. The new Principles guiding consideration of foreign government related investment in Australia (“the Guideline”) will be used to screen foreign government-related investment in Australia, including investments of sovereign wealth funds. Coming as it does at the same time as the international shock surrounding Chinalco’s acquisition of 12% of Rio Tinto, the Guideline is likely to generate speculation and concern in the China-Australia business circle. Will the new policy become Australia’s “great wall” against Chinese investment?In this newsletter we revisit Australia’s foreign investment legal framework; summarise major Chinese investment projects in Australia over the last few years; explain the new foreign investment policy; and explore its implications for future Chinese investment projects in Australia.

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New policy will require deeper assessment of Chinese investment proposals

 
Refinement, not revolution, in proposed changes to subsidies code

19 February 2008

In the Draft Consolidated Chair Texts of the AD and SCM Agreements, issued by the Chairman of the Negotiating Group on Rules towards the end of last year, minor but useful changes to non-procedural aspects of the SCM Agreement have been proposed. They deal with important issues such as price regulation, determination of market price benchmarks, and subsidy calculation. As well as that, a whole new Annex on fisheries subsidies has been proposed, setting out the basic disciplines and detailing many exceptions.More recently, on 8 February 2008, the agriculture and non-agricultural market access negotiating groups circulated their latest draft “modalities”, as the basis for a consensus to be reached. Those negotiations deal with subsidy policy, and with the primacy of the Agreement on Agriculture and its interaction with the SCM Agreement. Subsidy policy is the enfant terrible of the Doha Development Round: subsidy regulation under the SCM Agreement is his comparatively docile twin brother. The degree to which the SCM Agreement might be used by WTO Members in the future, whether in the Dispute Settlement Body or in the imposition of countervailing measures against subsidising Members, will depend in large part on whether the compromises adopted in the agriculture and NAMA negotiations gain a good level of acceptance, and on the limits which emerge from new Agreements in those areas. Our Trade Law Bulletin surveys the proposed changes to the SCM Agreement.

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Refinement, not revolution, in proposed changes to subsidies code

 
When a decision is a fact: new ACT planning laws invite new litigation

14 February 2008

It can be difficult to mount a legal challenge against an administrative decision, such as a planning approval. Courts require mistakes in the exercise of a discretion to be significant, so that they can be said to amount to an error of law, before striking down a challenged decision. Mere differences of opinion, in a subjective sense, cannot be challenged.But what if a Court is of the view that the “opinion” relates to the determination of an objective fact, which is essential to the process of making the challenged decision? In such a case the Court, calling upon the “jurisdictional fact” principle, can decide for itself whether the “fact” existed or not, and thereby more closely investigate the merits of the decision, and not just whether the decision was made within the wide bounds of permissible discretion.A recent wave of “jurisdictional fact” cases, and similarities between the laws challenged in those cases and the new Planning and Development Act 2007, gives cause to consider the degree to which the ACT’s new planning approval system might be exposed to similar challenges. We find that litigants will have new rights to challenge ACT development approvals, an outcome that the legislation was designed to prevent.

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New planning laws invite new litigation

 
Chambers Global 2007 recognises Daniel Moulis as the leading Australian trade lawyer

1 February 2008

Daniel Moulis has been recognised by Chambers Global 2007 as the leading individual for WTO/International Trade in Australia. Chambers Global’s rankings are based on in-depth interviews with corporate counsel and with other individuals responsible for legal service purchasing in client corporations. 2007 was a very active year for us in trade advisory work. Consistent with Chambers Global’s observation that [a]s the practice of international law evolves, the precise location of individual lawyers becomes less relevant, the domicile of our clients and their matters were in many cases external to Australia, with Moulis Legal being appointed as lead counsel for regulatory and commercial matters affecting our clients’ interests in countries such as Japan, China, the United States and Brazil. The past year also saw a large increase in our Australian customs-based work, as border issues have become a more critical aspect of due diligence for multinational companies. 2008 is shaping up as another busy year for our trade law practice group. We continue to build our resources, through recruitment and through alliances with other firms and consultants, to better serve our clients.Daniel Moulis’s number one ranking could not have been achieved without the valued support of our clients and our wider network of contacts around the world. We sincerely thank all of you for your trust and your friendship. We also congratulate the other lawyers and firms recognised for their international trade law expertise by Chambers Global 2007, all of whom are contributing to the growth of an important practice area, critical to the globalisation of business and international cooperation.

 
I’m in Australia, you’re in China, but what is the governing law of our contract?

31 January 2008

Contracts have an absolutely fundamental role in commercial transactions, especially with overseas parties. Australian businessmen are now finding that the level of sophistication of their Chinese counterparts is increasing, and that they pay much closer attention to Western-style “terms and conditions”. The governing law of the contract is one such condition.On 7 August 2007, China’s Supreme People’s Court issued a new judicial interpretation dealing with the governing law to be used in deciding contract disputes with a connection to China. The new rules, called the Provisions on Several Issues concerning Applicable Law in Resolving Foreign-related Civil or Commercial Contract Disputes of the Supreme People’s Court, are aimed at instructing Chinese courts how to go about deciding which law should be applied to contractual disputes between Chinese and foreign parties. In this China Messenger we provide an overview of the new interpretive rules, which are of great importance to companies operating in the Australia-China business circle.

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China’s Supreme Court issues new rules on governing laws of contracts

 
Zeroing and anti-circumvention emerge as key points in anti-dumping negotiations

22 January 2008

The international Anti-Dumping Agreement is under review as part of the Doha Development Round of negotiations within the World Trade Organisation. On 30 November 2007, in an effort to indicate to the participants in those negotiations what the changes might look like, and to move towards a final draft, the Chairman of the negotiating group issued a draft text. The text has immediately come under criticism from some of the participants, who say that the text is incomplete and unbalanced, and does not reflect requests for changes that many of the participants have put forward. In particular, the proposal in the text to condone the use of “zeroing” in calculating dumping margins has come under heavy fire.The new text also deals with anti-circumvention, suggests many refinements to investigation procedures, and tries to clarify some of the ambiguities in the wording of the existing Agreement. Our Trade Law Bulletin summarises the changes which have been proposed.

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Draft text of anti-dumping rules proposed by Chairman of WTO negotiating group

 
New competition law makes damages for dumping more likely

8 October 2007

Our foreign exporter and Australian industry clients often ask us whether damages can be awarded to a company which is financially harmed by the “dumping” of cheap imports into Australia. The “Birdsville Amendment”, a radical last minute change made to recent amendments of Australia’s competition law at the insistence of small business lobby groups, makes this prospect much more realistic. The new law exposes companies engaged in below cost pricing to significant liabilities. It will no longer be necessary to establish that the company engaged in that conduct has substantial market power. Instead, a finding that the company has a substantial market share will be enough.

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New competition law makes damages for dumping more likely

 
Made in China, ginger, and trading contracts

26 September 2007

Toy recalls, poisonous pet food, poor quality compliance and low labour standards have marred the reputation of Chinese products in the international market place. A recently reported Chinese court judgement about rotten ginger highlights the critical importance of sound contract dispute management procedures and prompt action when something “Made in China” is not as the buyer expected.

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Made in China: do you need to "ginger up" your contract management?

 
Contradictions in ACT land development and affordability:  the role of the LDA

31 August 2007

The Land Development Agency has the statutory responsibility for developing land in the ACT, carrying out works for the development and enhancement of land, and carrying out strategic or complex urban projects.  In view of concerns about housing affordability and low commercial vacancy levels, the role of the LDA in the ACT land market deserves critical analysis.  Is it contributing to affordability?  Is it competing neutrally in the market place, or not?

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Contradictions and non-neutrality: questioning the impact of the LDA

 
Will China permit investor-state arbitration under an Australia-China FTA?

2 August 2007

China ratified the Washington Convention in 1993, and in 2003 became the world's largest foreign direct investment recipient.  However, China has not as yet been involved in any arbitral proceedings before the International Centre for Settlement of Investment Disputes (ICSID).  Why is this, and what does the future hold?  Jun Wang discusses several topical issues surrounding China and ICSID arbitration, and draws attention to implications for the negotiation of an Australia-China FTA.

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China and ICSID Arbitration

 
Australian business "goes west" in China

3 July 2007Australia’s direct investment in China has mainly been concentrated on China’s eastern coastal areas, such as in the Pearl River Delta. However the level of competition and the expense of doing business in these developed areas, even in China terms, is becoming high. For that reason, foreign business investors are looking inland.


A number of Australian industry sectors, especially in services such as urban town planning, architecture, ICT, wastewater management, transportation management and tourism management, are looking at opportunities to engage in the development of new special territories. But in so doing they are moving away from areas which have relatively sound and well-understood regulatory environments.

Jun Wang looks at the inland path that foreign business is now taking in China, explains the incentives on offer, and advises Australian business to correctly understand the regulatory and commercial environment they are entering into.

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Australian business looks inland for new China opportunities

 
Dispute settlement under a future China-Australia FTA

11 April 2007

Daniel Moulis and Jun Wang attended the Free Trade Agreement Conference "Free Trade Agreements: Where is the World Heading?" on the Gold Coast on 9 and 10 March 2007. The conference, organised by the Bond University Faculty of Law and its Tim Fischer Centre for Global Trade and Finance, attracted high-profile government officials, academics and legal practitioners from Australia, New Zealand, USA, Canada, France, Singapore, Japan and Hong Kong. Daniel Moulis and Jun Wang presented on dispute settlement issues under a possible China-Australia FTA, highlighting the respective experiences of the two countries to now, and outlining the factors which will impact on the negotiations and the final shape and content of any dispute settlement regime.

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'Dispute settlement under a China-Australia FTA: possibilities, problems and prospects.'

 
American in Shanghai

3 April 2007

Opening doors to foreign lawyers is one of the most difficult issues for China in its World Trade Organisation accession negotiations and now in bilateral free trade talks. Jun Wang has discovered an innovative model suggested by a US law firm and discussed its implications for Australian law firms and free trade agreement negotiators in Canberra.

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American in Shanghai

 
Moulis Legal is seeking commercial lawyers with 1-3 PAE

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Commercial lawyer 1-3 PAE

 
Moulis Legal represented at 2nd Bi-Annual Australia China Business Forum in Beijing
26 February 2007

Daniel Moulis and Jun Wang attended the latest Business Forum, in Beijing on 22 and 23 October 2006. The forum, with the title Converging Interests: China and Australia Building for the Future, attracted strong attendance from Australian businessmen, who benefited greatly from the presentations by speakers with in-depth knowledge and in-country experience of business establishment, finance, distribution, and intellectual property in China. Moulis Legal used the opportunity to meet with local lawyers and government representatives, including the promoters of the Tianjin Binhai New Area. The conference is highlighted in the latest issue of Australia China Business Connections, which shows Daniel Moulis (seated, centre, top photo) intently observing proceedings.

More information:                                     

Australia China Business Connections - a moveable banquet of knowledge

 
Lease rights and development approval processes are the major focus of new Canberra planning laws

13 February 2007 

In December 2006 the ACT Government tabled its Planning and Development Bill in the Legislative Assembly. The Bill is the centrepiece of the reform of the ACT planning system. This newsletter focuses on the main issues of interest for commercial lessees and developers: lease rights and development approvals.

The Bill suggests that lessees in the ACT will no longer have the long term use rights which their leases seem to guarantee, depending on changes to the “zoning” of their land. Over time, this raises the prospect that lessees will be disenfranchised, and may have their rights expropriated, by planning changes which take place around them. Without statutory intervention which acknowledges that lease rights can be abridged or negated by planning changes, lessee dissatisfaction and litigation are a likely prospect.


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property reporter - new planning laws

 
The International Who's Who of Trade & Customs Lawyers

5 September 2006        

Daniel Moulis has again been favourably mentioned in the International Who's Who of Trade & Customs Lawyers, with the 2006 edition recording:

"Once again the 'excellent' Daniel Moulis of Freehills leads the research in Australia. 'Right at the top of the profession', he and partner Keith Steele are the only two Australian practitioners to receive sufficient nominations for inclusion."

More information:                                      http://whoswholegal.com/home.cfm

 
University of Sydney wins EMC2

30 April 2006

The University of Sydney Law School Moot Team won the Final Oral Round of the fourth edition of the ELSA Moot Court Competition on WTO Law in Geneva.

“After having won the South Asia Pacific regional round in Adelaide in March, the team made the trip to the finals as a result of the generosity of Moulis Legal, Freehills, Baker & McKenzie, Corrs Chambers Westgarth and Mallesons Stephen Jaques.”

More information:
http://www.law.usyd.edu.au/news/news.html#winmoot

 
Submission to Anti-Dumping Joint Study

8 April 2006

Moulis Legal made a submission to the Joint Study of the Administration of Australia’s Anti-Dumping System.

“An investigation should only be initiated where there is evidence of the elements necessary to impose dumping measures. The evidence needs to be relevant and sufficient. It has to be of a higher probative value than simple assertion. It needs to establish an arguable case, even if that case may or may not be proven in a full investigation. Whilst an approved form may give guidance to the matters which may be relevant, answers given to the questions in a form (or not given) should not be determinative. It is the substance of the evidence provided which is important.”

More information:
http://www.customs.gov.au/webdata/resources/files/ADJSsub_11.pdf