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(2005)Journal ArticleThis article is largely prompted by the two recently promulgated regulations governing takeovers in China. The goal of this article is to critically examine the legal takeover regime in China and to put forward proposals for reform. To outline the discussion, Part II describes the stock market, the takeover law, and the takeover activities in China. Two legislative goals, namely contestability of takeovers and shareholder protection, are set out in Part III. Under these principles, Part IV and Part V explore the issues of tender offer and anti takeover defenses, respectively. Specifically, Part IV focuses on information disclosure and other major rules relating to takeovers. It appears that these rules are in line with the international norm and acceptably workable in the context of China. Furthermore, Part V explores the serious problems that are associated with anti-takeover defenses. China's law seems to be both over inclusive and under inclusive in this respect. After an in depth comparative analysis of the legal regimes in the U.S., UK, and Australia, it is apparent that those regimes are not suitable for China's local conditions. Lastly, this article proposes a regime in which shareholders could veto the use of takeover defenses ex post, while requiring that certain defensive measures be decided ex ante. This proposal could well suit China's needs because it not only gives shareholders sufficient protection, but also preserves necessary flexibility for management to efficiently respond to truly undesirable tender offers.
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(2007)Journal ArticleThe purpose of this journal article is twofold. First, it provides a discussion of the use of recidivism as a measure of effectiveness of criminal justice interventions, and, secondly, there is discussion of an evaluation of a juvenile post-release support program. The article argues that there has been a significant growth in recidivist studies, particularly as a measure of effectiveness. However there has been less and less attention placed on the limitations of measures of recidivism, or the nature of extraneous factors that influence re-offending. We use an evaluation study we conducted of the Post Release Support Program (PRSP) for juvenile offenders in New South Wales to explore these issues further. One of the interesting points to the study was that, while the statistical results on re-offending were not conclusive, the qualitative interviews among staff and offenders were overwhelmingly positive about the program. For us this raises the question: what value do we place on recidivism in evaluating a program when qualitative outcome information appears more conclusive?
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(2007)Journal ArticleWith China’s entry into the World Trade Organization (‘WTO’), the gradual opening of previously closed industry sectors to foreign investment and the continued strong growth of the Chinese economy, merger and acquisition (‘M&A’) activity has become an increasingly attractive alternative to greenfield investment to foreign investors. In the 1980s, the first wave of foreign direct investment (‘FDI’) in China mostly took the form of joint ventures, including equity joint venture enterprises (‘EJV’) and contractual joint venture enterprises (‘CJV’). A second wave followed in the 1990s in the form of wholly foreign-owned enterprises (‘WFOE’). Now a third wave – cross-border M&A – is gaining strength. Foreign investors are becoming more inclined to invest in China by merging or acquiring existing Chinese companies, particularly the leading players in the fields, because M&A transactions offer foreign investors immediate market access with minimal business risk and the acquired business can be converted to foreign-invested enterprises (‘FIE’) for favourable treatment. The increased pace of foreign M&A activity has contributed to restructuring of the foreign M&A regime in China. On 8 August 2006, six Chinese government agencies, led by the Ministry of Commerce (‘MOFCOM’) of the People’s Republic of China (‘PRC’), jointly promulgated the Provisions on the Takeover of Domestic Enterprises by Foreign Investors (‘2006 Regulation’). This Regulation became effective on 8 September 2006, replacing the previous Tentative Provisions on the Takeover of Domestic Enterprises by Foreign Investors (‘2003 Tentative Regulation’), which were in force since 12 April 2003. The 2006 Regulation, taken together with several other instruments issued either before or after its promulgation, constitutes a systematic regulatory framework governing foreign M&A activity in China. This paper considers the central features of this newly introduced 2006 Regulation and then analyses the factors responsible for its adoption. This paper also examines the possible implications it will have for foreign M&A transactions in China, which includes a discussion on the problems with the enforcement of the 2006 Regulation and a proposal for improvement.
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(2006)Journal ArticleThis article aims to examine the “possession versus use” debate in the context of insider trading from an international perspective. It appears that the debate has so far largely occurred in the US with little research examining the positions of other jurisdictions. This article therefore conducts a comparative analysis of the legal responses to the issue in various jurisdictions, including the US, the UK, Australia and Canada. Indeed, the US debate traditionally lists only two approaches, namely the use standard and the possession standard. In contrast, at the international level, the treatment of the issue can be more appropriately categorized into four different approaches, including the strict possession, the strict use, the modified use and the modified possession standards. After a careful analysis of these four standards, it is submitted that the modified possession standard is most appropriate.
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(2009)Journal ArticleMany examples of innovation in relation to information goods involve works in which various parties have proprietary (copyright) interests, but also involve the public having rights to use those works in ways that involve some of the exclusive rights of the copyright owner. They involve copyright’s “public domain” in the expanded sense of all “public rights”: those aspects of copyright law and practice that are important in determining the ability of the public to use works without obtaining a licence on terms set (and changeable) by the copyright owner. The Creative Commons slogan “Some Rights Reserved” sums up rather well the way in which intellectual goods combine proprietary and non-proprietary elements. However, most examples of this broader public domain do not involve the use of Creative Commons licences. The theme of this article is what these examples have in common, how Australia’s copyright law and the institutions that support innovation have paid insufficient attention to what they have in common, and how – in Australia at least – we need to have a law reform review that will have these common elements (the copyright “public domain”) as its focus. Eight examples of where Australia’s copyright public domain is in need of reform are considered, as are some of the interconnections between them. Along the way, consideration is given to how the public domain in any particular country comprises both “global” and “national” elements, with examples of what makes Australia’s public domain distinctive.
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(2010)Journal ArticleThe Commonwealth Legal Information Institute (CommonLII – www.commonlii.org – pronounced ‘Common-lee’), is a non-profit and free access website for legal information from all countries that are members of the Commonwealth and their territories (more than 60). CommonLII also covers a small number of significant non-Commonwealth countries and territories that have a legal system based on the common law. The main purpose of CommonLII is to provide a comparative law facility by which the laws of all common law countries can be searched and compared. In relation to case law, CommonLII assists in making the ideal of an international common law a reality, by providing the case law collection with the broadest geographical scope, and the only free access international citator (LawCite). In relation to legislation, CommonLII makes it easier to compare legislative developments in the same subject-areas across Commonwealth countries, and can therefore assist in the process of law reform, as well as increasing the transparency of each country’s legal system. CommonLII also makes it easier to find commentaries on the law from Commonwealth and common law countries, including law reform reports and some law journals. This paper explains CommonLII’s development since its launch in 2005 (its partners, scope and supporters; the range of content from each country; and technical features, illustrated by searches), emphasising the significance of the addition of the English Reports 1220-1873 and the LawCite international citator. It concludes with an outline of likely future developments due to funding provided for 2010-11 by the Australian Research Council, Commonwealth Secretariat and Australian Attorney-General’s Department.
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(2009)Journal ArticleThe protection of privacy under the Indian Constitution, developed through case law by the Supreme Court, has been advanced further by the Delhi High Court’s decision to strike down provisions criminalising homosexual sexual conduct on grounds of invasion of privacy (NazFoundation v Government of NCT of Delhi WP(C) No.7455/2001 (2 July 2009) (‘NazFoundation Case’)). The potential for further expansion of constitutional protection of privacy into the area of data protection is increased.
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(2009)Journal ArticleExtensive amendments to India’s Information Technology Act 2000 deal principally with cyber-security, and were enacted to some extent in response to the attacks in Mumbai in November 2008. They also include the most significant provisions to date in Indian statutes affecting data protection and privacy, though how extensive these turn out to be will depend to some extent on implementing regulations. Most Indian commentators have concentrated on the cyber-security aspects of the legislation, often very critically. This article focuses only on the Act’s data protection and privacy implications. The Information Technology (Amendment) Act 2008 was passed on the last day of the legislative sitting in 2008.