Allens

Allens insights

Our lawyers regularly contribute articles to leading newspapers, magazines and websites that provide insight into their field.

The articles below are the versions submitted to the publications and they may have undergone further editing.

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We are happy to provide comment on general legal and business issues to the media where appropriate. Please contact Senior Corporate Communications Manager Germaine Graham on +61 2 9230 4639 or email Germaine.Graham@allens.com.au.

Getting the Deal Through: Project Finance 2018
Allens Partners Michael Ryan and Ben Farnsworth discuss some of the issues relevant to project finance in an Australian context (including security packages, navigating the Personal Property Security Register, and foreign investment issues) in their contribution to this global project finance roundup.
This article originally appeared in Project Finance 2018.

In with the Old, Out with the New? The Rights of a Replaced Trustee Against its Successor, and the Characterisation of Trustees' Proprietary Rights of Indemnity
Trustees who incur expenditure or liabilities have proprietary rights to use the trust assets to recoup that expenditure and discharge those liabilities – rights that are often described as a 'lien'. This article explores the issues that may arise when a trustee that has those rights is replaced by another trustee that has such rights of its own.
This paper was originally presented at a colloquium of the Academic Committee of the Baking and Financial Services Law Association.

Multisource financing: making multiple options work
In an environment where Australian issuers, especially from the infrastructure sector, are actively seeking diversified funding options, two Allens Partners – James Darcy and Scott McCoy – discuss the key structuring considerations for issuers and sponsors wishing to establish debt platforms to access longer-term financing options.
This article was first published in the Oct/Nov 2017 edition of KangaNews.

Getting The Deal Through: Boom in renewables
Allens Partners Ben Farnsworth, Michael Ryan and Tim Stewart were part of the global panel analysing the boom in renewables in the Australian project finance market. In Getting the Deal Through's third annual issue focusing on the global project finance markets, Ben, Michael and Tim look at the trends over the past year and what they anticipate unfolding over the next year, including any proposed legal and regulatory changes that may give rise to new opportunities.
This article first appeared in Getting The Deal Through: Market Intelligence, vol 4, issue 2.

Not worth the paper they're not written on?
'There are significant commercial benefits in executing documents electronically, and Allens has adopted e-signature (using DocuSign) as a service to clients. Allens Senior Finance Counsel, Diccon Loxton, has written an article in two parts that examines the efficacy of e-signatures, and concludes that they are effective, including under s127 of the Corporations Act 2001 and (in various circumstances) deeds.
This article first appeared in the Australian Law Journal 91 (2017).

Australia – Fund Finance 2017, 1st Edition
Fund financing facilities have continued to flourish in Australia, providing sponsors, general partners and trustees with additional funding flexibility and liquidity. Allens Partner Tom Highnam, Managing Associate Rita Pang, and Associate Victoria Johns provide an overview of the funds sector, current funding options and structuring, the prevalence of sovereign wealth funds and what new developments may be expected over the next twelve months.
This article first appeared in Fund Finance 2017, 1st Edition.

Alternative models for financing water infrastructure
A healthy pipeline of Australian infrastructure projects has created a certain level of competition for project funds. Allens Partner Kate Axup, Associate Danielle Jones and Lawyer Luisa Colosimo recently contributed to a discussion paper on alternative funding models for financing Australia's water infrastructure in the face of a growing population, greater urbanisation and climate change.
The discussion paper was commissioned by the Australian Water Association and was originally published on the AWA website.

Trends over the past year in the Australian projects and infrastructure sectors
A substantial pipeline of both private and public infrastructure projects has attracted a variety of local and offshore project finance providers wishing to gain exposure to returns from these attractive Australian investment opportunities. Allens Partners Nick Adkins, Scott McCoy and Rob Watt look at how this is unfolding, the increase in non-bank lenders competing for projects, the various funding models at play, and the opportunities available in the near future.
This article first appeared in CorporateLiveWire's Australasia 2017 Expert Guide.

Local issuers, international format
At the same time as more international issuers appear to be looking at international programme formats for their Australian dollar issuance, so Australian borrowers are contemplating the use of EMTN programmes even for their domestic currency issuance. Two Allens Linklaters Partners – James Darcy, from Allens in Melbourne, and Jonathan Horan, from Linklaters in Hong Kong – discuss the considerations, relative ease and likely future direction of programme selection.
This article first appeared in the Aug-Sept 2016 edition of KangaNews.

Value capture and getting smart
The Federal Government's plan to maximise the potential of Australian cities – as envisaged in its Smart Cities Plan – hinges on alternative funding models for new infrastructure based on monetising the value capture created by that infrastructure. Allens Partner Paul Kenny and Consultant Phillip Cornwell look at what this will mean for traditional project finance.
This article first appeared in Project Finance International – June 15, 2016.

Back to basics: Managing supply chain risk from an Australian product liability perspective
The consequences of supplying to consumers in Australia goods containing a safety defect are significant. Local manufacturers and suppliers face heightened product liability risks where their products have a substantial global supply chain component, with the added challenges of limited visibility over that supply chain and lower product quality procedures and standards.
This article first appeared in Lexis Nexis' Australian Product Liability Reporter (APLR) Vol 27.4.

Green Renaissance in Australia
After more than three years of inertia, the Australian renewable energy industry is finally showing signs of a resurgence. A series of reviews of the Renewable Energy Target since 2012, and the abolition of the carbon tax in 2014, created a climate of uncertainty that meant investment in new large-scale renewable generation slowed dramatically. In the intervening period, new investment was largely driven by state and territory governments and their agencies. However, with the Large-scale Renewable Energy Target finally settled, the industry is now taking steps to meet the target. Prices for large-scale generation certificates have risen sharply, and long-term power and LGC power purchase agreements essential for bankable new investments are starting to make a comeback.
The article first appeared in Project Finance International's Global Energy Report, April 2016.

Getting The Deal Through: Market Intelligence – Project Finance
Allens Partners Philip Cornwell, Michael Ryan and Ben Farnsworth were part of the global panel analysing the project finance market, including key economies, regional analysis and PPPs. In Getting the Deal Through's second annual issue focusing on the global project finance markets, Philip, Michael and Ben analysed the evolving legal and regulatory landscape in Australia.
This article first appeared in Getting The Deal Through: Market Intelligence, vol 3, issue 2

Capturing value – NSW's ambitious infrastructure programme
Allens Partners Paul Kenny and Tim Stewart hosted a roundtable with the NSW Treasurer Gladys Berejiklian in Sydney involving fund managers and financiers to talk about how the private and public sector can work together to deliver on NSW's ambitious infrastructure programme.
This article first appeared in the June 2016 edition of FinanceAsia

A safe harbour for now – product liability risk exposure stemming from human rights abuses in supply chains
Globalisation has created significant benefits for consumers by making products cheaper to purchase. It has allowed consumers to access food that is out of season from halfway across the globe, or regularly update the model of their phone. However, the long and complex supply chains that facilitate these outcomes are unpredictable and difficult to control.
This article first appeared in the LexisNexis publication – Australian Product Liability Reporter (APLR) Vol 27.2.

Opportunities in infrastructure – 2015
Allens Partner and Head of the Government Sector, Paul Kenny, conducts a roundtable discussion with the treasurer of Western Australia, Mike Nahan on post mining-boom investment opportunities in infrastructure.
This article first appeared in the December 2015 edition of FinanceAsia.

Unconventional oil and gas in Australia: a case of regulatory lag
In this article Allens Senior Energy & Resources Counsel David Maloney reviews existing Australian petroleum and mining legislation relating to the regulation of unconventional oil and gas; examines some of the recent policy responses in relation to coal seam gas developments in agricultural lands, the use of hydraulic fracturing and their impact on water resources; and identifies some of the reasons why law reform is required.
This article first appeared in the Journal of Energy & Natural Resources Law, 33:4, 349-404.

World Bank: Benchmarking Public Procurement 2016 report
The World Bank has released its Benchmarking Public Procurement 2016 report, which provides comparable data on regulatory environments that affect the ability of private companies to do business with governments in 77 economies. Allens Partner Leighton O'Brien and Linklaters Counsel Julia Voskoboinikova were among the contributors to the report.
This report was published by the World Bank in October 2015.

An overview of the current energy mix, and the place in the market of different energy sources
Allens Senior Energy & Resources Counsel David Maloney provides an overview of the current energy mix in Australia, and the place in the market of different energy sources.
This article appeared in the fourth Edition of Global Legal Insights – Energy; published by Global Legal Group Ltd, London.

NSW's rail future back on track
The New South Wales Government’s long-term transport plan has taken a giant step forward with the financial close of the operations contract on the North West Rail Link – Australia’s biggest public transport project. Allens partner Phillip Cornwell and Senior Associate Scott McCoy, who worked on the transaction, reflect on the drivers to bring such a significant project together and, in turn, set the groundwork for a major transformation of Sydney’s public transport system.
An edited version of this article first appeared in PFI magazine's December 2014 edition.

Merit appeals and the need for reform: Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc
In Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc, the NSW Court of Appeal upheld the decision of the NSW Land and Environment Court (LEC) to refuse approval for the expansion of the Warkworth Mine near Bulga, NSW. The Court of Appeal decision contains some useful lessons for proponents of major projects, specifically with respect to project design and assessment, and also in how best to manage appeals. The case highlights inefficiencies in the major projects assessment process and areas for reform.
This article first appeared in Volume 29, Number 8 of the Australian Environment Review

Strong ECM volumes to continue
Partners and Co-Heads of the Equity capital Markets Practice Julian Donnan and Robert Pick conduct a roundtable discussion on the latest developments in ECM.
This article appeared in the September 2014 edition of FinanceAsia.

Brave new world where financial advisers work in sales
The Senate Economics Committee's Report into ASIC's performance is an interesting read. It opens by calling ASIC a 'timid, hesitant regulator, too ready and willing to accept uncritically the assurances of a large institution.' And continues in a similar vein for almost 500 pages. ASIC says it does the best it can in the circumstances.
An edited version of this article appeared in The Australian Financial Review on 8 August 2014.

Implementation of Australia's PCEHR system reviewed
At the end of 2013, the Federal Minister for Health announced a panel review into Australia’s Personally Controlled Electronic Health Record (PCEHR) system to consider implementation and uptake issues. The subsequent report, made public in May 2014, puts forward 38 recommendations to address the issues identified, which includes the recommendation that the PCEHR system should be transitioned to an opt-out model.
An edited version of this article first appeared in eHealth Law & Policy Journal for the July 2014 edition.

A new framework to assess unsolicited infrastructure proposals in Victoria
The Victorian Government has recently published guidelines that frame how it will assess unsolicited proposals for infrastructure projects pitched to it by the private sector. At a time in the economic cycle where investment in infrastructure is becoming more critical to Australia's economic story, this is a very positive step towards encouraging private sector development of innovative and more efficient ways to deliver critical infrastructure projects for the benefit of Government and ultimately the public.
An edited version of this article first appeared in Project Finance International magazine's special edition Asia-Pacific report in March 2014.

New bullying laws should not ignore employers
The first day of 2014 will see the beginning of a new regime to tackle the problem of workplace bullying.
An edited version of this opinion piece appeared in SmartCompany on 22 November 2013.

Debt funds open a new asset class
The dominance of the banks in the Australian corporate debt market is an anomaly.
An edited version of this article appeared in the Australian Financial Review on 30 October 2013.

An emerging markets bonanza for Australian IT
Much has been written about – indeed entire election campaigns have been based on – how the mining boom is coming to an end, and the imperative for Australia to diversify its economy into other sectors. The debate has focused on a predicted decline in demand for our natural resources from emerging economies such as China and India.
An edited version of this article appeared in Technology Spectator on 30 August 2013.

Using customers as marketing intermediaries – the legal risks of indirect messaging and third-party Facebook posts
Companies are increasingly using indirect email messaging and Facebook to support extensive marketing strategies. However, two recent incidents provide some examples of the types of legal risks involved when engaging the participation of customers and third parties in these platforms.
An edited version of this article appeared in the March 2013 edition of Keeping Good Companies.

Patent case a win for everyone
There has been a long-standing public debate as to whether genes and their biological products should be patented. The Australian Patent Office has consistently recognised isolated DNA and RNA as patentable but that hasn't quietened debate.
An edited version of this article appeared in the Australian Financial Review on 22 February 2013.

The rise of the MAC clause in private deals
It remains a difficult market for those looking to exit investments and this has served to increase the bargaining power of buyers and allow them to push harder when negotiating deal terms.
An edited version of this article appeared on the Australian Financial Review's Capital website on 11 December 2012.

Consumer action and the power price
There were times when hosing down the driveway, leaving the tap running while brushing your teeth and watering the garden in the heat of the day were par for the course. Now, while most informed consumers would recoil at such waste of a precious resource, we continue to burn lights in uninhabited rooms, leave computers on overnight and use climate control in reasonable climes.
An edited version of this article appeared on AFR.com on 26 September 2012.

Should Australia have a 'put up or shut up' rule?
Australian Securities and Investments Commission chairman Greg Medcraft this week proposed a review of Australia's takeover rules and re-opened the question of whether a UK-style 'put up or shut up rule' should be introduced.
An edited version of this article appeared on AFR.com on 13 July 2012.

Regulating foreign investment in Mongolia
One of the great challenges for countries transitioning from a country with economic potential to that of an economic power is the way it handles foreign investment.
An edited version of this article was published on AFR.com on 25 June 2012.

Are our prospectus rules really to blame?
Partner Robert Pick considers the claim that Australia's prospectus rules are a disincentive to issuers.
An edited version of this article was published on AFR.com's Capital website on 30 May 2012.

Feed-in tariffs may have the power
Last year was a tough one for the solar technology industry in Australia.
An edited version of this article was published on AFR.com on 13 March 2012.

Pricing in the carbon financing risk
The Federal Government's carbon pricing scheme raises a number of issues for the financing of emissions and energy intensive projects.
An edited version of this article was published the Climate Spectator website on 9 March 2012.

Global connections fuel gas growth
This year was another significant year for the international gas industry, and Australia remains at the forefront of new developments and projects in the gas industry.
An edited version of this article was published by the Australian Financial Review on 22 December 2011.

Australia a hedge play for global PE funds
Partner Tom Story reports on the outlook for private equity in Australia going into 2012.
An edited version of this article was published by the Australian Financial Review on 22 November 2011.

The facts about referendums in Australia
Lawyers Sylvia Arzey and Alison Mathews discuss the issues surrounding the push for Indigenous recognition in the Australian constitution.
An edited version of this article was published in The Australian on 11 November 2011.

Drilling down for more disclosure
Partners Scott Langford and Igor Bogdanich discuss developments in disclosure rules for mining, oil and gas companies.
An edited version of this article was published in the Australian Financial Review on 7 November 2011.

It's not all doom and gloom in Japan
Partners Tim Lester and Igor Bogdanich look at the economic outlook for Japan in the wake of the earthquake and tsunami that rocked the country in early 2011.
An edited version of this article was published in the Australian Financial Review on 12 August 2011.

Settling on sorry
Senior Associate Peter Haig discusses his involvement in the pro bono case of Indigenous man Neville Austin.
An edited version of this article was published in the Lawyers Weekly on 2 August 2011.

Key issues in OHS Harmonisation
Partner Simon Dewberry and Lawyer Andrew Stirling examine upcoming changes to national OHS laws.
An edited version of this article was published in Keeping Good Companies magazine in August 2011.

Digital dangers
Partner Gavin Smith offers safety tips and advice to boards on data security.
An edited version of this article was published in the MIS magazine in August 2011.

Politics trumps policy to silence GST debate
Partner Ross Stitt examines why there is a lack of debate over raising the GST.
An edited version of this article was first published in the Australian Financial Review on 29 July 2011.

Emissions tax will directly hit 500 companies: but who gets the bill?
Partner Grant Anderson examines the detail of the liability scheme outlined under the Federal Government's carbon pricing scheme.
An edited version of this article was published in The Age/Sydney Morning Herald on 19 July 2011.