Allens

Banks & Financial Institutions

Our experienced Banking & Financial Services legal team regularly publishes articles and updates – the full list of publications appears below. These publications provide a snapshot of the latest legislation, court cases, policy changes and contentious issues. If you'd like to be notified when we add new publications to the site, please go to our subscription page to sign up for email alerts or, alternatively, you can subscribe to our RSS feed.

For publications in other legal areas see our recent publications page.

Banks & Financial Institutions Publications

  • Unravelled: The BEAR has dropped, where to from here?

    9 November 2017

    The commencement date of the BEAR legislation is fast approaching and institutions should start planning how to comply with the regime. We look at the changes made to the BEAR legislation following industry submissions, the timing for implementation and key steps to take.

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  • Unravelled: The beginning of the end of the unit trust's monoploy? CCIV legislation and ASIC guidance

    9 November 2017

    Avid readers of Unravelled over the past few years cannot have failed to notice that there are moves afoot to introduce two new forms of collective investment vehicle, each promising a shiny, tax-neutral alternative to the unit trust and, hopefully, saving Australian lawyers a lot of sleepless nights and migraines attempting to explain the finer points of trust law to overseas counterparties and their advisers.

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  • Client Update: First civil penalty order for breach of FOFA duties

    6 November 2017

    The Federal Court recently imposed a $1 million civil penalty on a licensee for breaches by its representatives of the best interests and appropriate advice duties. The penalties were the same amount that was agreed between ASIC and the licensee. The decision is a reminder to financial services licensees that they are responsible for their advisers' advice and that ASIC can and will take enforcement action against licensees when it identifies breaches of personal advice duties. Partner Michelle Levy, Associate Katie Gardiner and Lawyer Jamil Diu report.

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  • Client Update: ASIC publishes draft funds management guidance

    27 October 2017

    ASIC has released draft updates to four existing Regulatory Guides and drafts of two new Regulatory Guides for managed investment schemes, corporate collective investment vehicles and passport funds, and announced a consultation period which will run until 8 December. Partners Marc Kemp and Penny Nikoloudis and Senior Overseas Practitioner James Kanabar provide a high-level summary of the draft guidance.

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  • Client Update: ASIC recommends tougher corporate penalties

    24 October 2017

    The ASIC Enforcement Taskforce's latest consultation paper pushes for a tougher penalty regime for corporate and financial sector misconduct, which has been key focus of the Taskforce's Terms of Reference, and indeed of ASIC's reform agenda for some time. Partner Belinda Thompson, Senior Associate Michela Agnoletti and Associate Katie Gardiner look at what the consultation paper proposes.

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  • Allens insights: Getting the deal through: Project Finance 2018

    20 October 2017

    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.

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  • Allens insights: Multisource financing: making multiple options work

    19 October 2017

    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.

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  • Focus: The Asia Region Funds Passport begins to take shape

    17 October 2017

    It's been a busy few months for the development of the Asia Region Funds Passport. In late August, the Federal Government released exposure draft legislation to accommodate the introduction of the Passport in Australia. Once implemented, the Passport will allow fund managers from participating economies to market and sell interests in qualifying funds to retail investors in other passport jurisdictions within a streamlined regulatory framework. Partner Penny Nikoloudis, Senior Associate Rebecca Sheehy and Associate Mai Go report on the proposed multilateral regulatory framework for the Passport and some of the issues arising from the exposure draft legislation. 

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  • Pulse: Cyber security

    16 October 2017

    In this issue we look at how to create a cyber resilient supply chain, ASIC's renewed focus on cyber resilience, how the incoming GDPR could affect you, medical device cyber security and patient safety, lessons learnt from Yahoo's data breach disaster and Australia and the EU's new cyber security plans.

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  • Client Update: Federal Court sheds new light on public benefit test in Tatts/Tabcorp merger appeal

    11 October 2017

    The Federal Court's decision about the proposed Tabcorp/Tatts merger has provided significant clarification about the public benefit test for authorisations. This is timely in light of the legislation before the Senate that proposes to combine the Tribunal authorisation process with the formal ACCC merger clearance process. Partner Jacqueline Downes and Lawyer Hanna Kaci look at the key lessons from the decision.

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  • Unravelled: Pseudo-investments and mobile apps - a new frontier for regulators

    4 October 2017

    It is hardly surprising that the Australian Securities and Investments Commission (ASIC) has taken an interest in the mobile app market, given that there has been an aggressive expansion into the mobile space by financial services providers. ASIC has recently cracked down on web and mobile based OTC derivative providers, and apps that facilitate binary options trading (BOT apps). In this article, we focus on issues that arise in connection with BOT apps.

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  • Unravelled: FX global code update

    4 October 2017

    The FX Global Code was launched in Australia earlier this year and applies to 'market participants', including most financial institutions, bank asset managers, brokers and E-trading platforms. The Code sets out 55 best practice principles and, although compliance is voluntary, it is expected that these principles will become the standard for the FX market industry.

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  • Unravelled: Spring overhaul of Australia's market licensing regime

    4 October 2017

    Australia's market licensing regime has long been crying out for an overhaul, with regulatory guidance that largely dates back to the early 2000s struggling in the face of significant developments in financial markets since then. Fortunately, ASIC has taken heed and is due to release an updated market licensing regulatory guide this month. If the draft guidance is anything to go by, we should soon see a much more modern and flexible approach to market licensing.

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  • Client Update: Blockchain reaction update - ASIC joins chorus on ICO regulation

    3 October 2017

    While ASIC has published information on the issue of coins or tokens in initial coin offerings, other regulators around the world have also been issuing guidance, with some taking a much more restrictive approach. Although Australia remains a relatively friendly regulatory environment for such offerings, there are a number of potential regulatory traps, both here and overseas, that issuers should carefully consider before launch. Managing Associate Simun Soljo, Senior Associate David Rountree and Lawyer Chris Walsh report.

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  • Client Update: The BEAR roars into action

    26 September 2017

    The Federal Government has released the exposure draft of the Treasury Laws Amendment (Banking Executive Accountability and Related Measures) Bill, together with a draft Explanatory Memoradum. This follows on from the release of the Banking Executive Accountability Regime (BEAR) consultation paper in July which raised eyebrows with its short three-week consultation period. The exposure draft only provides five working days for interested parties to lodge a submission. This is a clear indication of the Government's desire to implement BEAR swiftly. Partner Michelle Levy and Senior Associates Sarah Burgemeister and Brenton Pollard report.

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  • Unravelled: APRA's new powers in superannuation - A worthy idea, but checks and balances required

    12 September 2017

    APRA is in line to get significantly increased powers of direction in respect of RSE licensees and their 'controlled entities' as part of the package of superannuation reforms announced in the Treasury Legislation Amendment (Improving Accountability and Member Outcomes in Superannuation) Bill 2017.

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  • Unravelled: Extraordinary new power proposed for APRA

    12 September 2017

    The exposure draft of the Financial Sector Legislation Amendment (Crisis Resolution Powers and Other Measures) Bill 2017, will, if passed, give new powers to the Australian Prudential Regulation Authority in relation to the authorised non-operating holding company and other related bodies corporate of APRA-regulated entities (including foreign regulated entities).

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  • Client Update: The new corporate collective investment vehicle: Wholesale application?

    7 September 2017

    We reported on 1 September that the Federal Government has released exposure draft legislation for the new corporate collective investment vehicle (or CCIV). In this article Partner Marc Kemp and Consultant Derek Heath consider whether the CCIV is likely to replace the unit trust as the vehicle of choice for wholesale (as opposed to retail) fund structures.

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  • Pulse: Cyber security

    5 September 2017

    In our first issue we look at the outcome of the OAIC's investigation into the Australian Red Cross data breach, lessons learnt from one of the largest cyber attacks in history, directors' liability in relation to cyber resilience, the incoming mandatory data breach notification regime, the NSW Government's recent $11.4 million investment to help tackle critical technology challenges including cyber security, and the Federal Government's new mission to decode cyber vernacular

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  • Client Update: Vietnam opens its debt trading market to foreign investors

    1 September 2017

    Recent years have seen players in the Vietnamese banking sector making extensive efforts to recover non-performing loans (or bad debts). The Government has issued new regulations to improve the processes for recovering and handling bad debt in Vietnam and has implemented a framework to facilitate the trading of bad debt in a secondary market. Partner Linh Bui and Associate Dang Vu report on the key issues.

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  • Client Update: New corporate collective investment vehicle exposure draft legislation released

    25 August 2017

    The Federal Government today released exposure draft legislation for the new corporate collective investment vehicle, one of the two forms of collective investment vehicle that it pledged to develop as part of the 2016-2017 budget. Partners Marc Kemp and Charles Armitage and Senior Overseas Practitioner James Kanabar summarise the key features of the proposed CCIV, and compare and contrast them to those of equivalent overseas vehicles. 

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  • Unravelled: Productivity Commission on super system competitiveness and efficiency

    7 August 2017

    With all the media attention on the Government's surprise announcement of its proposed package on improving accountability and member outcomes in super last week, you would be forgiven if the Productivity Commission's latest issues paper on competitiveness and efficiency in the super system had slipped under your radar.

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  • Unravelled: Approved product lists and FoFA adviser duties

    7 August 2017

    The FoFA duties that apply to personal advice given to retail clients have been operating for over four years now. ASIC has enjoyed some recent success in the courts in cases brought on the basis of those duties. In this context, it is worth revisiting approved product lists and whether they assist, or impair, compliance with the FoFA duties.

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  • Unravelled: Australian Government proposes new foreign bribery offences

    7 August 2017

    Australia's lack of enforcement of foreign bribery legislation has attracted increasing criticism in recent years, but the Federal Government is expected to soon table legislation proposing wide-ranging reforms. We look at two key proposed changes for Australian companies.

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  • Allens insights: Getting The Deal Through: Boom in renewables

    4 August 2017

    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.

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  • Focus: New PPP guidelines for NSW

    28 July 2017

    The NSW Government has released updated guidelines that govern the Public Private Partnership procurement process in NSW and will provide welcome assistance to both NSW Government agencies and bidding consortiums. Partner Nicholas Adkins and Associate Sunny Jong report.

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  • Client Update: Improving accountability and member outcomes in superannuation?

    25 July 2017

    The Federal Government's proposed new superannuation legislation imposes significant new obligations on RSE licensees and could have a material effect on shareholders. The Allens Superannuation team reports on the key changes.

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  • Report: 2017 Private Equity mid-year briefing

    18 July 2017

    The first half of 2017 has been one of the most active buy out periods for private equity in Australia since the financial crisis. With fundraising conditions remaining positive, plenty of committed capital needing to be invested and the announcement of a number of large and high profile transactions involving financial sponsors, we believe that PE activity will remain robust for the remainder of the year.

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  • Client Update: Grizzly times ahead for banks

    14 July 2017

    A consultation paper on the BEAR has been released, confirming the Federal Government’s intention to impose an executive accountability regime on banks and their subsidiaries that follows important elements of current international accountability regimes. You have three weeks to provide your comments to the Government. Partner Michelle Levy, Senior Associate Sarah Burgemeister and Associate Katie Gardiner report.

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  • Client Update: Excessive payment surcharging reforms

    11 July 2017

    As of 1 September 2017, merchants will be prohibited from charging excessive payment surcharges for certain payment methods. Under the new rules, businesses can only pass on to customers what it costs them to process a payment. The Allens Competition team have put together a brief overview of the changes and what businesses should do to prepare for the new regime.

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  • Unravelled: UK's ASIC's report on member experience of superannuation - ASIC continues to set a high bar

    6 July 2017

    ASIC Report 529: Member experience of superannuation, released just a day before the Productivity Commission officially sets its sights on assessing the state of the superannuation system, serves as a timely reminder of the ever-increasing expectations of the conduct and disclosure practices of superannuation trustees.

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  • Unravelled: UK's Financial Conduct Authority report into asset management: guidance for future direction

    6 July 2017

    ASIC often looks to overseas regulators for inspiration. So when a particularly influential regulator publishes a comprehensive report about a large segment of its regulated population, including possible new areas for regulation, it can pay to take note because it may be a guide to the future direction of Australian regulation.

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  • Unravelled: Raising capital, raising standards: managing conflicts of interest in sell-side research and corporate advisory

    6 July 2017

    ASIC continues its mission to enhance the regulation of Australia's equity markets, with its recent publication of Consultation Paper 290 on managing conflicts of interest when dealing with sell-side research and corporate advisory. The proposed amendments will primarily target investment banks and corporate advisers in the IPO and capital raising process.

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  • Client Update: ASIC sell-side research consultation and proposed regulatory guidance

    4 July 2017

    ASIC's new regulatory guidance focuses on managing conflicts of interest and material, non-public information when providing sell-side research. As well as providing extensive guidance on managing conflicts of interest during the capital raising process, ASIC provides its views on payment of discretionary fees, and the funding and structure of the research arm of banks, as well as foreshadowing a further view on allocation policies. Partner Julian Donnan and Senior Associate Addison Ma report.

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  • Client Update: Australia's foreign investment regime - regulatory burden reduced

    3 July 2017

    Significant changes to Australia’s foreign investment regime came into effect on 1 July 2017, intended to address concerns regarding this regime raised since its introduction in December 2015. The amendments reduce the regulatory burden in a number of key ways and will impact a range of foreign investors in Australia. Partner Wendy Rae and Senior Associate Nick Kefalianos report on how these significant changes will affect you.

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  • Unravelled: 2017 Budget: increased scrutiny on competition in the financial system

    7 June 2017

    The financial services sector has been under scrutiny for some time with many different voices clamouring for further regulation or inquiries in a sector that is already highly regulated. The recent Federal Budget included a number of measures focused on the state of competition in the financial system, and provided a road map for a significant amount of activity over the next few years. Partner Carolyn Oddie reports.

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  • Unravelled: Can super really help housing affordability (and I have not asked should it)?

    7 June 2017

    The 2017 Budget included proposals intended to 'reduce pressure on housing affordability'. Two of them use the superannuation system to do so: the 'First Home Super Saver Scheme' and the 'Reducing Barriers to Downsizing' proposal. Partner Michelle Levy examines the schemes in more detail.

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  • Unravelled: Banks set to grin and BEAR new measures to improve individual accountability

    7 June 2017

    As part of its ongoing efforts to improve the domestic banking sector's accountability, the Federal Government recently announced a series of measures to join the ongoing global push seeking to improve measures for individual accountability for misconduct. The proposed Banking Executives Accountability Regime (BEAR) seeks to ensure that banks, and their senior management, are held accountable when they fail to meet expectations. Senior Associate Sarah Burgemeister reports.

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  • Focus: A class divide? The Boart Longyear creditors' scheme

    29 May 2017

    The NSW Court of Appeal has considered whether different groups of secured creditors should be placed into separate classes for the purposes of voting on a proposed creditors’ scheme of arrangement. Partners Christopher Prestwich and Tom Highnam report. 

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  • Client Update: Amendments to PPS lease law - what you need to know

    22 May 2017

    Legislation has come into force that will amend the Personal Property Securities regime. The amendments are designed to reduce the PPSA's impact on the equipment hiring industry. Previously hirers' equipment leases and bailment arrangements of an indefinite term, or short term leases of a year or more were deemed to be PPS leases, and security interests. If they were not perfected by registration, the owner of the equipment could lose priority, and could lose the equipment altogether if the lessee or bailee became insolvent. Many hirers were caught inadvertently. Now, those arrangements will only be caught if they are initially for two years or more, or the lessee or bailee ends up holding the equipment for two years or more. Partners Nicholas Creed and Ben Farnsworth explain.

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  • Focus: Anti-money laundering and counter-terrorism financing: Key questions for boards and executives in 2017

    16 May 2017

    Australian boards and senior executives are expected to maintain oversight of risk and compliance issues including bribery, sanctions, human rights and anti-money laundering. In-house counsel perform a central role in supporting this oversight and maintaining compliance. In the fourth of a five-part series, Partner Peter Haig and Associates Andrew Shetliffe and Glyn Ayres look at the key questions that Australian boards and senior executives should be asking about anti-money laundering and counter-terrorism financing in 2017.

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  • Client Update: Environmental bond and mine rehabilitation reform in Queensland

    15 May 2017

    Major reforms to environmental bonds and rehabilitation requirements are proposed in two discussion papers released by the Queensland Government. All mining sector operators should understand how the reforms will impact their current and proposed operations. Partner Bill McCredie and Senior Associate Gobind Kalsi report.

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  • Client Update: 2017 Budget: increased scrutiny on competition and accountability in the financial system

    10 May 2017

    Treasurer Scott Morrison this week announced that he has tasked the Productivity Commission to review the state of competition in Australia's financial system. The Budget has also included other measures focused on competition in the financial sector, including funding to establish a dedicated ACCC unit to undertake regular inquiries into specific financial system competition issues, an ACCC inquiry into residential mortgage pricing, and an open banking regime. The Government has also announced the introduction of a Banking Executive Accountability Regime. These measures follow a series of recent reviews and inquiries into the financial services industry. Partner Carolyn Oddie and Senior Associate Lisa Lucak report.

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  • Unravelled: CIPRs - some interesting findings

    5 May 2017

    We recently hosted some workshops in Sydney and Melbourne to discuss the proposed CIPR framework. The outcomes of those workshops were interesting - in some respects surprising - and this article provides a brief report.

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  • Unravelled: Recent decision on FoFA advice provisions - ASIC v NSG

    5 May 2017

    The recent case of ASIC v NSG Services Pty Ltd considers the FoFA best interests and appropriate advice provisions, as well as obligations of licensees. While the facts of the case provide an extreme example of how advisers and licensees can fail to comply with these duties, it also provides some useful judicial commentary on the provisions.

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  • Unravelled: Reporting significant breaches - or something that may (or may not) be a breach?

    5 May 2017

    The Taskforce established by Treasury to consider ASIC's enforcement powers released its first consultation paper a few weeks ago on breach reporting. We examine the most significant of the Taskforce's 12 'preliminary positions'.

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  • Focus: Anti-bribery laws and deferred prosecution agreements

    20 April 2017

    The Australian Government is, via two new consultations, proposing wide-ranging reforms to tackle the challenges that it faces in detecting, and prosecuting, serious corporate crime. Through proposed amendments to foreign bribery laws and the introduction of a Deferred Prosecution Agreement regime, the Federal Government is seeking to remove obstacles to prosecuting foreign bribery and increase the incentives for companies to self-report this and other misconduct. Partners Rachel Nicolson and Peter Haig, Senior Associates Christopher Kerrigan and James Campbell, and Lawyer Malak Johnson report.

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  • Client Update: Lessons from Singapore's new collective investment vehicle

    13 April 2017

    The Monetary Authority of Singapore recently sought public consultation on the features of its proposed new vehicle for collective investment, the Singapore Variable Capital Company. Partners Marc Kemp and Charles Armitage, and Senior Overseas Practitioner James Kanabar review the key elements of the new vehicle and consider the lessons which might be gleaned in relation to the introduction of a new Australian corporate vehicle for collective investment, announced by the Federal Government as part of the 2016-17 budget and scheduled (perhaps somewhat optimistically) to be introduced by 1 July.

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  • Client Update: Ipso facto clauses, safe harbour for directors - our comments on the draft exposure legislation

    10 April 2017

    The Federal Government has released draft exposure legislation designed to facilitate company reconstructions. Senior Finance Counsel Diccon Loxton, Senior Associate Alicia Salvo and Associate Frances Navarro-Towan discuss some of the implications and issues. 

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  • Allens insights: Not worth the paper they're not written on?

    8 April 2017

    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.

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