Disputes & Investigations

Our experienced Disputes & Investigations legal team regularly publishes articles and updates – the full list of publications appears below. If you'd like to be notified when we add new Disputes & Investigations 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.

Read about our track record in Disputes & Investigations.

Disputes & Investigations Publications

  • Focus: You've got to be perfected - Equipment leasing and the PPSA

    7 March 2016

    A recent decision of the Supreme Court of New South Wales has again illustrated the potentially severe consequences for lessors of equipment and other goods under the 'vesting' provisions of the Personal Property Securities Act 2009 (Cth). The lease can be a security interest. If the lessors don't perfect the lease by registration, they can lose the equipment. Partner Kim Reid, Senior Associate Przemek Kucharski and Lawyer Kane Kersaitis report.

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  • Focus: Predictive coding: the future of electronic document production?

    25 February 2016

    A recent decision of the English High Court may pave the way for the use of 'predictive coding' in large scale discovery and regulatory investigations in Australia. Partners Nick Rudge and Duncan Travis, Managing Associate Kate Austin and Associate Emily Giblin look at the benefits and risks of the new software.

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  • Focus: Australia has lifted certain sanctions on Iran

    18 February 2016

    In response to recent confirmation that Iran has met its international nuclear commitments, the Australian Government has lifted all nuclear-related economic and financial sanctions against that country. Partner Rachel Nicolson, Managing Associate Hilary Birks and Associate Sarah Jenkins report on what has changed and the potential opportunities for Australian businesses.

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  • Focus: Strangers no more - Taking action against an insolvent defendant's insurer

    16 February 2016

    The High Court of Australia has decided that a third party claimant can join an insolvent or potentially insolvent defendant's insurer to proceedings to seek a declaration that the insurer is liable to indemnify the defendant. Partner Andrew Maher and Lawyer Shelley Drenth discuss the decision and its implications. 

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  • Contract Law Update 2015

    11 February 2016

    Our Contract Law Update provides an overview of important contract law decisions by Australian appellate courts in the past 12 months and considers their significance for the development of Australian contract law.

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  • Focus: The investment chapter of the Trans-Pacific Partnership

    14 December 2015

    The release of the text of the Trans-Pacific Partnership Agreement has renewed the debate about the ability of foreign investors to sue governments under investor-State dispute settlement mechanisms which are commonly part of international trade agreements or investment treaties between States. Partner Peter O'Donahoo, Managing Associate Hilary Birks and Associate Chris Holland report on the investment protections available in the Trans-Pacific Partnership Agreement and how the parties have attempted to strike a balance between a State's right to regulate and the rights of foreign investors.

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  • Client Update: Significant High Court decision on settlement of regulatory proceedings

    9 December 2015

    The High Court today held that parties and regulators are permitted to put before the court an agreed position as to the value of a penalty reached as part of a settlement agreement. Our Regulatory team reports.

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  • Focus: UK Supreme Court counters High Court on penalties

    19 November 2015

    The highest appellate court in the UK has affirmed and restated the penalty rule as it applies in the UK in a recent decision that directly addresses, and counters, the High Court of Australia's approach to the rule in Andrews. Partner Nick Rudge and Lawyer Patrick Easton report.

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  • Focus: Federal Court judgment in the Chevron transfer pricing case

    10 November 2015

    The Federal Court's much-anticipated judgment in Chevron Australia Holdings v Commissioner of Taxation is the next important step in the development of Australia's transfer pricing rules. Partners Martin Fry and Toby Knight discuss certain implications of the decision.

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  • Focus: High Court rules on freezing orders for prospective overseas judgments

    4 November 2015

    The High Court of Australia recently upheld the Western Australian Court of Appeal's decision allowing for the WA Supreme Court to make freezing orders for a prospective judgment in Singapore. The core of the decision was a finding that the federal jurisdiction of state Supreme Courts to register overseas judgments under the Foreign Judgments Act is accompanied by an inherent power to make freezing orders in relation to a prospective judgment that, once made, may be registered under that Act. Partner Marshall McKenna and Associate Katie Gardiner report.

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  • Focus: Ashley Madison - litigation risks exposed

    15 September 2015

    The recent hacking of website has exposed the website's parent companies to lawsuits in the US and Canada and has attracted the attention of the Australian Privacy Commissioner. The Ashley Madison hack will undoubtedly fuel the perception that threats to privacy are growing in the digital age. Partner Gavin Smith, Senior Associate Aleisha Brown and Law Graduate Shelley Drenth examine the litigation risks that stem from incidents of cyber-attack or data breach.

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  • Client Update: Class actions game changer averted - for now

    10 August 2015

    A potential game changer that sought to test the boundaries of the class action regime has been averted after the Federal Court refused to make a 'common fund' order in the shareholder class action against Allco Finance. The court has, however, questioned whether legislative reform is required to deal with the role played by litigation funders in class actions. Partners Ross Drinnan and Jenny Campbell report on this latest development in class action law.

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  • Client Update: ASIC to seek recovery of investigation costs

    31 July 2015

    This week, ASIC flagged a change in its approach to the exercise of its power to make orders to recover expenses and costs associated with investigations. Information Sheet 204 indicates that ASIC will be making greater use of this power to seek recovery of its costs from individuals and companies that are the subject of an investigation. While technically the power only exists in relation to proceedings finally determined by a court, it is possible that the change in approach could be applied more broadly, with ASIC seeking to recover investigation costs as part of agreed resolutions to investigations. Partner Richard Harris and Senior Associate Alexandra Mason report.

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  • Focus: Support for principals with bank guarantees

    25 June 2015

    A principal has successfully challenged a decision to grant an interlocutory injunction restraining it from calling on performance bonds. The Victorian Court of Appeal's decision reaffirmed the court's general approach in favour of rejecting such applications where, as in many cases, the purpose of the bond is to provide security and allocate cash flow risk. Partner Nick Rudge and Senior Associate Julian Berenholtz report on the Victorian Court of Appeal decision in Sugar Australia Pty Ltd v Lend Lease Services Pty Ltd and its implications.

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  • Paper: Class actions in Australia

    28 May 2015

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation.

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  • Paper: Shareholder class actions in Australia

    28 May 2015

    Class actions are an established and important part of the Australian legal landscape. In recent years, Australia has become the most likely jurisdiction outside of the United States in which a corporation will face significant class action litigation. This evolution has been facilitated by recent developments in the Australian legal landscape and Federal government support for class actions (and the litigation funding of class actions). This paper outlines some of the key issues and trends in Australian class actions (including litigation funding).

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  • Focus: High Court limits proportionate liability regime and expands insurers' liability for costs

    14 May 2015

    The High Court yesterday overturned a decision of the Full Court of the Federal Court and held that if the same loss is caused by both apportionable and non-apportionable claims, proportionate liability does not apply to the non-apportionable claims. The High Court also ordered that the defendant's insurer pay the costs of the appeal, resulting in its total liability being greater than the limit of indemnity under the policy. Partners Malcolm Stephens and Jenny Campbell and Senior Associate Mark Hare examine the decision and its implications.

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  • Focus: What next after FATF's mixed review of Australia's anti-money laundering and counter-terrorism financing regime?

    11 May 2015

    The Financial Action Task Force has released its report on the effectiveness of Australia's anti-money laundering and counter-terrorism financing regime, focusing on the extent to which it complies with international standards. The report's findings and recommendations come at a key stage in the evolution of Australia's anti-money laundering and counter-terrorism financing framework, and are likely to guide future developments. Partner Peter Haig, Senior Associate Edward Martin, Associate Andrew Shetliffe and Lawyer Glyn Ayres consider the potential impact of the report on the regulatory and enforcement landscape.

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  • Focus: When are LDs a penalty?

    8 May 2015

    The Supreme Court of Queensland recently considered whether liquidated damages in a standard form construction contract were a penalty. In a decision that traversed long-held doctrines on penalties and recent developments in Andrews and Paciocco, the court ruled that the obligation to pay liquidated damages in this case was not penal. Partners Nick Rudge and David Donnelly and Lawyer James Waters report.

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  • Focus: Third parties are no bar to arbitration: A win for arbitration?

    7 May 2015

    The Supreme Court of New South Wales has confirmed in a recent case that the impact of any dispute on third parties will generally not determine its arbitrability, which rather will be determined on the proper construction of the arbitration agreement. Partner Nick Rudge, Senior Associate Alex Price and and Lawyer James Waters report.

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  • Client Update: Significant 'blow' for penalties claims

    8 April 2015

    Today the Full Federal Court clarified the law of penalties as it applies to fees. The key development is that, in considering whether the amount of a fee is 'extravagant and exorbitant' compared to the potential costs incurred in dealing with a failure to perform an obligation, the court held that indirect costs could be taken into account. Subject to a likely attempt to appeal to the High Court, this development imposes a substantial hurdle for current and future penalties class actions. Partner Jenny Campbell and Lawyer Alicia Lyons report.

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  • Class Action Insights

    7 April 2015

    The recent settlement of the Great Southern class action raises a number of interesting and important issues, not only because the court took the unusual step of publishing its reasons for judgment after the settlement had been announced.

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  • Client Update: The driver, the racing team, the Grand Prix and the court - high-speed arbitration enforcement in the Victorian Supreme Court

    16 March 2015

    In just over a week of fast-paced litigation, the Supreme Court of Victoria acted quickly and decisively to enforce an international arbitration award. Partner Duncan Travis (view CV) and Associate Christopher Holland report on the litigation between Dutch driver Giedo van der Garde and Formula One racing team Sauber Motorsport AG, which was settled on the eve of the Australian Grand Prix.

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  • Focus: Babcock & Brown - a market disclosure claim decided

    10 March 2015

    The Federal Court has dismissed shareholders' claims against Babcock & Brown alleging failure to disclose market sensitive information. The court made important findings on the scope of listed entities' continuous disclosure obligations in the context of accounting irregularities, and potential insolvency. The court has also given theoretical support to market-based causation, although this was not necessary to decide the case. Partner Duncan Travis and Lawyer Michela Agnoletti report on the decision, and its implications.

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  • Focus: Further guidance on promoter penalty provisions

    27 February 2015

    The Federal Court has recently had another opportunity to consider the application of the promoter penalty provisions in the Taxation Administration Act. The Federal Court's recent decision indicates that the promotion of schemes that are clear and deliberate tax exploitation schemes will result in substantial penalties. Partner Alex Cuthbertson and Managing Associate Susie Stone report.

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  • Focus: The year to come for Australia's Anti-Money Laundering and Counter-Terrorism Financing regime

    27 February 2015

    Having recently acquired a new CEO and a significant funding boost, AUSTRAC is being closely watched by reporting entities for an indication of its future direction and priorities, both at the policy and the enforcement level. In light of this, and with major review reports pending, 2015 promises to be a significant year for Australia's Anti-Money Laundering and Counter-Terrorism Financing regime. Partner Peter Haig, Senior Associate Edward Martin and Associate Andrew Shetliffe consider the year ahead.

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  • Focus: Bigger sticks, smaller budget: ASIC's enforcement in 2015

    25 February 2015

    In 2014, the Australian Securities and Investments Commission (ASIC) was chastened by the Senate Economics References Committee, which wants ASIC to be more effective, but encouraged by the Financial System Inquiry, which wants ASIC to take on greater powers. Meanwhile, the Federal Government has reduced ASIC's funding. The release of ASIC's latest six-monthly enforcement report and its updated regulatory guide on enforceable undertakings provides an opportunity for Partners Matthew McLennan and Alex Cuthbertson and Associate Catherine Li to consider how ASIC might reconcile its competing enforcement priorities in 2015.

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  • Focus: Finality: an important objective of class actions

    12 February 2015

    The recent Great Southern class action settlement included a term by which group members acknowledged and admitted that loans taken out with independent financiers to finance investments in Great Southern managed investment schemes were valid and enforceable. Two separate Victorian Supreme Court decisions found that such a term was fair and reasonable because, among other things, it provided finality to the litigation. Partner Belinda Thompson and Senior Associate Kate Austin examine the decisions and their implications.

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  • Focus: Managing shareholder activism - who is in the driver's seat?

    3 February 2015

    The recent New South Wales Supreme Court decision of Molopo Energy Limited v Keybridge Capital Limited reflects the continuing growth of shareholder activism in the Australian corporate landscape. The case is a reminder that boards need to remain aware of developing activist strategies, particularly where attempts are made to usurp the powers vested in the directors. Litigation Partner Kim Reid, Corporate Partner Kate Towey and Senior Associate Jack Power report on this decision and the implications for directors of listed companies in responding to activist shareholders.

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  • Contract Law Update 2014

    2 February 2015

    Our Contract Law Update provides an overview of important contract law decisions by Australian appellate courts in the past 12 months and considers their significance for the development of Australian contract law.

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  • Vietnam Legal Update: New Law on Bankruptcy to take effect in January

    22 December 2014

    Vietnam's new Law on Bankruptcy will take effect from 1 January 2015, bringing in a number of changes, including a new definition of 'bankruptcy'. Partner Robert Fish and Junior Associates Giang Quang Nguyen and Linh Nguyen look at the most significant features of the new law and note what will differ from the current regime.

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  • Focus: Public authorities - reduced protection against negligence

    19 December 2014

    In coming to a recent decision, the Queensland Supreme Court has taken a narrow view of a section of that state's civil liability legislation that was designed to limit the liability of public authorities in Queensland. Partner Nicholas Ng and Senior Associate Goran Gelic report on this decision and its implication of greater liability exposure.

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  • Focus: Investigations - ICAC has its wings clipped

    11 December 2014

    By a two to one majority, the NSW Court of Appeal has held that the Independent Commission Against Corruption had no power under the ICAC Act to investigate an allegation to the effect that, as a result of conduct involving an alleged intention to pervert the course of justice, a public official had been diverted from performing an investigation of a suspected crime. The decision has potentially wide ramifications and ICAC is seeking special leave to appeal to the High Court as a matter of urgency. Partner John Warde and Senior Associate Jonathan Light report.

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  • Focus: Productivity Commission - Access to Justice Arrangements report and recommendations

    5 December 2014

    The Access to Justice Arrangements report proposes broad-ranging reforms to our civil justice system, with the aim of improving access to justice. Partner Belinda Thompson and Lawyer Annie Santamaria highlight some recommendations, which also have the potential to impact more broadly on Australia's legal landscape.

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  • Client Update: More limits on lawyer-driven litigation

    1 December 2014

    Following a decision earlier this year preventing a solicitor from acting in a class action in which the solicitor managed and controlled the representative plaintiff, the Victorian Supreme Court has held that a solicitor and senior counsel should be prevented from acting in a class action in which they had a substantial indirect interest in the litigation funder of the action. Partners Duncan Travis and Matthew McLennan and Associate James Campbell report.

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  • Focus: The hotel window closes - no vulnerability where a contract exists

    20 October 2014

    The High Court recently overturned a NSW Court of Appeal decision that stated a building contractor owed a duty of care for pure economic loss for defective work to a successor in title to the developer of commercial premises. Partner Leighton O'Brien and Lawyer William Coote assess the decision and its consequences.

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  • Focus: Section 54 of the Insurance Contracts Act: Putting insureds in the driver's seat

    16 September 2014

    A recent High Court decision highlights the substantial scope of s54(1) of the Insurance Contracts Act 1984 (Cth) to prevent an insurer from denying cover following an insured's non-compliance with certain terms of an insurance policy. The court confirmed that, in certain circumstances, the section can relieve an insured from the consequences of an act or omission which triggers coverage exclusions and limitations. Partner Andrew Maher, Senior Associate Jonathan Light and Lawyer Brydon Wang report.

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  • Client Update: Court takes an expansive view of threshold requirement for class actions against multiple respondents

    8 September 2014

    A representative proceeding can only be commenced where seven or more group members have claims against the same person. In proceedings with multiple respondents, there has been conflicting authority as to whether each group member is required to have a claim against each respondent. Last week, in Cash Converters International Limited v Gray, the Full Federal Court appears to have resolved this uncertainty, by confirming that no such requirement exists. Partners Peter O'Donahoo and Jenny Campbell and Associate Thomas Bagley report.

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  • Focus: Does legal professional privilege apply to communications with third-party commercial advisers?

    14 August 2014

    Parties involved in large-scale commercial transactions with non-lawyer third-party advisers need to be aware that communications with these advisers will rarely be protected by legal professional privilege, following a recent Federal Court decision that confirmed the limits on the extent to which legal professional privilege will apply. Partner Richard Harris and Law Graduate Sibella Matthews report.

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  • Class Action Insights

    8 August 2014

    In recent months, the funding of class actions has been prominent in the legal press. The issues canvassed have included the regulation of third party funders, the case for and against lawyers charging contingency fees, attempts by lawyers to establish third party funding vehicles, the Productivity Commission's draft recommendations in relation to the private funding of litigation, and the Commonwealth Attorney-General's proposed review of the litigation funding sector.

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  • Client Update: The limits of lawyer-driven litigation

    24 July 2014

    In a recent decision the Victorian Supreme Court has examined the limits on entrepreneurship by securities class action lawyers. It has stayed a class action in which the plaintiff's lawyer was also its shareholder and director. The plaintiff had a 'business model' of purchasing small shareholdings in listed companies with the objective of subsequently commencing class actions against some of them for breaches of continuous disclosure obligations. Partners Belinda Thompson and Matthew McLennan and Associate James Campbell report.*

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  • Client Update: Further support for arbitration

    15 July 2014

    In a recent decision, the Victorian Court of Appeal has held that parties to an arbitration agreement cannot avoid arbitration by seeking to bring the claim in a statutory tribunal. Partner Nick Rudge and Lawyer James Waters report on a case that reinforces the trend of Australian courts to give effect to the international UNCITRAL Model Law in domestic disputes.

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  • Focus: Record penalties a reminder of product safety obligations

    3 July 2014

    Record US penalties recently imposed on car manufacturers for failures to deal appropriately with safety defects are a timely reminder to Australian manufacturers of their product safety obligations. Partner Belinda Thompson, Senior Associate Jaime McKenzie and Lawyer Ishwar Singh report.

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  • Focus: SOPA adjudications in Western Australia - only the applicant can win!

    3 July 2014

    The Supreme Court of Western Australia has held that under that state's security of payment legislation, an adjudicator does not have the power to make a determination that requires an applicant to pay the respondent money by reason of any counterclaim raised in the adjudication. An adjudicator may consider the counterclaim, but only in the context of whether any amount is payable to the applicant. A respondent who seeks to recover money by reason of a counterclaim must initiate a separate adjudication. Partner Michael Hollingdale, Managing Associate Jeremy Quan-Sing and Associate Helen Dolling report.

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  • Client Update: 'Fraud on the market' theory survives challenge in the US

    26 June 2014

    Perhaps the most important unanswered question in Australian class action law is how causation may be established in the context of a shareholder class action. In the United States, this issue has been addressed by the 'fraud on the market' theory. This week the US Supreme Court rejected a challenge to the validity of that theory. Partners Ross Drinnan and Jenny Campbell and Senior Associate Mark Hare report.

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  • Focus: Adjudications under WA's SOPA legislation - enforcement by statutory demands clarified

    24 June 2014

    The WA Supreme Court has provided important clarification on the enforcement of adjudication determinations by the use of statutory demands under that State's security of payment legislation. It has confirmed that leave to enforce an adjudication determination as a judgment must be obtained before the issue of a statutory demand, and that failing to do so will mean the statutory demand is liable to be set aside. Partner Michael Hollingdale, Senior Associate Jeremy Quan-Sing and Lawyer Brittney Nash report.

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  • Focus: High Court affirms governments' power to pass 'draconian' seizure laws

    10 June 2014

    The High Court recently handed down its decision in Attorney-General (NT) v Emmerson. Partner Peter O'Donahoo, Senior Associate Tim Maxwell and Lawyer Simone Kaser review the decision with respect to the court's analysis of the limits on Commonwealth and Territory legislative power under the doctrine of separation of powers and the 'just terms' guarantee.

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  • Focus: The Federal Court on information to third parties, legal professional privilege and waiver

    21 May 2014

    A recent Federal Court decision highlights the importance of managing the provision of information and documentation to third parties with caution in order to preserve legal professional privilege. Partner Richard Harris and Senior Associate Elnaz Nikibin report on the case.

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  • Focus: Federal Court - another arbitration-friendly decision

    15 May 2014

    In a recent decision, the Federal Court dismissed an application to set aside an arbitral award rendered in Australia on the basis that it breached the rules of natural justice. In doing so, the court's decision recognised the limited scope of the grounds upon which an award can be set aside under Australia's applicable legislation. Partner Andrea Martignoni, Senior Associate Hilary Birks and Lawyer Anna McMahon report.

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  • Focus: Using 'reasonable endeavours' - the importance of internal contractual standards

    28 April 2014

    The High Court has recently highlighted the significance of internal contractual standards when interpreting an obligation to use 'reasonable endeavours'. Partner Nick Rudge and Lawyers Goran Gelic and Timothy Leschke report on this development and its implications.

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