Knowledge

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 can be supported in the future.

Daniel Moulis 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.

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.

Minor changes which have been proposed to the subsidy disciplines of the WTO Subsidies and Countervailing Measures Agreement recognise that the existing Agreement is fundamentally sound, and reflect a widely held view that the interpretation and observance of the rules is a more important issue than what they say.

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.

Proposals for new international rules to deal with issues such as the scope of anti-dumping investigations; the controversial question of “zeroing”; anti-circumvention of dumping measures; and how countries must handle investigations, were circulated for comment late last year in the World Trade Organisation (“WTO”).

Radical last-minute changes to amendments to the Trade Practices Act 1974 (“the Act”) present new risks for foreign companies exporting products to Australia at below cost prices, and significant opportunities for Australian industries facing such “dumping”.

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.

Housing affordability is a key policy concern of governments. In Canberra, concerns about affordability are not confined to home buyers or tenants. Similar concerns are shared by commercial property developers, land owners and tenants. A critical element in achieving better affordability, for any of these groups in the community, is land supply. A second critical element is effective competition in the market place.

China ratified the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (“the Washington Convention”) in 1993. The Washington Convention establishes an arbitration regime for the resolution of investment disputes arising from a foreign investor and its host State. An obvious advantage of this regime is that it provides a way for foreign investors to resolve investment disputes in the context of international standards and procedures, instead of standards of the host State and the efficiency and quality of domestic court judgments.