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Knowledge

Our experienced lawyers share their unique perspectives on the latest market news and trends. Moulis Legal and our lawyers are highly ranked by respected peer review agencies Chambers & Partners, Who’s Who Legal and Best Lawyers. Our recognitions include consistent Band 1 recognition by Chambers & Partners Asia Pacific, and as one of Australia’s top 20 law firms (Chambers & Partners, 2015).

Proving your cross-border claim – how to collect evidence abroad

Evidence is crucial to success in any dispute, but there can be many hurdles in identifying and collecting the evidence which is necessary to prove a claim. The challenges in this process are compounded in cross-border disputes as key evidence can be located outside of where the proceedings are taking place or can even be located across multiple borders.

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Property sale and leaseback – have your cake and eat it too

Property sale and leaseback, if structured and implemented properly, offers commercial benefits to seller/tenants and buyer/landlords alike. Sellers can release value while retaining use and possession of property. Buyers can secure a long-term and consistent income stream with the upside of property appreciation and future development options.

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Cross-border dispute management for business

Over half of Australian businesses are doing business overseas through trade, investment and cross-border transactions. The world has become much smaller and closer, and Australian businesses are now fully integrated as part of the greater Asian market. The internationalisation of Australian business brings great opportunities, but also risks associated with operating in different regulatory environments and being subject to unfamiliar laws.

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Petroleum Contract Series – striking a balance in branding agreements

Australia has approximately 6,500 retail service stations, with the majority branded as one of the major oil companies, such as BP, Caltex, Mobil or Shell. However, a relatively small number of sites are actually owned or operated by these major companies. As such, branding agreements – that is, the agreement between the smaller retail petrol site operator and the oil company – are essential in the downstream petroleum industry. The terms of a branding agreement have significant influence over how a service station operates. Accordingly, these agreements need to be carefully considered and reviewed to ensure they take into account the commercial realities of the industry whilst allowing each party reasonable legal safeguards.

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A warning for SMEs – the “effects test” will apply to your market power too

In what is the biggest shake up of competition law in Australia for many years, the Australian Government has announced that it will amend the legal test to determine whether a business has misused its market power. If the proposed changes are passed, the scope of activities constituting a misuse of market power will be significantly broadened. The proposed changes have attracted attention from big and small business alike. Whilst the changes could shift greater power to smaller industry players, those looking for a more level playing field should be careful what they wish for – the changes could impact more than just big business.

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Iran back in vogue

Australia’s exports to the Islamic Republic of Iran were, at one time, valued at over AUD 1 billion and covered a range of industrial and consumer goods and services. After years of nuclear based sanctions, Australia’s total trade and investment with Iran is valued at less than AUD 300 million and is limited to wheat and related products. In the last two months the United Nations and Australia have eased many of the sanctions against Iran, which will open new trade and investment opportunities for Australian businesses looking to Iran as a potential market.

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Canberra’s mixed use development laws – uncool in the capital

Canberra’s ambition to be the “coolest little capital” depends on bringing variety and vibrancy into its urban environments. Mixed use developments are on the up. Residential owners are being injected into adaptively re-used commercial precincts, and vice versa. Braddon, New Acton, the Kingston Foreshore and Barton’s Realm precinct incorporate a range of residential, commercial and retail uses within individual sites, with some having received international recognition. The old Manuka precinct will be next, with the Territory having floated the concept of an $800 million redevelopment involving new hotels, serviced and residential apartments, 140,000m2 of retail and office space, underground car parking and a stadium revamp.

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Petroleum Contract Series – carrying too much liability under carrier agreements

Australia’s downstream petroleum industry is continuing its evolution into a complex commercial environment that combines sophisticated multinationals, emerging national fuel businesses and local goods and service providers. For many years, the downstream petroleum industry largely shunned the use of formal legal agreements – a hand shake, a pat on the back and good faith were enough to get the job done. New players and greater risks have resulted in legal contracts becoming common place for most, if not all, transactions. However, these contracts have been introduced in a patchwork manner and have often been borrowed and butchered from other industries, which has resulted in many existing contracts being unclear, unenforceable and hopelessly imbalanced.

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Investor State Dispute Settlement – a critical tool in the international investment toolkit

Australia’s free trade agreement with China, the highly debated Trans-Pacific Partnership Agreement and Australia’s recent dispute with big tobacco in Singapore have drawn public and political attention to Investor State Dispute Settlement, or ISDS. Characterisations of ISDS have included it being an attack on democracy, a threat to national sovereignty or a panacea that protects all international investment. In commercial reality, ISDS is a useful tool that can provide valuable protection for investors and should be part of all international investment planning. While ISDS is not an insurance policy for international investment it can be used to minimise sovereign risk, especially on investments into higher risk and volatile countries.

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Negotiating civil penalties with regulators – High Court changes stop to go

After a year of uncertainty, the High Court’s decision in CFMEU v Director, Fair Work Building Industry Inspectorate & Anor (“the CFMEU case”) has restored and validated the long held practice in regulatory matters for parties to agree on a civil penalty to submit for approval by the Court. The CFMEU case is significant for any businesses and directors facing prosecution from regulatory bodies across Australia, especially as they consider whether they can (and should) negotiate with the regulatory body. In this Litigation Monitor, senior lawyer Emily Murphy reviews the CFMEU case and considers its application to Australian businesses responding to regulatory investigations.

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