Online Dispute Resolution for Small Civil Claims in Victoria: A New Paradigm in Civil Justice

This article seeks to explore some of the implications of integrating information and communications technology into judicial processes to resolve small civil claims. It argues that, as ODR moves from individual private-sector initiatives to widespread public sector institutionalisation, governance and value questions will need to be seriously considered. This is because questions regarding the appropriateness of the use of certain ODR systems in the resolution of small claims and consumer disputes persist, especially in relation to the use of systems which are fully autonomous. For example, how are fundamental due process requirements to be balanced against the economic constraints of resolving low value disputes? What are the limits to the evolution of civil justice to make it more accessible? It is argued that, while ODR holds vast potential for increasing access to justice, attention needs to be given to the dispute system design to ensure that it achieves that goal and does not result in the erosion of fundamental values of civil justice, including accessibility, transparency, legal validity and accountability.

Dissonance in Global Financial Law

This article explores whether the post-GFC global financial architecture is likely to provide efficient regulation capable of preventing a future crisis from occurring. The article starts with a brief overview of the emergence in the 1970s of global financial architecture. A thorough descriptive analysis of the post-crisis architecture follows, raising serious doubts regarding the current architecture’s ability to accomplish its goal. This analysis is performed in two stages, taking first an outsider’s perspective on the changes the architecture underwent after the crisis and moving then to the inside — the structure and contents of the architecture. Using macro-prudential methodological tools, the establishment of the Financial Stability Board is reviewed, along with three cutting edge regulations: the Basel III framework for banking, the IOSCO’s recommendation for money market funds, and the FSB’s recommendations regarding repurchase agreements. Pointing out the architecture’s perceived failure to provide stability due to severe regulatory arbitrage, the article then widens the lens to explore the implications of the above regulation. The article suggests that the current architecture encourages ‘financialisation’ and pushes the financial system and the real economy further apart. Consequently, the article raises normative concerns regarding the legal foundations of the global financial architecture, and its legitimacy.

An International Convention on Refugee Resettlement

Forced migration has been the subject of intense debate in the past 50 years and has spawned a wealth of literature as a result. Few commentators, however, have considered the value or viability of an international agreement on refugee resettlement that would include mandatory resettlement quotas. This article puts forward a proposal for an International Convention on Refugee Resettlement. Such a convention would, I argue, help to address some of the current limitations of resettlement as a solution to the increase in refugee numbers. Appendix 1 contains the suggested wording for such a convention, drawing on several international human rights treaties (particularly the 1951 Convention Relating to the Status of Refugees) as well as resettlement principles and policies set out by the Office of the United Nations High Commissioner for Refugees. Appendix 2 provides explanatory notes for the draft wording. It is hoped that such wording might be of use to those campaigning for the development of a binding, international agreement on resettlement.

The Peripatetic Nature of EU Corporate Tax Law

This article examines some aspects of the European Union’s corporate tax set-up which correspond to aspects of a country’s corporate tax regime. The overarching question is whether there is such a thing as EU corporate tax law. This article seeks to address this in the context of the following issues: the existence of a uniform tax base and tax rates; the existence of anti-abuse rules and a transfer pricing regime; and, finally, the existence of a common tax administration and its powers. The article questions whether the peripatetic development of EU corporate tax law is suitable for the EU or whether it undermines its long-term objectives. The potential impact of Brexit in the development of EU corporate tax law is also addressed.

Recommendations on the Optimal Constitutional Recognition of the First Nations in Australia

This note extends my previous analysis of the constitutional recognition of Aboriginal and Torres Strait Islander Peoples (‘First Nations’) by providing guidance on the optimal approach for this recognition. The guidance is founded on the concepts of efficiency and equity. An optimal recognition is defined as one that achieves both objectives simultaneously. Efficiency flows from a dynamic recognition that changes over time relatively easily, as exemplified by a treaty-based approach. The equity criterion has, as a proxy, legal pluralism, whereby constitutional recognition enlivens ‘Indigenous jurisprudence’ through mechanisms such as self-governance. The proposal is to combine efficiency and equity by guaranteeing the collective rights of Indigenous Australians in accordance with universally recognised principles and norms of international law, such as the UN Declaration on the Rights of Indigenous Peoples (for which the Commonwealth of Australia announced its support in 2009). This in turn is likely to guide a treaty-based approach to the relationship between the Commonwealth and First Nations that can evolve towards legal pluralism.

Damages for Wrongful Fertilisation: Reliance on Policy Considerations

In what was described as ‘one of the most difficult cases’ that had come before it, the Singapore Court of Appeal in ACB v Thomson Medical Pte Ltd (‘ACB’) recognised, for the first time, the loss of genetic affinity as an independent head of loss that would allow a plaintiff to recover damages in a claim for wrongful fertilisation. In ACB, the Court of Appeal dismissed the claim for upkeep costs of raising the child from birth to maturity, and instead identified the loss of genetic affinity as the real harm for which damages should be awarded to compensate for the mistaken use of sperm from an unknown third party. An interesting aspect of ACB was how the Court of Appeal grappled with policy considerations as the basis for its decision. The influence of policy considerations in ACB raises the question of whether the decision runs contrary to the long-standing view that there is little room for public policy reasoning in private law adjudication. In this article, the author argues that the Court of Appeal’s decision in ACB was correctly made as it rightly embraced policy considerations in rejecting the upkeep claim and focused on the value of biological relationships in recognising an interest in genetic affinity.

The Role and Liability of Certification Organisations in Transnational Value Chains

Certification organisations have become important players in the monitoring of compliance with social and environmental standards. This is particularly the case in relation to corporate operators producing in or sourcing from developing countries. At the same time, some of the worst industrial disasters in recent years, such as the Ali Enterprises factory fire in Pakistan or the collapse of the Rana Plaza building in Bangladesh, occurred after the relevant operators had been certified for their compliance with standards. This raised doubts about the care that the relevant certification organisation had exercised. This article explores potential grounds on which corporate social responsibility (CSR) certification organisations may incur liability towards third parties, in particular employees of subsidiaries or suppliers. To this end, it discusses the functions of certification generally before it analyses the potential liability of certification bodies under German and English law. It considers various circumstances under which certification takes place, including certification that is required by law, certification that is required to obtain certain benefits, such as tax reductions, certification within private CSR schemes and the entirely voluntary use of CSR certification as an instrument of supply chain control.

Are Corporate Governance Code Disclosure and Engagement Principles Effective Vehicles for Corporate Accountability? The United Kingdom as a Case Study

Disclosure and engagement principles are included in every corporate governance code, reflecting a critical emphasis on communication as a vehicle for corporate accountability. These communication principles have been a focus of reform worldwide, prompted by shifts in financial market and social expectations of corporations. The article examines the disclosure and engagement provisions in the Corporate Governance Code in the United Kingdom (and the proposed reforms to these provisions) as a case study. The proposed initiatives seek to strengthen the voice of employees and enhance disclosure around environmental and social concerns. However, this article contends that the gains achieved from these reforms may be marginal due to structural deficiencies. The incremental disclosure and engagement obligations are expected to be flexible and loosely phrased, with a negligible probability of significant market consequences or regulatory intervention. Moreover, most substantive corporate communication will continue to occur at private forums between directors and selected institutional investors. In financial markets with these regulatory settings, effective governance mechanisms to ensure broad and independent accountability of corporations are lacking or weak. Indeed, these legal structures encourage and legitimise carefully differentiated private and public communication channels, with the public discourse used to present a sparkling company image. Policy makers need to re-consider their reliance on private forums to improve governance standards and ensure that public communication frameworks are inclusive, responsive, probative and enforced. In this way, company law will start to meet the growing calls for corporates to act as responsible citizens.