Welcome to issue #2 of our Arrium Series, where senior members of the Baker McKenzie team involved in the successful defence of proceedings against the former CFO, former Treasurer and other former employees of the Arrium Group, consider key issues arising in those and related insolvent trading proceedings and from the judgment handed down on 17 August 2021.[1] A summary of the relevant background to the Arrium proceedings, some key terms and the key issues…
The Arrium proceedings On 17 August 2021, following a 38 day hearing involving 30 parties, nine law firms, over 35 Counsel, 40 witnesses, hundreds of thousands of documents and thousands of pages of written submissions, the New South Wales Supreme Court (Ball J) handed down its judgment dismissing two related proceedings brought by different lenders (or assignees from lenders) against combinations of the former CFO, former Treasurer, former Acting Treasurer and former Treasury and Finance…
In brief The Supreme Court of Victoria’s recent decision in Vergara v Chartered Accountants ANZ [2021] VSC 34 has important implications on the availability of judicial review in respect of the decisions of private bodies in Australia. The full decision can be found here. Mr Vergara’s claim Claudio Vergara was a member of Chartered Accountants Australia & New Zealand (CA ANZ) from May 2001 until his membership was cancelled in March 2015. His membership was cancelled…
In brief In the recent decision of Bywater v Appco Group Australia Pty Ltd [2020] FCA 1877, his Honour Justice Lee of the Federal Court approved a proposed settlement of a class action commenced against Appco Group Australia Pty Ltd. The decision highlights some of the persuasive factors a Court will consider in determining whether to approve a settlement where the proposed settlement sum is significantly less than the asserted value of a group’s claims. Key takeaways His…
The Year Ahead – our publication looking at key developments in global litigation and arbitration for 2021 – is now available in English, Spanish and Mandarin. COVID-19 and its effects have triggered many disputes, with litigation volumes in some jurisdictions having already doubled, and our clients expect us to help them spot trends and plan for the future. Our report features economic analysis from The Economist Intelligence Unit, and legal analysis from our team of more than…
Australian Courts: Granting a stay of proceedings The Australian courts are often requested to enforce an arbitration agreement by granting a stay of court proceedings. A stay application may be made when a party has commenced court proceedings despite the existence of an arbitration agreement in the underlying contract. In Australia, the courts may be requested to grant a stay in relation to domestic arbitrations under section 8 of the Commercial Arbitration Act 2010 (NSW)…
The Federal Court of Australia (FCA) has enforced two ICSID awards against the Kingdom of Spain (Spain) in Eiser Infrastructure Ltd v Kingdom of Spain. [1] The FCA rejected Spain’s argument that it was immune from the jurisdiction of the Australian courts (asserted pursuant to sections 9 and 10(7) of the Foreign States Immunities Act 1985 (Cth) (Immunities Act)). The investors (Investors) involved in two ICSID arbitrations applied under s35(4) of the International Arbitration Act…
Six years after its inception, the Belt and Road Initiative (BRI) launched by Chinese President Xi Jinping has entered a new, more mature stage. Now based on a more inclusive, transparent and sustainable approach, the global development strategy has been gaining more traction in the 130+ collaborating countries. However, there are two sides to this particular coin: as the opportunities grow, so do the risks. Risk mitigation and compliance for BRI projects have become top…
Overview of Australia’s class action system Class actions are a well-established dispute resolution mechanism in Australia, under both State and Federal regimes. The threshold requirements for bringing a class action are low: class actions require only that seven or more group members have claims against the same person(s), which are in respect of, or arise out of, the same, similar or related circumstances and give rise to at least one substantial common issue of law…
Introduction An Inquiry currently underway in Australia offers good insights into whether, and if so in what circumstances, third party litigation funding, particularly of class actions, should be permitted. Traditionally, third party litigation funding has been prohibited in many countries, and there has been resistance to proposals for its introduction or expansion. Litigation funding has been permitted in Australia for some time, however. The experience there, as reviewed in the current Inquiry and summarised in…