Melbourne Law School - Theses
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ItemThe development of Australian law to protect undisclosed business information( 1998)Traditionally, information has not generally been regarded by the common law as being property and able to be legally protected in the same way as land, money or goods. Australian courts have demonstrated great reluctance to change this approach, even though information is increasingly considered to be a valuable asset, particularly by the business community. However, a change in the way information is regarded has taken place over the last four to five decades, resulting primarily from the increased use of computer technology. In Australian law, organisations or individuals who wish to restrict access to their business information and keep it confidential currently have limited legal means to achieve their aim. The breach of confidence action, contract law, copyright law and criminal law may all be used to protect information from unauthorised access or use but only to a certain extent. In most instances these traditional legal approaches require that there is a confidential or contractual relationship between the parties, that the information be in an original form, or that the unauthorised access be made using computer technology. There are particular deficiencies in the legal protection available when undisclosed business information is accessed by a party outside a contractual or confidential relationship, often through improper means. Ways in which these deficiencies, particularly in respect to the breach of confidence action, could be overcome have been proposed by a number of law reform bodies, in Australia and overseas. However, no legislative amendments adopting these proposals have been introduced in Australia and judicial decisions indicate that the courts are likely to continue a conservative approach to the protection of information to avoid creation of barriers to the free flow of information. Different legal approaches to the protection of business information have developed in continental Europe and America. However a review shows that deficiencies in the protection offered have not been fully overcome in these jurisdictions. More recently, a number of international developments have taken place which are of significance to the protection of business information. The developments take different forms, either as binding international agreements, or non-binding agreements. Examples are the Trade Related Aspects of Intellectual Property Agreement (TRIPS); the OECD Guidelines of Security for Information Systems and for Cryptography Policy; and the WIPO Model Provisions for Unfair Competition. These agreements establish new international standards relating to the protection of business information. The way in which these international agreements may become part of Australian domestic law and policy can be predicted and explained by analysing the nature and form of the relevant international agreements and the process by which they may become part of domestic law; by having regard to recent developments in this field in other countries; by analysing Australia's response to similar developments in the past, for example, the OECD Guidelines on the Protection of Privacy and Transborder flows of Personal Data; and by reviewing Australia's response so far to the latest developments relating to the protection of confidential business information.
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ItemInteraction between commercial & legal aspects of project finance in Australasia( 1997)The project finance technique emerged as a result of legal principles evolving to meet commercial needs. Its value - enabling companies to fund projects on other than their own credit standing and to diversify risks associated with projects - has been proved by a remarkable string of major developments which were unlikely to have been undertaken without such a financing method. Over the years, the technique has been adapted to a range of applications and industries. One of its most recent uses has been in private sector development of public infrastructure projects. It is in this climate of continued need for project financing that this thesis seeks to examine its development to date, its strengths and its weaknesses, and to consider what changes, if any, are needed to ensure its continued usefulness in the future. The growing body of work known as 'economic analysis of law' is used as a key to understanding these issues and to suggest possible ways forward. Risk is identified as being central to the project financing process. Its identification, allocation and mitigation are the building blocks of the technique. Parties trade risks and contractual arrangements are put in place to give effect to these compacts. These contracts have often been creative, responding to the commercial requirements of the particular development and the parties involved. Novel processes have been devised to deal with cases of project or operator failure, providing self governing and self executing regimes for the developments. These self contained mechanisms are a response to the fact that court adjudication of disputes in these transactions is often inappropriate. The sophistication of these arrangements, however, has also resulted in significant transaction costs. Lengthy and complex documentation is characteristic in these financings. The costs begin at the outset of the transaction in the time and money involved in negotiating documentation and, on an on-going basis, arise through the significant reporting burden usually imposed on borrowers and the restrictive provisions which require continual lender involvement in project decision making. The lengthy, detailed documentation provides the project management regime as it usually stipulates in great detail how the project is to be operated and what the borrower can and cannot do. However, the very long terms of these financings (at times 17 or 18 years), mean that parties are unlikely to succeed in anticipating and dealing comprehensively with every imaginable contingency. The use of such lengthy, detailed documentation will, therefore, be reviewed and a theoretical analysis presented of why project participants have adopted this strategy. This thesis also recommends alternative strategies for structuring the project finance relationship. The optimal solution for any project should still be determined on the specific circumstances on the case and is likely to combine elements of the current approach with some of the proposals suggested.