Melbourne Law School - Theses
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ItemThe Australian Takeovers Panel: an effective forum for dispute resolution?( 2017)The Australian Takeovers Panel (‘the Panel’) has been the primary forum for resolving takeover disputes since reforms to Australian corporate law on 13 March 2000. This thesis makes a sustained scholarly contribution to the evaluation of takeover regulation under Australian corporate law by analysing the extent to which the Panel has been an effective forum for dispute resolution. The thesis addresses two overarching research questions, namely to determine the criteria that should be used to measure the effectiveness of the Panel in resolving takeover disputes and the extent to which the Panel has satisfied these criteria. The work in the thesis is original and is based on a detailed evaluation of the Panel’s decisions from 13 March 2000 to 30 June 2016. It is the first major academic study of the Panel since it became the primary forum for resolving takeover disputes. Chapter 1 provides an explanation of the key concepts relevant to the analysis in the thesis, explains the research questions and methodology used to answer them, and sets out the structure of the thesis. Chapter 2 informs the assessment of the effectiveness of the Panel in the thesis by analysing the policy goals underlying the historical development of Australian takeover regulation and the establishment of the Panel and its predecessors. Chapter 3 examines the historical development of the Panel on Takeovers and Mergers (‘UK Panel’), which is the key comparator for the Australian Panel for the purposes of establishing the criteria to be applied to determine the effectiveness of the Panel. It concludes that the three objectives for the UK Panel, namely speed, flexibility and certainty, can be used as the criteria to be applied to the Australian Panel to determine its effectiveness. Chapter 4 assesses the speed of Panel decision-making based on an empirical analysis of the timing of the announcement of Panel decisions and publication of the reasons. It concludes that the Panel has achieved a strong form of speed overall. Chapter 5 assesses flexibility of Panel decision-making based on procedural and substantive flexibility. It concludes that the Panel has achieved a strong form of flexibility overall. Chapter 6 assesses the certainty of Panel decision-making based on consistency and finality of decision-making. It concludes that the Panel has achieved a medium to strong form of certainty overall. Given this, Chapter 7 concludes that the Panel has provided an effective forum for dispute resolution in light of the aims of the CLERP reforms.
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ItemThe effectiveness of special and differential treatment provisions for developing countries in the World Trade Organisation: implementation in practice and enforcement in dispute settlement( 2005)This thesis addresses the issue of the effectiveness of the World Trade Organisation (WTO) Special and Differential Treatment (S&D) provisions, both in their implementation in practice by the WTO Members, and in their enforcement in WTO dispute settlement process. This thesis argues that the implementation and enforcement of the S&D provisions have been mostly ineffective. In the implementation, this ineffectiveness has been indicated by several facts, including: the impeding of market access for developing countries in developed countries' markets; the failure to effectively safeguard developing countries' trading interests; there having been no real flexibility for developing countries in applying the WTO provisions; the inadequacy of the transitional periods; and the insufficiency of the technical assistance (TA) provided by developed countries. In the enforcement process, the ineffectiveness of the S&D provisions has been shown by a number of facts, including developing country failures to successfully invoke: the balance-of-payments (BOP) reason under Article XVIII:B of the General Agreement on Tariffs and Trade (GATT) 1994; the transitional periods under Article 27.2(b) of the Subsidies and Countervailing Measures (SCM) and Article 65 of the Trade-Related Aspects if Intellectual Property Rights (TRIPs) Agreement; and the special regard provisions under Article 15 of the Anti-Dumping (AD) Agreement. Failures have also occurred with regard to: the extension of time to prepare and present argumentation under Article 12.10 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU); and the special considerations in the surveillance of the implementation of recommendations and rulings under Article 21.2, 21.7 and 21.8 of the DSU. This thesis finds that the unenforceability of the S&D provisions has been the most significant contributing factor to their ineffectiveness. This unenforceability has been characterised by hortatory clauses, onerous conditions, and impracticability. Apart from the unenforceability, the ineffectiveness of the S&D provisions in the implementation has also been caused by: persistent barriers applied by developed countries; the ignorance or developed countries; the technical difficulties faced by developing countries, and the narrow scope of flexibility; the overwhelming size of the adjustment task in transitional periods; and the lack of a systematic scheme for technical assistance. Other reasons for the ineffectiveness of the S&D provisions have been in the enforcement process: the failure or developing countries to fulfil conditions required by the S&D provisions; the failure of developing countries to submit adequate prima facie evidence to support their claims or defences; and strict and narrow interpretation of the provisions by panels and the Appellate Body. This thesis recommends that both conceptual and practical reform be carried out immediately. Conceptually, the S&D provisions should be made effective. In this regard, they should be legally binding, substantially fair, and efficient. Practically, developing countries should: address their lack of resources, through national and international efforts; and enhance their laws and institutions and create new ones that satisfy international standards while being attentive to national interests. Developed countries should: reduce, or even eliminate, protectionist policies that undermine the significance of the S&D provisions. The WTO should intensify and better coordinate T A programs. Finally, panels and the Appellate Body need to apply a more flexible approach in interpreting the S&D provisions.
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ItemWhat's love got to do with it?: addressing spirituality within the context of transformative mediation( 2000)In response to the dissatisfaction that many individuals experience as a result of resorting to conventional legal methods of dispute resolution, and in recognition of the growing number of individuals who are becoming increasingly aware of an internal spiritual calling, this thesis proposes that a spiritual approach, within the context of transformative mediation, be developed and offered to help parties address the legal and spiritual issues underlying conflict. Notions of spirituality are explored and definitions are offered to enable mediators, parties, and other legal professionals to clearly identify common values and to have a starting point from which to ascertain the goals and objectives underlying such an approach. The model of transformative mediation is defined and explained, and relevant criticisms are addressed in order to accommodate a spiritual framework. A five stage process is utilised to facilitate the identification of spiritual opportunities and issues that arise in the context of transformative mediation and, within each stage, examples of spiritual issues are provided to assist mediators in identifying and capitalising on the opportunities for spiritual growth, empowerment, and recognition within a mediation.
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ItemSummary disposition in the new procedural landscape: proposals for reform in Malaysia( 2002)This dissertation supports the new procedural philosophy that strives for legal disputes to be brought to an early end. The primary goal is for disputes to be resolved without adjudication. Alternatively, where adjudication becomes unavoidable, the goal is to ensure that disputes are resolved in an expeditious and cost effective manner. Case management and summary disposition are the means to achieve these overriding objectives of the civil justice system. Unlike alternative dispute resolution (“ADR”) processes that can only further the primary objective of this new procedural philosophy, case management and summary disposition support the attainment of both alternative goals. While the merits and demerits of modern case management practices have been keenly debated and made the subject of research, the same cannot be said of summary disposition. This is because modern case management practices are a relatively new phenomenon while the traditional summary disposition procedures have existed in rules of court for a long time. This dissertation examines the relationship between case management and summary disposition and the impact and implications of the former on the latter. It seeks to identify the principles and tensions underlying both case management and summary disposition and to ascertain how they manifest themselves in the civil litigation process. A major object of the dissertation is to develop law reform proposals in respect of case management and to make recommendations for changes to the traditional summary disposition procedures in Malaysia. The dissertation investigates the likelihood of the successful implementation of such reform proposals in the light of the extent to which lawyers and judges in Malaysia understand and appreciate the paradigm shift that has taken place in other jurisdictions. While this dissertation supports the articulation of the overriding objectives of rules of court in express terms, it opposes the usage of terms such as "fair disposal" or "ends of justice". These terms, when used, will allow judges to apply their own notion of justice when they exercise their discretionary powers. The dissertation also argues that the concept of "justice between the parties" or "interests of the parties" cannot be pursued without restriction. The concept of "perfect justice" in procedural law is a fallacy. Parties to a dispute do not have the untrammelled right to pursue litigation and ignore the impact of their actions on the system as a whole or on other litigants in the process. State interests and those of other third parties must be factored into the equation. The need to "ration justice" is a necessary evil.