Legal Updates

Section 7C: No arbitration for you!

Section 7C of the Home Building Act (HBA) provides that “a provision in a contract or other agreement that requires a dispute under the contract to be referred to arbitration is void”.   The recent case of Cavasinni Constructions Pty Ltd v New South Wales Land and Housing Corporation [2014] NSWSC 1678) considered the application of section 7C to a detailed dispute resolution regime in a contract between sophisticated parties.  The regime involved numerous stages including expert determination and in certain circumstances, arbitration.

By way of background: More…

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Pulling rank: Federal Court reigns in scope of Superannuation Complaints Tribunal functions

Hannover Life Re of Australasia Ltd v Wright [2014] FCA 1163

  • Following an appeal by Hannover Life Re of Australasia Ltd (Hannover Life), the Federal Court has set aside a determination of the Superannuation Complaints Tribunal (the Tribunal) which ordered the redrafting of a total spine exclusion clause under insurance arrangements with UniSuper Limited (USL) in respect of optional death and disablement cover.  In doing so, the Federal Court held the Tribunal erred in its exercise of determination-making power under section 37 of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (the Complaints Act). More…
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NLRB Rules That Employees Can Use Company Email for Union Organizing – Affects All Employers

Our colleague Steven Swirsky at Epstein Becker Green wrote an advisory on an NLRB ruling that affects all employers: “NLRB Holds That Employees Have the Right to Use Company Email Systems for Union Organizing – Union and Non-Union Employers Are All Affected.” Following is an excerpt:

In its Purple Communications, Inc., decision, the National Labor Relations Board (“NLRB” or “Board”) has ruled that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted” by employers that provide employees with access to email at work.  While the majority in Purple Communications characterized the decision as “carefully limited,” in reality, it appears to be a major game changer.  This decision applies to all employers, not only those that have union-represented employees or that are in the midst of union organizing campaigns.

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RBI notifies new FDI Policy for railways infrastructure & defence sector

The Reserve Bank of India (“RBI”) has recently notified the Government of India’s decision to permit 100% foreign direct investment (“FDI”) in railways infrastructure (effective August 27, 2014), and increase FDI in the defence sector (effective August 26, 2014) as under:

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Dumping rates finally set in the power transformer dumping Investigation

As many would be aware, I have been involved in the Investigation regarding the alleged dumping of power transformers exported from China, Indonesia, Korea, Taiwan, Thailand and Vietnam.

The Investigation commenced on 29 July 2013 and the findings in relation to the Investigation were finally publicised by the Anti-Dumping Commission (“ADC“) in an advertisement in The Australian newspaper on 10 December 2014.  This gave notice to the decision of the Parliamentary Secretary of the Department of Industry on 4 December 2014.  The decision is certainly well after the normal 155 day period advertised for Investigations to be completed. More…

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Tenancy deposits: a new trap

Since 2007, landlords who take a security deposit from an “assured shorthold” tenant (most short residential tenancies are assured shortholds) have had to protect the deposit. The landlord protects the deposit either by registering it with an insurance-based scheme or, alternatively, by lodging the deposit with a government approved custodian. The landlord must also serve “prescribed information” on the tenant. This is a pre-printed notice that sets out the terms of the deposit and explains to the tenant what its rights are if there is a dispute in relation to the deposit at the end of the tenancy. If the landlord fails to protect the deposit, or to serve the prescribed information on the tenant, within 30 days of the date on which the lease was granted, the landlord may have to return the deposit to the tenant and also faces a fine of up to three times the value of the deposit.  More…

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FIDIC explained


FIDIC is the acronym for Fédération Internationale des Ingénieurs-Conseils, which is the French language name for the International Federation of Consulting Engineers. FIDIC has been around for 101 years and is principally an organisation which acts in the interests of, and educates and informs, its members. Each member is the national association of consulting engineers in the relevant territory. For example, in the UK, it is the Association for Consultancy and Engineering, in Korea it is the Korea Engineering and Consulting Association, in Singapore it is the Association of Consulting Engineers Singapore, and in Malaysia it is the Association of Consulting Engineers Malaysia. More…

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Jurisdiction and Commercial Agents Regulations

The Commercial Agents (Council Directive) Regulations 1993 entitle commercial agents to an indemnity or compensation on termination of their agency contract, and the right cannot be excluded. This can come as a surprise to principals outside the EU who are unfamiliar with the concept.

In a landmark case, in which Fladgate acted for the claimant, the European Court of Justice held that a US state choice of law clause could not be used to evade liabilities under the Regulations, as any clause that sought to derogate from the regulations would be unenforceable. (Ingmar GB Limited vEaton Leonard Technologies Limited (Case C 381/98) [2000] EUECJ). However, in the recent case of Fern Computer Consultancy Limited vIntergraph Cadworx [2014] EWHC 2908 (Ch) a Texan choice of law and jurisdiction clause managed to obstruct an agent’s claim.  More…

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Scots Economy Growth Slows But Employment on Rise

The Scottish economy is set for further growth in 2015 but at a smaller rate than the 2014 level.

According to a survey carried out by the Bank of Scotland, November saw the smallest economic growth in 2014, with the trend expected to continue into 2015, with the survey finding the private sector in Scotland to have one of the slowest growth rates in the UK.

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NLRB Holds Employees Have the Right to Use Company Email Systems for Union Organizing

The National Labor Relations Board has ruled in its decision in Purple Communications, Inc., that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by” by employers who allow provide their employees with access to email at work.  While the majority in Purple Communications characterized their decision as “carefully limited,” in reality it appears to be a major game changer.

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