Legal Updates

‘Super’-sizing private equity in Australia

Following the global financial crisis, many critics of the financial services market expected private equity ventures to be the first alternative investment vehicle to disappear. Over the short term, this was true, with investment in private equity vehicles temporarily suspended by many foreign investors as they grappled with issues of liquidity and by Australian institutional investors because of the lack of transparency in private equity funds. However more recently there has been a resurgence of investment into the international private equity market.

Trustees of Australian superannuation schemes and pension funds, in particular, have recently been bullish about private equity in their search for greater alpha. Institutional superannuation trustees hold in excess of two trillion Australian dollars (approximately USD 1.523 trillion) of assets on behalf of Australian superannuants and are beginning to return to direct investment in a more stable post-GFC market.

Historically, there have been two factors which limit the flow of funds from the Australian superannuation industry to international private equity firms. The first, the lack of knowledge or familiarity of Australian trustees with the legal vehicles or structures used to organise private equity investments. The second, the lack of understanding by private equity firms of the Australian regulatory regime which imposes investment restrictions on trustees that can be incompatible with private equity investments.

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Election 2016: New Laws Impacting Employers – Employment Law This Week

The top story on Employment Law This Week: Election Day brings a wave of new laws affecting employers.

While all eyes were on the battle for the White House, voters in a number of states approved new legislation that will directly impact employers. Arizona and Washington will soon require paid sick leave for workers, as well as minimum wage increases. Medical marijuana is now legal in Arkansas, Florida, and North Dakota, while recreational use was approved in California, Maine, Massachusetts, and Nevada. The new laws in Arkansas and Maine explicitly prohibit employment discrimination against medical marijuana users.

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Appointing joint attorneys? Here’s a welcome clarification of the law

Lasting Powers of Attorney are an essential wealth management tool for anyone who directly holds UK assets and can name at least someone whom they trust to take decisions on their behalf.  They are often made by individuals concerned about who would continue to make decisions about their finances or their health and welfare if they ever lost capacity to do so themselves.  They are increasingly popular – registrations of Lasting Powers topped 533,000 in the year to end March 2016; a 35% increase from the previous year.  The increasing number of registrations indicates that there are more Lasting Powers in circulation. 

Many clients want to appoint more than one attorney.  The Lasting Power of Attorney legislation permits the appointment of both attorneys and replacement attorneys, the latter acting as substitutes.  Joint attorneyships are not uncommon.  Take the situation of an individual – James – who wants to appoint his wife Amy and his brother Bill as his attorneys, to act jointly in relation to his finances.  His lawyer tells him that it would be prudent to name a replacement attorney too and he chooses his son Christopher.  But his son is still in his twenties and, if either Amy or Bill or both were able to act, he would like them to do so in preference to Christopher.  This simple sounding request has had English law in knots for a while. 

English law assumes that, by appointing Amy and Bill jointly, James is saying that if Amy predeceases him, it doesn’t mean that he wants Bill to act alone.  In other words, James is appointing Amy and Bill as a unit – if he can’t have both of them acting, neither of them should.
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Hall & Wilcox ranked in six practice areas of The Legal 500 Asia Pacific 2017

Leading independent business law firm, Hall & Wilcox is pleased to have gained further recognition by recommendations in The Legal 500 Asia Pacific 2017 in six key practice areas.

The Legal 500 Asia Pacific provides a comprehensive listing of law firms and lawyers and insight into legal markets across the Asia Pacific. The rankings are based on a number of factors including the complexity of matters handled, size of the practice area, feedback received from clients and researcher interviews.

Hall & Wilcox has again been ranked in Banking and finance, Dispute resolution, Employment, Real estate and Restructuring and insolvency.

The firm has also been ranked in the Insurance category. This is the first time the firm has provided a submission for this area and has been supported by the national expansion of this area over the past two years.

As part of our rankings, 14 partners have also been recommended in the editorial.

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    Plain sailing for section 54

    The Full Court of the Federal Court has applied the reasoning of the High Court in Highway Hauliers regarding the operation of section 54 of the Insurance Contracts Act 1984.

    Factual background

    Mr Phillips held two policies of insurance against damage to his luxury yacht – one with Pantaenius Australia Pty Ltd (Pantaenius) and one with Watkins. Both policies covered the yacht while it was within Australian waters, but the Watkins policy included a term suspending cover from when the yacht cleared Australian Customs (for the purpose of leaving Australian waters) until it cleared Australian Customs upon its return to Australian waters.

    After returning from a race from Freemantle to Bali the yacht struck a reef north off of the Australian mainland near Cape Talbot (which is within Australian waters). It had not cleared Australian Customs upon re-entering Australian waters.

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    Growing Acceptance Nationwide: More States Approve Marijuana Use

    While the presidential election has attracted extreme attention, marijuana legalization initiatives were on the in nine states on November 8, 2016. Four states – Arkansas, Florida, Montana, and North Dakota – approved measures providing for the medical use of marijuana, and three states – California, Massachusetts, and Nevada – approved initiatives allowing for recreational use.  The results in Maine are still close to call, but, if that measure is approved, it will be the fourth measure permitting recreational use.  Only one state (Arizona) defeated a marijuana legalization initiative.

    The following chart summarizes the approved initiatives, including implications for employers:

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    Interplay of Marketing & Advertising Law to Activate Brands: What is on the Regulators’ Minds?

    Last week, leading lawyers, regulators and marketers attended the 38th Annual Brand Activation Association (BAA) Marketing Law Conference in Chicago. At BAA, I gave a presentation on the interplay of marketing and advertising law to activate brands. Over the next few days, I will share with you three posts from my presentation. Let’s dive into the first one…

    Every day, in-house attorneys make risk decisions when advising clients. It would probably be helpful for them to know what is on the regulators’ minds. But how do they find out?

    Think about the mindset of the regulators that may be scrutinizing your industry. Remember that Attorney Generals are political animals who will track publicity; that the “reasonable person” standard invoked by … Continue Reading

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    Austeville Properties Ltd. v. Josan et al.: Exploding Taco Del Mar makes for Interesting Application of the Corporate Identification Doctrine and New Law on Insurance Covenants

    By Samantha Ip & Sean Tessarolo (respectively counsel and articled student for the corporate tenant at trial)

    Many in Vancouver will remember when the Taco Del Mar restaurant on West Broadway exploded in the early morning hours of February 13, 2008. That explosion resulted in damage to the office building which contained the Taco Del Mar and to buildings across the street. Austeville Properties Ltd. v. Josan et al., 2016 BCSC 1963 is an action that arose out of the efforts of the landlord’s insurer to recover over $3 million paid out to the landlord for property damage repairs and business interruption losses arising from that explosion. The landlord’s insurer brought a subrogated action in the name of the plaintiff landlord against its corporate tenant and several other individuals including the only two directors of the corporate tenant, Mr. and Mrs. Nandha.

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    Russian courts to block LinkedIn over data protection rules breach

    Russian courts to block LinkedIn over data protection rules breach

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    Commercial signs, trademarks, and French generic terms: Need a road map?

    By Geneviève Goulet, from our Business Law Group.

    November 11, 2016 — Over the past couple of years, the language of commercial signs has been a recurring theme in the media. In April of 2014, the Superior Court rendered its decision in the Best Buy case, ruling that businesses with English-language trademarks could not be compelled to change their signs to add a French generic term — for instance, a descriptive word such as magasin (store) or entrepôt (warehouse) — as requested by the Office québécois de la langue française.

    A year later, the Court of Appeal confirmed this decision. Soon after, the Government announced its intention to take action to emphasize French on commercial signs.

    This intention has materialized with recent amendments to the Regulation respecting the language of commerce and business and the Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, that are coming into force on November 24.

    What are the consequences of these amendments for businesses operating in Quebec? Let’s have a brief look.

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