tag:theconversation.com,2011:/uk/topics/commercial-law-768/articlesCommercial law – The Conversation2020-09-22T02:42:01Ztag:theconversation.com,2011:article/1465652020-09-22T02:42:01Z2020-09-22T02:42:01ZGoogle News favours mainstream media. Even if it pays for Australian content, will local outlets fall further behind?<p>Google’s role in delivering audiences to news outlets has been under scrutiny of late. The Australian Competition and Consumer Commission’s <a href="https://www.accc.gov.au/focus-areas/digital-platforms/draft-news-media-bargaining-code">initiative</a> to redirect advertising revenue from Google and Facebook to news publishers has led to threats of a <a href="https://theconversation.com/if-facebook-really-pulls-news-from-its-australian-sites-well-have-a-much-less-compelling-product-145380">news boycott</a> by both companies. </p>
<p>Australia’s news media businesses have faced revenue loss and <a href="https://www.theguardian.com/media/2020/jun/09/news-corp-cuts-more-jobs-this-time-at-its-metropolitan-newspapers">job</a> <a href="https://www.abc.net.au/news/2020-06-30/job-losses-coronavirus-australia-covid-19/12401232">cuts</a> for some time now, blaming Google and Facebook for poaching advertising revenue. </p>
<p>But rather than share revenue with the publishers whose content they feature, it seems the tech behemoths would rather remove Australian news content from their platforms altogether. </p>
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Read more:
<a href="https://theconversation.com/in-a-world-first-australia-plans-to-force-facebook-and-google-to-pay-for-news-but-abc-and-sbs-miss-out-143740">In a world first, Australia plans to force Facebook and Google to pay for news (but ABC and SBS miss out)</a>
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<p>Into this <a href="https://theconversation.com/googles-open-letter-is-trying-to-scare-australians-the-company-simply-doesnt-want-to-pay-for-news-144573">heated debate</a> arrives a new study of Google News search recommendations in the US. The research, <a href="https://www.nature.com/articles/s41562-020-00954-0">published today in Nature Human Behaviour</a>, examines Google News search results across more than 3,000 US counties – evaluating the balance between local and national news outlets in search results on a wide range of topics. </p>
<p>The findings show Google News generally privileges national news outlets over local ones, especially for topics of national interest. This makes it even more difficult for local outlets to compete with their larger national counterparts – but shifting the balance between the two isn’t easy.</p>
<h2>A handful of winners</h2>
<p>In one sense, the research findings merely show Google News is working as advertised: it points readers interested in major issues to leading national outlets. Larger, better-funded media businesses are likely to have more in-depth coverage than local publishers.</p>
<p>Meanwhile, Google News will feature more local content when users search for issues with a local angle. And while the study didn’t cover Australia, it probably works similarly here, too.</p>
<p>Nevertheless, the research found the three most prominent national US outlets account for about one-sixth of all search results. This echoes <a href="http://www.sciencedirect.com/science/article/pii/S0747563218303650">research published last year</a>, which also documented Google News featuring a very narrow range of leading news outlets. </p>
<p>The authors of that study worried this “highly concentrated” set of results was “empowering a handful of prominent outlets and marginalising others”, rather than offering a comprehensive range of perspectives on the news.</p>
<h2>The ‘filter bubble’ argument</h2>
<p>The two studies mentioned above offer a powerful argument against the persistent (but unsubstantiated) idea that search engines and social media place us in “<a href="http://theconversation.com/the-myth-of-the-echo-chamber-92544">filter bubbles</a>”. </p>
<p>This is the idea that the information we encounter online depends on our personal identities, ideologies and geographical location. If the filter bubbles hypothesis were true, it would indeed threaten to deepen social divides.</p>
<p>But an increasing number of <a href="https://www.blm.de/files/pdf2/bericht-datenspende---wer-sieht-was-auf-google.pdf">timely</a> <a href="https://doi.org/10.1080/21670811.2017.1338145">studies</a> suggest something different: if there is a filter bubble, we’re all in it together. </p>
<p>In other words, when different users search for news on Google, they likely see the same results from the same handful of media outlets – regardless of who and where they are.</p>
<h2>Tweaking the results</h2>
<p>From this perspective, the uniformity and predominantly national focus of Google News results may even be welcome, as it ensures searchers of all backgrounds have access to a shared stock of information. </p>
<p>At the same time, however, Google’s channelling of users towards major national news outlets affects their local competitors’ ability to generate advertising revenue. The rich (in readership) get richer (from advertising), while outlets featured less in search results struggle.</p>
<p>In a market already suffering from substantial pandemic-induced downturns, this undermines smaller outlets’ ability to survive in the long term. “News deserts” (areas without local news outlets) are growing rapidly in the <a href="https://www.usnewsdeserts.com/">US</a> and <a href="https://anmp.piji.com.au/">in Australia</a>. </p>
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Read more:
<a href="https://theconversation.com/local-news-sources-are-closing-across-australia-we-are-tracking-the-devastation-and-some-reasons-for-hope-139756">Local news sources are closing across Australia. We are tracking the devastation (and some reasons for hope)</a>
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<p>Policy makers might be tempted to arrest this decline by forcing Google News to provide more links to local rather than national news outlets. But even if Google agreed to this, it would come at a cost. </p>
<p>Major national outlets are prominent because local outlets simply can’t provide the same comprehensive coverage of non-local issues. Instead, they draw on wire services and syndicated content. </p>
<p>Making Google feature more content from local outlets would direct more revenue towards those news organisations, but could also reduce the quality and diversity of news provided to users. They might end up only seeing local adaptations of content from a small number of wire services.</p>
<p>While this approach might save some local news outlets, it would undermine citizens’ understanding of the world around them.</p>
<h2>The lion and the mouse</h2>
<p>The Australian initiative to make Google (and Facebook) pay for the news they show on their sites could be seen as a more sensible alternative. </p>
<p>Revenue generated from the <a href="https://www.accc.gov.au/focus-areas/digital-platforms/draft-news-media-bargaining-code">news media bargaining code</a> could be used to increase the strength and diversity of the domestic news industry, enabling smaller outlets to provide a better range of content for Google News to feature.</p>
<p>But even if Google was willing to share advertising revenue, the devil lies in the detail. If that money was distributed based on current Google News recommendation patterns, major news outlets would receive the lion’s share. Local news organisations would still miss out – along with the ABC and SBS, <a href="https://theconversation.com/in-a-world-first-australia-plans-to-force-facebook-and-google-to-pay-for-news-but-abc-and-sbs-miss-out-143740">which are not included</a> in the ACCC’s proposal. </p>
<p>So it would be good news for News Corp and Nine Entertainment, but not so much for everyone else.</p>
<p>To rebuild Australia’s local news industry, the industry heavyweights would have to give up some of their own hard-fought share of the money. But you don’t need to consult Google to work out how likely that is.</p>
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Read more:
<a href="https://theconversation.com/platform-regulation-in-australia-is-just-the-start-facebook-and-google-are-fighting-a-global-battle-145748">Platform regulation in Australia is just the start. Facebook and Google are fighting a global battle</a>
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<p class="fine-print"><em><span>Axel Bruns receives funding from the Australian Research Council through Discovery projects Journalism beyond the Crisis: Emerging Forms, Practices and Uses and Evaluating the Challenge of 'Fake News' and Other Malinformation, and the ARC Centre of Excellence for Automated Decision-Making and Society. He is a member of the expert research panel of the Public Interest Journalism Initiative (PIJI).</span></em></p>Research shows Google News results often prioritise mainstream media over smaller news businesses. It’s a double-edged sword. While local outlets suffer, it’s actually better for readers.Axel Bruns, Professor, Creative Industries, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1250382019-11-21T09:28:19Z2019-11-21T09:28:19ZToo few of Africa’s commercial disputes are resolved by African arbitrators – why this must change<figure><img src="https://images.theconversation.com/files/301747/original/file-20191114-26202-17wmx6x.jpg?ixlib=rb-1.1.0&rect=160%2C241%2C6547%2C4233&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">African arbitrators are needed for African disputes. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/close-judge-writing-on-paper-gavel-468013487">Andrey_Popov/Shutterstock</a></span></figcaption></figure><p>Throughout my career arbitrating on disputes between companies and governments outside the courts, I’ve noticed a growing number of claims made by Africans. But at the same time, I’ve seen a limited number of African colleagues acting as international arbitrators on the panels that rule on these claims. </p>
<p>Official statistics back this up. Between 1998 and 2007, a total of 472 parties from Sub-Saharan Africa arbitrated their disputes before the <a href="https://library.iccwbo.org/dr-bulletins.htm">International Chamber of Commerce</a> (ICC). But over the same period, only 64 arbitrators from the same region were appointed by the ICC. North Africa fared slightly better with 225 disputing parties and 115 arbitrators over the same period.</p>
<p>Arbitration is a mechanism for resolving disputes outside the courts where a neutral third party – the arbitrator – decides the dispute between the parties in an award which the courts enforce. This award has the same force as the judgement of a court. Arbitration is a private process and the details are usually not published.</p>
<p>Arbitration is primarily used to decide commercial disputes between parties, such as between two oil companies or between a government and a mining firm, from different countries. Generally, each party chooses one arbitrator and the two then choose a third arbitrator, forming an arbitral tribunal of three. If they can’t come to an agreement on who to choose, or if one party fails to appoint someone, a third party will appoint the arbitrator. The parties can also agree to appoint one arbitrator.</p>
<h2>Bias and poor perceptions</h2>
<p>In <a href="https://researcharbitrationafrica.com/">my own research</a>, I’ve looked at the issue of whether the use of arbitration across Africa can be a good mechanism for resolving disputes. In my <a href="https://eprints.soas.ac.uk/25741/1/SOAS%20Arbitration%20in%20Africa%20Survey%20Report%202018.pdf">survey</a> of African lawyers and arbitration experts about their participation in international arbitration, I found that 82% of the 191 African arbitration practitioners that responded did not sit as an arbitrator in international arbitration between 2012 and 2017, and 59% did not act as counsel in international arbitration. </p>
<p>Three quarters of the people I surveyed believed they don’t actively participate in international arbitration. They blame poor perception of African arbitration practitioners by their foreign colleagues, bias by those appointing arbitrators in favour of foreign counsel, and the fact that Africans were not appointing fellow Africans as arbitrators.</p>
<p>In response to these findings, my colleagues and I began discussing the need to adopt a pledge to try and address the imbalance, modelled on a <a href="http://www.arbitrationpledge.com/">similar pledge</a> aimed at improving the number of women arbitrators. The <a href="https://researcharbitrationafrica.com/the-african-promise/">African Promise</a> was born, with the goal commitment of signatories to “Improve the profile and representation of African arbitrators especially in arbitrations connected to Africa.”</p>
<h2>Improving legitimacy</h2>
<p>Included in the pledge is a monitoring device which requests arbitration institutions, and other agencies who report arbitration activities, to publish data on the number of Africans they nominate (in addition to the number that are appointed) as arbitrators. We believe that such data will further expose the scale of this problem and locate the gap of who is refusing to appoint African arbitrators.</p>
<p>It should also help create a list of available and qualified African arbitrators that willing parties can appoint. If such a list exists, lawyers who say they don’t know any qualified Africans to appoint, won’t be able to use such an excuse. </p>
<p>Excluding qualified Africans from working as arbitrators is a disservice to those seeking to resolve their disputes through arbitration. Arbitrators make decisions over important questions of both law and fact and the exclusion of African arbitrators results in the exclusion of African voices and experiences from such decision-making and the international rule-making process. </p>
<p>Such exclusion seeks to perpetuate Africans as rule-takers, who in turn feel alienated from and disenchanted with a process crafted by “others” and “imposed” on them. At its heart, this threatens the legitimacy and acceptance of international arbitration as a fair process for the resolution of disputes. </p>
<p>Our goal is for the best candidate to be appointed to act as arbitrator in any dispute, with the parties able to access the widest possible pool of skilled and available people from which they can make an informed appointment. I’m hopeful that the African Promise will contribute in some way to international arbitration tribunals becoming truly international.</p><img src="https://counter.theconversation.com/content/125038/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emilia Onyema does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Why Africa needs more African arbitrators.Emilia Onyema, Reader in International Commercial Law, SOAS, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/908822018-03-01T14:09:26Z2018-03-01T14:09:26ZInsights into commercial contracting from South Africa’s informal sector<figure><img src="https://images.theconversation.com/files/208464/original/file-20180301-152569-144j4ar.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Media Club/Flcker</span></span></figcaption></figure><p>What happens when African societal norms meet modern commercial practice? From boardrooms in Sandton to the cultural mash-up and the <a href="http://eprints.lse.ac.uk/42043/1/Hull_Introduction_popular_economies_2012.pdf">“popular economy”</a> of a South African township, African business people of different ethnicities and world views are contracting on a daily basis. </p>
<p>Is there anything peculiarly “African” about this process, or are all business people the conventional profit-maximising individuals of <a href="https://www.thoughtco.com/free-market-economy-definition-1146100">free market economic theory</a>? The answer here informs the related policy question as to whether South Africa needs to develop a dedicated indigenous law of contract. </p>
<p>It is often said that <a href="https://mg.co.za/article/2016-12-22-00-the-age-of-humanism-is-ending/">humanist</a> values matter in the traditional African political economy, or that African communities run on a principle of <a href="http://www.puk.ac.za/opencms/export/PUK/html/fakulteite/regte/per/issues/98v1mokg.pdf">ubuntu (humanness/communal solidarity)</a>. Sometimes this is contrasted with the <a href="https://www.tandfonline.com/loi/rjhr20">liberal individualism</a> of “Western” society. Is this valid? </p>
<p>At the end of 2017, we published an <a href="http://www.tandfonline.com/doi/pdf/10.1080/02587203.2017.1392430">article</a> in the <a href="https://www.tandfonline.com/loi/rjhr20">South African Journal on Human Rights</a> which laid out a new theory for the study of commercial contracting in South Africa. We set about moving the study of contracting from the centralised law of the state into the context of what happens in the popular economy – the space where the informal and formal sectors meet.</p>
<p>The formal and informal worlds shape each other, giving rise to an interesting intersection. We think that the South African popular economy is a good micro-context to study, since the “Western” norms said to characterise the central state’s law of contract play less of a role here.</p>
<p>Our findings are preliminary and rest on research done by social scientists. We’ve also included a measure of contract and economic theory. </p>
<p>Why should South African lawyers be interested? Our project is partly ideological. We believe that the study of indigenous business norms is a worthwhile exercise in any African country. Yet there’s no legal debate on the issue. African customary law courses do not address these more business-related points and commercial law courses do not speak to African customary norms. </p>
<p>The reason for this is that there are notional <a href="http://www.law.uct.ac.za/sites/default/files/image_tool/images/99/2018_LAW_handbook%20final_0.pdf">boundaries</a> between the two legal subjects. As legal historian <a href="http://assets.cambridge.org/97805217/91564/frontmatter/9780521791564_frontmatter.pdf">Martin Chanock</a> has shown, this is as a result of South African history, with past discriminatory rules about which law to apply in which situations shaping the development of both customary and common law. </p>
<p>We aim to change this trend. Here are our preliminary ideas.</p>
<h2>Indigenous cultural practices</h2>
<p>What legal norms regulate contemporary cultural practices such as the <a href="https://www.africanresponse.co.za/assets/press/2012StokvelHiddenEconomy.pdf">stokvel</a> (a common informal savings and credit association), the <a href="https://www.researchgate.net/publication/228546451_The_Management_of_Risk_by_Burial_Societies_in_South_Africa">burial society</a> (a stokvel which helps save towards funeral expenses), the township <a href="https://dspace.nwu.ac.za/bitstream/handle/10394/8260/No_65%282012%29_Mashigo_P.pdf?sequence=1&isAllowed=y">loan-shark</a>, or other types of commercial activity which exist as an alternative to the formal sector banking, insurance and financial services industries? </p>
<p>The published literature of economic anthropologists working on the popular economy in South Africa throws up <a href="https://www.erikbaehre.nl/files/publications/erik_bahre_money_and_violence.pdf">recurring stories</a> about financial activity in this sector. Most speak to the role of community in contracting. </p>
<p>This makes perfect sense: contracting occurs in a social and economic context. Who hasn’t relied on a threat to another’s reputation (such as by gossip or via social media) to enforce performance? Even more simply, if there is no one else to provide your supply of goods or services, threatening never to do repeat business with you again can be an effective way of ensuring a response from you when you won’t pay me. </p>
<p>In short, <a href="https://www.researchgate.net/publication/271815351_Nonlegal_Sanctions_in_Commercial_Relationships">social forces</a> shape contracts: the stronger the sense of community, the more effective these sanctions are likely to be. The result: A <a href="http://www.theactivistinvestor.com/The_Activist_Investor/Blog/Entries/2015/9/29_What_is_Private_Ordering.html">privately ordered</a> system of business behaviour, which exists without reference to the governing law of the state. The underlying adhesive: community.</p>
<p>In the absence of conventional forms of collateral, <a href="https://econrsa.org/system/files/publications/policy_papers/pp19.pdf">my contract partner’s knowledge of my financial standing and habits</a> will serve as a guarantor of payment. </p>
<p>While trust may not always be present, and altruistically putting another’s needs before one’s own may be difficult when money is tight and economic needs press, a <a href="http://science.jrank.org/pages/8772/Communitarianism-in-African-Thought-Gyekye-on-Moderate-Communitarianism.html">moderate sense of community</a> does indeed characterise contracting in this setting. This leaves room for private property and individual financial goals, but ensures that one prioritises communal relations when making economic decisions.</p>
<p>We have described these informal rules and regulations as adhering to the concept of ubuntu. Retired Constitutional Court judge, Yvonne Mokgoro, defines ubuntu using the African saying:</p>
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<p>a human being is a human being through other human beings. </p>
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<p>This means that a person’s individual existence and welfare are relative to that of her community. </p>
<h2>Context sensitive law</h2>
<p>How are we then to define ubuntu in a given contractual setting in South Africa? “With reference to context,” is our answer. The notion of community described above requires a certain type of social environment. We think that this environment is to be found in South Africa’s popular economy and the relevant empirical literature supports this view. But what about high value contracts between South Africa’s blue chip companies? </p>
<p>We believe that contract law should be context sensitive. This should include which business community’s norms are used in determining the outcome of a given commercial dispute. This is not to say that corporates aren’t African, but rather that the value of community may be different. And even in the informal sector, contracts must be honoured. Under the South African Constitution, common and customary law are presently separate parallel branches. Our research will inform future arguments about how these two branches may influence each other. </p>
<p>To guide the courts and the development of South African law, research into indigenous commercial contracting is required. This should in turn inform the discussion of how to make contracting in South Africa more African and how to transform the legal curricula in universities. </p>
<p>We will be testing our theories through our own empirical study in this ongoing project. We want to know what norms and procedures govern business relations in this sector where disputes almost never <a href="http://www.saflii.org/za/cases/ZAECHC/2005/34.html">reach the courts</a>.</p><img src="https://counter.theconversation.com/content/90882/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Hutchison receives funding from the National Research Foundation of South Africa (grant number 111748). Any opinion, finding and conclusion, or recommendation expressed in this material is that of the authors and the NRF does not accept any liability in this regard. . </span></em></p><p class="fine-print"><em><span>Nkanyiso Sibanda does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South African commercial law courses do not address the question of what norms and procedures govern business relations in indigenous African communities.Andrew Hutchison, Associate Professor of Commercial Law, University of Cape TownNkanyiso Sibanda, LLD - Private Law, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/704512016-12-15T12:29:39Z2016-12-15T12:29:39ZHow Eastern Europe is best placed to hit the ground running after a hard Brexit<figure><img src="https://images.theconversation.com/files/150296/original/image-20161215-13648-n8po5a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">shutterstock.com</span></span></figcaption></figure><p>One of the biggest unknowns when it comes to Brexit is how it will effect the rights of EU citizens and businesses based in the UK. Many fear that a hard Brexit will result in a legal <a href="http://www.telegraph.co.uk/news/2016/11/21/theresa-may-cbi-corporation-tax-brexit-live/">cliff-edge</a>, leaving many without the legal protections of the European Union – whether it’s remaining resident or having free access to the single market.</p>
<p>Who’s in control of the Brexit process – <a href="https://theconversation.com/brexit-in-the-supreme-court-heres-what-it-all-means-69738">whether it’s government or parliament</a> – and <a href="https://theconversation.com/never-mind-article-50-heres-why-article-127-could-be-crucial-to-keeping-britain-in-the-single-market-70304">whether it will be “hard” or “soft”</a> are therefore questions that increasingly are the subjects of legal battles. </p>
<p>And when it comes to the intricacies of international law, there are other deals at play that could leave some unexpected EU member state nationals (and businesses) in a better position than others in the event of a hard Brexit. There are a few Eastern European countries, in particular, which have <a href="http://investmentpolicyhub.unctad.org/IIA/CountryBits/221#iiaInnerMenu">treaties with the UK</a> that were signed after the fall of communism, but before their accession to the EU. </p>
<p>This means that nationals from Poland, Romania, Bulgaria and other European states from the Baltics to the Balkans are protected by deals that are separate from their EU membership. They will therefore have greater rights in the event of a hard Brexit than those from, say, France or Germany – something that may come as a surprise to many a Leave voter, whose stance on the EU was motivated by <a href="https://theconversation.com/the-huge-political-cost-of-blairs-decision-to-allow-eastern-european-migrants-unfettered-access-to-britain-66077">concerns about immigration</a> from Eastern Europe.</p>
<h2>Treaties already in place</h2>
<p>The agreements in question are known as Bilateral Investment Treaties. Ironically, they operate under the same logic of national sovereignty and independence in trade and investment matters that the Leave campaign was partially based upon. </p>
<p>While the EU has exclusive <a href="https://www.iisd.org/itn/2016/08/10/can-eu-member-states-still-negotiate-bits-with-third-countries-stefanie-schacherer/">rights</a> in these areas now, these old treaties are still in operation. They have created a series of problems for nations which concurrently need to satisfy expectations arising from EU and international law. </p>
<p>Greece, for example, has been the victim of this, being <a href="http://kluwerarbitrationblog.com/2015/10/20/digging-up-the-past-can-greece-handle-another-psi-challenge/">repeatedly sued</a> in investment tribunals in recent years by those who suffered losses in the country’s debt relief arrangements. The claimants in these cases have been EU nationals trying to enforce rights arising from BITs, and not EU law.</p>
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<img alt="" src="https://images.theconversation.com/files/150306/original/image-20161215-26045-3hknm3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/150306/original/image-20161215-26045-3hknm3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/150306/original/image-20161215-26045-3hknm3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/150306/original/image-20161215-26045-3hknm3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/150306/original/image-20161215-26045-3hknm3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/150306/original/image-20161215-26045-3hknm3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/150306/original/image-20161215-26045-3hknm3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The law’s the law.</span>
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<p>These treaties offer rights, protections and standards to investors that are in some ways superior to those enjoyed under EU law. And these rights will survive Brexit. <a href="http://investmentpolicyhub.unctad.org/Download/TreatyFile/2218">Romania’s BIT with the UK</a> is an example of the types of rights treaties give. Signed in the summer of 1995, it promises to create favourable conditions for investment, reciprocally. </p>
<p>These conditions include the fair and equitable treatment of Romanian businesses investing in the UK, freedom from discrimination, full protection and security. Crucially, the treaty guarantees treatment of Romanian investors that is no less favourable than that afforded to UK nationals. This is enhanced by a commitment to match potential superior treatment offered to any other nation’s investors. </p>
<p>Not only, therefore, are Romanian investors to be treated equally to domestic ones, but if anyone else obtains a better deal (for example, the US when it agrees its post-Brexit deal), their protections will increase. Those who fall within the treaty definition of “investor” therefore enjoy a lasting privileged position.</p>
<h2>Domino effect</h2>
<p>To top it all, any dispute between an investor and the host government is not a matter for domestic courts, but is destined for an international investment tribunal. These are the same tribunals that <a href="http://jids.oxfordjournals.org/content/5/3/475">Greece and Argentina</a> have faced, battling claims for compensation by investors who lost out from the countries’ debt defaults. And these are the same tribunals that some Leave campaigners vowed to protect Britain from, by promising that Brexit would <a href="https://theconversation.com/why-ttip-will-live-on-but-not-for-the-eu-61718">save the country from the TTIP trade deal</a>. </p>
<p>The presence and nature of investor-state dispute settlement clauses – whereby businesses can sue governments – in post-Brexit trade agreements is likely to be a major issue for British negotiators in the years to come. As the recent <a href="https://theconversation.com/ceta-was-brexit-rather-than-the-walloons-behind-trade-deal-stutter-67800">debacle over the CETA trade deal between the EU and Canada</a>, and resistance to TTIP demonstrate, ceding authority to private arbitration panels to adjudicate disputes is not easy to square with protestations of sovereignty and democratic legitimacy.</p>
<p>A hard-Brexit is the dream of many on the Leave side of the referendum. It allows them to imagine a situation where the UK, free from any encumbrances, launches into a world of free trade and investment deals. </p>
<p>Such a world, however, is likely to see Eastern European companies given better treatment than major commercial partners in the West, a swap of the supposed dominion of European Courts for that of investment tribunals, and a labyrinth of interlocking agreements that rapidly raise protections for foreign companies above those available to local ones. An interesting prize for leaving the EU indeed.</p><img src="https://counter.theconversation.com/content/70451/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ioannis Glinavos does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Britain has a number of bilateral treaties with Eastern European countries that will remain after Brexit.Ioannis Glinavos, Senior Lecturer in Law, University of WestminsterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/232682014-02-17T15:02:24Z2014-02-17T15:02:24ZWe might regret backing Lush over Amazon in trade mark wars<figure><img src="https://images.theconversation.com/files/41704/original/txp7n34b-1392642098.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Lush's gripe with Amazon is an explosive issue and it's not just about ethics.</span> <span class="attribution"><span class="source">firepile</span></span></figcaption></figure><p>The ongoing battle between cosmetics company Lush and internet retailer Amazon is starting to give off a distinctly unsavoury odour. At the beginning, many supported plucky little Lush as it sought to stop Amazon from flogging lookalike bath products when users search for the word “Lush” on the site. Now it is starting to look like the consumer is being left behind as two companies exchange tit for tat.</p>
<p>If you type “Lush” into the search bar on Amazon.co.uk, a list of thousands of products is returned. Most of the top results are bath products by <a href="http://bombcosmetics.co.uk/">Bomb Cosmetics</a>, a fact that is causing a great deal of consternation for Mark and Mo Constantine, the owners of <a href="https://www.lush.co.uk/">Lush</a>.</p>
<p>The Constantines have always refused to sell their products on Amazon.co.uk and have taken the internet giant to court in England over its continued pushing of products similar to theirs. Lush’s reputation has been built around “ethical trading” and the Constantines have said they <a href="http://www.theguardian.com/money/2013/nov/30/lush-amazon-trademark-court-battle">don’t agree with the way Amazon does its business</a>. But the actual court <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2014/181.html">case</a> does not make the specifics of their objection entirely clear.</p>
<p>That’s because this case is not, and should not be about ethics. However much we might admire the politics of Lush or resent how Amazon operates, their respective reputations are not really the point here.</p>
<p>The nub of the issue is on the one hand, the extent of the control the Constantines can exert over the use of the word “Lush” in association with bath cosmetics when it is registered as a trade mark and, on the other hand, Amazon’s business model. Amazon relies on being able to offer a wide range of products, the keyword references to which are built up through intelligence gathered from searches performed by consumers when looking for goods.</p>
<p>And it’s not the only company that depends on this model. Internet companies the world over will be taking note of this case. This is just the latest in a long line of disputes concerning trade marks and keyword advertising. They happen when one company uses keywords that might be registered trade marks in order to draw the attention of customers to their goods and services or to the goods and services of a favoured third party.</p>
<p>Google, eBay, Interflora, Marks & Spencer and numerous others have all been involved in one way or another in this type of litigation. LINKS</p>
<h2>As sticky as a half-used bath bomb</h2>
<p>What sets the Lush case apart is that Amazon was found to have been using the word “Lush” in its commercial communications, whereas eBay only acts as an <a href="http://www.reuters.com/article/2010/12/09/us-ebay-idUSTRE6B82AE20101209">online marketplace</a> for trade marked products.</p>
<p>The question here was whether Amazon’s use implicated one of the functions of a trade mark, such as by identifying the original source of a product, advertising it or affecting potential investment in that product. The court said there was no indication that Lush products were not available for purchase on Amazon. And given the consumer had been informed, via a drop down menu, that “Lush bath bombs” were available, an average consumer would not “without difficulty” know that the goods that show up in a search do not originate from the brand Lush.</p>
<p>That the appearance and branding of Bomb Cosmetics products made them look similar to Lush products only makes it harder for a consumer to conclude “without difficulty” that the goods they were being shown were not connected with Lush.</p>
<p>The advertising function of the trade mark came in to play when the court decided that Amazon’s use of the trade mark would dent Lush’s ability to attract custom. And even the investment function of the trade mark was implicated because of the (unspecified) problem that Lush had with Amazon’s reputation.</p>
<h2>David, Goliath and you, the consumer</h2>
<p>This is undoubtedly not the last word on the matter. Amazon will appeal the judgement. And there are issues arising from the case that have wider implications and will need to be worked out. </p>
<p>Trade mark law exists specifically to protect the consumer but the way these disputes play out is an odd state of affairs indeed. The consumer has no standing to sue to protect their interests and the battles are fought between traders.</p>
<p>One way the focus is kept on the consumer is the concept of consumer confusion. In this case that test has become a question of whether the consumer can tell “without difficulty” the origin of the goods.</p>
<p>I may be unscientific in my approach, but I did not for a minute think that Bomb Cosmetics products originated from Lush when I saw them on Amazon. In other words, I was not confused.</p>
<p>The reasoning of the court in this David and Goliath case is also a little light in relation to how exactly either the advertisement and investment functions have been infringed. Has Lush really suffered financially from this situation as much as it says? It’s hard to say.</p>
<p>It may be that fuller consideration should be given to the worries that arose around what the impact would be on the consumer if Amazon’s business model has to change as a result of its run in with Lush.</p>
<p>We now live in world in which online shopping is the norm and many of us rely on Amazon-like businesses to deliver the service we have come to expect. We have to ask, therefore if it’s in the consumer’s interest to change the way these sites operate to protect companies such as Lush, however laudable their ethical standards might be.</p>
<p>While, as was said in the case, these concerns should not allow Amazon to run “rough shod” over intellectual property rights belonging to third parties, it does force us to focus on the central question as to what the trade mark system is for if, as a result, the consumer is disadvantaged.</p>
<p>Lush’s latest move has been to register <a href="http://www.huffingtonpost.co.uk/2014/02/13/lush-cosmetics_n_4782186.html">Christopher North</a>, the name of Amazon’s managing director in the UK, as a trade mark. There are plans for a range of products under the name using the tagline “rich, thick and full of it”.</p>
<p>While this has generally been portrayed in the media as an amusing next step in the battle between the mismatched adversaries, the danger is that the move will detract attention from one of the key challenges epitomised in this case. Trade mark law is supposed to protect the consumer and we need to take a long hard look at how technological challenges change the way we do that.</p><img src="https://counter.theconversation.com/content/23268/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charlotte Waelde does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ongoing battle between cosmetics company Lush and internet retailer Amazon is starting to give off a distinctly unsavoury odour. At the beginning, many supported plucky little Lush as it sought to…Charlotte Waelde, Professor of Intellectual Property Law, University of ExeterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/159432013-07-10T13:19:39Z2013-07-10T13:19:39ZAre you ready for your child, the 3D printing genius?<figure><img src="https://images.theconversation.com/files/27178/original/z7vtyc83-1373382295.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Very good Miss, but how do I print a gun?</span> <span class="attribution"><span class="source">RiAus</span></span></figcaption></figure><p>In his new National Curriculum for schools in England, <a href="https://www.gov.uk/government/speeches/education-reform-schools">announced this week</a>, Education Secretary Michael Gove pledged to <a href="http://www.theengineer.co.uk/channels/skills-and-careers/news/new-curriculum-brings-3d-printers-to-technology-lessons/1016659.article">modernise design and technology education</a>. This is thought to include introducing <a href="http://www.theengineer.co.uk/channels/skills-and-careers/news/new-curriculum-brings-3d-printers-to-technology-lessons/1016659.article">3D printers into schools</a> to help the next generation of children become creators rather than users.</p>
<p>Gove’s plan, together with the news yesterday that high-street retailer <a href="http://www.maplin.co.uk/3d-printer">Maplin</a> will be the <a href="http://www.independent.co.uk/life-style/gadgets-and-tech/uks-first-commercial-3d-printer-on-sale-in-maplin-for-69999-8697332.html">first to sell 3D printers to the public</a> for just under £700, reaffirms once again that this technology is on its way to being embraced by the general public.</p>
<p>The government is to be applauded for wanting to adopt a new technology like 3D printing in schools. The next generation of engineers, scientists and manufacturers will need to be highly skilled in computing, coding and equipped with technical knowledge to work with this kind of technology. It is an exciting thought that children will learn from an early age how to produce almost anything they like with the use of a 3D printer. Even at this early stage, 3D printers have already been used in the <a href="http://www.psfk.com/2012/06/3d-printed-kidney.html">medical</a>, <a href="http://www.forbes.com/sites/parmyolson/2012/07/11/airbus-explores-a-future-where-planes-are-built-with-giant-3d-printers/">transport</a>, <a href="http://dsc.discovery.com/tv-shows/other-shows/videos/prototype-this-make-your-own-toys-with-the-3d-printer.htm">toy and hobby</a> and <a href="http://www.geek.com/news/3d-printed-meat-could-soon-be-cheap-and-tasty-enough-to-win-you-over-1539410/">food</a> industries, amongst others, to great effect.</p>
<p>At the same time, this is yet another example of technology marching forward ahead of policy and legislation. It is equally important to introduce students to the regulation of 3D printing as it is to give them the equipment they need to carry it out.</p>
<p>The controversy over the 3D <a href="http://motherboard.vice.com/read/click-print-gun-the-inside-story-of-the-3d-printed-gun-movement-video">printing of a gun</a> this year led to questions about the need for regulation. The US government responded in the only way it knew how by seizing the blueprints to the weapon and claiming control of the files containing them. However it was too late to stop the information being shared across the internet. The case taught us that when it comes to regulating this technology, we are in uncharted territory. The need for a structured policy framework is becoming ever more pressing. This was demonstrated to dramatic effect last week when journalists managed to smuggle a 3D printed gun past security and into the <a href="http://www.timesofisrael.com/journalists-print-gun-bring-it-to-netanyahu-speech/">Israeli Parliament</a>.</p>
<p>It is not just the extreme cases of 3D printed guns that need to be thought about; students should also be educated to some extent on the protection and exploitation of 3D printed products. Undoubtedly, getting children interested in these issues will be a challenge but it is a challenge that needs to be addressed. </p>
<p>Regulation can be in the form of legislation; however students could also be encouraged to think about new business models in dealing with this technology. We probably do not need to worry about ten year olds producing 3D printed weapons but they may be keen to print out a new toy in the model of another they have seen in the shops.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/27180/original/wfq85ydm-1373384457.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/27180/original/wfq85ydm-1373384457.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/27180/original/wfq85ydm-1373384457.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/27180/original/wfq85ydm-1373384457.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/27180/original/wfq85ydm-1373384457.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/27180/original/wfq85ydm-1373384457.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/27180/original/wfq85ydm-1373384457.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The force is strong with them. Watch out had better Toys R Us.</span>
<span class="attribution"><span class="source">Creative Tools</span></span>
</figcaption>
</figure>
<p>Learning lessons from the past and from the challenges faced by the entertainment industry, should, in theory, assist us in dealing with emerging technologies. More than a decade ago, <a href="http://www.napster.co.uk/start">Napster</a> opened up the doors to a new world of file-sharing which was immediately dealt with through litigation. This has been the trend ever since. Similar to what took place during the Napster revolution, the recent surge in 3D printing sites such as <a href="http://www.thingiverse.com/">Thingiverse</a>, have the potential to enable or at least encourage users to infringe products protected by intellectual property laws.</p>
<p>In 2011, <a href="http://www.games-workshop.com/gws/">Games Workshop</a> a British game production company served a <a href="http://zine.openrightsgroup.org/features/2013/unravelling-3d-printing-and-intellectual-property-laws-from-napster-to-thingiverse-and-beyond">notice and takedown order</a> on Thingiverse under the US Digital Millennium Copyright Act 1998. This was in response to users producing models similar to those sold in Games Workshops. Although the dispute took place in the USA and was settled out of court, it is a prime example of the issues that need to be tackled if 3D printing continues its meteoric rise.</p>
<p>It is therefore important that whilst adopting this technology, the future generation is also educated and made aware of the regulatory and legislative challenges which come with new technologies. There are also other areas relating to 3D printing that need a more structured policy framework. If, for example 3D printing becomes “standard” in schools, we will also need to develop standards for the technology, including parts, processes and safety. </p>
<p>We should not dampen Gove’s enthusiasm for exciting new technologies, but it is imperative to think ahead before our children outsmart us again.</p><img src="https://counter.theconversation.com/content/15943/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dinusha Mendis does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In his new National Curriculum for schools in England, announced this week, Education Secretary Michael Gove pledged to modernise design and technology education. This is thought to include introducing…Dinusha Mendis, Senior Lecturer in Law and Co-Director of the Centre for Intellectual Property Policy and Management , Bournemouth UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/20482011-06-28T05:31:24Z2011-06-28T05:31:24ZWill Centro’s mistakes prompt action across the board?<figure><img src="https://images.theconversation.com/files/1932/original/centronew.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Centro Properties Group's directors were found to have breached the Corporations Act.</span> <span class="attribution"><span class="source">AAP</span></span></figcaption></figure><p>The Centro Properties Group <a href="http://www.smh.com.au/business/asic-wins-case-against-centro-directors-20110627-1gmk5.html">ruling</a> is one of the most significant judgments we have had in the areas of corporate law and corporate governance in a number of years.</p>
<p>Federal Court Judge John Middleton ruled on Monday that Centro’s directors breached the Corporations Act when they failed to notice massive errors in the company’s accounts.</p>
<p>The importance of this decision is clear in what Justice Middleton said about the responsibilities of company directors for financial statements.</p>
<p>He said said that all Australian company directors need to read, understand and focus on their companies’ financial statements.</p>
<p>This is one of the key responsibilities of all company directors. What the judge said here is not only important for Centro, but also has implications for all company directors.</p>
<p>There are a number of important implications of this judgment, all of which stem from the judge’s focus on this fundamental responsibility of directors for the financial statements of the company.</p>
<h2>Suitably qualified?</h2>
<p>The first implication is for the qualifications of directors.</p>
<p>The judge said that directors need to have a minimum level of what he calls “financial literacy”.</p>
<p>Companies will need to ensure that directors have sufficient financial literacy, and if they don’t, then they need to obtain it through some form of education.</p>
<p>This isn’t a new message - we have known that directors are responsible for the financial statements – it’s in the Corporations Act.</p>
<p>But this judgment gives this responsibility a sharp focus because some very prominent non-executive directors of a very large company have been found to have breached their duty of care by not properly taking responsibility for the financial statements.</p>
<p>One possible conservative approach for boards to take in response to this judgement would be for them to say, “what we need to do is make sure that all our directors are financial experts.”</p>
<p>This would cut against a trend to ensure diversity in the boardroooms of Australian companies. </p>
<p>It is is clear that boards need to have people with a range of skills, experience and backgrounds, and that makes for a successful company.</p>
<p>The message of the judgment should not be that all directors need to be financial experts or that companies should narrow the type of the people they appoint as directors.</p>
<p>Rather, the message is that companies should continue to have diverse boards – and perhaps even more-diverse boards than we have today – but they should ensure that all directors have sufficient knowledge to understand the financial statements.</p>
<h2>Proper diligence</h2>
<p>A second implication of the judgment, which is also related to the level of financial literacy on boards, is what directors actually do with their financial skills.</p>
<p>The judge says that all the directors need to be reading, understanding and focussing upon the financial statements. </p>
<p>They need to be applying what he calls “proper diligence” to the financial statements.</p>
<p>This is quite an important issue because it would be true to say that there are probably a great number of directors who do not read the financial statements in detail.</p>
<p>Why not? They may say that, firstly, their company has a chief financial officer upon whom they rely to ensure the accuracy of the financial statements. Secondly, the company may have a professional auditor – an audit firm – upon which they can rely.</p>
<p>Perhaps the company has an audit committee, or some directors might have been specifically appointed because of their financial expertise. </p>
<p>So it might be that a director says, “well, I’m surrounded by financial experts, so I don’t need to read the financial statements.”</p>
<p>This is clearly contrary to what the judge has said. </p>
<p>This is a reason why we will see an ongoing debate about this judgment, because some directors might say that the judge has set the standard too high for non-executive directors.</p>
<p>We need to remember that the breaches of duty in this case apply specifically to Centro and to that company’s directors and executives.</p>
<p>The judge identified some worrying deficiencies within management at Centro, in terms of preparing the financial statements. And the judge also identified what he saw as deficiencies in the board process, in terms of reviewing the financial statements.</p>
<p>So, there is a difference between what the judge says about the important responsibility of directors for the financial statements and the actual breaches of the duty of care by the directors and executives of Centro.</p>
<h2>Information access</h2>
<p>Another implication of the judgment relates to the information that directors receive. In the Centro case, there was evidence that directors received huge volumes of information every four weeks for board meetings, and they didn’t read it all.</p>
<p>They each gave evidence about the sorts of documents they would selectively read of the huge volume of information they received.</p>
<p>This is a very important issue for companies. They must ensure that the information directors receive from management is focussed, and relevant.</p>
<p>In other words, companies must ensure that their boards are not swamped with a volume of information that makes it difficult for directors to focus on what is important.</p>
<p>Here the judge makes a point that we have always known – the board is responsible for the volume of information and the form of the information that it receives. It’s not up to management to determine this.</p>
<h2>Delegation and reliance</h2>
<p>Another point to come out of the judgment concerns the relationship between directors – particularly non-executive directors - and management – in terms of delegation and reliance.</p>
<p>Delegation and reliance are essential parts of all large organisations. The Centro directors were entitled to rely on auditors and management, but the judge found that they didn’t get the balance right between reliance and “proper diligence”.</p>
<p>In fact, the judge says that on a number of occasions the directors relied solely on others to advise them.</p>
<h2>A bigger role for ASIC?</h2>
<p>There is also an interesting message arising from this judgment about the role of the Australian Securities and Investments Commission (ASIC) in setting the standards for directors.</p>
<p>ASIC initiatied the Centro litigation for breaches of duty by the directors and executives, in what was the latest of a series of cases where the corporate regulator has alleged that directors or company officers breached their duty of care by not fulfilling their responsibilities.</p>
<p>ASIC hasn’t always been successful in proving thes cases, but they are important cases, particularly where it brings a case against an entire board. </p>
<p>Aside from the Centro case, ASIC alleged breaches of duty by the entire board in the well-known James Hardie case, which is currently on appeal before the High Court.</p>
<p>The message here is that the corporate regulator is active in arguing before courts what is the appropriate standard by which company directors should act.</p>
<p>Australian companies and their boards will no doubt be carefully considering the best steps to take to ensure they don’t face the same kind of troubles as Centro.</p><img src="https://counter.theconversation.com/content/2048/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Ramsay does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Centro Properties Group ruling is one of the most significant judgments we have had in the areas of corporate law and corporate governance in a number of years. Federal Court Judge John Middleton ruled…Ian Ramsay, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.