International Trade and Business Law Review: Volume XI

Articles - Abstracts

Copyright Enforcement in Australia
By Sam Luttrell
The purpose of this paper is to provide a short survey of the Australian copyright enforcement regime. It is intended to inform foreign copyright owners of their substantive and procedural enforcement rights in Australia. The writer will commence with a brief summary of the origins and general nature of Australian copyright law. Then the role of criminal sanctions in copyright enforcement, and the procedure by which criminal action may be initiated by Australian copyright owners, will be discussed. Close attention will be paid to recent amendments that have been made to the criminal provisions of the Copyright Act 1968 (Cth) by the passage of the Copyright Amendment Act 2006 (Cth). This focus will be followed by a summary of the various civil causes of action open to aggrieved authors and owners. The writer will then close by making certain observations and recommendations regarding copyright infringement and enforcement in Australia. Sea Freight in Australia and Competing Transport Modes – Taxation, Fiscal and Other Policies Affecting Mode Choice, and their Environmental Consequences.


Sea Freight in Australia and Competing Transport Modes – Taxation, Fiscal and Other Policies Affecting Mode Choice, and their Environmental Consequences
By Peter Gillies and Bob Cleworth
This paper investigates the extent to which coastal shipping is being under-utilised in the carriage of freight in Australia; and if so, whether this failing can be ameliorated by changes to taxation, fiscal and other government policies. If it is being under-utilised, then this has adverse environmental consequences, because maritime transport is recognised to be the most environmentally friendly transport mode when compared to road transport.

Australia is the sixth largest country by area. It is an island continent, nearly 4000kms across and 7.7 million square kilometres in area. It has a coastline of 36,700 kilometres. Human settlement is overwhelmingly coastal. All of the major cities, with the exception of Canberra, are coastal. They contain 70% of the Australian population. It follows that there is considerable scope for the transport of cargo by ships on domestic (intrastate and interstate) routes. Where bulk cargo is concerned ships carry considerable bulk cargo, but where non-bulk, or general cargo is concerned, their share of the freight task has declined massively over the years. This has clear implications for the environment, given that shipping is a more environmentally friendly mode of transport than the competing mode of road, and to a lesser extent, rail.

The focus on this paper is on coastal non-bulk freight, because it is in this sector as contrasted to bulk freight, that the competing land transport modes have significant scope to displace shipping with adverse environmental consequences. Bulk freight is not irrelevant, however – there may be scope for maritime transport to take over some of the current and projected freight task performed by rail (see Part 7 below).

Forty years ago ships plying these coastal runs carried more general cargo than did trucks; today the position has been dramatically reversed. By way of preliminary to an examination of the topic, the relative environmental costs of road and maritime transport will be commented on.


Abuse, Unconscionability and Demand Guarantees: New Exception to Independence
By Alexei Fedotov
This paper examines the independence principle of demand guarantees and improper practices that exist in their use by the beneficiaries. It analyses international law and practice relating to demand guarantees and the treatment of abusive demands in various jurisdictions and under international conventions. This analysis provides a doctrinal foundation for a new exception to independence principle of demand guarantees based on equitable unconscionability. In Australian context, the application of s51AA of the Trade Practices Act to demand guarantees is also discussed. It is suggested that the new exception to the independence principle should be based on the improper exercise of rights, which is consistent with the international practice. The proposed unconscionability exception is evaluated having regard to the commercial and legal functions of these instruments. It is concluded that the proposed unconscionability exception does not erode the autonomy of demand guarantees if proper procedural framework is put in place.


Recent Developments in International Commercial Arbitration
By Professor Doug Jones
Arbitration has been described as the private enterprise counterpart of the Court system. It derives its existence and force from the agreement between two or more parties to submit their dispute to the final and binding determination of a third party agreed upon between them or appointed pursuant to their agreement by some other party. The inclusion of an arbitration clause will constrain the parties from recourse to the courts, where they would otherwise be able to go without restraint.

Arbitration has much to recommend it. However, it is not without its complications, and the decision to include an arbitration clause in a contract, or to rely on arbitration in the case of a dispute involving an investment, should be an informed commercial choice, with due consideration given to the nature of the transaction, the nationality of the assets of last resort, the place(s) where resort may be had to the courts, and the process of arbitration being considered for adoption.

This paper aims to provide an overview of the nature and status of international commercial arbitration in Australia. In doing so, it examines the differences between international arbitration and its domestic counterpart, and looks at the issue of expert witnesses and the way in which recent developments in Australian court practices relating to experts may add value to the use of expert witnesses in international arbitration proceedings.

Finally, this paper aims to provide some insights into recent developments in the law and practice of international arbitration in the context of investment disputes, and in particular, to examine the relatively recent phenomenon of investor-state arbitration.


When Regulation Goes ‘Too Far’: A Comparative Analysis of Environmental Regulatory Expropriation under the Australia-United States Free Trade Agreement
By Lisa Michelle Baetsen
Regulatory expropriation occurs where governmental regulations diminish the value of private property to such an extent that the regulation is deemed expropriatory and compensation is payable. Investors have successfully claimed compensation for environmental regulations that diminished the value of their investment under the North American Free Trade Agreement. The primary concern with this form of expropriation is the possibility of ‘regulatory chill’, where governments are effectively prevented from introducing environmental regulations for fear of compensation claims from aggrieved investors. This effect is exacerbated by the uncertainty surrounding when a State breaches the dividing line between legitimate regulation and regulatory expropriation.

On 1 January 2005, the Australia-United States Free Trade Agreement entered into force. The Agreement contains interpretative annexes to the expropriation provision in an attempt to clarify the responsibilities of governments and limit the scope of regulatory expropriation. The annexes are necessarily broad to encompass the wide range of measures than can potentially impact on an investor’s property rights. In particular, environmental regulation only constitutes indirect expropriation in ‘rare circumstances’.

Nevertheless, concerns remain that the provisions on expropriation are broader than the acquisition power in the Commonwealth Constitution, creating a wider range of situations where the government is liable for compensation. This paper delineates the scope of the expropriation provision and its interpretative annexes in the Agreement as it relates to environmental regulation that potentially diminishes the value of American investments in Australia. On comparison of the expropriation provisions in the Agreement with the acquisition power under the Commonwealth Constitution, it appears that the primary difference lies in whether the expropriating party is required to acquire a benefit.


How Brazilian Judges Undermine the Rule of Law: A Critical Appraisal
By Augusto Zimmermann
This article presents a brief description of the Brazilian judicial system followed by a critical explanation of why, as a rule, this system looks much better on paper than it is in practice. In doing so, it provides not only a general description of the judiciary in Brazil, but also explains its many problems associated with judicial delay, corruption, nepotism, and politicisation. These problems have hindered the realization of the rule of law by dramatically reducing the level of social confidence in the overall judicial system. Some specific suggestions and recommendations are provided with a view to remedial actions.


International Trade in “Cultural Products”— UNESCO’s Commitment to Promoting Cultural Diversity and its Relations with the WTO
By Shin-yi Peng
Indeed, the CCD marks a major step forward in the international community’s acknowledgement of the importance of promoting cultural diversity. To better promote and protect cultural diversity and autonomy in the WTO, the key issue that requires thorough discussion is the question of how to incorporate the main provisions such as Article 6 of the CCD into the WTO legal system. What is needed at present is a carefully designed scheme that can show sufficient respect to cultures and at the same time can balance the conflict between trade and culture. When cultural policy collides with trade policy it is a dilemma between economic and non-economic values. For such a dilemma, the WTO remains the most effective framework to pursue trade liberalization of cultural products and it remains the most appropriate forum for balancing competing trade and non-trade values. We must regulate the conflicts between trade and culture. On the one hand, it is evident that the protection of cultural goods and services under the WTO law is very limited, and normatively speaking, there is little room for the panel or the appellate body to evaluate the cultural content of goods and services under the regime. On the other hand, the scope of the CCD is ambiguous and the definition of “culture” is vague, which may lead to trade protectionism when countries adopt cultural policy measures to create trade barriers. The problems associated with trade in cultural products require a new level of policy co-ordination and dialogue between trade and cultural authorities both at the national and international level in order to find workable solutions.


Section 116 of the Constitution and the jurisprudential pillars of neutrality and action-belief dichotomy
By Jared Clements
The Australian High Court’s approach to the characterisation of section 116 of the Constitution is often mystifying and incoherent. Public policy and judicial discretion operate to conceal any distinctive doctrine that can be extracted from the number of High Court cases which have considered section 116. While the jurisprudence concerning section 116 remains ill-defined and somewhat contradictory this convoluted area of law can be reconciled by the jurisprudential pillars of neutrality and action-belief dichotomy. These jurisprudential pillars operate to stabilise religious jurisprudence in Australia by defining the peripheral boundaries of seemingly discretionary public policy based decisions. This paper examines the inception of section 116 into the constitution, its operation as a separation between church and state, as a guarantee to the free exercise of religion, its application to the territories and as a cause of action for damages.