International Trade and Business Law Review: Volume XII

Articles - Abstracts

Arbitration Costs: Austrian and International Perspectives
by Marianne Roth
This article examines the new Austrian arbitration law and its provisions concerning arbitration costs contained in Part Four of the Austrian Code of Civil Procedure. The article examines the provisions for their viability in practice, and is structured to follow the time floes of proceedings. The article discusses the advance on costs, which as a rule are demanded before the commencement of the proceedings. It continues to debate the security for costs that may be demanded before or during the proceedings. The article then discusses the final decision upon the payment of costs, which is not made before the termination of the proceedings.


Reading Between the Lines: A Paper on the Impact of the Work Choices Act and its Constitutional Validity
by David Paton
The newly introduced Work Choices Act radically changed the industrial relations system within Australia. This paper will discuss three distinct issues raised by the commencement of the legislation. First, it will examine the current and future implications of the Work Choices Act on Australian employment law and industrial relations. This requires an outline of the scope and operation of the Work Choices Act and an examination of the specific chances that the amendments made to various aspects of workplace relations. Some of the major reforms include chants to unfair dismissal laws, the establishment of the Australian Fair Pay Commission and Standard, a focus on individual workplace agreements, and changes to the involvement of employee representatives associations in the workplace. It will also look at the transitional components of the Act and the anticipated impact on employers and employees when the transitional period expires.

The paper will then go on to examine the constitutional validity of Work Choices as implemented under section 51(xx) of the Commonwealth Constitution (‘the corporations power’). This will require a summary of the majority decision from the Work Choices case. More importantly, it will also summarise the dissenting decision of Justices Michael Kirby and Ian Callinan. In contrast with the dry and often technical language of the majority, the dissenting judgements ‘positively crackle with passion and concern for constitutional and societal values’ [A Stewart and G Williams, Work Choices: What the High Court Said (Federation Press, 2007) 5]. This summary provides an invaluable insight into the reasoning of the High Court and the marked difference in opinions.

Finally, this paper will discuss the decision itself and the likely effect that it will have on industrial relations and constitutional law in Australia. This will require an examination of the inherent limitations of the conciliation and arbitration power and the frustrated history of a national industrial relations system. The author will then turn to consider the corporations power and the significant High Court cases that have interpreted its scope and application. In addition, the paper will examine some of the arguments that were dismissed by the majority in the Work Choices decision. I argue that the majority failed to give sufficient weight to some submissions of the applicants such as the need to read the Constitution as a whole, the relevance of the failed referenda to expand conciliation and arbitration power, and the intention of the drafters of the Constitution that s 51(xxxv) would be the sole industrial relations power. I will also consider the constitutional interpretation principles from the Engineers’ case [Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129], which the author believes signalled the beginning of the end for state rights. Finally, the paper will discuss the implications that the decision will have on industrial relations and the Federation before considering what lies ahead for Australia’s future.


The Limits to the Conformity of Goods in the United Nations Convention on Contracts for the International Sale of Goods (CISG)
by Kristian Maley
In contracts governed by the United Nations Convention on Contracts for the International Sale of Goods, the duties of the seller are principally governed by the notion of ‘conformity’. This duty is expansive, imposing an absolute liability for defects that exist when risk passes to the seller, regardless of the fault. This article examines what facts in case are considered part of the ‘goods’ for the purposes of the conformance duty. In particular, it considers whether it is appropriate in the context of the Convention to define this term according to a dichotomy between the physical and non-physical things that could form the object of a contract of sale. It is inappropriate to adopt such a general rule.

The notion of ‘brand equity’ is accepted in the commercial world as an attribute of goods. Concepts of brand are typically dealt with using intellectual property concepts such as trademarks, and other legal notions such as ‘goodwill’. However, treatment of this concept in these contexts is not exhaustive. This article concludes that there is, in principle, no barrier to the brand or reputation of goods being a characteristic for the purposes of conformance. Whether such an element is indeed a characteristic will depend on the intent of the parties, the relevant trade, and whether the element is within the seller’s ‘sphere of control’.


The Role of International Arbitration in Economic Development
by Eric A Schwartz
All countries have in place mechanisms for the resolution of disputes. When a dispute arises between private parties, they will usually have access to the ordinary courts in either party’s country. Over the last several decades, arbitration has increasingly come to be seen and accepted as an appropriate preferred process for the resolution of international commercial disputes, including disputes with government authorities and the State itself. An increasingly large number of international arbitration institutions, such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA) and the International Centre for Settlement of Investment Disputes (ICSID), are also administering today an expanded caseload of international arbitrations.

Developing countries have been largely absent from the international dialogue on this question and it may legitimately be asked whether confidentiality should be viewed as a help or a hindrance in promoting recourse to the international arbitration process in connection with infrastructure projects involving public authorities in developing countries. As already discussed, arbitration helps to reduce risks associated with foreign investments principally by providing a neutral forum for the final and binding resolution of such disputes. Over the course of the last several decades, international arbitration has gained a wide acceptance as the dispute resolution method of choice in relation to international transactions and foreign investment and this article discusses how arbitration has become vital to economic development.


Arbitration in Dubai
by Sam R Luttrell
The United Arab Emirates (UAE) is experiencing rapid economic growth. The Emirate of Dubai has been especially active in UAE attempts to attract foreign capital. The Emirate’s success in this regard has necessitated the revision of its commercial laws, may of which are federal. At present the arbitration law of the UAE is based upon Articles 203 to 218 of the Federal Code of Civil Procedure. Although the UAE is close to adopting a new arbitration law based on the UNCITRAL Model Law, the federation’s political and legal complexities have delayed this project. In the meantime, the Emirate of Dubai has taken steps to make modern arbitration law available in special trade zones. The latest and arguably most ambitious one is the Dubai International Finance Centre (DIFC), which as its own courts and judicial system. In 2004, the DIFC adopted its won arbitration law. This law is now in the closing phase of review. This article begins with an overview of the UAE legal system. It then compares the 2004 DIFC arbitration law to the wider arbitration law of the UAE, with focus on the enforceability of DIFC-rendered arbitration awards in Dubai and the wider UAE. It closes with a summary of the processes new DIRC arbitration law of 2008.


Industrial Relations and the Commonwealth Constitution: The Constitutional Underpinnings for a National System of Industrial Relations in Australia
by Augusto Zimmerman
Since the Commonwealth power over industrial relations is stated in the Australian Constitution to be only conciliation and arbitration for the prevention and settlement of certain types of industrial disputes, it does not explicitly authorise any federal legislation laying down wide-ranging rules to regulate workplace relations. However, other sections of the Constitution have successfully been used as a basis for Commonwealth legislation over industrial matters, for example s 51(xx) and (xxix). This has been possibly only because the High Court of Australia has often decided that so long as a law can be ‘characterised’ as one with respect to a subject matter, it does not matter that it also affects a different subject matter altogether. The main goal of this article is to examine the source of validity to federal labour laws as well as the constitutional underpinnings for a new national system of industrial relations in Australia.


The Search for ‘Something More’: The Holy Grail of DVT Litigation
by Vernon Nase
In recent years Airlines have had to defend legal actions including a class and consolidated actions, launched by passengers who have developed deep vain thrombosis (DVT) on or after long haul international flights. The author examines the jurisprudent in the United Kingdom, the United States of America and Australian to conclude that claims for DVT, unaccompanied by sever aggravating factors related to the conduct of crew members, have no chance of success. The author argues that even where airline crew have arguably played a causal role, for example, by declining to relocated complaining passengers, in the UK and Australia, such claims are unlikely to succeed. For claims made in the United States, the author, in waiting for the results of litigation before the Court of Appeals of the Ninth Circuit in Northern California, notes the dangers if a court were to find that a refusals to re-seat a complaining passenger amounted to an ‘accident’ under Article 17 f the Warsaw or Montreal Conventions.


Gove: Forgotten Catalyst for Native Title or Are We Just Where We Started? Native Title and the Mining Industry Issues from Gove to the Present Day
by Bob Cleworth, Gisele Kapterian and Peter Gillies
Indigenous land rights, or ‘native title’ as it is termed in Australia, in certain circumstances operate and coexist on the same location of real property with common law proprietary rights. What results can only be described as a fragmentation of proprietary interests. Australian law requires that the common law owner compensate the holder of native title for the use of the proprietary rights. This article begins by examining the impact of native title law on the Australian mining industry, with particular reference to the catalytic role of events on the Gove peninsula in northern Australia in the 19605 and l970s. It then compares the mining industry in Australia and Canada’s response to the imposition of statutory duties to recognise and compensate for the interference with the indigenous land rights. The article then concludes with an argument for greater self-regulation to provide the optimum benefits for the mining industry and the indigenous communities.

Gove occupies a unique place in Australian mining history as it provides one of the earliest examples of the interaction between the interests of the mining industry, the indigenous population and the Australian legal system. Often cited as the catalyst for the recognition of native title, the events surrounding the 1968 decision to mine bauxite at the Gove peninsula in the Northern Territory triggered a series of political and legislative changes that have led to the current native title framework.

There is little doubt that the mining exploration industry in Australia has experienced a decline in the last decade (although recent data have shown a recovery to around historically average levels), as illustrated by Australia’s global ranking in non-ferrous mineral exploration dropping annually from 2001 to 2005.

Although a number of international and domestic factors can explain a substantial amount of the downturn, a major issue identified as an obstacle to sustaining current levels of mining and exploration is the uncertainty surrounding land access issues. In particular, the native title (NT) and environment protection legislative regimes are perceived by the mining industry as overly cumbersome and/or uncertain.

The response from the mining industry has been the proliferation of negotiated agreements between mining companies and indigenous communities outside the legal framework as the preferred option to formal processes provided within native title legislation in an attempt to provide the much needed certainty and stability. The response can be seen as part of an emerging global trend of industry self-regulation and social awareness, largely fuelled by the relevant companies’ perceived need to secure a sound international reputation and the recognition of the profitability of sustainable development and community relationships. This article thus aims to provide an overview of the legislative and industry responses to resolving the traditional differences between the mining industry and indigenous land rights from the early days at Gove through to the present time, with particular attention to the extent to which certainty, efficiency and protection have been delivered by each. Finally, a brief examination of the situation in Canada will be provided, illustrating similar failures in government policy and reactions from the mining industry.

Comments

Colour in Branding – Asserting a Monopoly for Marketing Purposes – the Cadbury-Darrell Lea Litigation
by Peter Gillies
This article reviews the litigation between Cadbury and Darrell Lea concerning the use of the colour purple in marketing chocolate products in Australia. At the time of the conduct in question, Cadbury had not registered use of the colour purple as a trade mark, and indeed Cadbury has yet to succeed in registering purple, owing to Darrell Lea’s continuing opposition. The litigation concerned unsuccessful actions pursuant to ss 52 and 53(c) and (d) of the Trade Practices Act 1974 (Cth) and an action in passing off in which Cadbury in substance sought to maintain a monopoly over purple in retailing chocolate. The general principles governing the use of and legal protection of colour in marketing are commented upon, as are the utility and limitations of expert evidence in this class of case.


Co-Mediation for Intellectual Property Rights Disputes
by Su Lloyd and Joseph Patroni
Increasing investment levels into the Australian research effort is now a significant feature in beyond-the boom public policy objectives and strategic planning by State and federal governments. On the latest statistics, with investment of $15.8 billion, researchers devoted 81,739 person-years of effort to Australian research interests in 2004-05, much of this in the public sector.

The quest for a better return from investment into research is attracting a heightened awareness of intellectual property rights. Their disclosure, negotiation and transaction are important not only to the commercial sector but also to the future of research outcomes in universities and other public research bodies. Disputes over intellectual property rights can be most cost-effectively resolved by co-mediation without damaging relationships and with the further benefit of being acceptable and applicable across jurisdictions.


Current Constitutional Aspects of German Media Law
by Herbert Bethge
The media play an essential role within the democratic process. The media are crucial for the formation and articulation of public opinion. Some constitutionalists describe the media as the fourth branch of government, along with the legislature, judiciary and the executive. This description may lead to the precarious assumption that the media is an instrument of the state, which in tum may imply limitations on the freedom of the media. An independent and free media is an essential component of a free society and should not be an instrument of the state. This article will provide a basic background, and discuss some current constitutional aspects of German media law.

Book Reviews 

Author: Wei Luo
Chinese Law and Legal Research
Review by: Vera Motina

Authors: Paul Cook, Raul Fabella and Cassey Lee (eds)
Competitive Advantage and Competition Policy in Developing Countries
Review by: Luke Rotondella

Authors: Gino E Dal Pont and Don R Chalmers
Equity and Trusts in Australia
Review by: Gregory Xu

Authors: Andrew T Guzman and Alan O Sykes (eds)
Research Handbook in International Economic Law
Review by: Gianni Bei

Author: Gerard Carney
The Constitutional Systems of the Australian States and Territories
Review by: Vera Motina

Author: Geoffrey Lindell (eds)
The Mason Papers – Selected Articles and Speeches by Sir Anthony Mason AC, KBE
Review by: Paul Burgess

Author: Stuart S Malawer
WTO Law, Litigation and Policy: Sourcebook of Internet Material
Review by: Sybil Almeida

Authors: Carole Murray, David Holloway and Daren Timson-Hunt
Schmitthoff’s Export Trade: The Law and Practice of International Trade (11^th ed)
Review by: Nicholas Summers

Author: Judith Fordham
Life, Law and Not Enough Shoes: Life as a Criminal Lawyer
Review by: Peter Clay